Chandan Singh Vs. Yashvinder Chauhan - Court Judgment

Excerpt:
the case debated on the cancellation of the bail under section 439(2) of the criminal procedure code, 1973, that was granted in the favor of the accused - it was found that the additional sessions judge had granted the bail without judging the gravity of the offence - it was also found that the accused was the last person to be seen with the decease - during the investigation, a weapon was found from the custody of the accused that was carrying blood marks of the deceased blood group - on the basis of aforesaid facts and circumstances, it was held that the grant of bail was improper, thereforee, it should be cancelled - - learned counsel further submits that when the accused has misutilised the liberty granted to him, his bail should be cancelled, shri singh asserts that litigation was going on between the parties and the accused hada very strong motive to commit the crime. finally learned counsel submits that the rejection of bail stands on one footing while the cancellation of bail stands onanother, as the latter interferes with the liberty of an individual and cannot be resorted to except in exceptional cases. gopal das who bad made no earlier contradictory statement. from the decision in jayanti prasad gael (supra) it clearly follows that once an accused has been enlarged on bail, his liberation from custody cannot be lightly interfered with, but this does not mean that even in a proper case where ends of justice would be defeated unless the accused is committed to custody, power of the high court to cancel the bail cannot be exercised. at the same time it observed that these grounds were illustrative and not exhaustive and where there are strong grounds, cancellation of bail can be ordered in a proper case. the learned additional sessions judge failed to take into consideration that the allegations against the accused are very serious.anil dev singh, j.(1) by this petition moved under section 439(2)read with section 482 of the code of criminal procedure, the petitioner seeks cancellation of bail granted to the respondent by the order of the learned additional sessions judge dated 12/05/1993.(2) the prosecution story is that on 10/01/1993 the accusednamely. mange ram, yashvinder singh and mohinder singh committed the murder of ravinder @ tiger, resident of village devali by inflicting injuries on his person with hockey sticks and a hathi.(3) on january 11, 1.993, body of the deceased ravinder alias tiger was found in an open plot located in sangam vihar. on the same day the statements of two parsons, namely. sham singh and raj dhan, were recorded by thi police under section 161 of the code of criminal procedure,according to which they allegedly saw the deceased in the company of the accused on january 10, 19)3 at about 7.00 p.m. besides the statements of sham singh and raj dhan, it is claimed that the statement of one som pal, was also recorded by the police on january 11, 1993 itself. according to this statement mange ram is alleged to have made an extra judicial confession before som pal, admitting the commission of the offence by all the three accused persons. the accused are said to have absconded after the incident and on being apprehended on 14/01/1993 yashvinder and mohinder made disclosure statements leading to the discovery of bloodstained hockey sticks on 17/01/1993 from the fields located inghaziabad. the alleged motive for the murder of the deceased is said to be a long standing enmity between the parties, nurtured by prolonged litigation between them.(4) on being moved under section 439 of the code of criminal procedure by the respondent the learned additional sessions judge, granted bail to him. while so doing the learned additional sessions judge took note of the plea of the co-accused that be was unable to flex his wrist because of an injury sustained by him six months back and for this reason it would not be possible for him to wield a hockey stick. he also noted that it was a case of circumstantial evidence.(5) shri singh, learned counsel appearing for the petitioner submits that the learned additional sessions judge was not right in releasing the accused on bail in view of the nature and gravity of the offence alleged to have been committed by them, the material collected by the investigating agency and reasonable apprehension of the witnesses being tempered with by the accused. according to him, the material collected during the investigation, including the statement of som pal regarding the extra judicial confession of the accused mange ram and the statements of sham singh and rajdhan regarding the fact that the deceased was last seen alive in the company of the accused, was enough to throw out the bail application of the respondent. while drawing my attention to the cfsl report it is asserted by the learned counsel that the report unmistakably connects accused with the crime as both the hockey sticks, the alleged weapons of offence, discovered at the instance of the accused persons namely, mahinder and yashvinder, were found smeared with human blood of group 'a' which corresponded to the blood of the deceased. it is the contention of the learned counsel that the witnesses namely, chandan