IN THE HIGH COURT OF DELHI: NEW DELHI
SUBJECT : INDIAN PENAL CODE
Crl.M.C. 2550/2011
Date of Decision: 02.01.2012
VIVEK GAUR … Petitioner
Through: Mr. Siddharth Luthra, Sr. Adv. with Mr. Gaurav Gaur and Mr.
Rupesh Yashpreet, Advs.
Versus
NARESH KUMAR KAROTIA & ORS. …Respondents
Through: Mr.Navin Sharma, APP for the State.
Mr. Shailiendra Babbar with Mr. Joginder Sukhija, Advs.
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a petition, filed under section 482 read with Section 439(2) Cr.P.C.
for setting aside the order dated 01.08.2011 passed by the learned Additional
Sessions judge, Dwarka Courts, New Delhi regarding granting of
anticipatory bail to the respondents.
2. Briefly stated, the facts of the case are that a case FIR No.30/2010, under
section 302/307/34/147/ 148/323/325 IPC read with section 25/27 of the
Arms Act was registered at P.S. Dabri, New Delhi, on the statement of
Sh.Vivek Gaur, s/o Sh.Virender Kumar Sharma, R/o C-25, New Krishna
Park, Vikas Puri. He had stated that he, along with his family, has been
residing at the above given address and is running a factory of
manufacturing scooter parts at Khasra No.38, Village Dabri, New Delhi. On
24.01.2010, at about 9.30/10 am Haryana Police came to Dabri, Delhi in
connection with the investigation of case FIR No.2/2010, under section
380/342/147/148/448/506/511 IPC, registered by PS Manesar, District
Gurgaon, Haryana, at the instance of one Sameer Gaur s/o Late
Sh.R.K.Naseem. The Haryana Police had apprehended three accused
persons from the factory of one Vinod Sharma, uncle of the complainant,
which was also located in the same Khasra No.38, Dabri Village, New
Delhi. At about 11 am, Vinod Sharma, his son Aman Gaur, the present
petitioner and his driver Amrit Lal came to the spot. Neeraj, Rahul, Naresh
Karotia, Sunita w/o Ram Mehar Singh, who were employees of Vinod
Sharma also came to the spot. Thereafter, it is alleged that Vinod Sharma,
his son Aman Gaur, the present petitioner and his workers created riotous
situation. Sunita w/o Ram Mehar Singh and another worker of Vinod
Sharma Laxman brought lathis (big sticks) from inside the factory. Sh.
R.K.Naseem, a noted lawyer, who is the uncle (Phoofaji) of the
complainant had also come there and he had tried to pacify both the parties.
It is alleged that when Sh.R.K.Naseem stood at one side, facing the factory
of Vinod Sharma with his back, Vinod Sharma took a lathi (a wooden plank)
and hit it on the head of Sh.R.K.Naseem from the back, with an intention to
kill him. As a consequence of this, Sh.R.K.Naseem fell down and became
unconscious. Aman Gaur, the present petitioner, is alleged to have taken out
a revolver and fired three rounds with an intention to kill Sh.Rajiv Gaur and
others but there was a narrow escape and nobody got injured. It is alleged
that Aman Gaur threatened to kill while firing towards Sh.Rajiv Gaur and
others. It is alleged that Neeraj, Ramesh Raghav, Kailash Khati, Naresh
Karotia, Rahul and Amrit Lal belonging to the group of Vinod Sharma
attacked the complainant’s brothers, namely, Sunny and Monty with the
help of sticks (danda) and fists.
3. On the basis of the aforesaid information, the FIR was registered.
Sh.R.K.Naseem was admitted to the hospital, where he succumbed to his
injuries after a few days without gaining consciousness. The offence of
section 302 was subsequently added to the FIR.
4. So far as the bail granted to Naresh Karotia, Amrit Lal and Laxman by the
learned Additional Sessions Judge on 01.08.2011 is concerned, I have heard
the learned senior counsel Mr. Siddharth Luthra for the petitioner and
Mr.Shailendra Babbar on behalf of the respondents/accused.
