Delhi High Court
State vs Tarun @ Maddy & Others on 8 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order dated: 08th September, 2017
+ CRL.M.C. 2819/2017
STATE ..... Petitioner
Through: Mr.Hirein Sharma, APP for State
Inspector Satinder Sangwan, SHO
Malviya Nagar with SI Om Prakash,
PS-Hauz Khas, New Delhi.
versus
1. TARUN @ MADDY
2. VIKAS @ SHAMMI
3. ASHISH BALGUER
4. VIKAS BALGUER
5. VISHAL BALGUER ..... Respondents
Through: Mr. Abhay Kumar for R-1.
Mr.Pawan Kumar Bahl, Adv. with
Mr.Ashish Sharma, Adv. for R-2.
Mr.Mohit Mathur, Sr. Adv. with
Mr.Sumit Misra, Adv. for R-3, R-4 &
R-5.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
I.S. MEHTA, J.
1. Instant petition under Section 439(2) Cr.P.C. read with
Section 482 Cr.P.C. has been preferred by the State (petitioner
herein) seeking setting aside of the impugned order dated
24.04.2017 passed by the learned Additional Sessions Judge-02,
(South) Saket Courts, New Delhi in FIR No. 1187/2015
registered under Sections 302/308/201/212/34 IPC at Police
Station Hauz Khas whereby the respondents, i.e. Tarun @
Maddy, Vikas @ Shammi, Ashish Balguer, Vikas Balguer and
Vishal Balguer, were granted bail as the other co-accused Anil
Kumar Yadav was granted bail vide order dated 27.02.2017
passed by the learned Additional Sessions Judge-02, (South)
Saket Courts, New Delhi in FIR No. 1187/2015 registered under
Sections 302/308/201/212/34 IPC at Police Station Hauz Khas.
2. The brief facts as per the charge-sheet are that on
22.10.2015 on receipt of DD No.10A regarding one Rupesh
Tanwar and one Rohit Bansal being admitted at Trauma Centre,
AIIMS, ASI Dalbir Singh, PS Hauz Khas visited there and
lodged First Information Report after recording the statement of
one of the injured- Rohit Bansal. The said injured informed that
on 21.10.2015, he along with his friends Vinit, Sonu, Rupesh
(since deceased) and Monu had gone to Shanghai Club, Hauz
Khas in two separate cars, i.e. Santro No- UP 16AM 6317 and
Honda Civic No- DL 7CF 4118, at around 12.00-12.15 (night)
and while dancing in the said club his hand stuck with an
individual to whom he said 'sorry'. On this the said individual
abused and questioned him 'does he know who he is?' and a
quarrel started between the two groups and the said individual
took a glass from one of his friend and hit the complainant, but
the matter was pacified by the bouncers/security personals of
the club. Thereafter, the complainant and his friends were sent
out of the club and when they came out of the club and reached
IIT Gate he (Rohit Bansal) realised that his mobile phone was
missing which might have fallen during the quarrel and he along
with his friends Rupesh, Sonu and Monu came back in Santro
car to the club. When they reached near the club at some
distance before the club, they found that a Mercedes and EON
car had blocked the road and a Bolero car was parked on the
road-side. When they asked them to let them pass, one of the
boys with whom an altercation had taken place in the club,
threatened to teach them a lesson. Thereafter, all the 7/8
assailants started beating them, one of the assailant brought an
iron rod from the car and started hitting Rupesh and when he
intervened to save Rupesh, they also made him to fall on the
road. Thereafter, one of the assailant lifted a cemented brick and
hit him on his head and they all ran towards different directions
to save themselves leaving Santro car at the spot. It was further
informed that when he returned back to take his car, he saw
Rupesh lying at the spot unconscious and had sustained various
injuries on his body. Thereafter, he along with one Sunil took
Rupesh to AIIMS Trauma Centre for treatment. Subsequently, a
case under Section 307/308/34 IPC was registered.
3. Thereafter, upon completion of the investigation, charge-
sheet against Tarun @ Maddy, Vikas, Anil Kumar Yadav and
Vikas @ Shammi was prepared under Sections 302/308/34 IPC;
charge-sheet against Ashish and Vishal was prepared under
Sections 302/308/201/34 IPC and charge-sheet against Siddhant
@ Goldy was prepared under Section 201/212 IPC.
4. Subsequently, the present respondents filed bail
application before the Trial Court and consequently, vide
impugned order dated 24.04.2017 the learned Additional
Sessions Judge-02 (South) Saket Courts, New Delhi granted
bail to the respondents on the ground that since about for one
and a half years they were in judicial custody and the trial is not
likely to be concluded in near future and co-accused (Anil
Kumar Yadav) was already granted bail.
Hence the present petition.
5. The learned Additional Public Prosecutor on behalf of the
petitioner/State has submitted that the Trial Court while passing
the bail order, basing the co-accused Anil Kumar Yadav on
parity went wrong and granted bail. He has further submitted
that present respondents bail does not come under the purview
of parity as the role of each of the accused persons (including
the respondents) were different and this Court has cancelled the
bail granted to the co-accused- Anil Kumar Yadav vide order
dated 31.05.2017.
6. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that initially FIR was
registered under Section 307 IPC which culminated into Section
302 IPC and Rupesh Tanwar (since deceased) died during
hospitalisation. He has further submitted that FIR was qua
unknown persons but later on during the course of investigation;
the statement of the Manger of the Shanghai Club, Hauz Khas
and on the inspection of the entry register and from the CCTV
footage the accused persons were identified. However, the
accused persons have refused to join the TIP proceedings.
7. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that all the accused
persons were having active role in beating of the deceased-
Rupesh Tanwar and injured- Rohit Bansal who were
hospitalized at Trauma Centre of AIIMS on 22.10.2015 and
during the course of treatment the one of the injured Rupesh
Tanwar (since deceased) died on 26.10.2015 in the hospital
itself and in his post mortem report there were 21 injuries on the
body of the deceased and the doctor opined the cause of death
"Craneocerebral damage due to head injury (Injury no. 1,2,3)
which are sufficient to cause death. All injuries are anti mortem
in origin caused by blunt force/impact". The other injured
person was Rohit Bansal/complainant who gave his statement
and later on FIR was registered on his statement.
8. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that there are total 7
accused persons and out of the seven accused persons, one of
the co-accused Anil Kumar Yadav was granted regular bail by
the learned Additional Sessions Judge vide order dated
27.02.2017 on the ground that he was not seen in the CCTV
footage and since the CCTV has covered the incident and
therefore, on the basis of doubt, he was granted bail and his role
was not mentioned specifically in the charge sheet with
reference to CCTV footage. Charge sheet was filed against all
the seven accused persons under Sections
302/307/308/201/212/34 IPC. The said order dated 27.02.2017
was challenged by the complainant-Rohit Bansal before this
Court in Crl.M.C. 844/2017 and subsequently vide order dated
31.05.2017, this Court cancelled the bail granted to the co-
accused Anil Kumar Yadav. Thereafter, in between the other
five accused persons (respondents herein) had moved bail
applications before the Trial Court and the Trial Court vide
impugned order dated 24.04.2017 granted bail to all the five
accused persons (respondents herein) on the ground of parity.
9. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that one another co-
accused Siddhant @ Goldy was charged only for offenses under
Sections 201/212 IPC which are bailable offences and because
of this reason he was not charged under Sections 302/307 IPC
and the remaining Sections and he was enlarged on bail by the
learned Metropolitan Magistrate on 16.11.2015 during the
course of the investigation itself.
10. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that all the accused
persons have been named by the eye witnesses Sagar Sharma,
Vinod Sharma and Jeyavelu, Manager of the Club and 5 other
eye witnesses in their statements made under Section 161
Cr.P.C.
11. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that the CCTV footage is
not a primary evidence and the learned Trial Court should not
have taken into account the secondary evidence while granting
bail to the accused persons which is bad in law.
12. The learned Additional Public Prosecutor on behalf of the
petitioner/State has further submitted that the role of the present
respondents/accused cannot be the same or said to be same as
every human acts differently in different circumstances. He has
put emphasis on paras 14 & 15 of the impugned order dated
24.04.2017, that the impugned order does not whisper about the
parity which in itself is very clear that the question of parity was
never a matter of consideration and the present case has to be
looked and considered on its own merit without being
influenced by the order passed by the Hon'ble Supreme Court
and this Court.
13. On the contrary, the learned senior counsel appearing for
the respondent Nos.3, 4 & 5/accused persons, i.e. Ashish
Balguer, Vikas Balguer and Vishal Balguer, has submitted that
the impugned order dated 24.04.2017 was in the knowledge of
this Court as it is seen in the order dated 31.05.2017 at para-16,
this Court while passing the said order did not make any
reference or comment on the same as the said impugned order
was in existence and once the said order was in existence this
Court could have called for those files also to pass appropriate
order, by not doing so the said order requires no interference.
He has further submitted that earlier co-accused-Anil Kumar
Yadav's bail order was challenged by the complainant- Rohit
Bansal. However, in the present case the complainant did not
come forward to challenge the bail order and it is the
petitioner/State who has filed the present petition under Section
439 (2) Cr.P.C. read with Section 482 Cr.P.C. and that too at the
stage of SLP.
14. The learned senior counsel has further submitted that the
impugned order dated 24.04.2017 indicates that the bail granted
was because of the reason that the respondents were in judicial
custody for one and half years and considering all other material
aspects favouring the respondents, therefore, the present petition
requires to be considered afresh on the basis of merit.
15. The learned senior counsel further submitted that the
present petition is filed under Section 439 (2) Cr.P.C. read with
Section 482 Cr.P.C. and it could be done only in two ways.
Firstly, if there is material on record to suggest that the accused
persons have violated the terms of bail. Secondly, whether
while granting bail, the learned Trial Court ignored the material
evidence/considered irrelevant point/ordered to grant the bail.
16. The learned senior counsel has further submitted that
during the entire arguments there is nothing coming on record
which would suggest that the respondents have violated the
terms of the bail order. Once the terms of the bail order have not
been violated then the respondents bail only rests with whether
any material evidence has not been considered or irrelevant
material has been considered by the Trial Court while granting
bail to the respondents/accused persons.
17. The learned senior counsel has further submitted that on
facts the incident has taken place on the intervening night of
21.10.2015 and 22.10.2015. He has pointed out that as per
prosecution version when security guards/bouncers of Shanghai
Club asked the complainant and his friends to leave the
place/club, i.e. the complainant- Rohit Bansal, deceased Rupesh
Tanwar, Vineet-witness, Monu and Sonu-witnesses were asked
to leave the Shanghai Club at 12:15am, and as per prosecution
version they reached at IIT Gate in Santro car. When the
complainant-Rohit Bansal reached IIT Gate, he did not find his
mobile with him, he then came back to the Shanghai Club
where his mobile might have fallen and reached the place of
incident/parking area where one Mercedes car and EON car
were found blocking the road.