singh and som pal singh have been threatened by the accused persons and thereforee they do not deserve the freedom granted to them by the learned additional sessions judge. learned counsel further submits that when the accused has misutilised the liberty granted to him, his bail should be cancelled, shri singh asserts that litigation was going on between the parties and the accused hada very strong motive to commit the crime. learned counsel also points out that after the incident the accused absconded and could not be apprehended until 14/01/1993. this conduct according to the learned counsel is relevant under section 8 of the evidence act. learned counsel contends that the circumstantial evidence is complete with all the links firmly imposition and is incompatible with the innocence of the accused. in nutshell his submission is that the following material would indicate that the case against the accused, is a fool proof one; (1) the deceased was last seen alive in the company of the accused; (2) extra judicial confession of mange ram,admitting the murder of ravinder by all the three accused; (3) disclosure statements made by accused persons leading to the discovery of the weapons of offence: (4) motive; (5) report of the cfsl; (6) conduct of the accused persons after the crime and on their release on bail.(6) on the other hand shri lalit, learned senior advocate, appearing for the respondent submits:(7) that the order of the learned additional sessions judge granting bail to the respondent does not call for any interference as the exercise of discretion was based on sound and proper principles of law; that the chain of events relied upon by the petitioner does not link the accused with the offence and that they do not point to their guilt; that mohinder accused at the time of the incident was not able to wield the weapon of offence according to the report of the jail doctor dated 27/04/1993 and that the alleged extra judicial confession and the story that the deceased was last seen alive in the company of the accused on 10/01/1993 does not inspire anyconfidence.(8) continuing his arguments shri lalit submits that in so far as the matter of alleged extra judicial confession is concerned, the circumstances in which the same is said to have been made by the accused mange ram before som pal shows that the allegation is a far fetched one. he further submits that mange ram is alleged to have told som pal that he wanted to sell his jeep because he required money for engaging a counsel to defend him in connection with the murder of ravinder, which all the three accused had committed. it is the contention of the learned counsel that it was unlikely that mange ram would have made such a statement as -the object was to sell the jeep to secure the maximum price for the same. he also urges that it was not likely that any person, who commits a murder would confess his guilt to a mere acquaintance and that too when the latter happens to work for a close relative of the deceased. as regards the allegation that the deceased was seen alive in the company of the accused is concerned,the learned counsel points out that the death of ravinder, according to the post mortem report must have taken place around 11 p.m. on 10/01/1993 while the deceased was allegedly seen in the company of the accused at 7.00 p.m. in the evening. it is the submission of learned counsel that the gap between the time of death of ravinder and the time when sham singh and raj dhan allegedly saw the deceased in the company of the accused is considerable and this circumstance does not connect the accused with the murder of the deceased. he submits that the locality where the body of the deceased was found is densely populated and anybody could have murdered the deceased. in so far as the disclosure statements leading to the discovery of the weapons of offence are concerned, learned counsel argues that the witnesses to the same are not independent. braham parkash and ramesh, the two so called independent panchas are related to chandan singh, a close relative of the deceased. in this regard he has drawn my attention to the genealogical table which has been placed on record by the respondent. learned counsel submits that while disclosure statements are said to have been made on 14/01/1993 by yashvinder and mahinder the recovery of the weapons of offence at the instance of the two accused has been made after three days i.e., on 17/01/1993. learned counsel suggests that in the circumstances weapons of offence were planted by someone at the places from where they were allegedly discovered. with regard to the cfsl report, it is asserted that since the disclosure statements and the discovery pursuant thereto do not inspire any confidence, the cfsl report is of no consequence whatsoever. regarding the threats which have been allegedly extended to the witnesses by the accused persons is concerned learned counsel says that these allegations have been coined to create prejudice against the respondents and to manufacture grounds for seeking cancellation of their bails. he maintains that on 6/05/1993 at 9 a.m., when mahinder is alleged to have extended the threat to chandan singh, his client was not in delhi and was attending a marriage