Punjab-Haryana High Court
Tofik vs State Of Haryana And Others on 4 February, 2025
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2025:PHHC:015925
CRM-M-33865-2023 #1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CRM-M-33865-2023
Date of Decision:-04.02.2025
Tofik.
......Petitioner.
Versus
The State of Haryana & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:- Mr. Vipul Aggarwal, Advocate with
Ms. Sunita Gupta, Advocate for the Petitioner.
Mr. Viney Phogat, Deputy Advocate General, Haryana.
Mr. Ruhani Chadha, Advocate
Amicus Curiae for the respondent no.4.
***
JASJIT SINGH BEDI, J.
The Prayer in this petition under section 439(2) read with
Section 482 Cr.PC is for cancellation of regular bail granted vide order dated
03.11.2022 (Annexure P-6) to respondent no.4 in FIR No.130 dated
16.5.2022 under Sections 201, 302, 34 IPC registered at Police Station
Utawar, District Palwal.
2. The brief facts of the case are that FIR No.130 dated 16.5.2022
under Sections 201, 302, 34 IPC registered at Police Station Utawar, District
Palwal came to be registered at the instance of one Tofik son of Sh. Tolla
and reads as under:-
" To SHO, Police Station Utawar. Subject:
Application for taking legal action against:- 1. Sahil, 2.
Adil sons of Saikul, 3. Saikul son of Asraf residents of
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village Bhodpur Tehsil, Hathin presently residing at
Uttawar Colony, Near Utawar Police Station, 4.
Samaydeen @ Bhara son of Juhru village Beel Singhpur
Police Station Kishangarh District Alwar, 5. Arbaj son of
Ratti, 6. Bhajan so of Aasin, 7. Aarif son of Kirori residents
of village Utawar Tehsil Hathin, 9. Satbir son of Subdeen,
9. Shamshu son of Haroon Village Pachanka at present
resident of village Dhirakni Hathin behind the court and 4-
5 other unknown persons. Sir, it is requested that I, Tofique
son of Tolla is the resident of village Singar, Police Station
Bicchor District Nuh. My brother Shokeen was truck
driver, working as driver with Saikul son of Asraf
(Foreman). That on 15.02.2022 at about 1.00 PM one
telephone call was received on my telephone number
9306001141 from telephone no.9050572879 of Sahil etc
that my brother Shokeen had sold the diesel of their truck,
to come at their house at the turn of Uttawar along with
their money otherwise they would kill my brother Shokeen.
Thereafter Saikul etc. got arranged a talk of me with my
brother Shokeen. Shokeen told while weeping on phone
that I should come immediately alongwith money,
otherwise these people 1. Sahil, 2. Aadil sons of Saikul, 3.
Saikul son of Asraf residents of village Bhoodpur presently
at Utawar Mode, 4. Samaydeen @ Bhara, 5. Arbaj 6.
Bhajan, 7. Aarif residents of village Utawar, 8. Sabbir, 9.
Shamshu resident of Pachanka presently at Hathin and
other 4-5 unknown persons would kill him. These persons
had badly beaten him and told to immediately reach at the
house of Saikul at Uttawar turn along with money. After
sometime, I came to knew that Saikul etc. had also
demanded money from Deen Mohammed son of Umed
resident of village Bhod, Police Station Ferozepur Jhirka
(Nuh) on his telephone No.9813653863 from telephone
No.9050572879 and also got talked with Shokeen. Deen
Mohammed is the father-in-law of Shokeen. Deen
Mohammad told me that they had threatened to
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immediately come along with the money at the house of
Saikul at Uttawar turn, failing which they would kill
Shokeen. Thereafter, when I along with Deen Mohammad,
Wajid son of Jakir resident of Bhod and my family members
reached at Saikul's house at Uttawar turn along with
money on 15.05.2022 at about 5 PM then many people
were gathered there and the persons standing there told us
that Saikul etc. and 10-15 other persons collectively gave
beatings to one person and due to which he died and
people was telling his name Shokeen. They also told us
that Saikul etc. have taken away the body of deceased
Shokeen by putting in a Car for destroying. That I and my
family were searching the Shokeenat at own till now. That
we came to know that Saikul etc. has fled away by leaving
the dead body of my brother Shokeen in the house of Sabbir
at Hathin and thereafter, we came to know that the police
has kept the dead body of Shokeen in GH Palwal and we
identified the dead body of Shokeen by reaching there.
That legal action be initiated against the above all
accused. That today on 16.05.2022, I came to be police
station Uttawar for initiating action. Sd/- Tofique
applicant Tofique son of Tolla resident of Sinagar Police
Station Bicchor, Nuh (Mewat) 9306001141 Dt. 16.5.2022."
3. During the course of the investigation, on examination of the
material on record including a video contained in a Pen Drive along with
photographs respondent no.4 came to be nominated as accused. The report
under Section 173(2) Cr.PC was submitted.
4. The respondent no.4 sought the concession of regular bail and
the court of ADJ, Palwal granted bail to the said respondent no.4 by
recording a finding that there was nothing on record against him except the
disclosure statement of a co-accused Sahil and the respondent no.4 himself.
A copy of the said order dated 03.11.2022 which is impugned in the present
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petition is Annexure P-6.
