Full Judgment Text
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
% Date of Decision: 03 December, 2024
+ CRL.M.C. 3291/2019
GARIMA .....Petitioner
Through: Mr. Satish Tamta, Senior
Advocate with Mr. Shariq
Iqbal and Ms. Manavi
Josh, Advocates.
versus
STATE & ORS. .....Respondents
Through: Mr. Manoj Pant, APP for
the State with SI Sanjay
Bansal, PS Bhajanpura.
Mr. Shadman Ahmed
Siddiqui and Ahmad
Ammar, Advocates for R2
& R3.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral)
1. The present petition is filed impugning the order dated
06.07.2019 (hereafter ‘ the impugned order ’) passed by the
learned Additional Sessions Judge (‘ ASJ ’), Karkardooma Courts,
Delhi in Case No. 64/17, whereby and whereunder Respondent
Nos. 2 and 3 were released on bail in connection with FIR No.
373/2016 registered with Police Station Bhajanpura for offences
under Sections 323/504/34 of the Indian Penal Code, 1860
(‘ IPC ’) and Section 3(1)(r) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘ SC/ST
Act ’).
2. Briefly stated, the FIR was registered based on the
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complaint of the petitioner, alleging assault and abuse by
Respondent Nos. 2 and 3/accused persons, on 02.11.2015.
Allegedly, the incident took place in front of the petitioner’s
residence in Yamuna Vihar, Delhi due to a dispute between her
family and the respondents over the drainage system in the
neighbourhood. The complainant further claimed that the
accused persons had been consistently abusing and harassing her
family members due to their objections over the flow of foul-
smelling water from the respondents’ balcony.
3. After the completion of the investigation, the charge sheet
was filed before the learned Trial Court on 18.03.2017.
4. The learned Trial Court issued arrest warrants against
Respondent Nos.2 and 3 on 05.04.2017. Subsequently, the
respondents filed a petition before this Court, challenging the
said order. This Court, by order dated 20.04.2017 stayed the
operation of the order dated 05.04.2017 noting that on the perusal
of the complaint filed by the petitioner, no allegations under the
provisions of SC/ST Act seem to appear.
5. On 06.07.2019, the learned Trial Court granted bail to
Respondent Nos.2 and 3. The petitioner challenges this order,
stating that no opportunity was given for the petitioner to be
heard in opposition to the bail.
6. The learned senior counsel for the petitioner submits that
in compliance with the SC/ST Act, any order regarding bail must
be passed only after hearing the complainant. In the present case,
the petitioner was not heard, and the order was passed in
violation of the established procedure. The learned Senior
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Counsel for the petitioner relies on the judgment in Hariram
Bhambhi v. Satyanarayan : 2021 SCC OnLine SC 1010 ,
where the Hon’ble Apex Court set aside the bail granted without
the victim’s hearing.
7. He contends that the learned Trial Court failed to follow
the mandatory procedure outlined in Section 3(1)(r) of the SC/ST
Act, thus rendering the impugned order invalid.
8. He submits that the impugned order was passed hastily,
and the bail application was not properly listed for hearing. No
notice was issued, and the complainant and the Public Prosecutor
were denied an opportunity to oppose the application.
9. Per contra , the learned counsel for Respondent Nos.2 and
3 argues that the charge sheet was filed without the necessity of
arresting the respondents, which justifies the granting of bail.
10. He submits that the impugned order clearly states that all
advocates were heard in court, and the complainant was
represented by her counsel. Thus, the requirement of a fair
hearing was met. To support this contention, the learned counsel
refers to the judgment passed by the Hon’ble Apex Court in State
of Maharashtra v. Ramdas Shrinivas Nayak : (1982) 2 SCC
463 wherein, the Hon’ble Apex Court held that while it is vital to
adhere to procedural fairness, the presence of legal representation
for the complainant is sufficient to satisfy the requirement for a
fair hearing. The learned counsel submits that since the
complainant was represented by a counsel, the learned Trial
Court rightly proceeded with the matter without requiring the
complainant to be personally heard.
