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Delhi District Court

Shikha Aggarwal vs The State Of Gnct Of Delhi on 8 June, 2017

     IN THE COURT OF SHRI A.S. JAYACHANDRA, DISTRICT & SESSIONS JUDGE,
              DISTRICT SHAHDARA, KARKARDOOMA COURTS, DELHI

M. No. 03/2017

Shikha Aggarwal
W/o Late Shri Govind Ballabh Swami,
R/o H. No.4, Sector-4-R,
Fariabad, Haryana
( by ld. Counsel Shri Sudershan Rajan
and Mohd. Qamer Ali)                                                        ............. Petitioner
                                    VERSUS

1.      The State of GNCT of Delhi
        ( by its SHO, P.S. Madhu Vihar, Delhi)
        ( Through ld. Addl. P.P. Shri Tofeeq Ahmad)

2.      Sunil Uppal
        S/o Sh. Om Prakash Uppal
        R/o C-5/530, Milan Vihar Apartment,
        Plot No. 72, I.P. Extension, Delhi-92
        ( ld. Sr. Counsel Shri Puneet Mittal
        alongwith Shri R. K. Kochar, advocate)                       ...............Respondents

        Date of Institution         :       11.05.2017
        Date of arguments           :       31.05.2017
        Date of judgment            :       08.06.2017


ORDER

1. The Petitioner herein who is the widow of deceased Govind Ballabh Swami, seeks setting aside of the order dated 13.01.2017 in bail application no. 140/2017 passed by the ld. ASJ-01, Shri Sidharth Sharma. By the order dated 13.01.2017, the ld. ASJ had granted bail to the accused Sunil Uppal who is the second respondent herein.

2. This application u/s 439 (2) of Cr.P.C. is placed before this court consequent to the directions of the Hon'ble High Court in Crl. M.C. No. 356/2017 which was disposed by the order dated 01.05.2017 which reads as under:

CORAM:

Hon'ble Mr. Justice R. K. Gauba Order 01.05.2017 " By this petition moved under Section 439 (2) of the Code of Criminal Procedure, 1973 ( Cr.P.C.) read with Section 482 Cr.P.C. and Article 227 of the Constitution of India, the order dated 13.01.2017 passed by the court of Additional Sessions Judge-01, Shahdara, Delhi on the bail application of the second respondent, in the context of First Information Report ( FIR) no. 549/2016 involving offence under Section 302 of the Indian Penal Code, 1860 (IPC) of Police Station Madhu Vihar, is brought under challenge mainly on the propriety of the procedure adopted and the material entertained in reaching certain conclusions which, the petitioner submits, were definitive in nature and, therefore, uncalled for at the stage of the proceedings wherein they were recorded.

Though the substance and merit of the above contentions are refuted by the learned senior counsel for second respondent, he and the learned Additional Standing Counsel for the State fairly agree that the matter may be remitted to the court of Sessions Judge, rather than the court of Additional Sessions Judge which passed the order, for consideration of the prayer for cancellation of the bail order in exercise of the jurisdiction vested in such court under Section 439 (2) Cr.P.C.

Ordered accordingly.

The contentions on all sides are reserved to be adjudicated in such proceedings. It is made clear that the petitioner will have to move a fresh application urging all the grounds under section 439 (2) Cr.P.C. before the court of concerned Sessions Judge who himself shall consider the prayer rather than making it over to any court of Additional Sessions Judge and before doing so shall not only call for the up-dated investigation report but also hear all sides.

Given the nature of the case, it is expected that the Sessions Judge shall take a decision on such application as is proposed to be moved by the petitioner within one month of it being presented.

The petition is disposed of with these directions.

Copy of the order be given Dasti."

Contentions of the petitioner.

