Delhi District Court
State vs Shri Sunil Kumar Sharma on 6 March, 2021
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE-04
EAST : KARKARDOOMA COURTS: DELHI
Cr. Rev. No. 137/2018
State .........Petitioner
Versus
Shri Sunil Kumar Sharma
s/o Late Ramphal Sharma,
r/o C-25 Extn., New Ashok Nagar
Delhi. ..........Respondent
Date of Institution : 16.07.2018
Date of reserving Judgment : 20.02.2021
Date of pronouncement : 06.03.2021
Appearances
For the petitioner : Sh. Atul Shrivastava, Ld. Addl.PP
For the respondent : Sh. Sumit Kumar Khatri, Adv.
JUDGMENT:
1) A revision petition under sections 397/399/401 of the Code of Criminal Procedure (Cr.P.C.) has been filed by the state against the order dated 17.04.2018 (for short 'the impugned order') passed by learned Additional Chief Metropolitan Magistrate, East District (ACMM), Karkardooma Courts, Delhi in case F.I.R. no.681/14, of police station (P.S.) New Ashok Nagar titled as "State v. Sunil Kumar CR No. 137/2018 Page 1 of 25 Sharma" whereby an application under section 437(5) Cr.P.C. seeking cancellation of bail of respondent/accused was dismissed.
2) After filing of the revision petition, notice was issued to the respondent/accused who appeared along with his counsel who later also filed written reply to the petition. Trial Court Record (TCR) pertaining to bail application u/s 437 Cr.P.C. which was disposed off vide order dated 09.05.2016 and record of application u/s 437(5) Cr.P.C. which was disposed off vide order dated 17.04.2018 was summoned.
3) I heard the arguments on both sides and perused the record.
4) During the course of arguments, Sh. Atul Shrivastava, learned additional public prosecutor for the petitioner/state, relied on Jagdish Gandhi and Others v. N.C.T. of Delhi 2008(4) JCC 2684, Ratan Mandal v. State of Jharkhand 2006 Crl.L.J. 781, Prashant Kumar v. Manchar Lal Bhagat Ram Bhatia & Another 1988 Crl.L.J. 1463, Latheef v. State of Kerala 2011(2) Crl.C.C.0880, Court on its own motion v. State Crl.Ref.1 of 2017(Delhi HC order dated 24.10.2017), Amar Nath and Others v. State of Haryana & Another 1977 SCC(Cri) 585, Deepu@Mahalingaiah & Others v. State and Another (High Court of Karnataka judgment dated 05.08.2014 in Crl.Pet.No.3365 of 2014), Dharamvir Singh v. State & Ors. (Delhi HC judgment dated 01.10.2014 in Crl.M.C. 3202 of 2014), Prahlad Singh Bhati v. NCT CR No. 137/2018 Page 2 of 25 Delhi & Anr. (2001) 4 SCC 280, Sundeep Kumar Bafna v. State of Maharashtra & Anr.(2014) 16 SCC 623, Mohanlal Shamji Soni v. Union of India and Anr. AIR 1991 SC 1346 and Mahipal v. Rajesh Kumar@Polia & Anr.(SC judgment dated 05.12.2019 in Crl.Appeal No. 1843 of 2019).
On the other hand, Sh. Sumit Kumar Khatri, advocate, learned counsel for the respondent/accused, relied on Abdul Basit v. Abdul Kadir Choudhary (2014) 10 SCC 754, Girish Kumar Suneja v. C.B.I. AIR 2017 SC 3620, Amar Nath and Others v. State of Haryana & Others 1977 AIR 2185, State Govt. of NCT of Delhi v. Dhananjay Singh 2015(3) JCC 1882, Jaivir Sharma v. D.N.Taneja and Anr. MANU/DE/2524/2013, Manjit Prakash and Ors. v. Shobha Devi and Anr. AIR 2008 SC 3032 and Bikramjit Singh v. The State of Punjab 2020(4)RCR(Criminal)713.