5. The Petitioner/complainant sought cancellation of the bail
granted to respondent no.4 on the premise that other than the confessional
statement of a co-accused there was video footage showing the respondent
no.4 and others assaulting the deceased. The said footage was the part of
challan but had not been seen and considered by the Court of ADJ, Palwal
while granting bail to the respondent no.4 and, therefore, the bail granted
ought to be cancelled.
6. This Court on consideration of the matter permitted the
petitioner/complainant to withdraw the said petition with liberty to approach
the Court of ADJ, Palwal at the first instance. The copy of the said order
passed in CRM-M-10347-2023 is attached as Annexure P-8 to the petition.
7. In furtherance of the aforementioned order the
petitioner/complainant sought cancellation of the regular bail before the
court of ADJ, Palwal and the said Court dismissed the said petition on the
premise that cancelling bail granted by the court would amount to reviewing
of an order which was not permissible. The copy of the said order dated
18.05.2023 is on record as Annexure P-11.
8. Therefore, the instant petition has been filed.
9. When this petition was filed, all the counsels were requested to
examine the video footage to see whether there was any role played by the
respondent no.4 and for the said purpose the IO of the case, namely, ASI
Nepal Singh was also directed to be present in Court.
10. The Counsel for the petitioner contends that though the
respondent no.4 was not named in the FIR a video recording of the
occurrence was a part of the report under Section 173(2) Cr.PC which shows
the respondent no.4 and others beating up the deceased. Bail had been
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granted to him without considering the entire material on record only on the
premise that he had been named in the disclosure statement of his co-
accused. As the order had been passed on untenable grounds, the said order
was liable to be set aside and bail granted to the respondent no.4 be
cancelled. Reliance is placed on the judgments of Hon'ble Supreme Court
in Rizwan Akbar Hussain Syyed Vs. Mehmood Hussain & Anr. 2007(4)
RCR (Criminal) 27 and Brij Nandan Jaiswal Vs. Munna @ Munna
Jaiswal & Anr. 2009(1) RCR (Criminal) 529.
11. Despite service none appeared on behalf of the respondent no.4
& others and this Court was constrained to appoint an Amicus Curiae to
assist it. The Learned Amicus Curiae has argued vehemently but admits that
the video footage shows the respondent no.4 and others assaulting the
deceased.
12. The Counsel for the State on instructions from IO ASI Nepal
Singh who is present in Court and on perusal of the video footage admits
that the respondent no.4 and other accused are seen assaulting the petitioner.
13. I have heard Counsel for the parties and examined the footage
as well.
14. As regards cancellation of bail, the Hon'ble Supreme Court in
Rizwan Akbar Hussain Syyed's case (supra) held as under:-
" 8. Learned Single Judge seems to have taken exception
for non-appearance of the appellant at the time of hearing of the
application for cancellation of bail. The reason for non-
appearance has been explained by the appellant. It is true that in
the order granting bail, there was no specific stipulation of any
condition. In fact, in the petition for cancellation of bail, the
respondent No. 1 has stated that while granting bail, no
conditions were imposed. In that sense, the appellant is right that
the High Court has erroneously observed that the conditions for
grant of bail were violated. There was no specific condition
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imposed and, that was one of the grievances of the respondent No.
1. But learned counsel for the respondents rightly submitted that
even if no condition is specifically stipulated, the accused, while
on bail, is not supposed to tamper with evidence. There is no
specific observation in this regard in the impugned order.
Cancellation of bail should not be done in a routine manner.
Where it appears to the superior Court that the Court granting
bail acted on irrelevant materials or there was non-application of
mind or where Court does not take note of any statutory bar to
grant of bail, order for cancellation of bail can be made. These
circumstances are illustrative and not exhaustive. The Court
considering the application for cancellation of bail has to take
note of all relevant aspects."
15. The Hon'ble Supreme Court in Brij Nandan Jaiswal's case
(supra) held as under:-
" 7. It is now a settled law that complainant can always
question the order granting bail if the said order is not validly
passed. It is not as if once a bail is granted by any court, the only
way is to get it cancelled on account of its misuse. The bail order
can be tested on merits also. In our opinion, therefore, the
complainant could question the merits of the order granting bail.
However, we find from the order that no reasons were given by
the learned Judge while granting the bail and it seems to have
been granted almost mechanically without considering the pros
and cons of the matter. While granting bail, particularly in
serious cases like murder some reasons justifying the grant are
necessary."
16. Thus apparently, the law is well settled that one of the grounds
for cancellation of bail is where it has been granted on the basis of irrelevant
material or where material facts have been over looked by the concerned
Court.
17. In the instant case, the respondent no.4 was granted the
concession of bail on the premise that the only piece of evidence against him
was the confessional statement of his co-accused. This is absolutely
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incorrect. The report under Section 173(2) Cr.PC is accompanied with
video and photographs showing the respondent no.4 and other accused
assaulting the deceased. Had this material been brought to the notice of the
Court and considered by it, possibly, the bail might not have been granted.
18. In view of the aforementioned discussion, I find considerable
merit in this petition and, therefore, the same is allowed and the order dated
03.11.2022 (Annexure P-6) is set aside and the bail granted to the respondent
no.4 is cancelled. He is directed to surrender forthwith and seek bail if so
advised and the Court concerned shall consider and decide his bail
application if any based on the entire material on record.
19. A copy of this order be sent to the office of Superintendent of
Police, Palwal for necessary compliance.
( JASJIT SINGH BEDI )
JUDGE
February 04, 2025
Vinay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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