3. In the petition, it is submitted that respondent no.2 was granted bail in a serious offence by the ld. ASJ in FIR No. 549/2016 registered for the offences u/s 302 of IPC. She submits that her husband was thrown down from fifth floor of Milan Vihar Appartments, Patparganj, Delhi on 03.11.2016 for which the FIR is registered with P.S. Madhu Vihar. According to the petition, her late husband was having certain financial dealings with the respondent no. 2 and one Rohit Uppal @ Prince and that they were troubling her husband and threatened to eliminate him. They were blackmailing him. The deceased had made a representation against them to the Hon'ble P.M. which copy was sent to SHO P.S. Madhu Vihar also.

4. It is also averred that the deceased told the petitioner on 03.11.2016 that he would be meeting the Uppal's son on that day to settle his accounts. He called Rahul Swami, the cousin of the deceased from his mobile number 9871518709 on the number of Rahul Swami which is 9599180161. During the conversation the deceased expressed his apprehension and the threats. This petitioner also had spoken with her husband in the evening on 03.11.2016 and in the conversation the deceased informed the petitioner that he was in a meeting. He called from his mobile to number 100 and indicated that he was under detention by the accused and his family members.

5. Around 8 - 8.15 p.m. one Alok Garg came to the petitioner's residence at Ram Krishan Vihar Appartment, I.P. Extension and asked her to accompany him to Milan Appartment where something happened to her husband. When she reached she found her husband lying in a pool of blood of the ground floor which is clear of the deceased having been thrown down from the building. She contends that this is a preplanned murder committed by Sunil Uppal, Sushil Uppal and Rohit Uppal @ Prince in pushing down the deceased from the fifth floor.

6. Petitioner also alleges that there was no proper investigation by the police and the police refused to look into the role of Rohit Uppal @ Prince and Sushil Uppal. She made a representation in this regard dated 18.12.2016 which was not properly responded and she submits having filed W.P. ( Cri) No. 189/17 in which an order was M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.3 /17 passed by Hon'ble High Court dated 27.01.2017 directing the transfer of the case for investigation to the Crime Branch.

7. She alleges that the bail application was not resisted by the police, the IO disclosed the names of witnesses though the charge sheet was yet to filed. The accused persons manipulated and tampered the witnesses and procured their affidavits to be filed into the court dealing with the bail applications. The IO did not seize the CCTV Footage. The accused persons were allowed to furnish the same during the adjudication of bail application. IO did not record the statements of the relevant witnesses. The suspects Sushil Uppal and Rohit Uppal were not questioned. There is no investigation as regards the call conversations between the deceased and the brother of the deceased namely Rahul Swami whose statement is not recorded. Petitioner found the suspects Rohit Uppal @ Prince, Sushil Uppal, Sunil Uppal, Manju Uppal and Ankit Uppal in the P.S. Madhu Vihar on the date of incident around 11 p.m. in the police station. Petitioner requested the police to procure the CCTV records and secure the place of occurrence but the police refused, leading to chances of erasing and destruction of evidence. Investigation refused to look into the recorded conversation of the deceased from his mobile number and did not send the same to the FSL. The involvement of other accused is not investigated and simply made one person Sunil Uppal as a single accused in the case.

8. It is also pleaded that the bail application by the respondent filed initially was withdrawn on 30.11.2016. It is alleged that while the investigation was still in progress, the respondent no.2 in collusion with the police, influenced the witnesses and filed an affidavit alongwith the second bail application. Police filed the status report in the bail application.

9. It is averred that the order now impugned granting the bail is challenged since the ld. ASJ had recorded the statement of one Ms. Kajal who is the eye witness. The order granting bail is challenged in the High Court which in turn directed this petitioner to file the present application before this court. Hence, the petition seeking cancellation of bail granted to the respondent no.2.

Grounds.