ceremony of a close relative at village kanavni. finally learned counsel submits that the rejection of bail stands on one footing while the cancellation of bail stands onanother, as the latter interferes with the liberty of an individual and cannot be resorted to except in exceptional cases. he submits that the considerations in both the situations are different. according to the learned counsel bail once granted can be cancelled only if the accused try to flee from justice or if they tamper with evidence. the learned counsel urges that both the conditions for cancellation of bail in the present case are absent.in support of his arguments, he has cited decisions of the supreme court in aslam babalal desal v. state of maharashtra, : 1992crilj3712 , bhagirath singh v. state of gujarat, : 1984crilj160 and state (delhi administration)v. sanjay gandhi, : 1978crilj952 .(9) i have considered the respective submission of learned counsel for the parties.(10) i will first take up the submission of the learned counsel for the respondent that bail once granted by the court of session .can be cancelled by the high court only on fulfillment of at least one of the two conditions,namely, that there should be a likelihood of the accused fleeing from justice and reasonable apprehension of the accused witnesses being tempered with.recently i had an occasion to deal with the same proposition in jayantt prasad goel v. smt. sumitra jain & others, cr.m(m) 1300 of 1992 decided on 10/09/1993 where the accused had been granted bail by the additional sessions judge and the complainant moved for its cancellation.this was a case where a young bride, six months pregnant, had died of burn injuries in the matrimonial home and it was alleged that she was the second victim of the gory crime, the first one whose place she came to fill as a bride had also died of burn injuries. this is how the matter was dealt with to find an answer to the aforesaid proposition :- 'section 439 of the code of criminal procedure confers concurrent powers on the high court and the court of session for granting bail. the power however, has to be exercised in the light of the provisions of section 437 of the code of criminal procedure. besides, both the high court and the court of session under section 439(1) have been conferred with power to direct any person, who has been released on bail, to be arrested and committed to custody. this power to commit a person to custody after being enlarged on bail has to be exercised with care and circumspection as it involves the liberty of a person. but this does not mean that even in appropriate cases the power cannot be exercised. rather the power must be exercised if the ends of justice demand exercise of the same. in a case where a court of session has granted bail, the state can straightaway move the high court for cancellation of the bail without approaching the court of session in this regard. this follows the superior position of the high court vis-a-vis the court of session. the exercise of power by the high court under section 439(2) of the code of criminal procedure, however, will depend upon the facts and circumstances of each case and there cannot be a strait jacket formula in regard to the considerations, which prevail with the high court for cancellation of bail granted by a court of session.in the state v . jaspal singh gill, : 1984crilj1211 , the order of the high court granting bail was set aside by the supreme court having regard to the gravity of the offence with which the accused was charged. while cancelling the bail of the accused granted by the high court, the supreme court observed as follows: - 'on a consideration of the above three decisions, i am of the view that the court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public of the state and similar other considerations.on going through the order passed by the high court, i feel that its decision that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be premature one in the circumstances of this case. since the trial is yet to begin, i do not propose to say anything more at this stage lest it should prejudice either the accused or the prosecution than observing that on a perusal of the complaint and the other material available in the case. it cannot reasonably he stated that the prosecution case against the respondent is such that it can be thrown out at the threshold. it appears, that a prima facie case is made out against the respondent. the gravity of the offences is quite obvious.'in h.c. gaur v. rakesh vij and another, this court while dealing with a similar proposition held as follows :- 'the contention canvassed by mr. sood that unless there are such considerations as apprehension about accused not remaining available for trial, cr his tampering with evidence or intimidating the witnesses; the court should not entertain petition for cancellation of bail, particularly when moved by the complainant apparently out of vendetta, than as a matter of genuine grievance, cannot be wholly accepted for it has been held in the case of gurcharan singh (supra) that nature and seriousness of the offence is also one of the relevant considerations. there are other cases, namely, (1) state v. captain jagjit