Delhi High Court
State (Government Of Nct Of Delhi) vs Dr. Anil Khetrapal on 15 May, 2006
Equivalent citations: 131(2006)DLT507
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. This is an application for cancellation of the anticipatory bail granted by the learned Additional Sessions Judge by an order dated 30.11.2005. This application has been moved on behalf of the State. Mr Pawan Sharma, the learned Counsel appearing for the State, took me through the impugned order dated 30.11.2005 and submitted that the accused (Dr Anil Khetrapal) had been granted anticipatory bail by virtue of the said order despite the fact that he had been refused anticipatory bail by an earlier order dated 26.09.2005 which was also a detailed order indicating the circumstances for the non-grant of the pre-arrest bail.
2. It is the contention of Mr Sharma that the impugned order is liable to be cancelled because there is a complete non-application of mind by the learned Additional Sessions Judge because he has not considered the earlier order dated 26.09.2005 in its proper perspective. Secondly, it is submitted by Mr Sharma that there are no changed circumstances and the observation that there is a change in the circumstances as recorded in the impugned order is not borne out from the records. Accordingly, in sum and substance, Mr Sharma submits that the impugned order suffers from perversity and, therefore, the bail granted by virtue of the said order requires to be cancelled. He also submitted with reference to the decision of the Supreme Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. and with particular reference to paras 18, 19 and 20 thereof that successive bail applications should only be entertained by courts when there is a material change in the facts or in law between the intervening bail applications. He submitted that the Supreme Court in the case of Kalyan Chand Sarkar (supra) settled the position with regard to entertaining successive bail applications without there being any change in the circumstances. He also submitted that the Supreme Court had observed in the said decision that courts must give due weight to the grounds which weighed with the former court in rejecting the bail application. In the light of the observations in the said Supreme Court decision, Mr Sharma pointed out that from the impugned order, it is not apparent that due weightage was given to the earlier order of 26.09.2005 which rejected the accused's first anticipatory bail application.
3. He then referred to the decision of a learned single Judge of this Court in the case of State v. Nitin Shah 1993 IV AD Delhi 742 wherein the parameters for the grant of anticipatory bail have been set out in paragraph 9 in broad terms. In essence, the said decision was cited for the purpose that bail should not be granted without due application of mind to the facts of the case. In that case, the court also held that the Additional Sessions Judge, while granting anticipatory bail to the accused, had exercised his judicial power wrongly and if this was permitted, then, it would shake the confidence of the general public in the judiciary and, based upon the said observation, the learned Single Judge had cancelled the anticipatory bail granted to the accused in that case. That was also a case where anticipatory bail had been refused in the first instance, but had been allowed by the Sessions Court in the second instance.
4. Mr Sharma also referred to the decision of the learned Single Judge of this Court in the case of Chandan Singh v. Yashvinder Chauhan 1993 IV AD (Delhi) 222. Referring to paragraph 10 of the said decision, Mr Sharma submitted that bail once granted by the court of Sessions can be cancelled by the High Court only on fulfilllment of at least one of the two conditions, namely, that there should be a likelihood of the accused fleeing from justice and reasonable apprehension of the witnesses being tampered with. According to Mr Sharma, these are the general principles on which cancellation of bail applications are to be considered. He, however, submitted with reference to the decision of the Supreme Court in the case of Puran etc. Rambilas and Anr. etc. 2001 II AD (Cr.) 131 that if there was a complete non-application of mind and the court, while granting bail, had completely ignored the materials and evidence on record and granted bail in the case of a heinous crime, then it would amount to a perverse order which would be a fit case for cancellation of bail.
5. Mr Sharma also submitted that prior to the first bail application as also between the first and the second bail applications, the accused (Dr Anil Khetrapal) had not made himself available to the investigating agency and thereby disentitled himself to the grant of concession of pre-arrest bail. The court below has completely ignored this aspect of the matter and, therefore, this was a fit case for cancellation of bail.
6. The learned Counsel appearing on behalf of the accused (Dr Anil Khetrapal), referred to the sequence of events which have led to the filing of the present application for cancellation of bail. She submitted that the first bail application was rejected by the learned Additional Sessions Judge on 26.09.2005. Thereafter, on 29.10.2005, the second bail application for anticipatory bail was moved before the Sessions Court. On 25.11.2005, another application was moved in that pending bail application for taking additional grounds as also urging for bail on medical grounds. At that point of time, it appears, that the accused (Dr Anil Khetrapal) was suffering from certain ailments and was under treatment in Batra Hospital. On 25.11.2005 itself, interim protection was granted to the accused and the investigating officer was directed to verify his medical condition. The State also sought permission of the Court to interrogate the accused while in hospital. On 26.11.2005, the accused was interrogated in hospital by the investigating officer and a mobile phone was also recovered vide seizure memo of 26.11.2005. On 28.11.2005, the learned Additional Sessions Judge called for the records and on 30.11.2005, the impugned order granting anticipatory bail to the said accused was passed. Thereafter, a supplementary charge-sheet was filed qua the accused (Dr Anil Khetrapal) and the said accused appeared before the Metropolitan Magistrate post-summoning. This happened on 22.12.2005 when the said accused also made an application for regular bail. The Metropolitan Magistrate by an order dated 22.12.2005 noted the fact that the accused had been on anticipatory bail by virtue of the order dated 30.11.2005 and granted regular bail to the accused (Dr Anil Khetrapal) upon his furnishing a personal surety bond in the sum of Rs. 50,000/- with one surety in the like amount. The bonds were tendered and accepted and the accused is on regular bail since then. By the said order dated 22.12.2005, the matter was committed to the court of Sessions. It is also submitted by the learned Counsel appearing for the accused that it is only after the co-accused [R.R. Sharma] had applied for bail before this Court on 02.03.2006, after his regular bail application had been rejected by the Additional Sessions Judge on 10.02.2006, that the State has moved the present cancellation of bail application on 20.03.2006.