10. The petitioner submits that the bail order is not sustainable since the accused had influenced the witnesses; since the IO informed the accused about the witnesses. The ld. ASJ ignored despite pointing it out. The ld. ASJ ought not to have granted the bail by recording the statement of eye witness which procedure is alien to criminal jurisprudence. The witness was brought by the accused persons and the said witness had made contradictory statements. In her further statement also she implicates one prince which was not considered by the ld. ASJ. The para 9 of the findings in the bail order is strange and is liable to be set aside. Respondent no.2 and his family influenced the public witnesses. The ld. ASJ could have never considered the CCTV Footage furnished by the relatives of the accused while granting the bail. There are certain observations in the bail order which are uncalled for. Petitioner suspects that the CDRs were tampered. The accused are generally denied bail in the offences u/s 307 or 308 of IPC and the petitioner wonders as to how the bail was granted to an accused in a murder case. The Hon'ble High Court after considering the merits had transferred the investigation to the Crime Branch. The accused are highly influential and crucial witnesses are still to be examined and the charge sheet is yet to be filed. It is also pleaded that the hon'ble High Court relegated the matter to decide the case on merits.

11. Upon notice, the respondent no.2 through the ld. Counsel submits that he was granted regular bail since implicated in a false case. The petitioner has no locus to file the present petition since the state is not aggrieved by the bail order. The bail was granted after considering the entire facets of the case, circumstances and the documents, after hearing at length the ld. Addl. P.P. and the I.O. The cancellation of bail hampers the personal liberty and that the bail cannot be revoked unless and until the accused misused the liberty, interfered with the investigation, tampered or threatened the witnesses. There are no such allegations and hence no grounds to cancel the bail. As per the prosecution case, the deceased made call to the police alleging his confinement by the respondent no.2 who was forcing him to sign some documents and also threatening to kill him. This became false after the CCTV Footage version and call M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.5 /17 details of the deceased. There are certain versions regarding the incident as put forth by this respondent. The maid servant Ms. Kajal, neighbor Pawan Kumar Jain and Krishan Kant in their affidavits made clear that they did not hear any quarrel from the house of the respondent or the lobby of the apartment. Ld. ASJ recorded the statement of Kajal while adjudicating the bail application. She averred before the said ld. ASJ that she was not a witness to any incident. Respondent no.2 came to know that the deceased borrowed Rs. 65 lakhs from Rohit Uppal, the son of R-2 and the deceased was not in a position to repay. Only in order to escape the liability the deceased made a call at number 100. There are other grounds concerning the facts and explanations from the side of the respondent no.2. He denies having influenced the witnesses or joining hands with the IO to obtain the bail.

Arguments:

12. The records in earlier bail application is procured. The ACP, Crime Branch investigating the case has furnished the status report and the records. Perused the same. The arguments from both sides were heard. The ld. Counsel for the petitioner Shri S. Rajan submits that the bail is liable to be cancelled since during the investigation itself the witnesses were either threatened, won over or influenced which is evident from the statement of eye witness Kajal. The ld. Counsel also points that the para 9 of the bail order wherein certain findings like " which suggests that the accused was not involved in committing the alleged offence and it was deceased who came to the house of the applicant and started abusing and then left the house of the accused and thereafter either accidently or by suicide fell down from the fifth floor of the building from outside the house of the accused," and certain other observations are highly unwarranted for disposal of the bail application and is perverse. He also submits that the scene of the occurrence is not photographed. The ld. ASJ ought to have noted that the witnesses were being influenced at the very starting of the investigation.

13. He had relied on several rulings submitting that this court is competent to cancel the bail. The rulings are:

a) Kanwar Singh Meena Vs. State of Rajasthan & Anr. ( 2012) 12 SCC 180- to urge that the order of the High Court releasing the accused involved in a heinous crime M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.6 /17 ignoring the relevant material is legally not tenable. It is further held that "in any case, the order passed by the High Court releasing the accused involved in a heinous crime on bail, ignoring the relevant material, is legally not tenable. It suffers from serious infirmities. The High Court has exercised its discretionary power in an arbitrary and casual manner. We have also noticed that the incident took place on 19.05.2009 and the accused could be arrested only on 01.06.2011. His two attempts to get anticipatory bail, one from the Sessions Court and the other from the High Court, did not succeed.

