Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Delivered on: 29 September, 2015
+ CRL.M.C.No.2520/2015
SAROJ ..... Petitioner
Represented by: Mr. B.S. Joon &
Mr.Siddharth Joon, Advs.
versus
CHARAN SINGH AND ANR ..... Respondents
Represented by: Mr.Sumit Choudhary, Adv
for respondent No.1.
Mr. Amit Chadha, APP for State with Inspr.
P.D. Singhal, PS-Narela.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J .
1. Vide the present petition, petitioner seeks direction thereby
setting aside the order dated 21.05.2015 passed by learned Additional
Sessions Judge, Rohini Courts, Delhi whereby granted bail to
respondent No.1-Charan Singh in case FIR No.238/2014 registered at
PS Narela for the offences punishable under Sections 302/34 of the
IPC.
2. The present petition has been filed on the ground that learned
Trial Court has totally ignored the factors to be considered at the stage
of disposal of bail application as laid down by the Supreme Court in
Crl.M.C.No.2520/2015 Page 1 of 9
the case of State through CBI vs Amarmani Tripahti 2005 III AD
(Crl) SC 665 wherein held that nature and gravity of the charge,
severity of the punishment, danger of the accused absconding or
fleeing, character, behaviour, means, position and standing of the
accused, likelihood of the offence being repeated, reasonable
apprehension of the witnesses being tampered with, danger of justice
being thwarted by grant of bail and effect upon the general public is to
be seen while granting bail to the accused.
3. The Trial Judge has also failed to appreciate that respondent
No.1 and other accused persons involved in the commission of the
offence alongwith their relatives and goons who were threatening the
witnesses from the beginning as a result of which, PW1 Jai Parkash the
only eye witness was given police protection by the police station
Narela till his statement was completed.
4. It is contended that learned Trial Court has failed to appreciate
that report of the FSL in favour of prosecution case proving that blood
stains matched with the blood group of deceased were detected upon
the clothes of the respondent No.1 which were recovered at his
instance after the arrest. Moreover, at an earlier occasion also,
respondent No.1 had moved an application for interim bail on the
ground of illness of his wife. On enquiry, the same was found to be
incorrect. Accordingly, his application for interim bail was rejected by
learned Trial Court on 21.08.2014.
5. Learned counsel appearing on behalf of petitioner submitted that
respondent No.1 was not suffering from any ailment or disease and he
Crl.M.C.No.2520/2015 Page 2 of 9
is in good state of health being a former wrestler. Respondent No.1
had played a very active role in the crime and caught hold of the
deceased from back and thereafter, other three accused persons
inflicted as much as 23 knife injuries upon the person of the deceased.
6. He further submitted that learned Trial Court has ignored the
material fact that accused persons including respondent No.1
committed the murder of Ranbir Singh husband of petitioner in most
gruesome, diabolical cruel and inhuman manner after giving several
knife blows to a helpless and innocent person.
7. Learned counsel further submitted that on 31.05.2015, wife of
deceased, petitioner herein was threatened in the market in the area of
R. K. Puram by an unknown person to face dire consequences if the
matter is not settled by her. To this effect, PW12 Smt.Saroj, wife of
deceased also informed learned Trial Court about the said incident, but
no appropriate action was taken. It is also argued that PW1 – eye
witness, PW2 another material witness and other witnesses examined
so far have fully supported the prosecution case.
8. While concluding the arguments, learned counsel for petitioner
has heavily relied upon the case of Amarmani Tripathi (supra)
wherein it has been held by the Supreme Court as under:-
“19. It is well settled that the matters to be
considered in an application for bail are (i) whether
there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the charge; (iii) severity of
the punishment in the event of conviction; (iv) danger
of accused absconding or fleeing if released on bail;
Crl.M.C.No.2520/2015 Page 3 of 9
(v) character, behaviour, means, position and
standing of the accused; (vi) likelihood of the offence
being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of
course, of justice being thwarted by grant of bail
(see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4)
SCC 280 and Gurcharan Singh vs. State (Delhi
Administration) AIR 1978 SC 179). While a vague
allegation that accused may tamper with the evidence
or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at
large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert
justice or tamper with the evidence, then bail will be
refused. We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar vs. Rajesh Ranjan , 2004 (7) SCC
528:
"The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are:
a. The nature of accusation and the severity
of punishment in case of conviction and the nature
of supporting evidence.
b. Reasonable apprehension of tampering
with the witness or apprehension of threat to the
Crl.M.C.No.2520/2015 Page 4 of 9
complainant.
c. Prima facie satisfaction of the court in
support of the charge.(see Ram Govind Upadhyay
vs. Sudarshan Singh , 2002 (3) SCC 598 and
Puran vs. Ram Bilas 2001 (6) SCC 338."