18. The learned senior counsel has further submitted that its
mere chance how could the respondents/accused persons came
to know that the deceased/injured would come back from IIT
Gate to Shanghai Club. He has further submitted that mobile
alleged to be lost has not been found during investigation .This
indicates the incident was mere chance and not pre-mediated as
under criminal jurisprudence.
19. The learned senior counsel has further submitted that
since respondents were in judicial custody that was the main
consideration for leading to grant of bail. So far the role of
respondent 3 & 5, i.e. Ashish Balguer and Vishal Balguer, are
concerned they caught hold of the deceased/injured and the
respondent no.4-Vikas Balguer was not present at spot.
20. The learned counsel for the respondent No.1 Tarun @
Maddy has submitted that he adopts the arguments advanced by
Mr. Mohit Mathur Senior advocate and submits that respondent
No.1 is falsely implicated in present petition merely on the
ground of presumption. He has further submitted that as per the
charge sheet Investigation Officer has arrested all the accused
persons on the basis of CCTV footage. It is further submitted
that in the present petition filed by the petitioner/State for
cancellation of bail, there is no ground for cancellation of bail is
made out.
i. As per records, no condition up till date has been violated
by the respondent No-1 Tarun @ Maddy.
ii. The respondent is on regular bail for the last 3 months
and has not violated any terms of the bail.
iii. There is no illegality or perversity in the impugned order
while granting of regular bail of respondent No.1.
21. The learned counsel for respondent No.2 Vikas @
Shammi submits that he adopts the arguments advanced by Mr.
Mohit Mathur Senior advocate. In addition to that the learned
counsel has submitted that the names of the accused person
have been revealed out during the course of investigation in the
statement of witnesses/eye witnesses on 22nd October or 23th
October, 2015 are not correct. The learned counsel has further
submitted that name Vikas @ Shammi is till date no where in
the statements.
22. The learned counsel for the respondent No.2-Vikas @
Shammis has further submitted that statements of witnesses are
readymade in nature wherein every where the statement of the
witnesses under Section 161 Cr.P.C. the names of the accued
persons given were, i.e. Tarun @ Maddy, Vikas, Ashish, Vishal,
Anil Bhai etc. and nowhere specifically name of Vikas @
Shammi is there in their statement. However, in the conclusion
of the charge-sheet, the Investigation Officer has recorded the
name of the present respondentNo.2 in its conclusion but there
is no specific name coming on record to suggest that the
respondent No.2-Vikas @ Shammi is name in the statement of
the witnesses. The statement have been recorded on 22nd
October or 23rd October, 2015 and respondent No. 2 was
arrested on 28.10.2015 after arrest of Tarun @
Maddy/respondent No.1 on 25.10.2015. The respondent No.2-
Vikas @ Shammi name is coming in the disclosure statement of
Tarun @ Maddy arrested on 25.10.2015. In the present case
there are two persons named as Vikas, i.e. (1) Vikas @
Shammi-respondent No.2 and (2) Vikas Balguer-respondent
No.4.
23. The learned counsel for the respondent No.2 has
submitted that respondent No.2 was arrested on 28.10.2015 and
he was identified by complainant on the same date as per list of
details of witnesses. He has further submitted that there is no
statement of record regarding TIP on 28.10.2015, even if at all
the things are taken together still the role of the respondent No.2
is that of catching hold of the injured person. There is no
criminal record of present respondent No.2 nor there is any
allegation or statement of any witnesses against the present
respondent No.2. There is no independent statement of any eye
witness that could show the present respondent No.2 name in
the statement that he was involved in the incident.
24. In the instant case the learned Trial Court while granting
bail to the respondents, i.e. (1) Tarun @ Maddy, (2) Vikas @
Shammi, (3) Ashish Balguer, (4) Vikas Balguer and (5) Vishal
Balguer, considered two aspects:-
i. That the respondents were in custody since about 1
1/2 years and trial is not likely to be concluded in
near future;
ii. Co-accused (Anil Kumar Yadav) was already
granted bail vide order dated 27.02.2017.
and on the question of parity the respondents were
granted bail.
25. The Trial Court was under the knowledge of its previous
order dated 27.02.2017 of granting bail to one of the co-
accused- Anil Kumar Yadav which was under challenge by the
complainant- Rohit Bansal before this Court and the Trial Court
in haste passed the impugned order dated 24.04.2017 on the
ground of parity. The relevant para of the impugned order is
reproduced as under:-
"15. Though, Ld. Counsel for the
complainant as well as Ld. Spl. PP argued
that no parity could be granted to the
present accused persons as the order
granting bail to co-accused Anil Kumar
Yadav is under challenge before Hon'ble
High Court of Delhi, however not filed any
order which could even remotely suggest
that this court restrained from acting on that
order."
26. Subsequently, this Court vide order dated 31.05.2017 set
aside the Trial Court's order dated 27.02.2017 which is
reproduced as under:-
IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : MAY 19, 2017
DECIDED ON : MAY 31, 2017.
CRL.M.C. 844/2017 & CRL.M.A.No.3554/17
ROHIT BANSAL ..... Petitioner
Through : Mr.Sunil K.Mittal,
Advocate with
Mr.Harsh Khanna,
Mr.Aman Usman,
Mr.Kshitij Mittal &
Mr.Anshul
Mittal, Advocates.
versus
STATE & ANR. .....
Respondents
Through : Mr.Amit Gupta, APP
with Insp.Satender
Sangwan.