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11. He submits that the reliance placed by the petitioner on the
case of Hariram Bhambhi v. Satyanarayan ( supra ) is
misplaced. While the Hon’ble Apex Court in that case rightly
emphasized the importance of providing the victim an
opportunity to be heard in bail proceedings, particularly in cases
involving serious offences such as those under the SC/ST Act,
the circumstances, in that case, were different. In Hariram
Bhambhi v. Satyanarayan ( supra ), the victim was not
represented by counsel, nor was any appearance recorded on their
behalf. However, in the present case, the learned ASJ has
explicitly recorded the appearance of the complainant’s counsel.
As such, the presumption under Section 114 of the Indian
Evidence Act, 1872, applies, which provides that the Court may
presume that the complainant’s counsel, who appeared and
represented her, was acting in accordance with the instructions
and interests of the complainant. Therefore, the requirement of a
direct hearing of the victim is deemed satisfied through her
representation by counsel in this case.
12. It is trite law that an order granting bail ought not to be
disturbed by a superior court unless there are strong reasons to do
so. The party seeking setting aside an order granting bail must
establish a compelling case and demonstrate that the said order
was illegal, unjust or improper. The Hon’ble Apex Court in
Mahipal vs. Rajesh Kumar @ Polia and Anr : (2020) 2 SCC
118 , has opined as under :
“12. The determination of whether a case is fit for the grant
of bail involves the balancing of numerous factors, among
which the nature of the offence, the severity of the
punishment and a prima facie view of the involvement of the
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accused are important. No straitjacket formula exists for
courts to assess an application for the grant or rejection of
bail. At the stage of assessing whether a case is fit for the
grant of bail, the court is not required to enter into a detailed
analysis of the evidence on record to establish beyond
reasonable doubt the commission of the crime by the
accused. That is a matter for trial. However, the Court is
required to examine whether there is a prima facie or
reasonable ground to believe that the accused had committed
the offence and on a balance of the considerations involved,
the continued custody of the accused subserves the purpose
of the criminal justice system. Where bail has been granted
by a lower court, an appellate court must be slow to interfere
and ought to be guided by the principles set out for the
exercise of the power to set aside bail.
13. The principles that guide this Court in assessing the
correctness of an order [Ashish Chatterjee v. State of W.B.,
CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed
by the High Court granting bail were succinctly laid down by
this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee
[Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC
496 : (2011) 3 SCC (Cri) 765] . In that case, the accused was
facing trial for an offence punishable under Section 302 of
the Penal Code. Several bail applications filed by the
accused were dismissed by the Additional Chief Judicial
Magistrate. The High Court in turn allowed the bail
application filed by the accused. Setting aside the order
[Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010,
order dated 11-1-2010 (Cal)] of the High Court, D.K. Jain,
J., speaking for a two-Judge Bench of this Court, held : (SCC
pp. 499-500, paras 9-10)
“9. … It is trite that this Court does not, normally, interfere
with an order [Ashish Chatterjee v. State of W.B., CRM No.
272 of 2010, order dated 11-1-2010 (Cal)] passed by the
High Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a plethora
of decisions of this Court on the point. It is well settled that,
among other circumstances, the factors to be borne in mind
while considering 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 accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if
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released on bail;
(v) character, behaviour, means, position and standing of
the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant of
bail.
*
10. It is manifest that if the High Court does not advert to
these relevant considerations and mechanically grants bail,
the said order would suffer from the vice of non-application
of mind, rendering it to be illegal.”
14. The provision for an accused to be released on bail
touches upon the liberty of an individual. It is for this
reason that this Court does not ordinarily interfere with an
order of the High Court granting bail. However, where the
discretion of the High Court to grant bail has been exercised
without the due application of mind or in contravention of the
directions of this Court, such an order granting bail is liable
to be set aside. The Court is required to factor, amongst
other things, a prima facie view that the accused had
committed the offence, the nature and gravity of the offence
and the likelihood of the accused obstructing the proceedings
of the trial in any manner or evading the course of justice.
The provision for being released on bail draws an
appropriate balance between public interest in the
administration of justice and the protection of individual
liberty pending adjudication of the case. However, the grant
of bail is to be secured within the bounds of the law and in
compliance with the conditions laid down by this Court. It is
for this reason that a court must balance numerous factors
that guide the exercise of the discretionary power to grant
bail on a case-by-case basis. Inherent in this determination is
whether, on an analysis of the record, it appears that there is
a prima facie or reasonable cause to believe that the accused
had committed the crime. It is not relevant at this stage for
the court to examine in detail the evidence on record to come
to a conclusive finding.