5. The main contention of the learned senior counsel for the petitioner is that
the order of the learned Additional Sessions Judge granting bail to the three
respondents/accused was totally arbitrary, unwarranted and improper
exercise of discretion on account of the fact that three applications for grant
of anticipatory bail had been rejected earlier by the learned Additional
Sessions Judge. It was contended by him that after rejection of the three
anticipatory bail applications of the respondents/accused, the prosecution
had taken steps and declared all three of them as proclaimed offenders and
once they were declared proclaimed offenders, the Court ought to have been
cautious in entertaining their bail applications. Hence, the order of grant of
anticipatory bail is totally arbitrary and unsustainable in the light of the
pronouncement of the Supreme Court in case titled Puran Vs. Rambilas &
Anr. 2001(6) SCC 338 wherein it was observed:
“it is to be kept in mind that a concept of setting aside unjustified, illegal and
perverse order is totally different from the concept of cancellation of the bail
on the ground that the accused has misconducted himself.”
6. It was also contended by the learned senior counsel Mr.Luthra that it
is a settled principle of law that while granting anticipatory bail or refusing
bail, the Court should exercise its discretion in a judicious manner and not as
a matter of course and further at the stage of grant of bail, detailed
examination of evidence and elaborate documentation on the merits of the
case need not be undertaken. In such orders, the only requirement is to
indicate the reasons as to why the bail is being granted, particularly when the
accused is charged for having committed a serious offence. This was also
observed in case titled Kalyan Chand Sarkar Vs. Rajesh Ranjan @ Pappu
Yadav & Anr. 2004 Crl. J. 1796. The learned senior counsel for the
petitioner has contended that in the context of aforesaid principle, if one
analyzes the order of the learned Additional Sessions Judge, not only he has
ignored the rejection of three earlier anticipatory bail applications, but has
also fallen into error by mis-application of law regarding the grant of
anticipatory bail by discussing the merits of the evidence produced by the
prosecution side. This is evident from the fact that in the bail order, the
learned Special Judge, instead of giving reasons for grant of bail to the
respondents has raised some questions and thereafter answered them in
favour of the respondents. Reference in this regard was particularly made
in paras no. 21 to 24 which read as under:
“21. Undoubtedly the allegations against the applicants, are very serious in
nature as they are stated to be members of an unlawful assembly, the
common object of which was to kill the deceased and he was ultimately
killed. It is the case of the prosecution itself that whatever happened at the
spot on 21.1.2010 between 10 am to 11.30 am has been recorded by a CCTV
camera, the footage of which has been downloaded in three DVDs of 30
minutes duration each and filed along with the charge sheet. These DVDs
were viewed in the courtroom by me on 26.7.2011 in presence of the learned
counsel for applicants, ld. Special Prosecutor and IO of the case, who had
made available the DVD player and the LCD Screen. The prosecution
claims this CCTV footage as a crucial evidence in this case and indeed it is.
It is aptly said that men may lie but the circumstances do not lie. The
aforesaid CCTV footage provides a clear glimpse of the circumstances in
which the incident happened. It is important to note that these three DVDs
were handed over to the police by Sandeep Sharma @ Sunny s/o Late
Sh.Ajay Sharma in presence of Rajiv Gaur s/o late R.K.Naseem and were
seized vide seizure memo dated 05.2.2010 by IO Ashok Sharma of Crime
Branch.
22. Applicant Naresh Karotiya is nowhere seen in the footage during the
whole incident. The charge sheet even does not mention anywhere the
presence of this applicant on the spot of incident. The absence of applicant
Naresh in the CCTV footage was admitted by the ld. Prosecutor when the
same was viewed in Court. This contradicts the statement of the
complainant Vivek Gaur (on the basis of which FIR has been registered in
this case) where it is stated that this applicant was present at the spot and he
along with Neeraj, Ramesh, Raghav, Kailash Khati, Rahul and Amrit Lal
beat Sandeep Sharma @ Sunny and Deepak Gaur @ Monty with fists and
dandas. Even if the said statement of the complainant is taken on its face
value, dehors the CCTV footage, then also it nowhere shows that the
applicants Naresh Karotiya and Amrit Lal did any act relating to the death of
R.K.Naseem. At the most, it discloses commission of offences u/s 323 IPC
and 325 IPC, both of which are bailable.