Mr.Sidharth Luthra,
Sr.Advocate with
Mr.Tanveer Mir &
Mr.Shri Singh,
Advocate for R2.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The instant petition under Section 439(2) read with
Section 482 Cr.P.C. has been preferred by the petitioner-Rohit
Bansal to challenge the legality and correctness of an order
dated 27.2.2017 of learned Additional Sessions Judge in FIR
No.1187/2015 registered under Sections 302/308/201/212/34
IPC at Police Station Hauz Khas whereby the respondent No.2-
Anil Yadav (hereinafter referred to as 'the respondent') was
granted regular bail. The petition is contested by 'the
respondent'.
2. I have heard the learned counsel for the petitioner,
learned APP and learned Senior counsel for 'the respondent'
and have examined the file. Undisputedly, 'the respondent' is
facing trial in case FIR No.1187/2015 registered under Sections
302/308/201/212/34 IPC.
3. Briefly stated the facts as projected in the charge-sheet
are that on 22.10.15 on receipt of DD No.10A regarding
admission of injured Rupesh Tanwar and Rohit Bansal at
Trauma Centre, AIIMS, ASI Dalbir Singh went there and lodged
First Information Report after recording petitioner's statement.
The petitioner informed that on 21.10.2015, he along with his
friends Vinit, Sonu, Rupesh (since deceased) and Monu had
gone to Shanghai Club in two cars i.e. Santro and Honda Civic
at 12.00-12.15 (night). During dance on the floor of the club,
the petitioner's hand stuck with an individual to whom he said
'sorry'. The said individual abused and boosted him if he did
not know him. The matter was pacified by the bouncers.
Thereafter, they came out of the club and reached IIT Gate in
cars. The petitioner further disclosed that he found his mobile
to have fallen during quarrel. He along with his friends
Rupesh, Sonu and Monu went back in Santro car to the club.
When they reached near the club at some distance before it, he
found that a Mercedes and EON car had blocked the road;
Bolero car was parked on the road-side. When they asked them
to remove the car, one of the boys with whom an altercation had
taken place in the club, threatened to teach them lesson as they
were the individuals who had misbehaved in the club.
Thereafter, all the 7/8 assailants started beating them. Out of
them, one brought a rod from the car and started hitting
Rupesh. When he intervened to save Rupesh, they also made
him to fall on the road. One of the assailants lifted a cemented
brick and hit him on his head. They all ran towards different
directions to save themselves leaving Santro at the spot. He
further informed that when he returned to take back his car, he
saw Rupesh lying at the spot unconscious; he had sustained
various injuries on the body. He and his friend Sunil put
Rupesh in Santro and took him to AIIMS Trauma Centre. The
complainant gave description of the assailants in the complaint.
A case under Section 307/308/34 IPC came to be registered.
4. During the course of investigation, statements of Sagar
Sharma @ Sonu, Jitender, Vinit, Mohinder @ Monu and Sunil
conversant with facts were recorded. Statement of Vinod
Sharma and Jeyavelu, Managers of the club, were also
recorded. CCTV footage of the camera installed at the spot was
viewed; footage was obtained and photographs were developed.
Rupesh's statement could not be recorded as he remained unfit
throughout and finally succumbed to the injuries on 26.10.2015.
During investigation, 'the respondent' and his associates were
arrested and their disclosure statements were recorded.
Certain recoveries were effected at their instance. The
respondent and his associates declined to participate in Test
Identification Proceedings. Upon completion of investigation, a
charge-sheet was filed against all of them including 'the
respondent' for commission of offences under Sections
302/308/201/34 IPC; charge-sheet against Siddhant @ Goldy
was prepared under Section 201/212 IPC.
5. By a detailed/comprehensive impugned combined order,
the Trial Court ordered to frame charge against all for
commission of offence under Sections 302/308/34 IPC; charge
under Section 201/212 was framed against Siddhant @ Goldy.
The Trial Court noted in para 35 of the order that at the
time of framing of charge, the court has to satisfy itself whether
a prima facie case is made out for proceeding further or not.
The court at this stage is not meant to meticulously weigh the
evidence. Even a strong suspicion founded upon the material is
sufficient for framing of charge, it is not open to the court at
this stage, to evaluate the material to bring home the guilt of the
accused. It is sufficient if the material on the record supports a
triable issue. Court is not expected to go into the probative
value on record, nor required to discuss every material placed
before it by the police along with the charge-sheet.
It was further observed that there were specific roles
assigned to the assailants. Various discrepancies in the
prosecution case pointed out by the learned counsel for the
accused persons regarding the non-disclosure of name of the
accused in the FIR recorded after 10 hours of the incident; the
non-placement of the CCTV footage of the CCTV installed
inside the club to show who was the aggressor to the said
scuffle in the club and to show whether infact any mobile phone
of injured Rohit Bansal had fallen during that scuffle or not; the
CCTV did not also corroborate the statement of the witnesses
that the cars of the accused persons were blocking the road and
it also did not suggest that A-4 had apparent role in inflicting
injuries to the injured as well as to the deceased, could not be
appreciated at this stage, despite the fact that these had not
been noticed in the CCTV footage. The court further noted that
there were categorical statements of eye witnesses and other
witnesses regarding the involvement of 'the respondent' besides
other accused persons in inflicting injuries to the injured Rohit
Bansal and Rupesh Tanwar (deceased). It was further noted
that the statements of witnesses coupled with CCTV footage
suggested that the accused persons had shared common
intention formed at the spur of moment to kill Rupesh Tanwar
and cause injuries to the complainant Rohit Bansal and the said
fact also stood corroborated from the MLC where the
complainant Rohit Bansal had suffered head injuries and as per
post-mortem report, the deceased had sustained multiple
injuries on the head. The accused person's contention to frame
under Section 304 IPC was declined. It is unclear if the order
on charge has been challenged by 'the respondent' or his
associates.