20. This Court also in specific terms held that:
"the condition laid down under section
437(1)(i) issine qua non for granting bail
even under section 439 of the Code. In the
impugned order it is noticed that the High
Court has given the period of incarceration
already undergone by the accused and the
unlikelihood of trial concluding in the near
future as grounds sufficient to enlarge the
accused on bail, in spite of the fact that the
accused stands charged of offences
punishable with life imprisonment or even
death penalty. In such cases, in our opinion,
the mere fact that the accused has
undergone certain period of incarceration
(three years in this case) by itself would not
entitle the accused to being enlarged on
bail, nor the fact that the trial is not likely to
be concluded in the near future either by
itself or coupled with the period of
incarceration would be sufficient for
enlarging the appellant on bail when the
gravity of the offence alleged is severe and
there are allegations of tampering with the
witnesses by the accused during the period
he was on bail."
21. In Panchanan Mishra vs. Digambar
Mishra, 2005 (3) SCC 143, this Court observed:
"The object underlying the
cancellation of bail is to protect the fair trial
and secure justice being done to the society
by preventing the accused who is set at
Crl.M.C.No.2520/2015 Page 5 of 9
liberty by the bail order from tampering with
the evidence in the heinous crime..... It
hardly requires to be stated that once a
person is released on bail in serious
criminal cases where the punishment is quite
stringent and deterrent, the accused in order
to get away from the clutches of the same
indulge in various activities like tampering
with the prosecution witnesses, threatening
the family members of the deceased victim
and also create problems of law and order
situation."
9. Learned counsel for petitioner submitted that the age and ailment
cannot be ground for bail as held in case of Smt.Lahari Bai vs State of
Rajasthan 1996 Crl L J 1400 as under:-
“4. It was also submitted by learned counsel that this
Court in number of cases have released the accused
on bail, on the ground that the accused is a lady or
looking to her old age. I am of the confirm view that
in such cases bail should not be granted. That view I
have taken while sit6ting as a Judge of Gujarat High
Court in many cases and some of them are even
reported in Gujarat Law Reporter. My view has not
been so far been disturbed by the Apex Court. The
bail applications are to be decided on the facts of
each case. Considering the totality of the evidence, I
am of the view that though the petitioner is an aged
lady of 75 and that she may not be keeping good
health but she is not entitled for bail on that ground in
such cases.”
10. On perusal of the order dated 21.05.2015, the learned Trial Court
recorded therein that respondent No.1/accused is 70 years senior
citizen suffering from various old age ailments and arrested on
24.02.2014 and since then he is in custody. Out of 26 prosecution
Crl.M.C.No.2520/2015 Page 6 of 9
witnesses, 12 witnesses have already been examined including the
public/material witnesses. The role attributed to respondent No.1/
accused is of caught holding only, though as per prosecution case, he
has actively participated in the crime. The paramount consideration of
the bail during trial is availability of accused to face trial. There is no
likelihood that he may threaten the public witnesses or may tamper
with the evidence as the statement of public/material witnesses have
already been recorded.
11. Learned Trial Court has further recorded that since the
respondent No.1 is of 70 years and there is no likelihood of any
absconding or fleeing from justice as his son and grandsons are also in
custody and he is a permanent resident of Delhi and even not
previously involved in any offence. Accordingly, learned Trial Judge
granted bail with the following conditions:-
“i) That he shall not try to meet the family of the
deceased;
ii) That he shall not try to meet any prosecution
witnesses;
iii) That he shall not try to temper with the evidence;
iv) That he shall not leave Delhi without the
permission of the court;
v) That he shall appear in the court regularly.”
12. The law for grant of bail and cancellation thereof are altogether
different. The bail granted to accused during trial cannot be cancelled
unless there being any exigency to endanger the chance of fair trial due
to enlarging the accused on bail. On this issue, The Apex Court in
Dolat Ram and others vs State of Haryana (1995) 1 SCC 349
observed as under:-
Crl.M.C.No.2520/2015 Page 7 of 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Delivered on: 29 September, 2015
+ CRL.M.C.No.2520/2015
SAROJ ..... Petitioner
Represented by: Mr. B.S. Joon &
Mr.Siddharth Joon, Advs.
versus
CHARAN SINGH AND ANR ..... Respondents
Represented by: Mr.Sumit Choudhary, Adv
for respondent No.1.
Mr. Amit Chadha, APP for State with Inspr.
P.D. Singhal, PS-Narela.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J .
1. Vide the present petition, petitioner seeks direction thereby
setting aside the order dated 21.05.2015 passed by learned Additional
Sessions Judge, Rohini Courts, Delhi whereby granted bail to
respondent No.1-Charan Singh in case FIR No.238/2014 registered at
PS Narela for the offences punishable under Sections 302/34 of the
IPC.
