Punjab-Haryana High Court
Kulwant Singh @ Sajan vs State Of Punjab on 11 March, 2022
CRM-M-52620-2019 (O&M)
CRM-M-17512-2019 (O&M) and -1-
CRM-M-2593-2021
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-52620-2019 (O&M)
Date of Decision: 11.03.2022
(I)
Kulwant Singh @ Sajan
....Petitioner(s)
Versus
State of Punjab
.....Respondent(s)
CRM-M-17512-2019 (O&M)
(II)
Mandeep Singh
....Petitioner(s)
Versus
State of Punjab
.....Respondent(s)
CRM-M-2593-2021
(III)
Akashdeep Singh
....Petitioner(s)
Versus
State of Punjab
.....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Ms. G.K. Mann, Senior Advocate assisted by
Mr. Gursewak Singh, Advocate,
for the petitioner in CRM-M-52620-2019.
Mr. Karan Nanda, Advocate,
for the petitioner in CRM-M-17512-2019.
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Mr. Rishu Mahajan, Advocate.
For the petitioner in CRM-M-2593-2021.
Mr. Kanwaljit Singh, Senior Advocate and
Mr. R.S. Rai, Senior Advocate as Amicus Curiae.
Mr. Arun Kumar Kaundal, DAG, Punjab.
Mr. Shivam Joshi, Advocate, for
Mr. Karanjit Singh, Advocate, for
Mr. Vijay Bhaskar, Advocate in CRM-M-52620-2019.
****
JASGURPREET SINGH PURI, J.
1. The present three petitions are being taken up together for final
disposal since an important idential issue has arisen for consideration before
this Court. However, all the three petitions arise from different FIRs and
have different facts.
2. The issue involved in the present set of cases is as to what is
the effect of filing bail applications and passing of bail orders by the trial
Court/Sessions Court during the pendency of bail application before High
Court by the same accused without disclosing such pendency and what
safeguards should be adopted by the trial Court/Sessions Court in this
regard.
3. On 27.09.2021 in CRM-M-52620-2019 this Court appointed
Mr. Kanwaljit Singh, learned Senior Advocate and Mr. R.S. Rai, learned
Senior Advocate as amicus curiae to assist this Court with regard to the
further process to be taken in such like matters which are not only serious in
nature but also affects the administration of justice. Both the learned amicus
curiae have rendered their valuable assistance to this Court and have also
given various suggestions in this regard.
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4. Before proceeding further, the facts of all the three cases are
essential to be noted as follows:-
Kulwant Singh @ Sajan Versus State of Punjab
CRM-M-52620-2019
5. The present is the first petition filed under Section 439 of the
Code of Criminal Procedure for the grant of regular bail to the petitioner in
FIR No.0237 dated 08.09.2019, under Sections 379-B(2) and 34 of Indian
Penal Code, 1860, registered at Police Station Sadar, Amritsar, District
Police Commissionerate, Amritsar.
6. As per the allegations contained in the FIR when the
complainant was returning back to his home on his motorcycle, then two
clean shaven young men came on scooter having muffled faces. They
stopped their scooter in front of his motorcycle and by showing him knife,
they snatched his mobile mark Vivo V-5 and Rs. 2300/- from his purse and
fled away towards Batala road. Thereafter, the complainant suffered a
supplementary statement on the same day and referred to the fact that at the
time of snatching, the other accused was calling the name of the present
petitioner as Sajjan and during investigation the police got recovered the
mobile phone from the petitioner from the disclosed place.
7. The relevant dates in the present case are as follows:-
23.11.2019 First bail dismissed by Additional Sessions Judge,
Amritsar.
03.12.2019 The present bail application filed in High Court.
13.12.2019 Notice of motion issued by High Court and accepted
by State counsel.
15.01.2020 Notice issued by High Court on interim bail on the
ground of marriage of petitioner.
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20.01.2020 Application for interim bail withdrawn.
07.02.2020 Adjourned to 24.03.2020 but thereafter the matter
could not be taken up due to Covid restrictions.
07.07.2020 Petitioner filed bail application before Additional
Sessions Judge, Amritsar.
10.07.2020 Petitioner granted bail by Additional Sessions Judge,
Amritsar.
23.08.2021 High Court was informed by State counsel that bail
has already been granted by the learned trial Court.
Therefore, report was called from the Additional
Sessions Judge, Amritsar in this regard.
8. A perusal of the aforesaid dates would show that even during
the pendency of the bail application before this Court, the petitioner filed
another bail application before the learned Additional Sessions Judge,
Amritsar and was granted bail, even though the present application was
pending before this Court. A report was sent by the Additional Sessions
Judge, Amritsar dated 27.08.2021 to this Court in which it was submitted
that the petitioner had filed regular bail application through counsel Sh.
Vijay Bhaskar, Advocate which was received by entrustment on 07.07.2020.
In the bail application, it was not mentioned that any petition is pending
before the High Court and rather Sh. Vijay Bhaskar, Advocate had submitted
his own affidavit alongwith bail application duly attested by the Oath
Commissioner, Amritsar by deposing that "no other similar bail application
is either pending or decided by any Court of law in the present case". It was
further stated in the report that it was never brought to the knowledge of the
Additional Sessions Judge as to whether any petition was pending before the
High Court or not.
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9. A perusal of the order dated 10.07.2020 by which the learned
Additional Sessions Judge, Amritsar granted bail to the petitioner would
show that notice of the bail application was issued to the learned Additional
P.P who opposed the bail but never stated anything with regard to the
pendency of the present bail application before this Court. It is further
evident from the order that the bail application has been decided by the
learned Additional Sessions Judge, Amritsar on its own merits. The bail
application was accompanied by an affidavit of an Advocate who had
deposed that there is no other similar bail application either pending or
decided by any Court of law. Therefore, this Court on 27.09.2021 issued
notice to Sh. Vijay Bhaskar, Advocate to explain the true factual position
and also as to under what circumstances he had filed his own affidavit
alongwith bail application. The aforesaid Advocate appeared through
counsel Sh. Karanjit Singh, Advocate and filed his affidavit in which he
stated that the mother of the petitioner who is a widow approached him
when she was in tears and was an old woman to file bail application of his
son and also told him that she is illiterate and is not aware about the legal
formalities and none of her family members have come forward to help her
in the present circumstances. She told him that she had never approached
any person or an advocate to file a bail application and there is no other bail
application pending in any Court and handed over a power of attorney of his
son to him and that he had on good faith on the basis of information given
by the mother of accused signed the affidavit as per her instructions and that
said act was performed only to help a poor widow. The aforesaid Advocate
also tendered an unconditional apology for the negligence on his part by
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filing wrong affidavit which was totally unintentional.