6. By the said order, 'the respondent' was, however,
granted regular bail. The Trial Court was of the view that crux
of CCTV footage was deciphered by the Investigating Officer in
the charge-sheet and no role was assigned to 'the respondent'
in the crime therein. Besides it, there were other discrepancies
as discussed at the time of consideration of charge which were
relevant to be taken into consideration for grant of bail.
Moreover, 'the respondent' was in custody since 31.10.2015.
7. Learned counsel for the petitioner urged that the
impugned order granting bail to 'the respondent' in a gruesome
murder cannot be sustained. The petitioner and his friend
Rupesh were mercilessly beaten by 'the respondent' and his
associates. The incident was witnessed by many eye witnesses
who have identified 'the respondent' and his associates to be
the perpetrators of the crime. In their statements Sagar Sharma
@ Sonu, Jitender, Mohinder @ Monu, Rohit Kumar, Chetan
Prakash, Sonu, Praveen and the petitioner Rohit Bansal have
categorically implicated 'the respondent' and his friends and
have assigned specific and definite role to them in the crime.
The crime weapon i.e. baseball bat has been recovered at the
instance of 'the respondent' pursuant to his disclosure
statement made. Clothes which the respondent was wearing at
the time of crime have been seized and the FSL report is
awaited. CCTV footage installed at the place of occurrence,
records presence and active participation of all the accused
persons including 'the respondent' in the incident. The learned
Trial Court did not appreciate the specific allegations,
statements recorded under Section 161 Cr.P.C. and the gravity
of the offence. The Trial Court granted regular bail to 'the
respondent' in haste and discretion was not exercised in
judicial manner. The complainant was not given an opportunity
to assist the court on the factual matrix of the case.
8. Learned Senior counsel for 'the respondent' urged that
as per CCTV footage, 'the respondent's presence was not found
at the spot. The complainant Rohit Bansal in his initial
statement dated 22.10.2015 did not name 'the respondent' to be
one of the assailants; he did not mention if any baseball bat was
used in inflicting injuries to him or the deceased. Subsequently,
in his supplementary statement recorded on 1.11.2015, the
complainant made vital improvements and attributed a definite
role to A-4 to have inflicted injuries with baseball bat. He
further urged that as per CDR record, complainant Rohit
Bansal's presence was actually at Taj Apartments, Factory
Road, Ring Road at 1:37:17 a.m. He further urged that CCTV
footage showed that Mercedes car entered the lane only at
1:37:55 a.m. As per CCTV footage, relied upon by the
prosecution, the Mercedes car entered the lane of incident at
around 1:37:56 a.m. and stood at a distance of 20 meters away
from the spot of the brawl. In the Mercedes car, 'the
respondent' was seen with a girl. However, the police did not
try to identify the said girl. At around 1:39:34 a.m. the said
Mercedes car driven by 'the respondent' was seen exiting the
lane of the incident. CCTV footage captured the entire assault
and it is clear from the said CCTV footage that no one had used
the baseball bat in committing the assault. The Mercedes car
allegedly driven by 'the respondent' was recovered at the
instance of co-accused Vikas @ Shammi and the baseball bat
shown to have been recovered at 'the respondent's' instance did
not have blood stains or finger prints. Similarly, clothes
allegedly recovered from 'the respondent' did not contain any
blood stains.
9. Learned Senior counsel urged that the discretion has
been exercised judiciously by the Trial Court and 'the
respondent' was in custody for the last about 16 months. The
occurrence had taken place at the spur of the moment and there
was no preplan to commit Rupesh's murder.
10. 'The respondent' and his associates/co-accused are
involved in a very heinous and gruesome murder whereby
Rupesh, an unarmed individual, was brutally beaten to death
over a trivial issue. After beating, he was disrobed and the body
remained lying naked at the crime spot. He became unconscious
after sustaining multiple injuries on various body organs and
was not fit to make statement. Due to forceful blows, Rupesh, a
young boy, finally succumbed to the injuries on 26.10.2015. As
per post-mortem examination report, he had suffered 21 injuries
on various body parts including vital ones. The occurrence took
place on the night intervening 21/22.10.2015. In the complaint
forming basis of the FIR, the complainant gave detailed account
of the incident and informed the police as to how the assailants,
seven to eight in number, had inflicted injuries to him and
Rupesh over a scuffle taken place in Shanghai Club. He further
disclosed that when they had returned to the spot to search
mobile, a Mercedes, EON car had blocked the road and a
Bolero Car was parked on the side of the road. He took the
victim to AIIMS Trauma Centre. Presence of the Complainant
Rohit Bansal at the spot can't be suspected or doubted, he being
injured himself.
11. Soon after the lodging of the FIR, statements of various
witnesses were recorded under Section 161 Cr.P.C. Sagar
Sharma @ Sonu corroborated the complainant's version and
stated that on return to the club to take back Rohit Bansal's
mobile, they saw that an EON car and Mercedes Car had
blocked their way. When they asked for removal of the car, the
occupants started quarreling with them. One of them had a
baseball bat and the other was carrying an iron-rod. They were
calling each other with the name of 'Maddy', 'Ashish', 'Vishal',
'Shammi', 'Vikas' and 'Anil Bhai'. Specific role was assigned
to each of the assailants. Similarly Vineet, Jitender, Mohinder
@ Monu and Sunil have supported his version. After
considering arguments from the both sides, charges under
Sections 302/308/34 IPC were framed against 'the respondent'
and the others.