5) As per record, one FIR No.681/14 U/s 420 IPC was registered in PS New Ashok Nagar against Sunil Kumar Sharma
(respondent/accused) on the complaint of Sh.H.P.Aggarwal, aged around 80 years who retired as an Executive Engineer from General Reserve Engineer Force, B.R.O. The complainant alleged that he was introduced to accused Sunil Kumar Sharma in the year 2001 through Naresh Chand Sharma, his elder brother, who had come in the complainant's contact through one of his acquaintances namely Avtar Singh, proprietor of M/s. Henley Almirah where Naresh Chand Sharma was employed as a Salesman. The complainant's only son CR No. 137/2018 Page 3 of 25 Gopal Krishna was a citizen of USA and the complainant used to live alone and owing to his age he was incapacitated to handle most of his daily errands for which he would seek the assistance of the accused. The accused over a period of time, gained the confidence of the complainant.
The complainant purchased property bearing no. D-162, New Ashok Nagar, New Delhi (subsequently reassigned no. House No. 25, C Block Extension, New Ashok Nagar, New Delhi) measuring 100 sq. yds from one Dhir Singh s/o Sh. Bhikam Singh for a consideration of Rs. 2 Lacs vide registered General Power of Attorney (G.P.A.), Will, Agreement to Sale and Possession Letter, all dated 02.09.2003. The said property was constructed to a ground floor with 6 rooms at the time of purchase and the complainant further got constructed another floor with six rooms over the existing structure.
The complainant rented out two rooms on the ground floor of the said property to the accused in February, 2004 but no agreement was executed owing to the trust reposed in the accused. It was also agreed that the accused shall occupy the two rooms on the ground floor of the property and oversee the entire premises and collect the rent from other tenants on behalf of the complainant. The complainant had also rented out a portion of his another property situated at D-183, New Ashok Nagar, Delhi to Naresh Chand Sharma, brother of the accused, in the year 2005.
Further, due to his father's demise, his own old age and the stress borne by him due to circumstances, the complainant developed CR No. 137/2018 Page 4 of 25 various health related issues and was prescribed complete bed rest till February 2014. Meanwhile, the accused defaulted in payment of his rent and did not pay the rent collected from other tenants to the complainant for the month of May, 2013. On demand, the accused proposed to pay the entire due rent in lump sum in few months, citing financial constraints but subsequently, the accused completely stopped paying any rent to the complainant.
On 16.04.2014, the complainant, after regaining his health, alongwith his friend Vijay Soni, visited the property no. D-183, New Ashok Nagar, New Delhi to inspect the same where he came to know that Naresh Chand Sharma had committed various illegal acts of trespass, criminal breach of trust and cheating with respect to the said property. The complainant was also informed by the local residents that the accused too, in a similar fashion like his brother Naresh Chandra Sharma, has been claiming ownership of the complainant's property at H.No. 25, C-Block Extension, New Ashok Nagar, New Delhi and had forged title documents of the said property. When the complainant visited his aforesaid property, he was shocked to see that the accused had constructed additional three floors on the said property without the complainant's knowledge and consent. The complainant immediately lodged a complaint with the SHO PS New Ashok Nagar, resulting in FIR No. 681/14 u/s 420 IPC against the accused.
CR No. 137/2018 Page 5 of 256) As per record, another FIR No. 676/14 u/s 420 IPC, PS New Ashok Nagar was also registered against Naresh Chand Sharma.
7) In the present case FIR No. 681/14, during the course of investigation, Section 467/468/471 IPC were also added. Accused Sunil Kumar Sharma, after arrest, was produced before the learned Trial Court on 09.05.2016. On the said day, ASI Yatender, investigation officer(IO), moved an application seeking 14 days remand of the accused in judicial custody. Simultaneously, bail application u/s 437 Cr.P.C was also moved by the accused. After hearing arguments on both the applications, learned Trial Court deemed it appropriate to enlarge the accused on bail on furnishing bail bonds in a sum of Rs. 25,000/- with one surety in the like amount. The bail bonds and surety bond were furnished which were accepted and the accused was released from the court itself on the same day.
8) Thereafter, the State moved an application u/s 437(5) Cr.P.C. seeking cancellation of bail of the accused which was contested by the accused by filing a reply thereto. Vide impugned order, the aforesaid application was dismissed by the learned Trial Court.
