The law is well settled that the parameters of accepting the bail are altogether different from the parameters of cancelling the bail already granted.

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CRIMINAL PROCEDURE
CRL.M.C. 2882/2012
DATE OF ORDER : 20.03.2013
SURESH CHAND ….. Petitioner
Through Mr. S.M. Hussain, Adv.
versus
STATE NCT OF DELHI & ORS. ….. Respondents
Through Mr. Navin Sharma, APP for the State.
Mr. G.P.Singh and Mr. C. Siddiqui, Advs. for R-2 to 5.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
1. By this petition filed under Sections 439(2) of Code of Criminal
Procedure the petitioner seeks directions to cancel the anticipatory bail
granted by the learned Additional Sessions Judge vide order dated 7th July,
2012 and 23rd July, 2012.
2. Addressing arguments on the present application, Mr. S.M. Hussain,
counsel for the petitioner submits that the petitioner was assigned duty by
the SHO P.S Sarita Vihar to serve the restrainment order dated 20th June,
2012 passed by the SDM, Defence Colony against Mr. Bal Singh, owner of
house No. H-24, Bhawani Gali, Aali Vihar, New Delhi-44 to immediately
stop the illegal and unauthorized construction of the said property. Counsel
also submits that the petitioner along with one constable namely Shri
Mukesh Dalal had visited the said property on 1st July, 2012 at about 8.45
p.m. to serve the restrainment order issued by Mr. M.K. Dwivedi SDE/SE.
At the time of serving the said notice, he met Mr. Bal Singh and when he
was told to sojourn the illegal construction of the said property he started
abusing the petitioner and used filthy words against him. After hearing he
conversation aloud, at that very moment his wife Shakuntla, son Vineet
Nagar and his brother Yograj also came out of the house. Mr. Bal Singh,
respondent No.2 herein then instigated and abated all of them to beat the petitioner and broke the legs of the petitioner so that he could not come
again for executing any such order. Respondent Nos.2 and 3 caught hold and
surrounded the petitioner and respondents No.4 and 5 brought danda and
iron rod. Both of them started mercilessly beating the petitioner with iron
rod and danda on the head shoulder, hands and legs of the petitioner, which
resulted in causing severe head injuries and petitioner, also suffered injuries
on his hands and legs. Counsel also submits that during this vehemence and
quarrel, constable Satpal who was on duty and patrolling in the area near the
place of occurrence, after hearing about the said incident, he immediately
rushed to the place of occurrence and found that the petitioner was lying on
the ground and bleeding profusely from his head and scalp, seeing the
injuries on the hands of the petitioner he immediately took the petitioner on
his motorcycle to AIIMS Trauma Centre, New Delhi and got him admitted.
Mr. Ranvir Singh ASI of PS Sarita Vaihar recorded his statement in
hospital on 1.7.2012 and FIR No. 208/2012 was registered on 2nd July,
2012. Counsel also submits that the petitioner had received serious injuries
on his scalp and his treatment continued till 7th July, 2012. Counsel also
submits that the treatment of the petitioner also continued from 21st July,
2012 to 28th July, 2012 at Escort hospital, Faridabad. The main contention
raised by counsel for the petitioner is that the learned Sessions Judge failed
to consider the serious injuries received by the petitioner at the hands of
these respondents and also the fact that the petitioner in due discharge of his
duties had visited the said property to execute the said order issued by the
learned SDM, Defence Colony. Counsel also submits that respondent No. 2
before seeking his anticipatory bail filed a false application on 6th July, 2012
with allegations attributing false motives in the mind of the petitioner,
asking for some enticement/ bribe. Counsel also submits that the said
complaint made by respondent No. 2 was duly enquired into by the ACP and
the allegations leveled by respondent No.2 in his said complaint turned out
to be totally false. Counsel for the petitioner further submits that because of
the petitioner having suffered serious injuries on his head, Section 308 IPC
was later added in the said FIR.
3. Counsel further submits that learned Sessions Court ignoring all these
material facts granted anticipatory bail to all these respondents instead of
directing their custodial interrogation. Counsel also urged that these
respondents did not deserve grant of anticipatory bail as they had beaten the
police official while he was discharging his official duties. Counsel thus
prays that the anticipatory bail granted vide orders dated 07.07.2012 and 23.07.2012 should be cancelled as the aforesaid conduct of the respondents
is highly unfortunate and felonious.
4. On the other hand, this petition has been vehemently opposed by the
counsel for the respondent Nos. 2 to 5. Counsel for respondent Nos. 2 to 5
submits that on 1.7.2012, which was a Sunday, constable Mukesh Dalal had
visited the residence of respondents at 4.00 p.m. and told them that some
notice has been issued against them to stop the construction activity at the
said property. These respondents were also told by Mr. Mukesh Dalal to
come to the police booth as notice was lying with Head Constable Suresh
Chand. Counsel further submits that respondents had reached the police
booth where they met the petitioner Mr. Suresh Chand and he told them that
notice is with Mr. Mukesh Dalal and not with him. Counsel also submits that
at that point of time the present petitioner demanded a sum of Rs. 1.5 lakhs
as consideration and when the respondent had shown their vulnerability in
paying such a huge amount then they were told by the petitioner that the said
amount would include the share of the senior police officials aswell and also
without the payment of the said the amount the respondents would not be
allowed to carry on the construction work. Counsel also submits that the
respondents were told by the petitioner that they should arrange the said
money by that evening and he will visit their house to collect the said
money. Counsel also submits that since these respondents were not prepared
to pay the said money, therefore, the petitioner and the said other constable
started abusing and assaulting the respondents. Counsel also submits that the
respondents did even dial the police control room after the said assault.