Mandeep Singh Versus State of Punjab
CRM-M-17512-2019
10. The present is the third petition filed under Section 439 of the
Code of Criminal Procedure for the grant of regular bail to the petitioner in
FIR No.114 dated 16.07.2018, under Sections 406 and 420 of Indian Penal
Code, 1860, registered at Police Station Samana.
11. As per the FIR, the allegation against the petitioner was that
one person namely Shivdeep Sharma was being harassed by one girl and
was being blackmailed by her and she had lodged FIR against him and the
aforesaid Shivdeep Sharma and his family discussed the matter with the
complainant who thereafter introduced him with some other person namely
Vatanveer Singh who in turn introduced himself to be O.S.D of some
influential person who is the petitioner and who has clout in the Police
Department and will make sure that the present case against Shivdeep
Sharma will be cancelled and in this way, the petitioner has taken
Rs. 9,90,000/- and 7-8 tolas of gold ornaments for this purpose. The
petitioner was arrested on 14.09.2018 and the petitioner is also allegedly
involved in some other cases as well.
12. The relevant dates in the present case are as follows:-
01.03.2019 Bail application filed by the petitioner dismissed by
JMIC, Samana under Section 437(6) Cr.P.C.
14.03.2019 Revision filed against the aforesaid order dismissed
by Additional Sessions Judge, Patiala.
10.04.2019 Present bail petition filed before High Court.
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30.04.2019 Present petition/applications taken up by this Court.
to
25.02.2020
28.04.2020 Bail application filed by the petitioner before learned
Additional Sessions Judge, Patiala.
29.04.2020 Bail granted to the petitioner by Additional Sessions
Judge, Patiala
02.07.2021 No one caused appearance on behalf of the petitioner
and
before High Court in present petition.
23.07.2021
23.08.2021 High Court was informed by State counsel that bail
has already been granted by the learned Additional
Sessions Judge, Patiala. Therefore, report was called
from the Additional Sessions Judge, Patiala in this
regard.
13. A perusal of the aforesaid dates would show that during the
pendency of the present bail petition before this Court, the petitioner had
filed a bail application before learned Additional Sessions Judge, Patiala
and was granted bail. A report was called for in this regard from the learned
Additional Sessions Judge, Patiala in which she reported that it was not
brought to her knowledge with regard to the pendency of the bail application
before this Court. A copy of the said bail order granted by learned
Additional Sessions Judge, Patiala dated 29.04.2020 was taken on record by
this Court on 23.08.2021.
14. A perusal of the same would show that the petitioner had
taken up a plea before the learned Additional Sessions Judge that he was in
custody from 14.09.2018 and now compromise has been effected between
the parties and they also intend to file a quashing petition before the High
Court and the complainant has no objection in case the bail application is
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decided in the light of the said compromise. However, the learned
Additional PP for the State had opposed the bail on the ground that the
matter was serious in nature but nothing had come on the record that another
bail application was pending before this Court. Learned Additional Sessions
Judge, Patiala granted bail to the petitioner primarily on the basis of
compromise between the parties.
Akashdeep Singh Versus State of Punjab
CRM-M-2593-2021
15. The present is the first bail petition filed under Section 439 of
the Code of Criminal Procedure for the grant of regular bail to the petitioner
in FIR No.10 dated 14.01.2020, under Sections 379-B and 411 of Indian
Penal Code, 1860, registered at Police Station Ranjit Avenue, Amritsar,
District Amritsar.
16. As per the allegations contained in the FIR when the
complainant was coming to his house by foot, then two clean shaven youths
wearing masks were riding a bullet motorcycle and pillion rider youth came
towards her and forcibly tried to snatch her purse by pushing her. She fell
down and he snatched her mobile phone brand SAMSUNG NOTE-9 and
fled away. The petitioner was arrested on 14.09.2020.
17. The relevant dates in the present case are as follows:-
21.12.2020 Bail application dismissed by Additional Sessions
Judge, Amritsar.
12.01.2021 Present bail petition filed in High Court.
22.01.2021 Notice of motion issued by High Court and accepted
by State counsel.
08.06.2021 Bail application filed by the petitioner before
Additional Sessions Judge, Amritsar
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11.06.2021 Bail granted by Additional Sessions Judge, Amritsar
15.09.2021 This Court was informed by the counsel for the
petitioner that petitioner has already been granted
bail by the learned Additional Sessions Judge,
Amritsar. Therefore, this Court directed the learned
Sessions Judge, Amritsar to send a report in this
regard after taking comments from the learned
Additional Sessions Judge as to whether the petitioner
had disclosed the fact regarding the pendency of the
present petition or not.
18. A perusal of the aforesaid would show that the petitioner had
filed bail application before the learned Additional Sessions Judge,
Amritsar during the pendency of the present petition and was granted bail by
the learned Additional Sessions Judge, Amritsar. As per the report of the
learned District & Sessions Judge, Amritsar, the learned Additional
Sessions Judge who had granted bail, had submitted that an affidavit of the
brother of the petitioner was filed to the effect that the bail application of
the accused is pending in the High Court and is under the process of
withdrawal and the said fact was also mentioned in the bail application
itself and when the matter was taken up on 11.06.2021, the counsel had
orally stated that the bail application has been withdrawn from the High
Court and the State did not bring to the notice of the Additional Sessions
Judge anything with regard to the pendency of the bail application before
the High Court and while believing that the bail application has been
withdrawn from the High Court, the Additional Sessions Judge decided the
bail application of the accused. On 21.10.2021 the present petitioner had
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also filed an additional affidavit before this Court by stating that it was a
bona fide mistake on his part and he will not repeat the same and had sought
pardon from this Court. The petitioner had also stated in the affidavit that
he does not have any explanation on his part and had tendered unconditional
apology before this Court. Furthermore, there is nothing on the record of the
present case to show that the petitioner has ever filed any application for
withdrawal of the present petition.