9) Feeling aggrieved, the State preferred the present revision petition for setting aside the impugned order.
CR No. 137/2018 Page 6 of 2510) The grievances of the petitioner are that vide order 09.05.2016, learned Trial Court granted bail to the accused taking into consideration the submissions of the then IO which were patently wrong. It was submitted by the IO that the complainant had not produced any ownership documents pertaining to the property in question and on verification the property was found belonging to DDA. An FIR was also registered against the complainant in this regard. All these submissions made by the IO were false and the learned Trial Court was, therefore, misled and duped to obtain the bail order. A departmental action was also initiated against the then IO for making wrong submissions before the court which resulted in bail being granted to the accused. Even otherwise, the learned Trial Court was not competent enough to grant bail in case of an offence punishable with imprisonment for life which was the case before it as during the investigation, section 467 IPC, besides other sections, was added in the case which is punishable with imprisonment for life. Further, at the time of arguments on application under section 437(5) Cr.P.C., all these submissions were made but the learned Trial Court, though agreeing about the merits of the submissions, fell into error in holding that the exercise of power for cancellation of bail under section 437(5) Cr.P.C. was not warranted as the same would tantamount to review of the bail order and the remedy lies only in challenging the bail order in superior court.
CR No. 137/2018 Page 7 of 2511) The learned counsel for the respondent/accused contended that the revision petition is not maintainable as the impugned order is justified and there was no occasion to cancel the bail of the accused which was granted after due consideration of all facts. Further, the respondent/accused joined investigation several times. It was also alleged that the IO is acting at the behest of the complainant to compel the accused to shell out more money as the market rate of the property has increased.
12) The issues involved in the present revision petition are taken up for discussion under the following heads:
(A) Maintainability of the revision petition:-
By way of present revision petition, the state has challenged the impugned order whereby the application under section 437(5) Cr.P.C seeking cancellation of bail was dismissed. During the course of arguments, learned prosecutor relied on Jagdish Gandhi(supra), Ratan Mandal(supra), Amar Nath(supra)and Prashant Kumar(supra) cases to contend that the present revision petition is maintainable against the impugned order which is not an interlocutory order. Learned counsel for the accused did not raise much objection in this regard except placing reliance on Girish Suneja (supra) case.
13) In the present case, the state has challenged the order dated 17.04.2018 passed by the learned Trial Court whereby the application CR No. 137/2018 Page 8 of 25 moved under section 437(5) Cr.P.C. was dismissed. An order of bail-be it grant of bail or rejection of bail- is certainly not amenable to revisional jurisdiction being interlocutory in nature, as was also laid down in Amar Nath (supra) case but it can not be the case in respect of an order dismissing an application seeking cancellation of bail under section 437(5) or for that matter, under section 439(2) Cr.P.C., more so, when improper exercise of jurisdiction vested in the court, like in the present case, has been alleged. For instance, if a Magistrate cancels the bail under section 437(5) Cr.P.C., the accused can go in revision against the order which is not interlocutory in nature, though it is a different matter that alternatively, the accused can also file application under section 439(1) Cr.P.C. for grant of bail. Similarly, the State can also file revision petition against dismissal of application under section 437(5) Cr.P.C. as basically improper exercise of jurisdiction by the Magistrate is to be challenged. This is different from seeking cancellation of bail under section 439(2) Cr.P.C. which is again an alternative remedy. Such an order allowing or dismissing an application under section 437(5) Cr.P.C. is certainly liable to be challenged by invoking revisional jurisdiction under section 397 Cr.P.C. as the same is an 'intermediate order' or a 'matter of moment' as explained by the Hon'ble Supreme Court in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551, which was further reiterated in Amar Nath (supra) and Girish Suneja (supra) cases. To my mind, no other remedy has been stipulated under the Code in such an eventuality, unlike the case of grant or rejection of bail. To explain CR No. 137/2018 Page 9 of 25 further, if a Magistrate grants bail under section 437(1) Cr.P.C., the same can be challenged under section 437(5) before the same court or under section 439(2) Cr.P.C before the superior court. Likewise, if the Magistrate rejects bail under section 437(1), the remedy lies to take recourse to section 439(1) Cr.P.C. for grant of bail. In a similar fashion, if the bail is granted by a Court of Session under section 438 or 439(1) Cr.P.C., the same can be challenged under section 439(2) Cr.P.C. in Hon'ble High