*
16. The considerations that guide the power of an appellate
court in assessing the correctness of an order granting bail
stand on a different footing from an assessment of an
application for the cancellation of bail. The correctness of an
order granting bail is tested on the anvil of whether there
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was an improper or arbitrary exercise of the discretion in the
grant of bail. The test is whether the order granting bail is
perverse, illegal or unjustified. On the other hand, an
application for cancellation of bail is generally examined on
the anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to whom bail
has been granted…
”
(emphasis supplied)
13. The law is well settled through a catena of judgments by
the Hon’ble Apex Court that the considerations for granting bail
and for its cancellation are fundamentally different. Bail granted
to an accused can only be cancelled if the Court is convinced
that, after release, the accused has either (a) misused the liberty
granted, (b) flouted the conditions of the bail order, (c) the bail
was granted in contravention of statutory provisions limiting the
Court’s authority to grant bail, or (d) the bail was obtained
through misrepresentation or fraud. In the present case,
none of these situations existed.
14. Upon careful consideration of the contentions raised by the
petitioner, it is evident that the cancellation of the bail has been
sought primarily on the premise that the learned Trial Court
failed to adhere to the procedural fairness required by law,
specifically regarding the victim’s right to be heard. In the
present case, the learned counsel for Respondent Nos. 2 and 3
argues that the presence of the complainant’s counsel in court
suffices for procedural fairness. This contention is supported by
the fact that the learned ASJ recorded the appearance of the
complainant’s counsel. As per the principle established in State
of Maharashtra v. Ramdas Shrinivas Nayak ( supra ), the
statement of the learned Judge regarding the representation of the
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complainant through the learned counsel must be accepted as
conclusive, and the petitioner cannot contradict this statement by
claiming that the complainant was not personally heard in court.
15. The petitioner’s assertion that the learned ASJ did not
provide an opportunity for the complainant to be heard directly is
prima facie inconsistent with the court record and cannot be
contradicted by an affidavit or oral evidence at this stage. If the
petitioner believes that the proceedings were wrongly recorded,
the proper course of action would have been to raise the matter
before the learned ASJ when the events were still fresh, not at the
stage of challenging the bail order.
16. Moreover, it is crucial to note that Respondent Nos. 2 and
3 were not arrested at the time the charge sheet was filed on
18.03.2017. The respondents have remained on bail throughout
the proceedings, and there has been no substantial evidence
presented by the petitioner suggesting misuse of this liberty. The
prosecution evidence in the case has been concluded, and the trial
is progressing as per due process. At this juncture, taking away
the respondents’ liberty by cancelling their bail would be
detrimental to the progression of the case and would undermine
the principle that bail is not to be lightly revoked unless
compelling reasons exist.
17. Furthermore, there has been no allegation from the
petitioner that Respondent Nos. 2 and 3 have misused their
liberty or violated the conditions of their bail. The ground of
procedural irregularity for seeking cancellation of bail is
insufficient to justify such a drastic step in the facts of the present
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case. In Deepak Yadav v. State of U.P. : (2022) 8 SCC 559 , the
Hon’ble Apex Court has emphasised that bail once granted,
should not be cancelled in a mechanical manner. Cancellation of
bail must be on very cogent and overwhelming circumstances.
18. The freedom made available by grant of bail cannot be
taken away on inadequate grounds or mere assertions or
allegations, the veracity whereof remains to be tested. The
liberty, even though on bail is an important fundamental right
and cannot be taken away except on the grounds as discussed
above.
19. It is not the case of the petitioner that post the grant of pre-
arrest bail Respondent Nos. 2 and 3, have, in any manner
impeded the cause of justice.
20. It is to be borne in mind that at the pre-conviction stage,
there is a presumption of innocence. Detention is not supposed to
be punitive or preventive.
21. In view of the above, I find no reason to interfere with the
impugned order, and the present petition is dismissed.
22. It is made clear that the observations made by the learned
ASJ or in the present order are only for the purpose of deciding
the application for bail and be not be taken as opinion on the
merits of the case and shall not affect the trial in any manner.
AMIT MAHAJAN, J
DECEMBER 3, 2024
UG
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