19. Ms. G.K. Mann, Senior Advocate with Mr. Gursewak Singh,
Advocate for the petitioner in CRM-M-52620-2019, Mr. Karan Nanda,
Advocate, for the petitioner in CRM-M-17512-2019 and Mr. Rishu
Mahajan, Advocate, for the petitioner in CRM-M-2593-2021, have
submitted that so far as the factual position in the present cases pertaining to
the filing of the bail applications before the Sessions Court during the
pendency of the bail petition before this Court is concerned, the same is
correct. They have further submitted that the petitioners should not have
filed another bail application during the pendency of the bail application
before this Court and it was not proper on their part. However, they have
submitted that once the learned Sessions Courts have granted bail to the
petitioners on their own merits and the same have not been challenged by
the State in any proceedings, the petitioners may be permitted to withdraw
the present petitions or the present petitions may be disposed of as having
become infructuous.
20. Mr. Arun Kumar Kaundal, learned Deputy Advocate General,
Punjab has submitted that since the petitioners have filed bail applications
before the learned Sessions Courts during the pendency of the present bail
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applications in all the three cases, the present petitions deserve to be
dismissed with costs. He further submitted that it is correct that in all the
three petitions, the bail orders passed by the learned Sessions Court have
not been challenged by the State and they have since attained finality.
21. Mr. Kanwaljit Singh, learned Senior Advocate and Mr. R.S.
Rai, learned Senior Advocate who were appointed as amicus curiae have
also made their respective submissions and have also suggested various
safeguards to prevent and minimize the menace of invoking two
jurisdictions simultaneously in bail matters. Mr. Kanwaljit Singh, learned
Senior Advocate has submitted that in the given circumstances in all the
three cases, in order to send a correct message and to have a deterrent effect,
the regular bails granted by the respective learned Additional Sessions
Judges during the pendency of the bail applications before this Court deserve
to be set aside by cancelling the order and the benefit granted to the
petitioners should not be extended in view of the fact that they have
suppressed material facts from the learned Additional Sessions Judge and
for such a concealment which is in the nature of a fraud upon the Court, the
bail granted to all the three petitioners by the respective learned Additional
Sessions Judges should be cancelled/annulled. He referred to judgment of
the Supreme Court in 'Dalip Singh Versus State of Uttar Pradesh and
others' [2010(2) SCC 114] and 'Kishore Samrite Versus State of U.P. and
others' [2013(2) SCC 398] and submitted that a party who approaches the
Court by suppressing the facts and to mislead the Court is not entitled to be
heard on merits and that it is a bounden duty of anyone approaching the
Courts to state the whole case fully and fairly and any attempt to mislead
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and approach with unclean hands should be dealt with severely. In view of
the above, the litigants are not entitled to be heard on merits and are not
entitled to any relief.
22. However, Mr. R.S. Rai, learned Senior Advocate (amicus
curiae) has assisted this Court by taking an altogether different perspective.
He submitted that although all the three petitioners filed bail applications
before the learned Additional Sessions Judge during the pendency of the bail
applications before this Court without disclosing the same but the Court
has to strike a balance between the liberty of an individual and the nature
and level of misconduct on their part. He submitted that there is a difference
between cancellation of bail and setting aside the bail order by a higher
Court. In all the three cases, the bail applications have been decided by the
respective learned Additional Sessions Judges on their own merits and
subsequently, it was pointed out in this Court that their bail applications are
also pending before this Court. However, at the same time, the parameters
for cancellation of bail or for annulment/setting aside of the bail orders are
not satisfied in the present set of cases and, therefore, instead of
cancelling/setting aside of the bail orders passed by the learned Additional
Sessions Judges, suitable costs may be imposed on the petitioners for their
misconduct. He submitted that strict guidelines are required to be issued to
check such a practice in future. He further submitted that fault can be
attributed to the litigant or to his counsel or to the Public Prosecutor or any
other person who files false affidavit but it becomes difficult to distinguish
and fix responsibility. However, an action done by a counsel is done on
behalf of a litigant and in case of suppression, costs should be imposed on
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the litigant. He has relied upon a judgment of Supreme Court in 'Mahipal
Versus Rajesh Kumar @ Polia and another' [2020(2) SCC 118], Prashant
Singh Rajput Versus The State of Madhya Pradesh and another [2021(4)
RCR (Criminal) 423], Neeru Yadav Versus State of U.P 2014(16) SCC
508 and Jagmohan Bahl and another Versus State (NCT of Delhi) and
another [2015(3) SCC (Criminal) 521]
23. I have heard the learned counsels for the parties as well as both
the learned amicus curiae.
24. In all the present three cases, the petitioners filed regular bail
applications before this Court and during the pendency of these cases, they
filed regular bail applications before learned Additional Sessions Judge
without disclosing the factum of pendency of the present bail applications
except in one case where on the date of the decision of the bail application
by the Additional Sessions Judge, he was orally informed that the bail
application before this Court has been withdrawn although the same was
never withdrawn. All the three applications decided by the learned
Additional Sessions Judges have been decided on their own merits and
admittedly, those orders have not been assailed by the State in any Court
and they have thus attained finality. All the three petitioners are on bail as
of now. In the case of Kulwant Singh @ Sajan, the allegations against the
petitioner were pertaining to snatching of mobile phone and the bail
application was filed before the learned Additional Sessions Judge
alongwith the affidavit of the counsel in which it was stated that there was
no other similar bail application pending or decided by a Court of law. The
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aforesaid Advocate who filed an affidavit alongwith the bail application was
also issued notice by this Court and is being represented by a counsel before
this Court and an affidavit has also been filed by him in this regard
whereby he has given his explanation to show his bona fide and good faith.