Assuming that the accused is not likely to flee from justice or after release on bail he has not tried to tamper with the evidence, that is no reason why a legally infirm and untenable order passed in arbitrary exercise of discretion releasing the accused involved in a gruesome crime on bail should be allowed to stand. This order needs to be corrected because it will set a bad precedent. Besides, it will have adverse effect on the trial."

b) Guru Charan Singh & Ors. Vs. State ( Delhi Administration) ( 1978) (1) SCC 118- to urge that " The only question which the Sessions Judge was required to consider at that stage was whether there was prima facie case made out as alleged, on the statements of the witnesses and on other materials. There appeared at least nothing at that stage against the statement of ASI Gopal Das who had made no earlier contradictory statement. " The taint of unreliability" could not be attached to his statement even for the reason given by the learned Sessions Judge. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. In considering the question of bail of an accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying on the conduct of some of the appellants in taking Sunder out of police lockup for making what is called a false discovery and it is but fair that the Panch witness in that behalf be not allowed to be got at." It is also urged in the said case the order cancelling bail by the Hon'ble High Court was not interfered.

c) Manjit Prakash & Ors. Vs. Shobha Devi & Anr. 2009 (13) SCC 785- to urge that " even though the re-appreciation of the evidence as done by the court granting bail is to be avoided, the court dealing with an application for cancellation of bail under section 439 (2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the court for accepting the prayer for bail" and court dealing with the application u/s 439 of Cr.P.C is empowered to examine whether irrelevant materials were considered for granting the bail. It is also held that "The perversity as highlighted in Puran case can also flow from the fact that as noted above, irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature."

d) Prakash Kadam & Ors. VS. Ram Prasad Viswanath Gupta & Anr. 2011 (6) SCC 189- it is held that there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.

It is further held that " 18. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/ Revisional Court".

"19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail."

e) Panchanan Mishra Vs. Digambar Mishra & Ors. 2005 (3) SCC 143- case is under the Special Leave Petitions challenging the order granting bail to the accused by the Patna High Court upon conviction in an appeal. It was held that " The object M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.8 /17 underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."

f) Sita Ram Vs. Balbir @ Bali & Anr, 2014 (13) SCC 489, where the Hon'ble Supreme Court had cancelled the bail considering the strong apprehension of the accused likely to tamper with the evidence or threatening the witnesses.

g) Dinesh M.N. Vs. State of Gujrat, 2008 (5) SCC 66, to urge that " Even though the re-appreciation of the evidence as done by the court granting bail is to be avoided, the court dealing with an application for cancellation of bail under Section 439 (2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the court for accepting the prayer for bail."

It is further held that " In other words, relevant materials were kept out of consideration. Once it is concluded that bail was granted on untenable grounds, the plea of absence of supervening circumstances has no leg to stand."

h) Bhulabai Vs. Shankar Barkaji Matre & Ors, 1993 (3) Mh.L.J page 227 of the Hon'ble Bombay High Court- to urge that "Bail granted on merits or in default, as contemplated under section 167 (2) of the Criminal Procedure Code, is one and the same and, therefore, any cancellation of such bail can only be done by the Court in exercise of its powers under section 437 (5) and section 439 (2) of the Criminal Procedure Code. The only distinction is that powers for cancellation of bail under sub- section (5) of section 437 can be exercised by any Court whereas power under section 439 (2) to cancel bail vests with the High Court or Court of session."

Contentions of the respondent no.2.

14. Ld. Sr. Advocate- Puneet Mittal would urge that the bail once granted cannot be cancelled. He is vehement in submitting that cancellation of bail by this court if ventured would amount to reviewing the earlier order which is not permitted under criminal procedure code. He also reminds that this court does not sit in appeal against the orders of the coordinate jurisdiction i.e. the Sessions Judge who had granted the bail. The ld. Sr. Counsel also submits that the bail order was granted after considering the relevant material and the order is highly justified. He submits that the witness who made a statement initially volunteered to reveal the truth and she was duly examined by the ld. ASJ. It is also his contention that ld. ASJ was justified in recording her statement exercising powers conferred under section 165 of the Evidence Act. He had pointed out that in the very ruling of Manjit Prakash ( Supra) , the Hon'ble Supreme Court has made it very clear that by quoting another ruling of Supreme Court as under:

" It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to."