Undisputedly, Mercedes car was seen at the spot at the
time of occurrence in CCTV footage. Specific query was raised
as to whom the said car belonged. It was fairly informed by the
learned Senior counsel that it belonged to 'the respondent'.
When inquired as to whether 'the respondent' had reached the
spot in the said Mercedes, the answer was in affirmation.
Respondent's only contention is that the said Mercedes car was
away at a distance of 20 meters from the spot and he did not
reach the place of occurrence; did not participate in the quarrel
and no role was played by him.
Identity of the girls present in the car has not been
disclosed even by 'the respondent' who is expected to know it.
All the assailants were together in the club when the scuffle had
taken place over a trivial issue. The complainant and the other
eye witnesses in their statements have categorically identified
'the respondent' and others to have participated in the infliction
of injuries to the petitioner and deceased Rupesh Tanwar with
various weapons/objects. 'The respondent' and the co-accused
declined to participate in the Test Identification Proceedings.
Certain recoveries are stated to have been effected at the
instance of 'the respondent' and others. Nothing is on record to
ascertain at this stage if after the initial scuffle in the club, 'the
respondent' had left the spot or had not accompanied the co-
accused. No explanation has been offered as to why 'the
respondent' had arrived at 1:37:55 a.m. in Mercedes car near
the spot. It cannot be believed that 'the respondent' after
witnessing the horrible crime nearby would not intervene or
participate or that he will remain a mute spectator and would
not come out of the Mercedes or would conveniently leave the
spot without demur or reaction. Statements of eye witnesses
cannot be ignored or brushed aside at this stage.
12. The learned Trial Court while granting bail put great
emphasis on CCTV footage to conclude that 'the respondent'
was not involved in the incident and he did not play any role,
whatsoever. The conclusion arrived to grant bail is
presumptive. At the stage of granting bail, a minute examination
of evidence and elaborate documentation of the merits of the
case was not to be undertaken. In Puran etc.etc. vs. Rambilas
& Anr.etc.etc. MANU/SC/0326/2001; AIR 2001 SC 2023, it
was held that at the stage of granting bail, a detailed
examination of the evidence and elaborate documentation of the
merits of the case has not to be undertaken. What the
Additional Sessions Judge had done, in the order dated
11.9.2000, was to discuss the merits and demerits of the
evidence. That was what was deprecated. It was further
observed that the High Court has correctly not gone into the
merits and demerits of the matter. The High Court has noted
that evidence prima facie indicated demand of dowry. The High
Court has briefly indicated the evidence on record and what
was found at the scene of the offence. The High Court has given
very cogent reasons why bail should not have been granted and
why this unjustified erroneous order granting bail should be
cancelled.
In the instant case, the Trial Court had found 'the
respondent' and others, prima facie, guilty for committing
murder but, strange enough opted to grant bail to 'the
respondent' relying upon CCTV footage. I have
examined/viewd the CCTV footage/CD provided by the learned
counsel for 'the respondent' in the computer in chamber.
Seemingly, the footage recorded in the CCTV did not cover the
entire place of occurrence. It was a revolving camera moving
horizontally and vertically. Possibly, it could not capture the
whole incident from all angles at the same time. In the CCTV
footage, Mercedes car is seen to have arrived at the spot at
1:30:26. It remained at the spot subsequent to it. At 1:39:34, the
Mercedes is seen leaving the spot by reversing it. 'The
respondent' is seen entering into the Mercedes. It is, however,
not clear as to when the said individual (the respondent) had
come out of the said Mercedes. The petitioner has also placed
on record photographs developed from the footage recorded in
the CCTV. In photographs No.1, 2 and 4, 'the respondent' is
indicated inflicting injuries to the victim along with others at
1:37:30; 1:37:31; and 1:37:31 respectively.
In photograph No.3, Mercedes is seen at the spot at
1:34:49. In photo No.5 'the respondent' is seen entering the
Mercedes at 01:38:29. It belies the respondent's contention
that the Mercedes entered for the first time in the lane of the
occurrence only at 1:37:56. In photos Mark 'A'and 'B'the
respondent's car is seen at the spot at 01:30:41 and 01:31:50
too.
13. This Court is conscious that cancellation of bail is a
serious matter. Bail once granted can be cancelled only when
there exist very cogent and overwhelming circumstances. It is
settled law that parameters for grant of bail and cancellation of
bail are different. However, if the Trial Court while granting
bail acts on irrelevant materials, bail can be cancelled. The
bail can be cancelled even in cases where the order granting
bail suffers from serious infirmities resulting in miscarriage of
justice. If the Court granting bail ignores relevant materials
indicating prima facie involvement of the accused or takes into
account irrelevant material, which has no relevance to the
question of grant of bail to the accused, the High Court would
be justified in cancelling the bail. Such orders are against the
well recognised principles underlying the power to grant bail.
Such orders are legally infirm and vulnerable leading to
miscarriage of justice and absence of supervening
circumstances such as the propensity of the accused to temper
with the evidence, to flee from justice etc. would not deter the
Court from cancelling the bail ('Kanwar Singh Meena vs. State
of Rajasthan & Anr.', AIR 2013 SC 296).