Counsel also submits that respondent No.2 had also received injuries on his
head in the said assault. Counsel also submits that the Io in the case has filed
the challan against the respondent no. 4 before the juvenile justice Board and
the copy of the same has been received by the respondent no.2 and it is
further clear that the challan against the respondent nos. 2, 3 and 5 are also at
the stage of filing before the illaqa Magistrate and thus the application is
itself is premature and infructuous.
7. Counsel also submits that the present application seeking cancellation of
anticipatory bail granted to the accused persons by Counsel also submits that
anticipatory bail was only granted by the learned Sessions Judge in favour of
the respondent nos. 2 to 5 is not only malafide in nature but also unlawful as
the petitioner being a public servant , head constable with the Delhi Police
has transgressed its authority and position by assaulting the respondents for
extorting extraneous consideration in lieu of providing license to carry on
repair activities in the residential premises of the respondents by them. Counsel submits that on seeing the formidable circumstances and there is no
error in the order passed by the learned Sessions Judge . Therefore, the
present application filed by the petitioner is highly misconceived, arbitrary
and vindictive in nature, and deserves an outright dismissal.
5. I have heard the counsel for the parties and perused the relevant orders
passed by the ld. Sessions Court.
6. The law is well settled that the parameters of accepting the bail are
altogether different from the parameters of cancelling the bail already
granted. The respondent has not abused the liberty of his bail. The petitioner
has not quoted any instance to prove that the respondent tampered with or
endeavoured to tamper with any witness, posed any threat to the petitioner,
tried to hide himself or hampered the investigation or the trial of the case, as
such, the petition deserves to be dismissed.
8. Hon’ble Supreme Court in the case of State v. Sanjay Gandhi : AIR
1978 SC 961 has held that:
“12. rejection of bail when bail is applied for is one thing, cancellation of
bail already granted is quite another. It is easier to reject a bail application in
a non-bailable case than to cancel a bail granted in such a case. Cancellation
of Bail necessarily involves the review of a decision already made and can
by and large be permitted only if, by reason of supervening circumstances, it
would be no longer conducive to a fair trial to allow the accused to retain his
freedom during the trial.”
9. Hon’ble Supreme Court has also held in the case of Daulatram and Ors. v.
State of Haryana (1995) (1) SCC 349 that:
“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 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.”
10. Hon’ble Rajasthan High Court has held in the case of Smt. Rajbala v.
State of Rajasthan 2005 (1) R.C.C. 289 as under:
“It is now well settled by a catena of cases of the Apex Court as well as of
this Court that the grounds for cancellation of bail are distinct from the
considerations for the grant of bail. The bail once granted cannot and ought
not to be normally cancelled in a mechanical manner unless there are cogent
and overwhelming facts and circumstances on record to do so.”
11. While rejecting the application for the grant of cancellation of bail, the
Apex court observed in another case, namely, Rizwan Akbar Hussain Syyed
v. Mehmood Hussain & anr, VI (2007) SLT 594) that:
“8. …if no condition is specifically stipulated, the accused, while on bail, is
not supposed to tamper with evidence. There is no specific observation in
this regard in the impugned order. Cancellation of bail should not be done in
a routine manner. Where it appears to the superior Court that the Court
granting bail acted on irrelevant materials or there was non-application of
mind or where Court does not take note of any statutory bar to grant of bail,
order for cancellation of bail can be made. These circumstances are
illustrative and not exhaustive. The Court considering the application for
cancellation of bail has to take note of all relevant aspects.”
12. Considering the facts of the present case in the light of the aforesaid
judgments of the Apex court, in my view, the learned trial court rightly
granted bail to the respondent nos. 2 to 5 as it cannot be lost sight of the fact
that the respondent no.2 , Bal Singh has also been injured in the incident,
and had received abrasions on his head, and his wife , Shakuntala also has
no specific role to play whereas his son/ respondent no. 4 is a juvenile,
against whom a challan has been filed by the IO before the Juvenile Justice
Board.
13. The present petition seeking cancellation of bail granted by the ld.
ASJ vide orders dated 7th July, 2012 and 23rd July, 2012 therefore stands
dismissed. However, the petitioner is directed to fully cooperate in investigation and not to create any hindrance or impediment during the
course of investigation. The petitioner shall also not take any action to
intimidate or cause any sort of harm to the respondents.
14. With the above directions, the present petition stands disposed of. It is
ordered accordingly.
Sd/-
KAILASH GAMBHIR, J
MARCH 20, 2013

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s