singh, : [1962]3scr622 , and (2) state v. jaspal singhgill, : 1984crilj1211 , where orders of the high court granting bail to the accused were set aside, considering the gravity of the offence with which the accused therein werecharged.the decision relied upon by mr. sood, reported as bhagirath singh judeja v. state of gujarat, 1984 cr.l.j. 160 with all respects, does not lay down any general principles asit is manifest that their lordships of the supreme court did not approve the order passed by the high court in cancellingbail, in view of the observations made in that order taking into consideration status of the victim of the incident, and such extraneous factors as place of incident being inside premises of a hospital and other allied circumstances. this judgment does not take note of the judgment in the case of gurcharan singh (supra) to the effect that in suitable cases, the superior court can examine the propriety of an order of granting bail and interfere accordingly and that the nature and seriousness of the offence, as also other facts and circumstances of the case are relevant factors for consideration, nor that of the earlier decision in the case of captain jagjit singh(supra).'again in gurcharan singh and others v. state (delhi administration), air 1978 s. c. 179 the supreme court held as follows:- 'the only question which the sessions judge was required to consider at that stage was whether there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials. there appeared at least nothing at that stage against the statement of a.s.i. gopal das who bad made no earlier contradictory statement. 'the taint of unreliability' could not be attached to his statement even for the reason given by the learned sessions judge. whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. in considering the question of bail of an accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the court to consider whether the evidence discloses a prima fade case to warrant his detention in jail besides the other relevant factors referred to above.'at another place the court observed that there cannot bean inexorable formula in the matter of granting bail and the facts& circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. in bhagirath singh (supra)the supreme court, with respect, cannot be said to have departed from the principle laid down in state v. jaspal singh gill, (supra).as pointed out in the case of gurcharan singh (supra), the facts and circumstances of each case will govern the exercise of judicial discretion in matters of granting or cancelling bail, thereforee nonflexible rule was intended to be laid down by the supreme court in of bhagirath singh (supra).again in state (delhi administration) v. sanjay gandhi, : 1978crilj952 , the supreme court observed that the power to take back in custody one who has been enlarged on bail has to be exercised with care and circumspection. but at the same lime it held that in an appropriate case such a power can be exercised.while so holding the supreme court noticed the case of gurcharan singh (supra) and observed as under :- 'in gurcharan singh v. state (delhi administration), while confirming the order of the high court cancelling the bail of the accused, this court observed that the only question which the court had to consider at that stage was whether 'there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials', that 'there was a likelihood of the appellants tampering with the prosecutionwitnesses'. it is by the application of this test that we have come to the conclusion that the respondent's bail ought to be cancelled.'in shahzad hasan khan v. ishtiaq hasan khan and another, : 1987crilj1872 , the supreme court cancelled the bail of the accused, which was granted by the high court, having regard to the gravity of the offence, the nature of the evidence available and the likelihood of the accused tampering with evidence. the supreme court in this regard observed as follows :- 'having regard to the facts and circumstances of this case we are of the opinion that the learned judge committed serious error in recalling his order dated 3/06/1986 and enlarging the respondent on bail. the occurrence took place,in the broad day light, in a busy market place and there are a number of eye witnesses to support the case against the respondent who was named as an assailant in the first information report. immediately after the occurrence he could not be traced (it was alleged that he had absconded) for more than a month, attempts were made on his behalf to tamper with evidence. in view of these facts and circumstances the respondent no. 1 was not entitled to bail if the seriousness of the matter was realised and a judicious approach was made.we had accordingly set aside the order of the high court and directed that respondent no. 1 ishtiaq hasan khan shall betaken into custody forthwith and the trial shall proceed inaccordance with law expeditiously.'there is no doubt that the liberty of the accused has to be safeguarded in accordance with law but while keeping in mind the interests of the accused, the collective interest of the community cannot be lost sight of so that the parties do not lose faith in the administration of justice and take law into