In the case of Mandeep Singh, the allegations against the petitioner were
pertaining to cheating and breach of trust. The learned Additional Sessions
Judge granted bail on the basis of compromise being arrived at between the
parties and the pendency of present bail application was not disclosed to
learned Additional Sessions Judge. In the case of Akashdeep, the allegations
against the petitioner were snatching of mobile phone and while filing the
bail application before the learned Additional Sessions Judge, an affidavit
was also filed by the brother of the petitioner by stating that a bail
application is pending before the High Court which is under the process of
withdrawal and when the matter was taken up for final hearing, the counsel
orally stated that the bail application has been withdrawn from the High
Court and, therefore, the learned Additional Sessions Judge decided the bail
application of the accused and granted him bail on its own merits. However,
such kind of application for withdrawal of bail or any prayer in this regard
was never made before this Court. Thereafter, the present petitioner has also
filed an additional affidavit before this Court by stating that it was a bona
fide mistake on his part and that he will not repeat the same and had also
sought pardon from this Court.
25. Two different aspects are required to be considered by this
Court in the present case. Firstly, in the given factual background of the
cases, whether bail granted to the petitioners by the respective learned
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Additional Sessions Judges should be cancelled/annulled/set aside on the
basis of suppression and concealment of material fact regarding pendency
of bail application before this Court or the petitioners be burdened with
costs due to their misconduct. Secondly, what safeguards should be adopted
to check such kind of practice in future.
26. So far as the first aspect is concerned, in order to delve upon
the issue, various judgments of Supreme Court are required to be referred in
this regard. In Dalip Singh Versus State of Uttar Pradesh and
others(Supra), the appellant did not approach the High Court with clean
hands and made misleading statement whereby an impression was created
that the tenure-holder did not know about the proceedings initiated by the
prescribed authority and succeeded in persuading the High Court to pass an
interim order which resulted in frustrating the efforts made by the authority
concerned to distribute the surplus land among landless persons. It was
observed that it was clear that efforts to mislead the authorities and the
conduct of the appellant to mislead the High Court and Supreme Court
cannot but be treated as reprehensible.
27. In Kishore Samrite Versus State of U.P. and others (Supra), it
was observed by the Supreme Court that the cases of abuse of process of
Court and such allied matters have been arising before the Courts
consistently and the Supreme Court has had many occasions where it dealt
with the cases of this kind and it has clearly stated the principles that would
govern the obligations of a litigant while approaching the Court for
redressal of any grievance and the consequences of abuse of the process of
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Court. Some of such principles were recapitulated and were reiterated.
Apart from the same, it was also observed that in a given set of
circumstances, one way to curb this tendency was to impose realistic and
punitive costs. The relevant portion of the aforesaid judgment is reproduced
as under:-
"29. Now, we shall deal with the question whether both
or any of the petitioners in Civil Writ Petition Nos. 111/2011
and 125/2011 are guilty of suppression of material facts, not
approaching the Court with clean hands, and thereby
abusing the process of the Court. Before we dwell upon the
facts and circumstances of the case in hand, let us refer to
some case laws which would help us in dealing with the
present situation with greater precision. The cases of abuse
of the process of court and such allied matters have been
arising before the Courts consistently. This Court has had
many occasions where it dealt with the cases of this kind
and it has clearly stated the principles that would govern the
obligations of a litigant while approaching the court for
redressal of any grievance and the consequences of abuse of
the process of court. We may recapitulate and state some of
the principles. It is difficult to state such principles
exhaustively and with such accuracy that would uniformly
apply to a variety of cases. These are:
(i) Courts have, over the centuries, frowned upon litigants
who, with intent to deceive and mislead the Courts, initiated
proceedings without full disclosure of facts and came to the
courts with 'unclean hands'. Courts have held that such
litigants are neither entitled to be heard on the merits of the
case nor entitled to any relief.
(ii) The people, who approach the Court for relief on an ex
parte statement, are under a contract with the court that
they would state the whole case fully and fairly to the court
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and where the litigant has broken such faith, the discretion
of the court cannot be exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands
is an absolute obligation and has repeatedly been reiterated
by this Court.
(iv) Quests for personal gains have become so intense that
those involved in litigation do not hesitate to take shelter of
falsehood and misrepresent and suppress facts in the court
proceedings. Materialism, opportunism and malicious intent
have over-shadowed the old ethos of litigative values for
small gains.
(v) A litigant who attempts to pollute the stream of justice or
who touches the pure fountain of justice with tainted hands
is not entitled to any relief, interim or final.
(vi) The Court must ensure that its process is not abused and
in order to prevent abuse of the process the court, it would
be justified even in insisting on furnishing of security and in
cases of serious abuse, the Court would be duty bound to
impose heavy costs.
(vii) Wherever a public interest is invoked, the Court must
examine the petition carefully to ensure that there is genuine
public interest involved. The stream of justice should not be
allowed to be polluted by unscrupulous litigants.
(vii) The Court, especially the Supreme Court, has to
maintain strictest vigilance over the abuse of the process of
court and ordinarily meddlesome bystanders should not be
granted "visa". Many societal pollutants create new
problems of unredressed grievances and the Court should
endure to take cases where the justice of the lis well-justifies
it.
[Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC
114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69
and State of Uttaranchal v Balwant Singh Chaufal & Ors.
(2010) 3 SCC 402].
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30. Access jurisprudence requires Courts to deal with the
legitimate litigation whatever be its form but decline to
exercise jurisdiction, if such litigation is an abuse of the
process of the Court. In P.S.R. Sadhanantham v.
Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has
been best expressed by Cappelletti:
"The right of effective access to justice has emerged with
the new social rights. Indeed, it is of paramount importance
among these new rights since, clearly, the enjoyment of
traditional as well as new social rights presupposes
mechanisms for their effective protection. Such protection,
moreover, is best assured be a workable remedy within the
framework of the judicial system. Effective access to justice
can thus be seen as the most basic requirement the most
basic 'human-right' of a system which purports to
guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies
blackmailing adversaries through frivolous invocation
of Article 136 is chimerical. Access to justice to every bona
fide seeker is a democratic dimension of remedial
jurisprudence even as public interest litigation, class action,
pro bono proceedings, are. We cannot dwell in the home of
processual obsolescence when our Constitution highlights
social justice as a goal. We hold that there is no merit in the
contentions of the writ petitioner and dismiss the petition."
31. It has been consistently stated by this Court that the
entire journey of a Judge is to discern the truth from the
pleadings, documents and arguments of the parties, as truth
is the basis of the Justice Delivery System.
32. With the passage of time, it has been realised that
people used to feel proud to tell the truth in the Courts,
irrespective of the consequences but that practice no longer
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proves true, in all cases. The Court does not sit simply as an
umpire in a contest between two parties and declare at the
end of the combat as to who has won and who has lost but it
has a legal duty of its own, independent of parties, to take
active role in the proceedings and reach at the truth, which
is the foundation of administration of justice. Therefore, the
truth should become the ideal to inspire the courts to
pursue. This can be achieved by statutorily mandating the
Courts to become active seekers of truth. To enable the
courts to ward off unjustified interference in their working,
those who indulge in immoral acts like perjury,
prevarication and motivated falsehood, must be
appropriately dealt with. The parties must state forthwith
sufficient factual details to the extent that it reduces the
ability to put forward false and exaggerated claims and a
litigant must approach the Court with clean hands. It is the
bounden duty of the Court to ensure that dishonesty and any
attempt to surpass the legal process must be effectively
curbed and the Court must ensure that there is no wrongful,
unauthorised or unjust gain to anyone as a result of abuse of
the process of the Court. One way to curb this tendency is
to impose realistic or punitive costs". (emphasis supplied).
28. In Mahipal Versus Rajesh Kumar @ Polia and another
(Supra), it was held by the Supreme Court that an Appellate Court may
justifiably set aside the order granting bail and is required to consider
whether the order granting bail suffers from a non-application of mind or
is not borne out from a prima facie view of the evidence on record. The
relevant portion of the judgment is reproduced as under:-
15. The considerations that guide the power of an appellate
court in assessing the correctness of an order granting bail
stand on a different footing from an assessment of an
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application for the cancellation of bail. The correctness of an
order granting bail is tested on the anvil of whether there
was an improper or arbitrary exercise of the discretion in the
grant of bail. The test is whether the order granting bail is
perverse, illegal or unjustified. On the other hand, an
application for cancellation of bail is generally examined on
the anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to whom bail
has been granted. In Neeru Yadav v. State of Uttar Pradesh
U.P. 2016(15) SCC 422 the accused was granted bail by the
High Court. In an appeal against the order of the High
Court, a two Judge Bench of this Court surveyed the
precedent on the principles that guide the grant of bail.
Justice Dipak Misra (as the learned Chief Justice then was)
held:
". ... It is well settled in law that cancellation of bail after it
is granted because the accused has misconducted himself or
of some supervening circumstances warranting such
cancellation have occurred is in a different compartment
altogether than an order granting bail which is unjustified,
illegal and perverse. If in a case, the relevant factors which
should have been taken into consideration while dealing with
the application for bail and have not been taken note of bail
or it is founded on irrelevant considerations, indisputably the
superior court can set aside the order of such a grant of bail.
Such a case belongs to a different category and is in a
separate realm. While dealing with a case of second nature,
the Court does not dwell upon the violation of conditions by
the accused or the supervening circumstances that have
happened subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by the
Court."
"16. Where a court considering an application for bail fails
to consider relevant factors, an appellate court may
justifiably set aside the order granting bail. An appellate
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court is thus required to consider whether the order granting
bail suffers from a non-application of mind or is not borne
out from a prima facie view of the evidence on record. It is
thus necessary for this Court to assess whether, on the basis
of the evidentiary record, there existed a prima facie or
reasonable ground to believe that the accused had committed
the crime, also taking into account the seriousness of the
crime and the severity of the punishment. The order of the
High Court in the present case, in so far as it is relevant
reads:
"2. Counsel for the petitioner submits that the petitioner
has been falsely implicated in this matter. Counsel further
submits that, the deceased was driving his motorcycle, which
got slipped on a sharp turn, due to which he received injuries
on various parts of body including ante-mortem head injuries
on account of which he died. Counsel further submits that the
challan has already been presented in the court and
conclusion of trial may take long time.
3. Learned Public Prosecutor and counsel for the
complainant have opposed the bail application.
4. Considering the contentions put-forth by the counsel for
the petitioner and taking into account the facts and
circumstances of the case and without expressing opinion on
the merits of the case, this court deems it just and proper to
enlarge the petitioner on bail."
The aforesaid judgment was again referred by the Supreme
Court in Prashant Singh Rajput Versus The State of Madhya Pradesh and
another(Supra).
29. In Neeru Yadav Versus State of U.P (Supra), it was observed
by the Supreme Court that it is well settled in law that cancellation of bail
after it is granted because the accused has misconducted himself or of some
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supervening circumstances warranting such cancellation have occurred is in
a different compartment altogether than an order granting bail which is
unjustified, illegal and perverse. In the latter case, the Court does not delve
upon the violation of conditions by the accused or the supervening
circumstances but on the contrary delves into the justifiability and the
soundness of the order passed by the Court. It was further observed that
liberty of an individual is a priceless treasure and is founded on the bed
rock of constitutional right and accentuated further human rights principle
but such a liberty is not absolute in nature. Such a liberty can be withdrawn
if an individual becomes a danger to the societal order. The relevant portion
of the aforesaid judgment is reproduced as under:-
"13. We have referred to certain principles to be kept in
mind while granting bail, as has been laid down by this
Court from time to time. It is well settled in law that
cancellation of bail after it is granted because the accused
has misconducted himself or of some supervening
circumstances warranting such cancellation have occurred
is in a different compartment altogether than an order
granting bail which is unjustified, illegal and perverse. If in
a case, the relevant factors which should have been taken
into consideration while dealing with the application for
bail and have not been taken note of bail or it is founded on
irrelevant considerations, indisputably the superior court
can set aside the order of such a grant of bail. Such a case
belongs to a different category and is in a separate realm.