Court being the superior court and if the bail is rejected by the Court of Session under section 438 or 439(1) Cr.P.C., the same can be granted by the Hon'ble High Court under the same provisions, by virtue of being the superior court, despite there being parallel powers available with the Court of Session under the said provisions regarding grant or rejection of bail. But no remedy has been stipulated under the Code in respect of allow or dismissal of application under section 437(5) or under section 439(2) Cr.P.C. and that's why it makes the same amenable to revisional jurisdiction of the superior court. To reiterate, the revisional jurisdiction can not be invoked to challenge the order granting or rejecting bail as such an order would be interlocutory in nature, but it can certainly be invoked in case of final or intermediate orders. It was also laid down in categorical terms in Girish Suneja (supra) case that the revisional jurisdiction can be exercised in respect of final and intermediate orders but not in respect of interlocutory orders.CR No. 137/2018 Page 10 of 25
14) The upshot of above discussion is that the present revision petition is very much maintainable before this court which is superior to the learned Trial Court as the order impugned is not an interlocutory order but an intermediate one.
(B) Can a Magistrate grant bail in an offence punishable under section 467 IPC?
Offence under section 467 IPC reads as under:
467. Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son,or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, moveable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 437 Cr.P.C. dealing with the power of a Magistrate to grant bail also needs to be referred which is as under:
437. When bail may be taken in case of non-bailable offence- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or CR No. 137/2018 Page 11 of 25 detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occassions of (a cognizable offence punishable with imprisonment for three years or more but not less than seven years) :-
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:CR No. 137/2018 Page 12 of 25
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub- section without giving an opportunity of hearing to the Public Prosecutor.
(2) to (7) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
15) A careful perusal of Prahlad Bhati (supra) case relied upon by the state would reveal that there is no absolute bar imposed upon the Magistrate to deal with the bail application under section 437(1) Cr.P.C. even where the offence is triable by Court of Session and is punishable with death or imprisonment for life. He can deal with the bail application of such offence if the matter is covered by the proviso attached to the section. No doubt, it has been impressed upon the Magistrate to not enter into 'adventure' in dealing with the bail application where the offence is punishable with death or imprisonment for life and is triable by court of Session but to direct the accused to approach the Court of Session for getting the relief of bail unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.
16) For the purpose of issue under consideration, in my considered opinion, the terms 'death or imprisonment for life' and 'imprisonment for life' are to be read disjunctively. Section 437 Cr.P.C. and the CR No. 137/2018 Page 13 of 25 proviso appended thereto, while placing embargo upon the power of a Magistrate, thoroughly uses the term 'death or imprisonment for life' in a block and does not deal with the term 'imprisonment for life' only.
It also does not appeal to common sense that the Magistrate, though can conduct trial for the offences punishable with imprisonment for life, as in cases under sections 326,377,388,389,394,409,467,472,474 and 477 IPC but cannot deal with the bail applications of such offences. Conduct of trial, at any point of time, is far serious and responsible function as compared to the question of bail. Even otherwise, in the above-mentioned Criminal Reference no.1 before the Hon'ble High Court, where the only query raised was 'can a Magistrate grant bail in an offence which is triable by magistrate but is punishable with imprisonment for life', it was answered by the Hon'ble High Court in affirmative with the caveat that the case should not fall within any of the proviso appended thereto, meaning thereby that a Magistrate is not debarred in granting bail in a case involving offence which is triable by magistrate and is punishable with imprisonment for life. Therefore, the Magistrate, in view of law laid down in Prahlad Bhati(supra), and the Criminal Reference no.1,is competent to deal with the bail applications for the offences which are punishable with life imprisonment and are triable by magistrate but should not deal with the bail applications in cases where the offence is triable by the Court of Session and is punishable with 'death or imprisonment for life' besides other punishments, like offences punishable under section 302,364A,396 IPC etc. CR No. 137/2018 Page 14 of 25
17) In view of above discussion, I am not satisfied with the contentions of learned prosecutor that the learned Trial Court was not competent enough to grant bail in offence punishable under section 467 IPC which is punishable with imprisonment for life.