15. He relied on several rulings Dolat Ram & Ors Vs. State of Haryana, 1995 (1) SCC 349, Sanjay Chandra Vs. CBI 2012 (1) SCC 40; State of GNCT of Delhi Vs. Dhananjay Singh 221 (2015) DLT 264; Govind Narain Johari & Ors Vs. State & Anr. 2013 ( 2) SCC 1287; Yogesh Malik Vs. State & Anr, 2015 V AD ( Delhi) 54 and Madhu Garg Vs. State & ors., 2008 (4) JCC 2364.

16. It is held in Daulat Ram (supra) that rejection of bail in non bailable case at a initial stage and the cancellation of bail already granted have to be considered as under:

" Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already 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 M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.10 /17 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."

17. In Sanjay Chandra ( supra) it is held that " The provision of Cr.P.C. confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual."

18. In State of NCT of Delhi Vs. Dhananjay Singh ( supra) It was held that where there is no violation of terms of order for granting bail, cancellation not justified: bail already granted should not be cancelled in a routine manner as it jeopardize personal liberty of a personal.

19. In Govind Narain Johari ( Supra) our Hon' High Court held as under:

" The learned ACMM, in my considered view, has taken all relevant considerations in mind while granting bail to the accused. The findings of the learned Additional Sessions Judge that the order of the Trial Court was mechanical in nature cannot be sustained, under Section 482 Cr.P.C., this Court has ample powers to set aside the order to secure ends of justice. The power of cancellation of bail must be exercised with care and circumspection. Very cogent and overwhelming circumstances M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.11 /17 are necessary for an order seeking cancellation of bail. Where there is no variation of the terms of the order granting bail, cancellation is not justified. It should not be done in routine manner as it jeopardizes the personal liberty of the person. While considering an application for cancellation of bail the court ordinarily looks for some supervening circumstances which would reflect that the liberty granted to the accused was misused but none exists in the present case."

20. In Yogesh Malik (supra), it was held that where there is no allegation that the accused misused the liberty of bail and when there is no material to form an adverse opinion regarding the conduct of the respondent after the grant of bail and when there is no violation of terms of the bail, the bail should not be cancelled.

21. In Madhu Garg ( supra) it was held as under:

" In the present petition petitioner has not alleged any misuse of bail by any of the accused persons like tampering with evidence or tampering with investigation or influencing her being complainant or other prosecution witnesses so as not to support the investigation of the case. There are no allegations of any attempt by any of these two accused persons to avoid their presence before the investigating officer for investigation purposes. The only grievance of the petitioner is that the accused Ghanshyam Dass Gupta and Pooja Aggarwal should not have been granted anticipatory was mandatory in view of the facts and circumstances as narrated in the FIR."

22. It was argued by the ld. Counsel that there is no allegation of any misconduct and there is no violation of the terms and this court cannot cancel the bail in a mechanical manner at the asking of a third party.

23. The ld. Counsel also relied on the Aslam Babalal Desai Vs. State of Maharashtra, III- 1992 CCR 292 SC. In the said case, it was held that once the bail is given u/s 167 (2), the accused cannot be taken in custody merely on filing of the charge sheet but there must be special reason for doing so, as per the majority view. This case revolved around the accused who was enlarged on statutory bail.

Point for Determination:

24. After hearing the ld. Counsel and after careful perusal of the case law, the only point that arise for consideration is " whether the bail granted in this case is liable to be cancelled or not in the given circumstances of the case?"

25. The judicial file granting the bail is procured and perused. The status report by the present investigating agency i.e. the crime branch is also filed. Perused the record of the investigation conducted after the case having been transferred to the crime branch. The statements of certain other persons were recorded by the crime branch who had knowledge about the incident. Apart from making further enquiry with the witnesses already inquired by the earlier IO, the crime branch is under full swing to investigate the case from every angle. After careful perusal of the above, the point for determination is being answered as under.