their own hands to wreak vengeance by private retribution.the high court while considering the question of cancellation of bail can also examine the propriety and legality of the order passed by the court of session.in smt. rajani rani kar & another v. goli pradhan &others; 1992 (3) cri 181, orissa high court, held inter alia,that if it is found that bail to the accused has been granted improperly and arbitrarily, the same can be cancelled by the highcourt.' (11) i have referred to the aforesaid decision and quoted the same in extenso as the argument advanced and two of the authorities relied upon by shri lalit in the present case were also advanced and relied upon in that case too. from the decision in jayanti prasad gael (supra) it clearly follows that once an accused has been enlarged on bail, his liberation from custody cannot be lightly interfered with, but this does not mean that even in a proper case where ends of justice would be defeated unless the accused is committed to custody, power of the high court to cancel the bail cannot be exercised. shri lalit relied upon the following observations of the supreme court in aslam babalal desai (supra): 'bail granted under section 437(1) or (2) or section 439(1) can be cancelled under section 437(5) and 439(2) where (1) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (ii) attempts to tamper with evidence or witness, (iv) threatens witnesses or indulges in similar activities which would hamper smoother 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. rejection of bail stands on one fooling but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.'(12) though in the above decision the supreme court indicated sevengrounds, mostly based upon the activities of an accused after the grant of bail to him. at the same time it observed that these grounds were illustrative and not exhaustive and where there are strong grounds, cancellation of bail can be ordered in a proper case.(13) thus the supreme court did not depart from the principles laid down in its earlier decisions including. the state v. captain jagjit singh, : [1962]3scr622 , the state v. jaspal singh gill (supra) and shahzad hasan khan v. ishtiaq hasan khan and another, (supra) etc. where the supreme court cancelled the bails having regard to the gravity of the offence,nature of the evidence available, the likelihood of the accused running away from justice, the likelihood of the accused misutilising his liberty by intimidating the witnesses and tampering with evidence, the larger interests of thestate and community including the consideration that parties do not lose faith in the system and take law into their own hands to wreak vengeance by private retribution. although it may not be possible for a court hierarchically 0subordinate to the high court, which granted bail to the accused, to consider cancellation thereof without the intervention of a superveningcircumstance, it is competent in law for the high court to cancel bail in a proper and suitable case as a superior court, while examining the propriety and legality of the order granting bail and interfere accordingly.(14) the principles which flow from the decisions of the courts in the matters of grant or cancellation of bail cannot be put in a strait jacket and facts of each case would govern the matter.(15) as regards the submission of learned counsel for the respondent that on merits the learned additional sessions judge was justified in granting bail to the petitioner is concerned, i am of the opinion that it was not the right stage for the learned additional sessions judge to have exercised his discretion in granting bail to the respondent. the learned additional sessions judge failed to take into consideration that the allegations against the accused are very serious. the learned additional sessions judge granted bail to the respondent in view of his order in mahinder singh's case.(16) at this stage a detailed discussion of the material placed on record by the state is not warranted. it would be sufficient to point out that the material consists of the alleged extra judicial confession made by mange ram before som pal, statement of sham singh and raj dhan regarding the alleged fact that the deceased was last seen alive in the company of the accused persons on 10/01/1993 only a couple of hours before his death,cfsl report according to which blood detected on the weapons of offence,namely, hockey sticks, which were allegedly discovered at the instance of the accused, was found to be of 'a' group, which allegedly tallies with the blood group of the deceased and the allegation that accused are trying to intimidate the witnesses.(17) having regard to the totality of the circumstances of the case and keeping in view the guidelines laid down in the aferesaid judgments of the supreme court i consider it to be a fit and proper ease for cancellation of bail of the respondent. accordingly, the bail of the respondent is cancelled. it will, however, be open to the respondent to move a fresh application for bail after the statements ef material witnesses have been recorded by the court concerned, if so advised. this order of cancellation of bail, however,will not be operative for a period ef 15 days.petition allowed.