2. The present petition has been filed on the ground that learned
Trial Court has totally ignored the factors to be considered at the stage
of disposal of bail application as laid down by the Supreme Court in
Crl.M.C.No.2520/2015 Page 1 of 9
the case of State through CBI vs Amarmani Tripahti 2005 III AD
(Crl) SC 665 wherein held that nature and gravity of the charge,
severity of the punishment, danger of the accused absconding or
fleeing, character, behaviour, means, position and standing of the
accused, likelihood of the offence being repeated, reasonable
apprehension of the witnesses being tampered with, danger of justice
being thwarted by grant of bail and effect upon the general public is to
be seen while granting bail to the accused.
3. The Trial Judge has also failed to appreciate that respondent
No.1 and other accused persons involved in the commission of the
offence alongwith their relatives and goons who were threatening the
witnesses from the beginning as a result of which, PW1 Jai Parkash the
only eye witness was given police protection by the police station
Narela till his statement was completed.
4. It is contended that learned Trial Court has failed to appreciate
that report of the FSL in favour of prosecution case proving that blood
stains matched with the blood group of deceased were detected upon
the clothes of the respondent No.1 which were recovered at his
instance after the arrest. Moreover, at an earlier occasion also,
respondent No.1 had moved an application for interim bail on the
ground of illness of his wife. On enquiry, the same was found to be
incorrect. Accordingly, his application for interim bail was rejected by
learned Trial Court on 21.08.2014.
5. Learned counsel appearing on behalf of petitioner submitted that
respondent No.1 was not suffering from any ailment or disease and he
Crl.M.C.No.2520/2015 Page 2 of 9
is in good state of health being a former wrestler. Respondent No.1
had played a very active role in the crime and caught hold of the
deceased from back and thereafter, other three accused persons
inflicted as much as 23 knife injuries upon the person of the deceased.
6. He further submitted that learned Trial Court has ignored the
material fact that accused persons including respondent No.1
committed the murder of Ranbir Singh husband of petitioner in most
gruesome, diabolical cruel and inhuman manner after giving several
knife blows to a helpless and innocent person.
7. Learned counsel further submitted that on 31.05.2015, wife of
deceased, petitioner herein was threatened in the market in the area of
R. K. Puram by an unknown person to face dire consequences if the
matter is not settled by her. To this effect, PW12 Smt.Saroj, wife of
deceased also informed learned Trial Court about the said incident, but
no appropriate action was taken. It is also argued that PW1 – eye
witness, PW2 another material witness and other witnesses examined
so far have fully supported the prosecution case.
8. While concluding the arguments, learned counsel for petitioner
has heavily relied upon the case of Amarmani Tripathi (supra)
wherein it has been held by the Supreme Court as under:-
“19. It is well settled that the matters to be
considered in an application for bail are (i) whether
there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the charge; (iii) severity of
the punishment in the event of conviction; (iv) danger
of accused absconding or fleeing if released on bail;
Crl.M.C.No.2520/2015 Page 3 of 9
(v) character, behaviour, means, position and
standing of the accused; (vi) likelihood of the offence
being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of
course, of justice being thwarted by grant of bail
(see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4)
SCC 280 and Gurcharan Singh vs. State (Delhi
Administration) AIR 1978 SC 179). While a vague
allegation that accused may tamper with the evidence
or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at
large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert
justice or tamper with the evidence, then bail will be
refused. We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar vs. Rajesh Ranjan , 2004 (7) SCC
528:
"The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are:
a. The nature of accusation and the severity
of punishment in case of conviction and the nature
of supporting evidence.
b. Reasonable apprehension of tampering
with the witness or apprehension of threat to the
Crl.M.C.No.2520/2015 Page 4 of 9
complainant.
c. Prima facie satisfaction of the court in
support of the charge.(see Ram Govind Upadhyay
vs. Sudarshan Singh , 2002 (3) SCC 598 and
Puran vs. Ram Bilas 2001 (6) SCC 338."
20. This Court also in specific terms held that:
"the condition laid down under section
437(1)(i) issine qua non for granting bail
even under section 439 of the Code. In the
impugned order it is noticed that the High
Court has given the period of incarceration
already undergone by the accused and the
unlikelihood of trial concluding in the near
future as grounds sufficient to enlarge the
accused on bail, in spite of the fact that the
accused stands charged of offences
punishable with life imprisonment or even
death penalty. In such cases, in our opinion,
the mere fact that the accused has
undergone certain period of incarceration
(three years in this case) by itself would not
entitle the accused to being enlarged on
bail, nor the fact that the trial is not likely to
be concluded in the near future either by
itself or coupled with the period of
incarceration would be sufficient for
enlarging the appellant on bail when the
gravity of the offence alleged is severe and
there are allegations of tampering with the
witnesses by the accused during the period
he was on bail."