7. The learned Counsel for the accused submitted in the first instance that the present application is not maintainable and is misconceived inasmuch as the order granting anticipatory bail on 30.11.2005 no longer survives and the accused is under regular bail by virtue of the order dated 22.12.2005 passed by the learned Metropolitan Magistrate. She also submitted that the cancellation of bail under Section 439(2) of the Code of Criminal Procedure, 1973 is permissible only under very special circumstances. She firstly referred to a recent decision of the Supreme Court in the case of Ram Charan v. State of M.P. 2006 (1) SCC (Cri) 511, wherein the Supreme Court observed in paragraph 5 thereof that the order of bail can be cancelled only on the existence of cogent and overwhelming circumstances, but not on re-appreciation of the circumstances as was done by the High Court in that case. It further pointed out that the points that have to be kept in view for recalling the order of bail were set out in Daulat Ram v. State of Haryana .
8. The learned Counsel for the accused then referred to the decision of the Supreme Court in the case of Dolat Ram and Ors. v. The State of Haryana(supra) . Paragraph 4 of the said decision reads as under:
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 non-bailable case in the first instance and the cancellation of bail already granted.
Reading the aforesaid extract, the learned Counsel for the accused laid emphasis on the observation that 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. In the light of these observations, she submitted that nothing has been brought to the notice of the court which will indicate that the accused has either attempted to tamper with the evidence or hampered the free flow of the trial. Nor has anything been brought on record to show that the accused is intending to flee from justice.
9. In these circumstances, she submitted that there is no reason whatsoever for cancellation of the bail which has already been granted. The learned Counsel submitted that the trial has already commenced and eight witnesses have been examined, cross-examined and have been discharged and the accused's counsel as well as the accused have remained present on all the dates. Therefore, there can be no inference that the accused is not cooperating with the progress of the trial or is causing any hindrance thereto. She also submitted that the second anticipatory bail application was clearly made under changed circumstances as the charge-sheet had been filed against the co-accused who were already in custody. She also submitted that the petitioner had, before the grant of anticipatory bail on 30.11.2005, already been interrogated by the investigating agency while he was in hospital. A recovery of the mobile phone was also made from him while he was in hospital and there is nothing further to be recovered from him as recorded in the impugned order itself. Therefore, according to her, there is no non-application of mind by the learned Additional Sessions Judge. Nor is there any discernible perversity in the order so as to enable this Court to cancel the bail order.
10. The learned Counsel for the accused also submitted that it must always be borne in mind that the applications for grant of bail and for cancellation of bail stand entirely on different footings and while granting bail, the considerations would be different from those when the court is confronted with an application for cancellation of bail.
11. Considering the arguments advanced by the counsel for the parties, I am of the view that the submissions made by the learned Counsel for the accused have to be accepted. Insofar as the arguments advanced by Mr Sharma, the learned Counsel appearing for the State are concerned, there are two difficulties which arise. The first difficulty is that cancellation of the order dated 30.11.2005 is being sought by this application. That was an order for grant of anticipatory bail. But that order no longer survives inasmuch as after the filing of the supplementary charge-sheet in respect of the accused (Dr Anil Khetrapal), the accused was summoned to appear before the Metropolitan Magistrate and when he appeared on 22.12.2005 before the Metropolitan Magistrate, he also made an application for regular bail. As indicated above, the Metropolitan Magistrate by an order dated 22.12.2005 granted regular bail to the accused. That order is not being sought to be cancelled. The second difficulty that faces the learned Counsel for the State is that bail, once granted, can only be cancelled under very cogent and overwhelming circumstances. The considerations that are necessary for grant of bail and cancellation of bail are entirely different. As pointed out by the Supreme Court in the case of Dolat Ram v. State of Haryana (supra), 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. As pointed out by the learned Counsel for the accused, no such supervening circumstances have been indicated. Nothing has been brought to the notice of the court which would indicate that the accused has either attempted to tamper with the evidence or attempted to interfere with the due course of administration of justice or has abused the concession granted to the accused. On the contrary, it is apparent that the trial is proceeding unhampered by any act of omission or commission on the part of the accused. Eight witnesses have been examined, cross-examined and discharged and on all the dates, the accused's counsel as well as the accused have been present in court. On account of these factors, I am in agreement with the learned Counsel for the accused that this application for cancellation of bail has to be rejected. Accordingly, the application is dismissed.