14. In Puran etc.etc. vs. Rambilas & Anr.etc.etc.(supra) also
the Supreme Court held that where in a perverse order granting
bail is passed in a heinous crime of the nature of causing dowry
death ignoring material and evidence on record and that too
without giving any reasons, bail can be cancelled. Such an
order would be against the principles of law. Interest of justice
would also require that such a perverse order be set aside and
bail be cancelled. It must be remembered that such offences are
on the rise and have a very serious impact on the society.
Therefore, an arbitrary and wrong exercise of discretion by the
trial court has to be corrected.
15. In Gobarbhai Naranbhai Singala vs. State of Gujarat and
Ors. (2008) 3 SCC 775, the Supreme Court held that the object
underlying the cancellation of bail is to protect the fair trial and
secure justice being done to the society by preventing the
accused from tempering with the evidence in the heinous crime.
When the basic requirements necessary for grant of bail are
completely ignored by the High Court, the Apex Court would be
justified in cancelling the bail. In the said case, the accused'
custody for more than two years was not considered to be
tenable ground to grant bail. Sixteen months incarceration, in
the present, case was also not a valid consideration to grant
bail to 'the respondent' considering the gravity of the offence.
16. During arguments, it was inquired if the other assailants
were in custody or on bail. It was informed by the learned
counsel for the petitioner that the other assailants/accused have
also been granted bail on parity. The impugned order reveals
that apprehension was raised that offence committed was
heinous in nature and there was every likelihood that 'the
respondent' would misuse the liberty of bail and threaten the
witnesses. This aspect was not taken into consideration while
granting bail.
17. Since the Trial Court, prima facie, found 'the respondent'
and others to have committed the offence under Section 302/308
IPC with the aid of Section 34 IPC, grant of bail to 'the
respondent' merely because of certain discrepancies, cannot be
justified.
18. Resultantly, the petition is allowed and the bail granted
to 'the respondent' is cancelled. 'The respondent' shall
surrender and appear before the Trial Court on 19th June, 2017.
19. Observations in the order shall have no impact on the
merits of the case. These observations are only for the purpose
of ascertaining if the bail granted to 'the respondent' was
sustainbale or not.
20. Trial Court record (if any) along with the copy of
the order for information be sent back forthwith.
sd/-
(S.P.GARG)
JUDGE
27. The contention of the learned senior counsel for the
respondents No 3, 4 and 5 that the existence of the impugned
order dated 24.04.2017 was in the knowledge of this Court on
31.05.2017 loses its significance in presence of the present
petition under Section 439(2) Cr.P.C. read with Section 482
Cr.P.C. filed by the petitioner/State.
28. Further, the plea of the learned senior counsels for the
respondents that the respondents remained in judicial custody
for more than one and half years and the trial will take some
time ipso facto is not sufficient ground for grant of bail to the
respondents. Reliance is placed on the judgment of the Apex
Court in Gobarbhai Naranbhai Singala vs. State of Gujarat and
Ors.; (2008) 3 SCC 775.
29. The contention of the learned counsel for the respondent
No.2 that the name of the respondent No.2 Vikas @ Shammi
till date is nowhere in the statement under Section 161 Cr.P.C.
of the witnesses is incorrect as the respondent No.2- Vikas @
Shammi is named in the statement of the witness Sagar Sharma
@ Sonu under Section 161 Cr.P.C. and it is not necessary that
Vikas @ Shammi is specifically stated in the statement under
Section 161 Cr.P.C. of each and every prosecution witnesses.
30. However, in the statement under Section 161 Cr.P.C. of
the witnesses, at the time of the incident the accused persons
were calling each other by the name of Maddy, Ashish, Vishal,
Shammi, Vikas and Anil Bhai which includes the names
'Shammi' and 'Vikas' who are the two Vikas, i.e Vikas @
Shammi (respondent No.2 herein) and Vikas Balguer
(respondent No.4 herein) in the present case.
31. Instant is a case where initially FIR No. 1187/2015 was
registered against unknown persons on the statement of one
Rohit Bansal/complainant wherein the place of incident and the
manner of incident taking place is detailed in his statement
dated 22.10.2015. The said complainant in his statement
mentioned that on 21.10.2015 he along with his friends Vinit,
Sonu, Rupesh and Monu visited Shanghai Club, Hauz Khas in
two separate cars, i.e. Santro No.- UP 16AM 6317 and Honda
Civic No.- DL 7CF 4118, at around 12:00- 12:15 (night) and
while dancing in the said club his hand struck with an
individual/person to whom he apologised. On this the said
person replied "doesn't he know who he is?" and a quarrel
started between them. Thereafter, the said person took a glass
from his friend and hit on the person of the complainant- Rohit
Bansal, upon which the bouncers/security persons of the club
sent Rohit Bansal and his friends out of the club. Further, when
the complainant-Rohit Bansal and his friends reached near IIT
Gate, he realised that he is not possessing his mobile phone
which might have fallen during the scuffle at the Shanghai Club
and then he along with Rupesh, Sonu and Monu came back in
Santro car to the Shanghai Club, Hauz Khas where just some
distance ahead they saw a Mercedes and EON car had blocked
the road and a Bolero car was parked on the side of the road. On
this they requested the occupant of the said car to clear the way.
