Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.827 OF 2020
(Arising from SLP(Criminal) No.4336/2020)
Sumedh Singh Saini …Appellant
Versus
State of Punjab and another …Respondents
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 08.09.2020 passed by the High Court
of Punjab and Haryana at Chandigarh in CRMM No. 26304 of
2020, by which the application submitted by the appellant herein
for anticipatory bail in connection with FIR No. 77 dated
Signature Not Verified
06.05.2020 for the offence punishable under Section 302 IPC,
Digitally signed by
ARJUN BISHT
Date: 2020.12.03
17:03:00 IST
Reason:
lodged with Police Station City Mataur, District S.A.S. Nagar,
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Mohali has been dismissed, the original petitioner – accused has
preferred the present appeal.
3. That one Palwinder Singh Multani, brother of one Balwant
Singh Multani (deceased) has lodged an FIR against the appellant
at Police Station City Mataur initially for the offences punishable
under Sections 364, 201, 344, 219 and 120B of the IPC, and
subsequently the offence punishable under Section 302 IPC has
been added.
3.1 It is alleged that in the year 1991 one Balwant Singh
Multani – brother of the informant was illegally abducted from
his residence at Mohali by a team of officials operating under the
instructions of the appellant; that he was severely and
inhumanly tortured while in custody, by and at the behest of the
appellant. It is further alleged that a false and fabricated FIR No.
112 of 1991 might have been registered at the instance of the
appellant to suggest that the victim was brought to the police
station Qadian from where the victim was alleged to have
escaped.
3.2 That apprehending his arrest in connection with FIR No. 77
dated 06.05.2020, the appellant filed anticipatory bail application
before the learned Additional Sessions Judge, Mohali. At this
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stage, it is required to be noted that when the appellant applied
for anticipatory bail, the allegations in the FIR against the
appellant were only for the offences punishable under Sections
364, 201, 344, 330, 219 and 120B of the IPC. That by order
dated 11.05.2020, the learned Additional Sessions Judge, Mohali
granted anticipatory bail in favour of the appellant. That
thereafter as the appellant was apprehending that the offence
under Section 302 IPC may be added, he approached the learned
Additional Sessions Judge, Mohali for anticipatory bail for the
offence punishable under Section 302 also. By order dated
10.07.2020, the learned Additional Sessions Judge granted
protection by way of three days’ advance notice in case of
addition of offence under Section 302 IPC. It appears that
thereafter three coaccused in FIR No. 77 dated 06.05.2020
wanted to become approver and they submitted the applications
before the learned Chief Judicial Magistrate, Mohali for grant of
pardon and declaring them as approver under Section 306
Cr.P.C. However, all the three applications came to be dismissed
by the learned Chief Judicial Magistrate, Mohali, vide order dated
7.8.2020. However, thereafter the applications submitted by the
other coaccused – Jagir Singh and Kuldip Singh to grant them
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pardon and permit them to become approver came to be allowed
by the learned Chief Judicial Magistrate, Mohali, vide order dated
18.08.2020. That thereafter the statements of Jagir Singh and
Kuldip Singh were recorded by the learned Judicial Magistrate
(First Class), Mohali, which were against the appellant. On the
basis of the statements of the aforesaid two coaccused who
subsequently turned approver – Jagir Singh and Kuldip Singh,
an application was submitted before the learned Judicial
Magistrate, First Class (Duty Magistrate) seeking addition of
Section 302 IPC in FIR No. 77 dated 06.05.2020. That by order
dated 21.08.2020, the learned Judicial Magistrate, First Class
(Duty Magistrate) allowed the said application and thus section
302 IPC came to be added.
3.3 That thereafter the appellant applied for anticipatory bail for
the offence under Section 302 IPC before the learned Additional
Sessions Judge, Mohali by way of bail application no. 1527 of
2020. That the learned Additional Sessions Judge vide order
dated 01.09.2020 dismissed the said application. That thereafter
the appellant approached the High Court of Punjab and Haryana
at Chandigarh with an application for grant of anticipatory bail
being CRMM No. 26304 of 2020. By the impugned judgment
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and order, the High Court has dismissed the said anticipatory
bail application. Hence, the appellant has preferred the present
appeal.
4. Shri Mukul Rohatgi, learned Senior Advocate has appeared
for the appellant – accused, Shri Sidharth Luthra, learned Senior
Advocate has appeared for the State of Punjab and Shri K.V.
Vishwanathan, learned Senior Advocate has appeared on behalf
of the original informant.
4.1 Number of submissions have been made by Shri Rohatgi,
learned Senior Advocate appearing on behalf of the appellant –
accused in support of his prayer to grant anticipatory bail.