(C) Whether the grounds for seeking cancellation of bail amounted to review of order granting bail?
18) The main grounds seeking cancellation of bail under section 437(5) Cr.P.C. taken by the state were that the bail was granted in view of wrong submissions made by the then IO and the learned Trial Court did not consider the record of the case at that point of time otherwise bail could not have been granted to the accused. The order dated 09.05.2016 whereby the accused was granted bail needs reproduction to appreciate the contentions put forth which is as under:
"FIR No. 681/14PS Preet Vihar State Vs. Sunil Kumar 09.05.2016 An application u/s 437 Cr.P.C. filed on behalf of accused Sunil Kumar for grant of bail.
Present: Ld. APP for State.
IO/ASI Yatinder with case file.
Accused produced after fresh arrest with counsel.
IO has moved an application seeking 14 days JC remand of the accused. On the other hand a bail application is filed on CR No. 137/2018 Page 15 of 25 behalf of the accused. Argument on the both application have been heard.
Record carefully perused.
Accused has been implicated in the case of cheating whereby allegedly he had prepared forged documents of a property belonging to the complainant. As per the allegation in the complaint the complainant had never sold his property to the accused and the documents like GPA Etc. in favour of the accused were forged and fabricated. As per the case of the complainant, he is the owner of the property in question and the accused had tried to grab his property by preparing forged documents.
Per contra as per the case of the accused, he had purchased the property in question from the complainant for consideration and payment had made by way of Bank transaction. It is the accused who had been cheated by the complainant as the property in question belong to DDA and had never been transferred in the name of complainant. Despite this fact the complainant has been selling the property for valuable consideration. By this modus operandi, the accused had sold a substantial land to various innocent purchaser. In this regard FIR has already been registered against the complainant and is pending disposal.
On Court question from the IO it is submitted by him that the complainant has not produced any ownership document pertaining to the property in question and verification the property in question was found to be belonging to DDA. IO has admitted registration of FIR against the complainant in this regard.
Considering the overall facts of the case and the material on record, I deem it appropriate to enlarge accused on bail on furnishing bail bond in sum of Rs. 25000/- with one surety of like amount.
Bail bonds, surety bond furnished. Accepted.
Accused be released from court itself.
Both the applications are disposed off accordingly.
sd/-
(SHIVALI SHARMA) ACMM (EAST)/ KKD/09.05.2016"
19) It is evident from the above mentioned order that for granting bail, the learned Trial Court considered the threefold submissions of CR No. 137/2018 Page 16 of 25 the IO i.e., the complainant did not hand over the documents of the property in question to the IO; the said property belonged to DDA and there was an FIR registered against the complainant in connection with the said property.
20) It was alleged by the state that the complainant had handed over the documents pertaining to his ownership to the then IO which were taken into possession vide seizure memo dated 23.09.2014 much prior to the date of bail order. Further, DDA never claimed the said property (which is a built-up house admeasuring 100 sq.yards) to belong to it and there was no FIR registered against the complainant with regard to the said property. Therefore, it is clear that all the three aforementioned submissions made by the then IO were false on the face of it and, in fact, departmental action was also initiated against him for making wrong submissions before the court.
