State Of Rajasthan vs Ravindra Malik S/O Shri Jaipal B/C ...
2021 Latest Caselaw 487 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

     S.B. Criminal Bail Cancellation Application No. 114/2019

State Of Rajasthan, Through Pp
                                                                  ----Petitioner
                                   Versus
Ravindra Malik S/o Shri Jaipal, R/o Vill. Isrna Dist. Panipat
Haryana At Present Terminated Head Constable Kr/72 Police Line
City Kota Raj.
                                                                ----Respondent

For Petitioner(s)        :     Mr. RP Singh, AAG with
                               Mr. JS Shekhawat, Adv.
                               Mr. Ramesh Choudhary, PP
For Respondent(s)        :     Mr. Sunil Kumar Jain, Adv.

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment / Order

Reserved on 18/01/2021 Pronounced on 20 /01/2021

1. By way of this application for cancellation of bail, the State of

Rajasthan seeks cancellation of bail granted to the respondent-

accused- Ravindra Malik under Section 438 Cr.P.C. in FIR

No.493/2018 registered at Police Station Nayapura, Kota under

Section 307, 427, 147, 148, 149 IPC and Section 3/25 Arms Act.

2. It may be noticed that this Court vide order dated

07/06/2019 granted bail to the respondent-accused by passing

following order:-

"This bail application has been filed under Section 438 CrPC in connection with FIR No.493/2018 registered at Police Station Nayapura, Kota for the offences under Section 307, 427, 147, 148, 149 IPC and Section 3/25 Arms Act.

Heard learned counsel for the petitioner and learned Public Prosecutor appearing for the State and

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carefully scanned the relevant material available on record.

Learned counsel for the petitioner has submits that the coaccused have already been released on bail. There is no specific overt act against the petitioner and allegation is that the petitioner was accompanying the injured in the car and without expressing any opinion on the merits and demerits of the case and considered that the other co-accused have been released on bail, I deem it just and proper to grant anticipatory bail to the petitioner.

Therefore, this bail application filed under Section 438 Cr.P.C. is allowed and it is directed that in the event of arrest of petitioner Ravindra Malik S/o Jaipal in the aforesaid FIR, he shall be released on bail by the concerned SHO/Investigating Officer, provided he furnishes a personal bond in the sum of Rs.20,000/- with two sureties of the like amount to his satisfaction on the following conditions:-

(i) That the petitioner shall make himself available for interrogation by a police officer as and when required;

(ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or any police officer;

(iii) That the petitioner shall not leave India without previous permission of the court."

3. In the aforesaid case, the Police had already submitted

charge-sheet on 05/12/2018 against 12 persons and investigation

against the respondent-accused had been kept pending under

Section 173(8) Cr.P.C. and therefore, the respondent-accused had

preferred bail application under Section 438 Cr.P.C..

4. Learned Additional Advocate General for the petitioner-State

of Rajasthan submitted that the respondent-accused has not

cooperated with the Police Officials as per the General

Diary Details dated 26/07/2019. It is also stated that a complaint

was lodged by one Ashwani Sharma on 18/12/2018 wherein the

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accused-respondent was alleged to have threatened the

complainant to enter into a compromise. Another complaint was

made on 24/12/2018 alleging threatening given by the

respondent-accused to the complainant.

5. Learned Additional Advocate General also placed reliance on

FIR No.47/2019 registered on 16/01/2019 by one Tejveer Malik of

alleged extortion as against the respondent-accused. He has

placed reliance on another FIR No.164/2019 wherein one Nitesh

Kumar has alleged to having threatened by the respondent-

accused. It is also submitted that another FIR bearing

No.260/2019 by Tejveer Malik was registered against the

respondent-accused and others. The Police has already issued

standing warrants under Section 37 of the Police Act, 2007 against

the accused-respondent which was challenged by the respondent-

accused and the High Court has stayed the said standing

warrants. The High Court has further extended time for surrender

of the accused-respondent.

6. It is further stated that another FIR bearing No.590/2019

has been registered by one Samir Khan on 19/09/2019 for

extortion and threatening. The Investigating Officer has also

issued notices to the respondent-accused but he is avoiding to

appear before the Investigating Officer. It is further stated that the

SHO, Police Station, Nayapura, Kota has issued notices to the

respondent-accused to surrender his Pistol as his license has

expired but the respondent-accused is avoiding. It is stated that

the SHO, Police Station, Nayapura, Kota again issued a detailed

notice on 11/10/2019 regarding cooperation in the present FIR

No.493/2018 but the respondent is not cooperating. It is stated

that the respondent-accused is having wide network of

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connections with underworld and outlaws. Several photographs

have been placed before this Court of the accused-respondent

having friendly relations with other criminals namely; Aslam

Sherkhan @ Chintu and Kallu Kuldeep who are hardened

criminals. It is stated that the respondent-accused is active on

social media and has been uploading dubious messages on his

profile.

7. In the said circumstances, learned Additional Advocate

General submitted that the bail granted to the accused respondent

be cancelled.

8. Learned counsel for the respondent-accused, on the other

hand, submitted that the shoot out which occurred for which the

FIR has been registered was between two different groups and the

respondent-accused was threatened with the complainant at that

relevant time and he was the person who informed the Police

about the shoot out and had cooperated with the investigation

whereafter the charge-sheet had been filed as against 12 persons,

however, the respondent-accused was also made as an accused by

keeping the investigation pending against him under Section

173(8) Cr.P.C..