It is vehemently submitted that the present FIR is filed with
a malafide intention to harass the appellant and at the instance
of the present party in power in the State. It is submitted that
even otherwise the present FIR is not maintainable as being a
second FIR on the same set of facts and has been registered after
delay of 29 years of the alleged incident. It is submitted that
earlier attempt to falsely implicate the appellant failed and a
similar FIR for the very incident in question and with somewhat
similar allegations came to be quashed by this Court in the case
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of State of Punjab v. Davinder Pal Singh Bhullar, reported in (2011)
14 SCC 770.
4.2 It is further submitted that the informant heavily placed
reliance upon the liberty reserved in favour of the father of
Balwant Singh Multani to file fresh proceedings. It is submitted
that however during his life time the father of Balwant Singh
Multani did not initiate any fresh proceedings and after a period
of six years and after the death of the father of Balwant Singh
Multani, the present FIR has been filed after 9 years of the
judgment of this Court in the case of Davinder Pal Singh Bhullar
(supra) and after 29 years of the incident and that too by the
brother of Balwant Singh Multani with the political support of the
current State Government. It is submitted that, as such, when
initially the present FIR was lodged, it was lodged on 6.5.2020
only for the offences under Sections 364, 201, 344, 330, 219 and
120B of the IPC. It is submitted that thereafter the investigating
agency with a malafide intention pressurised two coaccused and
made them approver and obtained the statements against the
appellant and on the basis of the statements of the two co
accused who subsequently turned as approver, the offence
punishable under Section 302 IPC has been added.
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4.3 It is further submitted that even the present FIR also suffers
from a serious jurisdictional error, inasmuch as, the FIR is
registered in Mohali on the directions of the SSP, Mohali,
whereas, in fact, all the events even as per the complainant
occurred within the jurisdiction of P.S. Chandigarh. It is
submitted that as per Sections 177 and 178, Cr.P.C. the ordinary
place of investigation and trial is within whose local jurisdiction
the offence has occurred. It is submitted that the present FIR
No. 77 and the proceedings initiated pursuant thereto are a
blatant abuse of process, malafide and misuse of policing power.
It is submitted that as such the appellant has already moved an
application for quashing FIR No. 77 dated 6.5.2020, which came
to be dismissed by the High Court against which a special leave
petition is pending before this Court.
4.4 It is further submitted that even otherwise while adding the
charge under Section 302 IPC in FIR No. 77 dated 6.5.2020, the
procedure as required to be followed as per the decisions of this
Court in the cases of Pradeep Ram v. State of Jharkhand,
reported in 2019 (9) SCALE 120 and Sushila Aggarwal v. State
(NCT of Delhi), reported in (2020) 5 SCC 1 , has not been followed.
It is submitted that even the procedure adopted by the learned
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Magistrate, who allowed the prosecution to add the offence
punishable under Section 302 IPC is unknown to the procedure
required to be followed under the provisions of the Cr.P.C.
4.5 It is further submitted by Shri Rohatgi, learned Senior
Advocate appearing on behalf of the appellant that the appellant
is ready and willing to cooperate with the investigation, however,
without prejudice to his rights and contentions in the pending
proceedings before this Court for quashing the FIR. It is
submitted that the appellant is highly decorated officer with a
distinguished service record. Shri Rohatgi has also made
submissions on malafide, political vendetta and the harassment
by the police.
4.6 Making the above submissions and relying upon the
aforesaid decisions of this Court, it is prayed to allow the present
application and grant anticipatory bail to the appellant.
5. The present application is vehemently opposed by Shri
Sidharth Luthra, learned Senior Advocate appearing on behalf of
the respondentState and Shri K.V. Vishwanathan, learned
Senior Advocate appearing on behalf of the original informant.
Relying upon the statements of Jagir Singh and Kuldip Singh
which were recorded during the course of investigation, it is
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vehemently submitted that a case has been made out against the
appellantaccused for the offence under Section 302 IPC. It is
submitted that the offence punishable under Section 302 IPC has
been added after obtaining the permission from the learned
Magistrate. It is submitted that considering the material
available on record, the learned Magistrate allowed the
application submitted by the prosecution/investigating agency to
add the offence punishable under Section 302 IPC. It is
submitted that therefore a prima facie case is made out against
the appellant.
5.1 Now so far as the delay in lodging the FIR is concerned, it is
submitted that as per catena of decisions of this Court, mere
delay and/or political vendetta cannot be a ground to quash the
criminal proceedings, more particularly when the allegations are
very serious and the allegations against the police officers are of
misuse of power, misuse of position, kidnapping and thereafter
killing the innocent person. It is submitted that truth must come
out. It is submitted that the custodial interrogation of the
appellant is required.
5.2 It is further submitted that even the present FIR cannot be
said to be the second FIR as submitted on behalf of the appellant.
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It is submitted that the present criminal proceedings/FIR is by
the brother of the deceased who lost his brother and considering
the liberty reserved by this Court in the case of Davinder Pal
Singh Bhullar (supra) .
5.3 It is vehemently submitted by Shri Sidharth Luthra, learned
Senior Advocate appearing on behalf of the State and Shri K.V.
