Punjab-Haryana High Court
State Of Haryana vs Ashok Kumar And Another on 23 July, 2010
Author: M.M.S.Bedi
Bench: M.M.S.Bedi
Crl.Misc.No.M-4468 of 2007
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Decided on: July 23, 2010.
(1) Crl.Misc.No.M-4468 of 2007.
State of Haryana
.. Petitioner
VERSUS
Ashok Kumar and another
. Respondents
PRESENT Mr.S.S.Mann, Sr., DAG, Haryana.
for the petitioner
Mr.Amarjit Markan, Advocate,
for the respondents.
***
(2) Crl.Misc.No.M-12861 of 2007.
State of Haryana
.. Petitioner
VERSUS
Shri Vithal D. Talwar.
. Respondent
PRESENT Mr.S.S.Mann, Sr., DAG, Haryana.
for the petitioner
Mr.Amarjit Markan, Advocate,
for the respondent.
...1
Crl.Misc.No.M-4468 of 2007
(3) Crl.Misc.No.M-51490 of 2007.
Satish Chaudhary
.. Petitioner
VERSUS
State of Haryana and another
. Respondents
PRESENT Mr.Amit Singh, Advocate,
for the petitioner.
Mr.S.S.Mann, Sr., DAG, Haryana,
for respondent No.1.
Mr.Amarjit Markan, Advocate,
for respondent No.2.
***
(4) Crl.Misc.No.M-51491 of 2007.
Satish Chaudhary
.. Petitioner
VERSUS
State of Haryana and others
. Respondents
PRESENT Mr.Amit Singh, Advocate,
for the petitioner.
Mr.S.S.Mann, Sr., DAG, Haryana,
for respondent No.1.
Mr.Amarjit Markan, Advocate,
for respondent Nos.2 to 4.
CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI
...2
Crl.Misc.No.M-4468 of 2007
M.M.S. BEDI, J.
This order will dispose of the above noted four petitions filed under Section 439 (2) Cr.P.C., for cancellation of regular bail and anticipatory bail granted to the respondents.
In Crl.Misc. No.M-4468 of 2007, the State of Haryana has sought the cancellation of the bail granted to the respondents Ashok Kumar, Gaurav Kumar and Rajesh Kumar, in FIR No.216 of 16.09.2006, under Sections 420, 467, 468, 470, 471 & 120-B IPC, Police Station, Dharuhera, District Rewari, vide order dated 05.10.2006, passed by the Additional Sessions Judge, Rewari.
In Crl.Misc. No.M-12861 of 2007, the State of Haryana has sought the cancellation of the bail granted to the respondent Vithal D.Talwar in the above said FIR, vide order dated 09.11.2006, passed by the Additional Sessions Judge, Rewari.
In Crl.Misc. No.M-51490 of 2007, petitioner Satish Chaudhar has sought the cancellation of the bail granted to respondent No.2, Vithal D.Talwar, in the above said FIR, vide order dated 08.01.2007, passed by the Addl. Chief Judicial Magistrate, Rewrai, and order dated 09.11.2006, granting pre-arrest bail to respondent No.2, passed by the Additional Sessions Judge, Rewari.
In Crl.Misc. No.M-51491 of 2007, petitioner Satish Chaudhar has sought the cancellation of the bail granted to respondent Nos.2 to 4, namely Ashok Kumar, Gaurav Kukmar and Rajesh Kumar, in the above said FIR, vide order dated 10.01.2007, passed by the Addl. Chief Judicial Magistrate, Rewrai, and order ...3 Crl.Misc.No.M-4468 of 2007 dated 05.09.2006, granting pre-arrest bail to respondent Nos.2 to 4, passed by the Additional Sessions Judge, Rewari.
Brief facts, which are relevant for adjudication of the present petitions, for cancellation of regular bail and pre-arrest bail granted to the respondents are that FIR No.236 of 16.09.2006, under Sections 420, 467, 468, 470, 471 & 120-B IPC, Police Station, Dharuhera, District Rewari, was registered against 8 persons, on the complaint of Satish Chaudhary, Proprietor of M/s Maa Bhagwati and Company, Khemka Nagar, Damodarpur, Saharanpur, U.P., alleging that the said firm had purchased one property known as Western Components Limited, situated in village Joniawas, Tehsil Dharuhera, District Rewari, measuring about 14 kanals 18 marlas. Mutation was entered and sanctioned in the name of the firm on 23.06.2006. A building has also been constructed by the said firm being owner in possession. The sale deed dated 31.08.2006, was executed in favour of Jat Properties Private Limited, Sector 9, Panchkula, for a sale consideration of Rs.1.80 crores and the sale deed was produced before the Sub Registrar, Dharuhera, for its registration. The Sub Registrar started the registration of the sale deed and he enquired about the no objection. He was informed that the land had already been sold by M/s Maa Bhagwati and Company through its general Power of Attorney holder Ashok Kumar accused, in favour of Gaurav Kumar and Atul Kumar. The complainant firm claimed that no general power of attorney was ever executed in favour of Ashok Kumar accused as such, all the accused persons conspired with ...4 Crl.Misc.No.M-4468 of 2007 each other and in connivance with each other created a forged General Power of Attorney to cause loss to the complainants after committing forgery by adopting illegal methods and got executed a sale deed in favour of Gaurav Kumar and Atul Kumar accused persons on the basis of forged attorney. The allegation against the accused persons is that they had in August 2006, purchased stamp papes of Rs.100/- in Goa in the name of complainant and got registered fake, false and fictitious Power of Attorney showing false presence of the complainant before the Sub Registrar, Goa, whereas he was under treatment in Govt. Hospital, Saharanpur on that day.