23. It was argued by ld. Prosecutor that even if the three applicants did
not do any such individual incriminating act, yet they are vicariously liable
for the death of deceased Petitioner. R.K.Naseem as they were Members of
un-lawful assembly, the object of which was to kill Mr.Naseem. At this
stage, after viewing the DVDs and scrutinizing the charge sheet, statements
of complainant and other eye witnesses, it does not appear so. The
complainant in his statement has, though, stated that accused Vinod Sharma
and his driver Amrit Lal, on reaching the spot, were joined by Neeraj, Rahul,
Naresh Karotiya and wife of Ram Mehar Singh and all of them started
creating ruckus, CCTV footage shows that situation was otherwise. Accused
Vinod Sharma and Aman Gaur raach the spot at 10.56 am. They meet the
SHO P.S. Dabri, who was still present there, and show him certain papers,
which according to ld. Counsel Shailender Babbar, were their anticipatory
bail papers in Manesar case. A verbal altercation takes place between Vivek
Gaur and Vinod Sharma. Vivek Gaur is seen shouting angrily on Vinod
Sharma and then head buts him. Vinod Sharma is thrown a few paces back
and hits his car which was parked nearby. Amrit Lal and Sunita try to save
Vinod Sharma but Amrit Lal is also beaten. New who creates ruckus?
Where is the so called unlawful assembly allegedly formed by the accused
and applicants? Who is the aggressor in the first place? Answers are self
evident. Deceased Petitioner. R.K.Naseem was present at the spot.
However, no person from accused’s side touches him. Thereafter, peace
prevails till 11.15 am except occasional outbursts of the rival factions.
24. At about 11.15 am scuffle again takes place between the two parties.
At this juncture Amrit Lal and Laxman seen coming out of their factor with
‘dandas’ in their hands. However, they do not indulge in any unlawful act.
Accused Vinod Sharma is seen snatching the ‘danda’ from the hands of
Laxman and hitting on the head of the deceased Petitioner. R.K.Naseem.
Here I am not examining the role of either accused Vinod Sharma or his son
Aman Guar. I am explaining this only to examine what role, if any, has
been done by the applicants in the incident.”
7. As against this, Mr. Shailiendra Babbar, the learned counsel for the
respondents has contended that the learned Additional Sessions judge has
rightly exercised its judicial discretion of granting anticipatory bail by
forming prima facie view of the matter on the basis of the evidence which
has been adduced by the prosecution at the stage of investigation. It was
also contended by him that the respondents have already been on bail from
01.08.2011 and even if it is assumed for the sake of argument that the
discretion was not properly exercised, even then, the fact of the matter
remains that today despite being on bail for a period of almost five months,
they have neither misused their liberty nor created any conditions which may
be conducive to the fair investigation or holding of a fair trial. Therefore,
these subsequent developments are very important considerations for
passing any order as on date with regard to the legality of the order dated
01.08.2011.
8. I have carefully considered the submissions made by the learned
counsel for the parties.
9. I feel that there is some amount of merit in the contention raised by
the learned counsel for the petitioner that exercise of discretion by the
learned Additional Sessions Judge while granting anticipatory bail to the
three of the respondents on 01.08.2011, was not proper and justified. The
reasons for holding the said view by this Court are as follows:
(i) Firstly, this was a case admittedly where the accusations against the
respondents were very serious in nature in as much as allegations were made
by Vivek Gaur/petitioner in his complaint that these three respondents were
part of the unlawful assembly and in furtherance of their common object
caused death of Pandit R. K. Naseem who was a noted criminal lawyer in
Delhi. The offence of murder is the most heinous crime and more so when
a member of the legal fraternity was the victim. The punishment for such
an offence is life imprisonment or even death sentence. If these were the
allegations against the respondents then certainly the first parameter is the
severity of the allegations against the respondents which goes against them.