One of the occupant of the car was the same person with whom
the complainant-Rohit Bansal had a quarrel in the Shanghai
club and the said occupant threatened to teach them a lesson. On
this a quarrel started and the 7/8 assailants started beating them,
one of the assailant brought an iron rod from his car and started
hitting Rupesh and when the complainant intervened to save
Rupesh, they also made him to fall on the road. Thereafter, one
of the assailant picked a brick and hit the complainant on his
head and blood started oozing out of his head and they all ran in
different directions to save themselves. After some time when
the complainant came back to take his Santro car he saw
Rupesh lying at the spot unconscious and had sustained multiple
injuries on his body. Thereafter, he along with Sunil took
Rupesh in his Santro car for treatment at AIIMS Trauma Centre
and also got himself admitted. But Rupesh died on 26.10.2015
and during the relevant period he remained unfit for statement.
32. However, subsequent statements dated 01.11.2015 and
06.11.2015 of the complainant- Rohit Bansal were also recorded
on the material facts developed during the course of the
investigation wherein he identified the accused persons, i.e.
Anil Yadav, Ashish, Tarun @ Maddy, Vikas and Vishal, and
attributed their specific role.
33. The statement under Section 161 Cr.P.C of the other
eyewitnesses, i.e. Sagar Sharma @ Sonu and Mohinder @
Monu, who were accompanying the complainant- Rohit Bansal
in the Santro car to the place of the incident for the purpose of
fetching the complainant's mobile phone were also recorded
where in Sagar Sharma @ Sonu corroborated the complainant's
version and has further disclosed the fact that during the course
of quarrel the accused persons were calling each other by the
name of Maddy, Vikas, Ashish, Vishal, Shammi and Anil Bhai.
34. Similarly statement under Section 161 Cr.P.C. of the
other eyewitnesses Vinit, Mohinder @ Monu, Sunil and Jitender
were also recorded who also supported the version of the
complainant- Rohit Bansal and eye witness Sagar Sharma @
Sonu.
35. During the course of investigation statement under
Section 161 Cr.P.C. of the Managers of the Shanghai Club,
Hauz Khas, i.e. Jeyavelu and Vinod Sharma, were also recorded
and their statements also supported the version of the
complainant- Rohit Bansal and eye witness Sagar Sharma @
Sonu. The factum of disclosing the names of the accused
persons being their regular customers is disclosed by the
Managers of the club in their statement under Section 161
Cr.P.C. which also supports the version of the complainant. The
said factum of the incident is also verified during the course of
investigation through CCTV footage. Further, one of the injured
Rupesh (since deceased) died on 26.10.2015 in the hospital
itself and in his post mortem report there were 21 injuries on the
body of the deceased and the doctor opined the cause of death
"Craneocerebral damage due to head injury (Injury no. 1,2,3)
which are sufficient to cause death. All injuries are anti mortem
in origin caused by blunt force/impact".
36. The witnesses to the incident are Rohit Bansal, Sagar
Sharma @ Sonu, Vinit, Mohinder @ Monu, Sunil and Jitender
whose statement under Section 161 Cr.P.C. are coming directly
against the present respondents along with the co-accused- Anil
Kumar Yadav. The statement under Section 161 Cr.P.C. of the
Managers of the Shanghai Club, Hauz Khas, i.e. Jeyavelu and
Vinod Sharma, are also coming against the present respondents
along with the co-accused person- Anil Kumar Yadav.
37. The statement of the witnesses, i.e. Rohit Bansal, Sagar
Sharma @ Sonu, Vinit, Mohinder @ Monu, Sunil and Jitender,
to the incident as well as the statement of the Managers of the
Shanghai Club, i.e. Jeyavelu and Vinod Sharma, corroborates to
the incident an further corroboration is made by CCTV footage
and it is an admitted fact coming on record that Rupesh (since
deceased) died in the AIIMS hospital on 26.10.2015 who was
having multiple injuries on his person.
38. The Court below while granting bail to the present
respondents considered on two aspects. Firstly, that the
respondents herein were in custody since about 1 1/2 years and
trial is not likely to be concluded in near future; Secondly, co-
accused (Anil Kumar Yadav) was already granted bail vide
order dated 27.02.2017, which ipso facto does not justify for
grant of bail to the present respondents particularly when the
Court below was in the knowledge that the co-accused- Anil
Kumar Yadav's bail was challenged before this Court and the
Court below in haste granted bail to the respondents herein, i.e.
(1) Tarun @ Maddy, (2) Vikas @ Shammi, (3) Ashish Balguer,
(4) Vikas Balguer and (5) Vishal Balguer, basing on the basis of
the bail of co-accused- Anil Kumar Yadav which was on the
basis of certain discrepancies which was not applicable to the
present respondents.
39. Consequently, I set aside the impugned order dated
24.04.2017 passed by the learned Additional Sessions Judge-02,
(South) Saket Courts, New Delhi in FIR No. 1187/2015
registered under Sections 302/308/201/212/34 IPC at Police
Station Hauz Khas. Reliance is placed on the judgements of the
Apex Court in cases Kanwar Singh Meena vs. State of
Rajasthan & Anr.; AIR 2013 SC 296 and Puran vs. Rambilas &
Another; (2001) 6 SCC 338.
40. Consequently, the present petition is allowed and
disposed of in the above terms. The bail granted to the
respondents, i.e. (1) Tarun @ Maddy, (2) Vikas @ Shammi, (3)
Ashish Balguer, (4) Vikas Balguer and (5) Vishal Balguer, are
cancelled and the respondents shall surrender and appear before
the Trial Court on 18.09.2017.
41. Observations made in this order shall have no effect on
the merit of the case. One copy of this order be sent to the
concerned Court.
I.S.MEHTA, J
SEPTEMBER 08, 2017/sr