Shri Amit Sethi, and State counsel have vehemently contended that the anticipatory bail granted by the Additional Sessions Judge, Rewari on 09.11.2006, followed by the regular bail granted to the respondents, has caused miscarriage of justice and the respondents have been able to evade their appearance before the police by not joining investigation. It is a case of land grabbing. The accused persons being highly influential are able to influence the witnesses in their favour. They did not cooperate with the investigation, as such, the order granting bail to the respondents warrants interference. The bail granted to the respondents deserve to be cancelled in peculiar circumstances of the case.
Mr.Amit Sethi, Advocate, has submitted that on merits, the order passed by the Additional Sessions Judge, Rewari, is illegal.
Shri Sethi has further urged that the petitioner was ...5 Crl.Misc.No.M-4468 of 2007 under treatment at the relevant time of execution of the alleged General Power of Attorney at Goa and that the complainant had never visited Goa for the purpose of execution of any General Power of Attorney. The property is situated in Haryana. The said fact apparently is indivative of the fraud which has been committed by the respondents in grabbing the property of the petitioner.
Since the anticipatory bail has been granted in the year 2006 and the respondents were granted regular bail in January 2007, in order to ascertain whether the respondents after presentation of challan in the Court of the Additional Chief Judicial Magistrate, Rewari, had misused the concession of bail, a report was called for and Photocopies of the orders passed after the presentation of challan were also called for. A perusal of the interim orders indicate that the charges were framed against the accused on 16.04.2009 and that they have been appearing before the trial Court. The case is now fixed for evidence. Order dated 18.10.2008, passed by the Additional Chief Judicial Magistrate, Rewari, indicates that on the day when two accused were absent, application for exemption from their personal appearance had been filed. The respondents have not misused the liberty granted to them by order of bail. The FIR was registered in the year 2006 and now the evidence is being recorded by the trial Court. No doubt the allegations against the respondents are, prima facie, very grievous, but for the purpose of cancellation of bail, the Court is guided by the parameters laid down in various decisions passed by the Hon'ble Apex Court.
...6 Crl.Misc.No.M-4468 of 2007 In Nityanand Rai Vs. State of Bihar and another, AIR 2005 SC 2239, it was observed that consideration of an application for grant of bail stands on a different footing than the one for cancellation of bail. The ground for cancellation of bail should be those which arose after the grant of bail and should be referable to the conduct of the accused while on bail.
In State of Haryana Vs. Dolat Ram, 1995 (2) RCR (Crl.), 304, it was held that very cogent and overwhelming circumstances are necessary for an order directing cancellation of the bail already granted. Generally speaking, the grounds for cancellation of bail broadly are interference or attempt to evade the due course of justice or an abuse of the concession granted to the accused, in any manner.
No doubt the cancellation of bail can be ordered where ignoring material and evidence on record, a perverse order granting bail is passed in a heinous crime without given any reason but not where detailed and elaborate reasons are given while granting the concession of bail. The counsel for the petitioner has not been able to substantiate that the impugned orders are absolutely perverse, in any manner, or that the respondents have been able to misuse the liberty granted to them. In Abhilasha and another Vs. State of Rajasthan and others, (2000) 10 Supreme Court Cases 237, the Hon'ble Apex Court observed that interference with order granting bail after a lapse of one year and ten months would be inappropriate.
...7 Crl.Misc.No.M-4468 of 2007 On the basis of ratio of various judgments of the Hon'ble Apex Court regarding cancellation of bail, the following guidelines can be formulated on the basis of which the powers under Section 439 (2) Cr.P.C., could be exercised: -
(i) the accused has abused his liberty and misused the concession of bail by indulging in similar criminal activity of which he is accused of;
(ii) the accused has been able to interfere in the course of investigation;
(iii) the petitioner has tampered with the evidence or has made any attempt to tamper with the evidence of the witnesses;
(iv) the petitioner has been able to threaten the witnesses and hamper the fair investigation;
(v) there is likelihood of accused fleeing to another country;
(vi) the accused having become
unavailable to the Investigating Agency by
disappearing;
(vii) the accused has been able to place
himself beyond the reach of his surety or has made any attempt directly or indirectly to threaten the witnesses;
I have considered this case in context to the various parameters laid down for the purpose of cancellation of bail but has not been able to persuade myself to pass an order for cancellation of bail which has been granted.
The petitions are dismissed. However, it is ...8 Crl.Misc.No.M-4468 of 2007 observed that if the respondents, at any stage, are found to have misused their liberty, it will be open to the prosecution agency to seek the cancellation of bail by specifically enumerating the circumstances warranting cancellation of bail by filing a fresh petition before the Sessions Judge under Section 439 (2) Cr.P.C.
A copy of order be placed in connected file.
(M.M.S.BEDI) JUDGE July 23, 2010.
rka ...9