While dealing with a case of second nature, the Court does
not dwell upon the violation of conditions by the accused or
the supervening circumstances that have happened
subsequently. It, on the contrary, delves into the justifiability
and the soundness of the order passed by the Court.
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16. The issue that is presented before us is whether this
Court can annul the order passed by the High Court and
curtail the liberty of the 2nd respondent. We are not
oblivious of the fact that the liberty is a priceless treasure
for a human being. It is founded on the bed rock of
constitutional right and accentuated further on human
rights principle. It is basically a natural right. In fact, some
regard it as the grammar of life. No one would like to lose
his liberty or barter it for all the wealth of the world. People
from centuries have fought for liberty, for absence of liberty
causes sense of emptiness. The sanctity of liberty is the
fulcrum of any civilized society. It is a cardinal value on
which the civilisation rests. It cannot be allowed to be
paralysed and immobilized. Deprivation of liberty of a
person has enormous impact on his mind as well as body. A
democratic body polity which is wedded to rule of law,
anxiously guards liberty. But, a pregnant and significant
one, the liberty of an individual is not absolute. The society
by its collective wisdom through process of law can
withdraw the liberty that it has sanctioned to an individual
when an individual becomes a danger to the collective and
to the societal order. Accent on individual liberty cannot be
pyramided to that extent which would bring chaos and
anarchy to a society. A society expects responsibility and
accountability from the member, and it desires that the
citizens should obey the law, respecting it as a cherished
social norm. No individual can make an attempt to create a
concavity in the stem of social stream. It is impermissible.
Therefore, when an individual behaves in a disharmonious
manner ushering in disorderly things which the society
disapproves, the legal consequences are bound to follow. At
that stage, the Court has a duty. It cannot abandon its
sacrosanct obligation and pass an order at its own whim or
caprice. It has to be guided by the established parameters of
law".
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30. In Jagmohan Bahl and another Versus State of NCT Delhi
and another (Supra), the Supreme Court deprecated the practice of the
matter being heard by an Additional Sessions Judge, when the earlier bail
application was dismissed by another Additional Sessions Judge. It was
observed that the fundamental concept is that if the Judge who has decided
the earlier bail application is available, then the matter should be heard by
him. This will sustain the faith of the people in the system and nobody
would pave the path of forum-shopping, which is decryable in law.
However, the bail order was not set aside by the Supreme Court in view of
the facts and circumstances of the case. The relevant portion of the judgment
is reproduced as under:-
"14. Though the said decisions were rendered in different
context, the principle stated therein is applicable to the case
of present nature. Unscrupulous litigants are not to be
allowed even to remotely entertain the idea that they can
engage in forum-shopping, depreciable conduct in the field
of law.
15. In the instant case, when the Additional Sessions Judge-
6 had declined to grant the bail application, the next
Additional Sessions Judge-04 should have been well advised
to place the matter before the same Judge. However, it is the
duty of the prosecution to bring it to the notice of the
concerned Judge that such an application was rejected
earlier by a different Judge and he was available. In the
entire adjudicatory process, the whole system has to be
involved. The matter would be different if a Judge has
demitted the office or has been transferred. Similarly, in the
trial court, the matter would stand on a different footing, if
the Presiding Officer has been superannuated or
transferred. The fundamental concept is, if the Judge is
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available, the matter should be heard by him. That will
sustain the faith of the people in the system and nobody
would pave the path of forum-shopping, which is decryable
in law.
16. Having said what we have stated hereinabove, the
natural corollary would have been to set aside the order as
it has been passed in an illegal manner. Ordinarily we
would have issued that direction but, a significant one, in
the present case, the allegations, as we find, are quite
different. The FIR was instituted under Section 420/34 IPC
and relates to execution of an agreement. In such a
situation, we do not intend to set aside the order and direct
the appellants to move a fresh application for bail
under Section 438 CrPC. We are only inclined to direct that
the bail order granted in their favour shall remain in force
and the appellants shall abide by the terms and conditions
imposed by the Court and would not deviate from any of the
conditions.
31. In Dolat Ram and others Versus State of Haryana [1995(1)
SCC 349] it was observed by the Supreme Court that rejection of bail in a
non-bailable case at the initial stage and the cancellation of bail so granted
have to be considered and dealt with on different basis and the bail once
granted should not be cancelled in a mechanical manner without
considering whether any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial. The relevant portion of the
aforesaid judgment is reproduced as under:-
Rejection of bail in a non-bailable case at the initial stage
and the cancellation of bail so granted, have to be
considered and dealt with on different basis. Very cogent and
overwhelming circumstances are necessary for an order
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directing the cancellation of the bail, already granted.
Generally speaking, the grounds for cancellation of bail,
broadly (illustrative and not exhaustive) are: interference or
attempt to interfere with the due course of administration of
Justice or evasion or attempt to evade the due course of
justice or abuse of the concession granted to the accused in
any manner. The satisfaction of the court, on the basis of
material placed on the record of the possibility of the
accused absconding is yet another reason justifying the
cancellation of bail. However, bail once granted should not
be cancelled in a mechanical manner without considering
whether any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to retain
his freedom by enjoying the concession of bail during the
trial".