21. In Panchanan Mishra vs. Digambar
Mishra, 2005 (3) SCC 143, this Court observed:
"The object underlying the
cancellation of bail is to protect the fair trial
and secure justice being done to the society
by preventing the accused who is set at
Crl.M.C.No.2520/2015 Page 5 of 9
liberty by the bail order from tampering with
the evidence in the heinous crime..... It
hardly requires to be stated that once a
person is released on bail in serious
criminal cases where the punishment is quite
stringent and deterrent, the accused in order
to get away from the clutches of the same
indulge in various activities like tampering
with the prosecution witnesses, threatening
the family members of the deceased victim
and also create problems of law and order
situation."
9. Learned counsel for petitioner submitted that the age and ailment
cannot be ground for bail as held in case of Smt.Lahari Bai vs State of
Rajasthan 1996 Crl L J 1400 as under:-
“4. It was also submitted by learned counsel that this
Court in number of cases have released the accused
on bail, on the ground that the accused is a lady or
looking to her old age. I am of the confirm view that
in such cases bail should not be granted. That view I
have taken while sit6ting as a Judge of Gujarat High
Court in many cases and some of them are even
reported in Gujarat Law Reporter. My view has not
been so far been disturbed by the Apex Court. The
bail applications are to be decided on the facts of
each case. Considering the totality of the evidence, I
am of the view that though the petitioner is an aged
lady of 75 and that she may not be keeping good
health but she is not entitled for bail on that ground in
such cases.”
10. On perusal of the order dated 21.05.2015, the learned Trial Court
recorded therein that respondent No.1/accused is 70 years senior
citizen suffering from various old age ailments and arrested on
24.02.2014 and since then he is in custody. Out of 26 prosecution
Crl.M.C.No.2520/2015 Page 6 of 9
witnesses, 12 witnesses have already been examined including the
public/material witnesses. The role attributed to respondent No.1/
accused is of caught holding only, though as per prosecution case, he
has actively participated in the crime. The paramount consideration of
the bail during trial is availability of accused to face trial. There is no
likelihood that he may threaten the public witnesses or may tamper
with the evidence as the statement of public/material witnesses have
already been recorded.
11. Learned Trial Court has further recorded that since the
respondent No.1 is of 70 years and there is no likelihood of any
absconding or fleeing from justice as his son and grandsons are also in
custody and he is a permanent resident of Delhi and even not
previously involved in any offence. Accordingly, learned Trial Judge
granted bail with the following conditions:-
“i) That he shall not try to meet the family of the
deceased;
ii) That he shall not try to meet any prosecution
witnesses;
iii) That he shall not try to temper with the evidence;
iv) That he shall not leave Delhi without the
permission of the court;
v) That he shall appear in the court regularly.”
12. The law for grant of bail and cancellation thereof are altogether
different. The bail granted to accused during trial cannot be cancelled
unless there being any exigency to endanger the chance of fair trial due
to enlarging the accused on bail. On this issue, The Apex Court in
Dolat Ram and others vs State of Haryana (1995) 1 SCC 349
observed as under:-
Crl.M.C.No.2520/2015 Page 7 of 9
| “ | 4. 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 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. These principles, it appears, were lost | ||
| sight of by the High Court when it decided to cancel | ||
| the bail, already granted. The High Court it appears | ||
| to us overlooked the distinction of the factors relevant | ||
| for rejecting bail in a nonbailable case in the first | ||
| instance and the cancellation of bail already | ||
| granted.” |
13. It is not in dispute that examination of PW12 / petitioner had not
completed at the time of passing of the order, however thereafter he
evidence, who is none other than wife of deceased has been completed.
No material witness remains to be examined. It cannot be disputed that
that old age and ailment only cannot be grounds for granting bail.
However, the Trial Judge has seen totality of the case and accordingly
not only considered his age as 70 years old, but also that his whole
family including son and grandsons are in custody; her remained in jail
Crl.M.C.No.2520/2015 Page 8 of 9
for 15 months; all material witnesses including the petitioner / PW12
have been examined.
14. Moreover, respondent No.1 has not violated any of the
conditions imposed by learned Trial Court. As alleged by petitioner
that on 31.05.2015, she received threat from an unknown person, but it
does not establish that respondent No.1 is the same person. The
petitioner has failed to bring any material to establish that respondent
no.1 has violated any condition imposed by the trial judge.
15. In view of the legal position and discussion noted above, I find
no illegality, perversity in the order dated 21.05.2015 passed by
learned Trial Court.
16. Consequently, instant petition is hereby dismissed being devoid
of any merits.
SURESH KAIT
(JUDGE)
SEPTEMBER 29, 2015
M/RS
Crl.M.C.No.2520/2015 Page 9 of 9