Reasons for order:

26. The case law on the subject is now well settled. Many rulings of the Hon'ble Supreme Court so clearly postulates that " Consideration which should be in the mind of the court while considering the prayer for grant of bail are not the same for the purpose of 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; Hazari Lal Das Vs. State of West Bengal, (2009) 12 SCALE, AIR 2010 SC 91: 2009 AIR SCW 5632; Dolat Ram Vs. State of Haryana, (1995) SCC (1) 349: JT 1995 (1) SC 127; 1995 SCC (Cri) 237".

27. In the ruling of the Hon'ble Supreme Court in Dinesh M.N. Vs. Gujrat ( Supra) rendered by three hon'ble Judges, it was held that the court exercising powers u/s 439 (2) can consider whether irrelevant materials were taken into consideration while granting bail. This being the ruling of larger bench which says that once it is concluded that the bail was granted on untenable grounds, the plea of absence of supervening circumstances goes to oblivion as held in para 23 and 26 of the said ruling. Thus though this court cannot mechanically cancel the bail. It is obligated to see whether any irrelevant material was reckoned by the court granting bail.

28. Further more, this court is mandated under the orders of the Hon'ble High Court to consider the prayer on merits. The contention of the ld. Sr. counsel for the respondent that there are no supervening circumstances and violation of the terms of the order to cancel the bail is to be considered upon the allegation that the respondent no.2 had manipulated and won over the eye witness as contended by the petitioner while the second bail application was before the ld. ASJ. The petitioner had vehemently pleaded and argued that the Ld. ASJ had considered irrelevant material for grant of bail.

29. In the above context, this court has to see whether there was irrelevant material or extraneous material considered by the sessions court or not. It is clear from the judicial file in the bail application bearing no. 140/2017, the ld. Additional Session Judge had recorded the statement of Ms. Kajal on 12.01.2017 on oath which is as under:

" On 03.11.2016, I was working as a maid. In the evening house at about 8.00 p.m., I heard noise about things falling. I heard the noise of deceased to save him by saying " Prince save me". I did not see anyone pushing or throwing the accused. I had given the statement as police had tortured me to give the said statement. I have not witnessed any incident of murder."

30. The ld. ASJ had also noted that the eye witness had filed an affidavit and made a statement before the court which suggested that the accused was not involved in committing alleged offence and it was the deceased who came at the house of the applicant and started abusing and then left the house of the accused and thereafter, either accidentally or by suicide, fell down from the 5 th floor of the building from outside the house of the accused.

31. In this back ground, the precise question under law is whether the Additional Sessions Judge was competent to record the statement of the eye witness during the hearing of the bail application and if so recorded whether that would be lawful or not. The corollary is whether the court exercising powers u/s 439 of Cr.P.C. can look into the extra material apart from the charge sheet.

32. The legality of the statement recorded by the ld. Session Judge is to be considered. The ld. Sr. Advocate appearing for respondent no.2 submits that recording the statement of Ms. Kajal and reception of the affidavits by the court is justified u/s 165 M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.14 /17 of the Evidence Act. Section 165 of the Evidence Act is dealt under chapter X of the Indian Evidence Act which runs from section 135 to 166 under the caption " of the examination of witnesses". This chapter can be invoked only during the examination of witnesses while the matter is under trial. This court is unable to sail with the view of the ld. Sr. Counsel that recording of the statement of Kajal is justified by the ld. ASJ. It must be borne in mind that the investigation into this case is still in progress and the charge sheet is yet to be filed. This case has not come up for trial before the ld. ASJ. The recording of the statements during the enquiry is governed under section 164 of Cr.P.C. The same falls under chapter XII of the Code of Criminal Procedure under the caption "

information to the police and their powers to investigate." The ld. Counsel for the respondent and the ld. Addl. P.P. appearing for the State cannot dispute that the case is still under nascent stage of investigation. The powers of investigation are with the police. The ld. ASJ had stepped into the extra jurisdiction in recording the statement of the so called witness Ms. Kajal while the matter was still under investigation.