32. In Arunima Baruah Versus Union of India and others,
[2007(6) SCC 120[, the Supreme Court discussed the effect the
suppression of material facts and observed that if the fact suppressed is
not material for determination of the lis between the parties, the Court
may not refuse to exercise its discretionary jurisdiction. The relevant
portion of the judgment is reproduced as under:-
"11. It is trite law that so as to enable the court to refuse to
exercise its discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression
whereof would disentitle the appellant to obtain a
discretionary relief, would depend upon the facts and
circumstances of each case. Material fact would mean
material for the purpose of determination of the lis, the
logical corollary whereof would be that whether the same
was material for grant or denial of the relief. If the fact
suppressed is not material for determination of the lis
between the parties, the court may not refuse to exercise its
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discretionary jurisdiction. It is also trite that a person
invoking the discretionary jurisdiction of the court cannot be
allowed to approach it with a pair of dirty hands. But even if
the said dirt is removed and the hands become clean,
whether the relief would still be denied is the question.
(emphasis supplied).
33. In Abdul Basit @ Raju and others Versus Md. Abdul Kadir
Chaudhary and another [2014(10) SCC 754], the Supreme Court discussed
the provisions of Section 439(2) of the Code of Criminal Procedure
pertaining to cancellation of bail. The relevant portion of the judgment is
reproduced as under:-
"18. Under Chapter XXXIII, Section 439(1) empowers the
High Court as well as the Court of Session to direct any
accused person to be released on bail. Section 439(2)
empowers the High Court to direct any person who has been
released on bail under Chapter XXXIII of the Code be
arrested and committed to custody, i.e., the power to cancel
the bail granted to an accused person. Generally the
grounds for cancellation of bail, broadly, are, (i) the accused
misuses his liberty by indulging in similar criminal activity,
(ii) interferes with the course of investigation , (iii) attempts
to tamper with evidence or witnesses, (iv) threatens
witnesses or indulges in similar activities which would
hamper smooth investigation, (v) there is likelihood of his
fleeing to another country, (vi) attempts to make himself
scarce by going underground or becoming unavailable to the
investigating agency, (vii) attempts to place himself beyond
the reach of his surety, etc. These grounds are illustrative
and not exhaustive. Where bail has been granted under the
proviso to Section 167(2) for the default of the prosecution in
not completing the investigation in sixty days after the defect
is cured by the filing of a chargesheet, the prosecution may
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seek to have the bail cancelled on the ground that there are
reasonable grounds to believe that the accused has
committed a non-bailable offence and that it is necessary to
arrest him and commit him to custody. However, in the last
mentioned case, one would expect very strong grounds
indeed. (Raghubir Singh and Ors. etc. v. State of Bihar, 1987
Cri.LJ 157)
23. Therefore, the concept of setting aside an unjustified,
illegal or perverse order is different from the concept of
cancellation of a bail on the ground of accused's misconduct
or new adverse facts having surfaced after the grant of bail
which require such cancellation and a perusal of the
aforesaid decisions would present before us that an order
granting bail can only be set aside on grounds of being
illegal or contrary to law by the Court superior to the Court
which granted the bail and not by the same Court".
34. In Maneka Gandhi Versus Union of India [1978(1) SCC
248], the Supreme Court expanded the scope and ambit of right to life and
personal liberty as enshrined in Article 21 of the Constitution of India
which is an important fundamental right. Thereafter in a number of
judgments the scope and ambit of Article 21 was explained in Madhav
Hayawadanrao Hoskot Versus State of Maharashtra [1978(3) SCC 544],
Hussainara Khatoon and others Versus Home Secretary, State of Bihar,
Patna [1980 (1) SCC 98], Sunil Batra Versus Delhi Administration and
others [AIR 1978 SC 1675], Francis Coralie Mullin Versus The
Administrator, Union Territory of Delhi and others [1981 (1) SCC 608]
and Bandhua Mukti Morcha and others Versus Union of India and
others [1997(10) SCC 549].
35. While considering the first aspect regarding the fate of the
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present three petitions, a more realistic and pragmatic approach would be
required in view of peculiar facts and circumstances of the present cases.
The conduct of all the three petitioners in filing the bail application before
the respective learned Additional Sessions Judges without disclosing the
pendency of the bail application before this Court is highly disapproved and
is deprecated. It was the solemn duty of the petitioners or their counsels to
have disclosed this fact to the learned Additional Sessions Judge with
truthfulness and honesty as these two elements are sacrosanct for imbibing
purity in the administration of justice. At the same time, the effect of such a
conduct upon the present bail applications needs to be considered from
different perspectives. Even both the learned amicus curiae have given
their respective suggestions from different perspectives in this regard.
36. Article 21 is the heart of the Constitution. It is a progressive
and dynamic provision and is not static. The protection guaranteed therein
attaches an element of not only life and liberty but also encompasses an
element of dignity by conferring a Constitutional right on not only the
citizens of India but also on any person including an alien. Although the
right conferred is not absolute but there has to be legally justifiable reason
for departure from the same. Therefore, the question as to whether bail
granted to the petitioners by the respective learned Additional Sessions
Judges should be cancelled/ annulled or not needs to be tested on the anvil
of fundamental right guaranteed under Article 21 of the Constitution of
India. It is an admitted position that bail granted to all the three petitioners
by the respective learned Additional Sessions Judges during the pendency of
the bail application before this Court have neither been assailed by the State
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in any proceedings nor the State has raised any argument before this Court
that the bail orders granted to the petitioners should be cancelled/annulled
on the basis of the accepted principles of cancellation/annulment of bail
order. The well accepted principles for cancellation of the bail orders have
been explained by the Supreme Court in a number of judgments. Although
the grounds for cancellation of bail orders are not exhaustive in nature but
broad principles include misuse of the liberty by indulging in similar
criminal activity, interference in the course of investigation, attempt to
tamper with evidence or witness, threatening of any witness, likelihood of
fleeing from justice, attempt to make himself scarce by going underground
or becoming unavailable to the investigating agency or attempt to place
himself beyond the reach of his surety etc.
37. Cancellation of bail and annulment/setting aside of bail orders
are two different aspects. Cancellation of bail is based upon violation of
terms and conditions of the bail order and other parameters as aforesaid but
setting aside/annulment of bail order by a higher Court is based upon
different parameters i.e. legality or perversity in the passing of the order of
bail. In the present cases, the bail orders have been passed by the respective
Additional Sessions Judges but there is neither any application for
cancellation of bail nor any petition for setting aside of bail by the State or
any other person. Therefore, the question that would remain is as to
whether such bail orders should be set aside or cancelled by this Court on
the ground of suppression of material fact regarding the pendency of the
bail application before this Court or not. All the orders granting bail have
been passed on their own merits and there is no grievance raised by
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anybody to the effect that bail has been misused by the petitioners or that
there is any illegality or perversity in the orders passed by the Courts.