9. Learned counsel for the respondent-accused has taken this

Court to the Daily Diary to show that the Police officials have

mentioned in the Daily Diary of the information being given by the

respondent-accused relating to the incident. It is stated that there

was neither overt act nor charge-sheet was filed against the

respondent-accused. A notice was given on 01/10/2019 to the

respondent-accused to handover the licensed Pistol which the

respondent-accused possessed and he handed over the same on

the next day i.e. 02/10/2019. Learned counsel also submitted that

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the respondent-accused appeared before the Police Authorities on

11/10/2019 and he gave his statement in relation to the present

FIR whereafter he was sent back by the Police Authorities as has

been mentioned in the Daily Rojnamcha of 11/10/2019 at 3.26

PM, however, on the same day i.e. on 11/10/2019, two other

Police Constables have mentioned at 7.03 PM that the respondent-

accused has not cooperated.

10. It is further submitted by learned counsel for respondent-

accused that the higher authorities of the Police are not letting the

respondent-accused to live peacefully. It is stated that the FIR of

extortion has been lodged by the said complainant against whom

a case under Section 376 IPC was registered where the accused-

respondent is one of the witnesses and therefore, he has named

the accused-respondent in the said FIR. Learned counsel further

submitted that the incidents mentioned by the learned Additional

Advocate General are earlier to the date of passing of the order of

bail by this Court. He also submitted that the accused-respondent

was wrongfully dismissed from service by invoking Rle 19(2) of

the Rules of 1958 and a writ petition was filed before this Court

which was dismissed with liberty to file an appeal before the Police

Authorities. The Police Authority dismissed the appeal and

thereafter, the accused-respondent has filed a writ petition

challenging his dismissal.

11. Learned counsel for respondent-accused relied upon a

judgment of the Supreme Court in Abdul Basit alias Raju & Ors.

Vs. Mohd. Abdul Kadir Chaudhary & Anr.: (2014) 10 SCC 754 to

submit that the bail granted by the Court cannot be cancelled on

the ground of it being illegal or contrary to law as it would amount

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to reviewing the bail order and would be an express bar contained

under Section 362 Cr.P.C.

12. This Court has considered the submissions advanced by

learned counsel for both the parties.

13. The Supreme Court in its recent judgment in Sushila

Aggarwal & Ors. Vs. State (NCT of Delhi) & Anr.: (2020) 5

SCC 1 has laid down its conclusions and principles with relation to

grant of anticipatory bail and held as under:-

"85. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC:

85.1 As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable a specific offence or particular of offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which considering the application, to extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

85.2 The court, before which an application under Section 438, is filed, depending on the seriousness of the threat (of arrest) as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

85.3 Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or

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inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437(3), Cr. PC [by virtue of Section 438(2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

85.4 Courts ought to be generally guided by the considerations such nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while assessing whether to grant anticipatory bail, or refusing it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

85.5 Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

85.6 Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre- arrest bail.

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85.7 The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "......if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya."

85.8 It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court - in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

85.9 The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc Vs. Ramprasad Vishwanath Gupta & Anr. 52; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi53 ). This does not amount to "cancellation" in terms of Section 439 (2), Cr. PC.

85.10 The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive

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conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled."

14. After concurring with the view taken by two Hon'ble Judges

in Sushila Aggarwal & Ors. (supra), final conclusions were

mentioned in Para 91. For the purpose of present case, Para 92.9,

92.10 and 92.11 deserve to be quoted as under:-

"92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. 92.10. The court referred to in para 92.9 above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. 92.11. The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the State or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam vs. Ramprasad Vishwanath Gupta; Jai Prakash Singh; State of U.P. v. Amarmani Tripathi). This does not amount to "cancellation" in terms of Section 439 (2),Cr. PC."

15. As per Para 85.8 and Para 92.9, as above, it is apparent that

the Police or its investigating agency can always move an

application to the Court which granted anticipatory bail for seeking

arrest of an accused in the event of violation of any term such as

absconding or on account of not cooperating with investigation or

intimidating the witnesses with a view to influence outcome of the

investigation or trial.

16. Keeping in view above, if facts of the present case are taken

into consideration, this Court finds that there is an FIR bearing

No.164/2019 under Section 384, 341, 195A IPC and Section 3 of

the SC/ST Act has been registered on 08/03/2019 at Police

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Station Gumanpura, Kota as against the respondent-accused for

intimidating the witnesses and threatening them.

17. After the bail was granted on 07/06/2019, another FIR has

been registered against the respondent-accused bearing

No.260/2019 under Section 384, 387, 379 IPC. It is also noticed

that the respondent-accused has although appeared in the present

case before the Investigating Officer but is found to be absconding

in other cases.

18. It is true that the considerations for cancellations of bail are

different from grant of the bail, however, if the Police authorities

approached this Court seeking cancellation of anticipatory bail and

arrest of an accused for the purpose of investigation or on the

ground that his behaviour is causing disruption in maintaining law

and order in the area, in the opinion of this Court, the bail can be

cancelled.

19. From the facts which have come on record and taking into

consideration that the respondent-accused- Ravindra Malik has

remained as a Head Constable with the Police, this Court deems it

appropriate to allow this application and cancel the anticipatory

bail granted to him.

20. The instant application for cancellation of bail is accordingly

allowed. The anticipatory bail granted to the respondent-accused-

Ravindra Malik by this Court vide order dated 07/06/2019 is

hereby cancelled. The bail bonds, if any, shall stand forfeited.

(SANJEEV PRAKASH SHARMA),J

Raghu/

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