The question which would arise is as to whether there was any prima facie
evidence in this regard against the respondents or not. Admittedly, the
complainant had taken their names. It is also a well settled law that while
considering the question of grant of bail the Court does not have to conduct
a meticulous dissection of evidence so as to find out as to whether the
persons were part of the unlawful assembly or not, and if so, what was their
role in the said unlawful assembly which had gathered in furtherance to their
common object. And if this dissection had to be done, it is only for a
purpose of a prima facie view to be formed by the Court and for the purpose
of deciding the bail application and it should not tantamount to forming an
opinion on the merits of the case. On all these parameters, I feel that if the
order of the learned Additional Sessions Judge is read in its entirety,
especially paragraph nos. 21 to 24, which have been reproduced
hereinabove, it clearly shows that although the learned Addl. Sessions Judge
has correctly appreciated the pronouncement of the Supreme Court, but he
has mis-applied the law to the facts of the present case. The learned
Additional Sessions Judge has done minute dissection of the evidence and
raised the queries on his own and answered them and literally decided that
the respondents were not the part of the unlawful assembly, and even if they
were the part of the unlawful assembly the offence which at best could be
made out against them is the one under Section 323 and 325 IPC. The
Learned Additional Sessions Judge has gone to the extent of saying that
‘analysis of the whole material on record’ shows that there is no evidence to
connect the killing of the deceased or of any other heinous crime. The
Learned Additional Sessions Judge has not even cared to mention that the
expression of any opinion may not be treated as an expression on the merits
of the case and, therefore, it almost decided the allegations against the
respondent on merits, while deciding his bail application. While deciding the
bail application of the accused persons with reference to the allegations
leveled against him in respect of a particular offence, it does not warrant the
observations that the offence under different sections or a lesser offence is
made out. The impugned order is giving impression as if the learned
Additional Sessions Judge was deciding the question of framing charges
against the respondents. This, I feel, will cause serious prejudice to the
petitioner. Such stark observations passed by the learned Special Judge are
not only against the pronouncement of the Supreme Court but also have
potential to cause a serious prejudice to one of the parties. This is against
the fundamental principle to be observed while deciding the bail application.
Reliance in this regard is placed in case titled Gobarbhai Naranbhai Singla
Vs. State of Gujrat & Ors 2008(3) SCC 775.
(ii) The second reason as to why the learned Special judge seems to have
gone wrong is that admittedly this was not in dispute that on four earlier
occasions, the prosecution had taken the plea that their application for grant
of anticipatory bail had been rejected. The learned Special Judge had rightly
noted that in case titled Yogender Partap Singh Vs. State 2009 (2) JCC
1314, the Apex Court has rightly observed that merely because an accused is
declared a proclaimed offender does not take away his right to apply for
anticipatory bail. The learned Special Judge had also relied upon the
judgment of the Apex Court in case titled Siddharam Satlingappa Mhetre
Vs. State of Maharashtra & Ors. 2011 (XII) AD SC 340 wherein broad
principles for grant of bail had been recapitulated and it has been observed
that the personal liberty of an accused is the most valuable thing and it
should not be permitted to be jeopardized by false and frivolous accusations.
The two anticipatory bail applications were withdrawn, and therefore, they
could not be treated as dismissal of the anticipatory bail application on
merits and even if the one which was decided on merits was not treated as an
application dealing with the points on merits which were sought to be urged
before the learned Additional Sessions Judge, I am of the view that in case
such a reasoning is given then it will only open pandora’s box and give
unlimited number of opportunities to an accused to file repeated applications
by observing that earlier anticipatory bail application was not decided on
merits. This Court in case titled Raj Kumar vs. State (NCT of Delhi) 128
(2006) DLT 264 has also observed that it is a common knowledge that when
an application for grant of anticipatory bail is filed and argued by the
counsel then after sensing that the Court is not in favour of granting bail, the
counsel makes a statement seeking permission to withdraw the petition,
which permission as a matter of routine is granted by the Courts. But
certainly, only on account of the fact that reasons for rejection of the bail do
not apparently get recorded does not mean that the withdrawal of the
application of the petitioner was for want of non-consideration of his bail
application on merits. In the instant case, this had happened admittedly as
there was withdrawal of application at least on two occasions. It was
contended by the learned counsel for the respondents that the application
was withdrawn to be filed before the appropriate Court, where trial was
pending. If benefit of this submission is given, even then at least on one
occasion the application was withdrawn after being argued which would be
treated as rejection on merits.
10. So far as the third anticipatory bail application which has been
considered by the learned Additional Sessions Judge is concerned, it has
been observed that this application purported to have been rejected on merits
can also not be treated as rejection on merits because the reasons are not
given with regard to the evidence against the respondents.
11. I feel that such a reasoning given by the learned Additional Sessions
Judge is fraught with danger, in as much as, every time an anticipatory bail
application is rejected and it does not deal with a particular aspect of the
matter which may not have been urged, though available. This will give
rise to an occasion of filing of the successive bail applications on the said
grounds before another Bench, for the purpose of reconsideration and will
result only in Bench hunting by an unscrupulous accused. The fact of the
matter in the instant case is that if not on four occasions at least on three
occasions the anticipatory bail was either dismissed or withdrawn.