33. If at all the witness who is examined by the investigation in the course of gathering the evidence is to make any further statement, the same could have been done only u/s 164 of the Cr.P.C. which governs the recording of confession and statements during the investigation. Section 164 (1) reads as under:

" 164. Power to attach subject of dispute and to appoint receiver.-(1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute."

34. In the instate case, no such statement was made before the Magistrate. The matter being still under investigation by the police, the Provisions of Section 165 of the Evidence Act are not attracted.

35. Even if the statement made by the said Kajal recorded before the ld. ASJ were to be treated on par with the statement u/s 164 of Cr.P.C., the same does not have any legal footing or within the framework of law. The Hon'ble Supreme Court in Mahabir Singh Vs. State of Haryana, 2001 (2) ACJ 567- reiterated the earlier ruling of the three judge bench in Jogender Nahak Vs. State of Orissa, 2000 (1) SCC 272- held that so far as statements ( other than confession) are concerned, they cannot be recorded by a Magistrate unless the person who makes such statement was produced or sponsored by the Investigating Officer.

36. In the instant case, while hearing the bail application filed on 12.01.2017, the copies of three affidavits are filed alongwith the bail application which all bear the date as 10.01.2017 in support of the bail application. In the affidavit deposed by Ms. Kajal, she had made a further statement. Her statement on oath was also recorded strangely by the ASJ- 01, Shahdara District on oath, giving a go-bye to the provisions of section 164 of Cr.P.C. and the law laid down there under. This witness is not sponsored or produced by the investigating agency. The recording of the statement of Kajal by the ld. ASJ thus suffers from the legal infirmity and the same is beyond the scope of law. The ld. ASJ could have never considered any other extra material other than the FIR and the status of investigation as on the date of deciding the bail application.

37. Thus, this court has no hesitation to conclude that there were some irrelevant material taken into consideration while granting the bail, in so far as the affidavit and the statement of Kajal is concerned which formed the basis of ld. ASJ coming to the conclusion that the case suggested something else beyond the prima facie material placed by the state in resisting the bail. If such irrelevant material were taken into consideration, the application for cancellation of bail is justified as held in paragraph 21 of Dinesh ( Supra).

38. No doubt, the respondent no.2 is not facing any allegation of violation of the terms of bail. What is ununderstandable is the prominence given to the statement of M. No. 03/2017 Shikha Aggarwal Vs. State of NCT of Delhi & Anr. Page No.16 /17 Kajal recorded by the court which itself is beyond the scope of the law, jurisdiction and opposed to established cannons of justice.

39. When such irrelevant and the material outside the law is taken into consideration for grant of bail, the same is liable to be cancelled. This court is aware that it cannot review the order passed by the ld. ASJ but a petition being independent on its own which seeks cancellation of bail and as directed by the hon'ble High Court, the prevailing circumstances of the case compels this court that enlarging the accused in a heinous crime even before the investigation is completed is based on irrelevant material.

40. For the aforesaid reasons, this court is of the humble opinion that the bail granted by the ld. ASJ-1 is based on irrelevant material and the said order suffers from legal infirmity. Hence, the following:

ORDER The application filed u/s 439 (2) of Cr.P.C. in FIR No. 549/16 P.S. Madhu Vihar is hereby allowed. Consequently, the order dated 13.01.2017 passed by ld. ASJ- 01, Shahdara District, Delhi enlarging accused- Sunil Uppal in FIR No. 549/16 P.S. Madhu Vihar, Delhi is hereby cancelled.

The respondent no.2 ( accused in the said FIR case) is directed to surrender before the jurisdictional Magistrate on or before 12.06.2017 failing which the ld. MM concerned shall issue the process for arresting the said accused in the above case.

The records procured from ACP be returned alongwith a copy of this order. The earlier bail record be also tagged with this petition and the same be consigned to record room.

Pronounced in open court
on 08.06.2017                                                          (A.S. Jayachandra)
                                                                     District & Sessions Judge
                                                                     Shahdara District,Delhi




M. No. 03/2017             Shikha Aggarwal Vs. State of NCT of Delhi & Anr.      Page No.17 /17