Therefore, the ground of suppression of material fact has to be considered
on the threshold of right to liberty guaranteed under Article 21 of the
Constitution of India.
38. In Arunima Baruah Versus Union of India and others
(Supra), the Supreme Court discussed the meaning and scope of the
expression 'material fact' and the effect of suppression of the same. It was
observed that a material fact would mean material for the purpose of
determination of the lis and the logical corollary whereof would be that
whether the same was material for grant or denial of the relief. If the fact
which has been suppressed is not material for determination of the lis
between the parties, then the Court may not refuse to exercise its
discretionary jurisdiction. In the present cases although there was a
suppression of material fact before the learned Additional Sessions Judge
but that fact was not material for the purposes of determination of the lis
and the orders of bail have been passed on their own merit. Therefore, the
suppression of a material fact of non-disclosure of pendency of bail
application before this Court would be subservient to the right of liberty
granted to the petitioners under Article 21 of the Constitution of India since
the bail orders were decided on merits.
39. However, at the same time this Court cannot ignore the
misconduct on the part of the petitioners and, therefore, in order to secure
the ends of justice, the petitioners are liable to be burdened with costs.
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40. The Hon'ble Supreme Court in Kishore Samrite Versus State
of U.P. and others (Supra) observed that it is the bounden duty of the
Court to ensure that dishonesty and any attempt to surpass the legal process
must be effectively curbed. One way to curb this tendency is to impose
realistic or punitive costs.
41. Therefore, in the light of the aforesaid facts and circumstances
of the present three cases, this Court is of the view that instead of
cancelling/anuling/setting aside the three bail orders passed by the respective
learned Additional Sessions Judges, the end of justice would be served to
dismiss the present petitions by imposing costs upon the petitioners.
42. In view of above, all the three petitions are hereby dismissed
with costs of Rs. 10,000/- each to be paid by all the three petitioners. The
petitioners are directed to deposit the said amount in the Court of learned
Chief Judicial Magistrate concerned within two months from today. In the
event of the deposit of the said amount, the same would be sent to the
Punjab Legal Services Authority. In case the petitioners do not comply with
the order passed by this Court regarding payment of costs, the concerned
Chief Judicial Magistrate would take necessary steps to recover the amount
in accordance with law. Such a course has been adopted only in view of the
facts and circumstances of the present cases and would not mean that a bail
order cannot be cancelled/set aside on the basis of such kind of suppression
of fact from the Court as there can be no straight jacket formula regarding
the same.
43. The second aspect pertains to as to what safeguards and other
measures should be adopted so as to check such kind of wrongful practice
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in future. This Court has considered various suggestions given by both the
learned amicus curiae. With the advancement of Information and
Technology, better safeguards can be adopted by optimal use of the same.
In CRM-M-21526-2021 various directions were issued by this Court
including directions that it should be mandatory to mention in the
application before the Courts below as to whether such or similar application
for bail under any of the provisions of Cr.P.C has or has not been made
before any Superior Court and in case any application does not contain the
aforesaid information, then the same shall not be accepted and would be
returned for re-submission. Duty was also casted upon the Public
Prosecutor/prosecuting agency after collecting the necessary information
from the Investigating Officer with respect to the filing of any
application/petition before any Court seeking concession of bail.
Furthermore, in case of lapse/defeat on the part of the investigating
agency/prosecution, it would be construed as a fraud played upon the Court
and would invite departmental as well as penal action. Apart from the
same, this Court had also issued instructions dated 24.02.2009 to all the
District & Sessions Judges to the effect that at the time of filing of bail
application before the Trial Court, an affidavit is required to be filed
regarding pendency of bail application filed by the person concerned in any
Court besides the statement regarding the decision of the earlier bail
application by the accused OR by any other person familar with the facts or
interested in the matter.
44. On the basis of the suggestions made by learned amicus curiae
and considering the aforesaid earlier directions/instructions issued by this
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Court, further guidelines are required to be issued which are as follows:-
1. It shall be ensured by all the Sessions Judges of Punjab,
Haryana and Union Territory, Chandigarh that in the bail
applications (regular/anticipatory) submitted in their
Sessions Division, the Ahlmad attached with the
respective Court should verify from the official website
of the Punjab and Haryana High Court, Chandigarh as to
whether any bail application qua the same applicant in
FIR/complaint is pending/decided before the High Court
or not and the status of the same, if any.
2. After verifying the aforesaid, a report be placed on the case
file for the perusal of the concerned Court.
3. It must be mandatorily mentioned in every application for
bail (regular/anticipatory) as to whether such or similar
application for bail has or has not been made before any
other Court. In case the same was made, then its status be
also mentioned.
4. The Director Prosecution of State of Punjab, Haryana and
Union Territory, Chandigarh shall instruct the Public
Prosecutors of their respective States that they shall be
duty bound to supply necessary information to the
concerned Court regarding pendency or decision of any
earlier bail application of the accused in the same offence
after taking information from the concerned I.O/police
official.
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5. The instructions issued by this Court from time to time be
complied with meticulously.
45. Before parting with the judgment, this Court records its
appreciation towards Mr. Kanwaljit Singh, Senior Advocate and Mr. R.S.
Rai, Senior Advocate who were appointed as amicus curiae and Ms. Shiny
Chopra, Legal Researcher of this Court for their valuable assistance.
A copy of this order be circulated to all the District & Sessions
Judges as well as Director Prosecution of the State of Punjab, Haryana and
Union Territory, Chandigarh through the Registrar General of this Court.
11.03.2022 (JASGURPREET SINGH PURI)
rakesh JUDGE
Whether speaking : Yes/No
Whether reportable : Yes/No
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