12. The power of grant of anticipatory bail has been conferred by the
Code of Criminal Procedure, concurrently, on the Sessions Court and the
High Court. Normally, as a matter of fact, the practice
which is prevalent in Delhi is that an accused is first relegated to file a
petition before the Sessions Court and after having done so, if he is unable to
get the requisite relief, he files a second anticipatory bail application before
the High Court which is considered by way of judicial review, in as much as,
it reconsiders not only the order passed by the learned Sessions Court but
also independently assess the facts as to whether the accused person, in the
given case, is entitled to grant of bail or not. Once these two opportunities
are utilized by an accused and he is unsuccessful, ordinarily, the accused
must submit to the processes of law. The law does not countenance that a
person who fails to avail the protection of law files successive/repeated
anticipatory bail applications, get them rejected and yet does not submit to
the processes of law, and thereafter, sits on the fence observing the
proceedings and then suddenly resurfaces after the charge sheet has been
filed and applies to the Court for grant of anticipatory bail.
13. This is precisely what has happened in the instant case. The
respondents anticipatory bail applications were rejected earlier three or four
times after which they ought to have submitted to the processes of law.
Normally, a person who seeks protection of law must submit to the
processes of law. On the contrary, the respondents were declared
proclaimed offenders after their anticipatory bail application having been
rejected. Certainly, a person declared as a proclaimed offender may not be
denied the benefit of anticipatory bail in all circumstances. A distinction
has to be made where a person has been declared as a proclaimed offender
without his knowledge and cases where a person knows about his being
required by law enforcing agency yet tries to escape from the same by hook
or by crook and then suddenly finds an opportune time to obtain an order to
insulate his liberty. Such a benefit conferred on this kind of unscrupulous
accused persons, in my view, is a dis-service to the law. I feel that the
learned Additional Sessions Judge, in the instant case, by granting the
benefit of anticipatory bail to the respondents, has not exercised his
discretion judiciously and properly as they were declared as proclaimed
offenders and their application for anticipatory bail had been rejected.
14. Having said so now the necessary consequence of such an observation
would normally be the cancellation of the order passed by the learned
Additional Sessions Judge or either arrest respondents/accused or give them
a protection that they must surrender before the Court concerned. It is also
observed by the Courts in different circumstances that if the interim bail is
granted to an accused person on couple of occasions and the same has not
been misused by him then it would certainly be a valid consideration for
grant of regular bail in respect of a serious offence, but in a case of a heinous
crime like the present one, it may not be at all the one of the considerations.
Reliance in this regard has been placed on case titled Gobarbhai Naranbhai
Singla Vs. State of Gujrat & Ors 2008(3) SCC 775.
15. Though the subsequent facts may not be conclusive in deciding the
validity of an order of bail, but these facts do become important because
ultimately cancellation order impairs the liberty of a person. I am also of
the view that the subsequent facts may have some impact on validity of the
cancellation order, because with the lapse of time, in case the respondent
whose anticipatory bail application was sought to be cancelled and who
does not create conditions so as to threaten either fair investigation or fair
trial or in other words, has not mis-used his liberty, then it may be a valid
consideration for not putting him necessarily in judicial custody as a matter
of punishment. But this will again vary from the case to case and further
there can be no person better than the trial Judge to appreciate this. Thus,
keeping in view the aforesaid points, I feel that the interest of justice would
be sub-served in case the order dated 01.08.2011 passed by the learned
Additional Sessions Judge is set aside by exercising the powers of the Court
under Section 482 read with section 439 (2) Cr.P.C. and the
respondents/accused herein are directed to appear before the learned Special
Judge within a period of two weeks from today and file an appropriate
application for grant of regular bail. The respondents shall not be taken into
custody till their regular bail application is decided by the Court afresh on
merits after taking into consideration all the facts and circumstances of the
case germane to the grant of regular bail. Ordered accordingly. The learned
Special Judge shall not get influenced, in any manner whatsoever, by the
observations passed by this Court hereinabove, as these are only tentative
views formed by this Court for deciding the present petition wherein the
order dated 01.08.2011 is assailed. With these directions, the petition stands
disposed of.
16. Dasti.
Sd/-
V.K. SHALI, J.