Vishwanathan, learned Senior Advocate appearing on behalf of
the original informant that the appellant is a very influential
person and may tamper with the evidence and therefore this is
not a fit case to grant anticipatory bail to the appellant under
Section 438 Cr.P.C.
5.4 Making the above submissions, it is prayed to dismiss the
present application by submitting that when both, the learned
trial Court as well as the High Court have refused to exercise the
discretion in favour of the appellant and have refused to grant
anticipatory bail to the appellant, the same may not be interfered
with by this Court.
6. We have heard the learned counsel appearing on behalf of
the appellantaccused, learned counsel appearing on behalf of
the State and learned counsel appearing on behalf of the original
informant.
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At the outset, it is required to be noted that in the present
appeal the only question which is required to be considered is
whether the appellant is entitled to the anticipatory bail under
Section 438 Cr.P.C.?
7. Number of submissions have been made by the learned
counsel appearing on behalf of the appellantaccused on political
vendetta, malafide, delay in lodging the FIR, even the
maintainability of the impugned FIR etc. However, taking into
consideration that the quashing petition filed by the appellant
accused is pending before this Court and the issue whether the
FIR/criminal proceedings are required to be quashed or not is at
large before this Court, we do not propose to elaborately deal with
all the submissions made by the learned counsel appearing on
behalf of the respective parties.
However, considering the fact that the impugned FIR has
been lodged/filed by the brother of the deceased after a period of
almost 29 years from the date of incident and after a period of 9
years from the date of decision of this Court in the case of
Davinder Pal Singh Bhullar (supra) and nothing is on record that
in between he had taken any steps to initiate criminal
proceedings and/or lodged an FIR, we are of the opinion that at
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least a case is made out by the appellant for grant of anticipatory
bail under Section 438, Cr.P.C. Many a time, delay may not be
fatal to the criminal proceedings. However, it always depends
upon the facts and circumstances of each case. However, at the
same time, a long delay like 29 years as in the present case can
certainly be a valid consideration for grant of anticipatory bail.
8. Informant and the State are relying upon the observations
made by this Court in the case of Davinder Pal Singh Bhullar
(supra) and the liberty reserved in para 117 to the applicant who
earlier filed the petition under Section 482 Cr.P.C. (father of the
deceased) to take recourse to fresh proceedings, if permissible in
law. However, suffice it to say that the said liberty was as such
in favour of the father of the deceased who in the earlier round of
litigation before the High Court (from which the SLP(Criminal) No.
65036509/2011 were arisen) filed the petitions under Section
482 Cr.P.C.. This Court reserved the liberty in favour of the
father of the deceased to take recourse to fresh proceedings by
specifically observing that if permissible in law . It is reported
that the father of the deceased died in the year 2014. Till 2014,
the father of the deceased did not initiate any fresh proceedings.
After a period of 9 years from the date of decision of this Court in
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the case of Davinder Pal Singh Bhullar (supra) , all of a sudden,
now the informant – brother of the deceased has woken up and
has initiated the present criminal proceedings. Whether the
fresh/present proceedings are permissible in law are yet to be
considered by this Court in the pending proceedings for quashing
the impugned FIR.
9. Looking to the status of the appellant and it is reported that
he has retired in the year 2018 as Director General of Police,
Punjab after 30 years of service and the alleged incident is of the
year 1991 and even in the present FIR initially there was no
allegation for the offence under Section 302 IPC and the
allegations were only for the offences under Sections 364, 201,
344, 330, 219 and 120B of the IPC, for which there was an order
of anticipatory bail in favour of the appellant and subsequently
the offence under Section 302 IPC has been added on the basis of
the statements of Jagir Singh and Kuldip Singh – approvers only,
we are of the opinion that the appellant has made out a case for
anticipatory bail.
10. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order
passed by the High Court, as well as, the learned Additional
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Sessions Court dismissing the anticipatory bail applications of
the appellant for the offence punishable under Section 302 IPC in
connection with FIR No. 77 dated 6.5.2020, registered at P.S.
City Mataur, District S.A.S. Nagar, Mohali are hereby quashed
and set aside. It is ordered that in case of arrest of the appellant
– Sumedh Singh Saini in connection with FIR No. 77 dated
6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar,
Mohali for the offence punishable under Section 302 IPC, he shall
be released on bail on furnishing personal bond in the sum of
Rs.1,00,000/ (Rupees one lakh only) and two sureties of the like
amount and to surrender the passport and to cooperate with the
investigation (however without prejudice to his rights and
contentions in the pending proceedings to quash the impugned
FIR).
11. The appeal is allowed to the aforesaid extent.
………………………………………J.
[ASHOK BHUSHAN]
……………………………………..J.
[R. SUBHASH REDDY]
NEW DELHI; ……………………………………..J.
DECEMBER 03, 2020 [M.R. SHAH]
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