21) Having heard the submissions and after perusing the material available on record, in my considered opinion, the learned Trial Court fell into error in holding that the aforementioned grounds seeking cancellation of bail would amount to review of bail order passed by the learned predecessor. If the allegations levelled by the state were assumed to be true, it would mean that the bail was granted taking the wrong facts into consideration as represented or to say, misrepresented, by the IO whereas those facts were not in existence at that point of time and the learned Trial Court was misled to believe in CR No. 137/2018 Page 17 of 25 the existence of those facts. Had those facts were in existence and the bail was granted after due consideration of those facts, the position would have been different, for, in such eventuality, a prayer for reconsideration of those facts would certainly amount to review of the bail order. However, if the said facts were non-existent but the court was made to believe in their existence, then the court was, in the process, misled. To put it in another way, If a court grants bail taking into consideration the facts A, B and C and afterwards, the state seeks cancellation of bail contending that the facts A, B and C were not properly appreciated at the time of granting bail, it would be a case of seeking review or revisit of the bail order which is not permissible and the appropriate remedy would lie in challenging the bail order in superior court. But, if the state seeks cancellation of bail, contending that the facts A, B and C were not in existence et all at the time of grant of bail but the court was made to believe in their existence, it can not be said to be a case of seeking review of the bail order. In such eventuality, the attention of the court is being drawn to the fact that the court was duped to obtain the bail order and accordingly, the same court is not powerless to cancel the bail. There is no question of any supervening circumstances coming into play but the point is that there were no circumstances under which the bail should have been granted.
The distinction, no doubt, is fine but is real.
22) In view of above, there is no doubt that the grounds for seeking cancellation of bail before the learned Trial Court did not amount to CR No. 137/2018 Page 18 of 25 review of order granting bail and the learned Trial Court clearly fell into grave error in holding so. The reliance placed by the learned counsel for the respondent/accused on the judgments in Abdul Basit (supra) and Dhananjay (supra) would be of no help to him as both the judgments are clearly distinguishable on facts of the present case as the learned predecessor Trial Court was misled to grant bail on non- existent facts which falls beyond the domain of illegality or perversity. The learned predecessor Trial Court did not act against any established canon of law or dicta of any superior Court or did not apply wrong law to the facts but was made to believe in non-existent facts. Moreover, in Puran v. Rambilas AIR 2001 SC 2023 it was categorically laid down that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. In this regard, the observations of the Apex Court in Harjeet Singh alias Seeta v. State of Punjab and Anr. AIR 2002 SC 281 are also worth taking note of which are as under:
"11.........It would be open to the State Government or the aggrieved party to approach the Court for cancellation of bail on the ground of any objectionable conduct on the part of the accused and/or by pointing out that the order granting bail was obtained by suppression of material fact and in such case matter may be placed before the same Judge, who granted bail, if available."CR No. 137/2018 Page 19 of 25
23) As far as reliance placed on Bikramjit (supra) case is concerned, it suffice to say that the same pertains to the issue regarding 'Default Bail' under section 167(2) Cr.P.C. which is not in issue before this court and thus, the reliance placed is wholly misplaced.
(D) Whether the bail granted to the respondent/accused should have been cancelled by the Trial Court?
24) A perusal of the impugned order would show that the learned Trial Court, while holding that the bail order cannot be reviewed, also discussed the merits of the case of the prosecution regarding the accused not cooperating in the investigation, adverse finger print bureau report, accused furnishing different set of documents to BSES for obtaining electricity connection etc. The Trial Court also stated in para 9 that it is settled position of law that once bail has been granted on untenable grounds the same can be cancelled and the contention that there are no supervening circumstances, has no relevance. Similarly in para 15, it was stated that the contentions raised by the learned APP for the state that the complainant had actually handed over the documents of the property to the IO and the land actually belongs to the complainant and not to the DDA is also not a ground to cancel the bail as these facts existed at the time when the bail order was passed.
CR No. 137/2018 Page 20 of 2525) It is, therefore, evident that the learned Trial Court adopted a contradictory approach in simultaneously discussing the merits of the case and also holding that it has no power to review the bail order.
26) As observed above, the grounds taken by the state in application under section 437(5) Cr.P.C. did not amount to review of the bail order, which otherwise also has not been stipulated anywhere in the Code, and therefore it is clear that the learned Trial Court misdirected itself in holding so. Then, the learned Trial Court also failed to consider the allegations levelled against the accused and the evidence collected during investigation in the integrated manner. There is no doubt that the bail granted to an accused cannot be mechanically cancelled afterwards as and when any incriminating evidence is collected against him, but it was not the case before the learned Trial Court. The main allegations levelled against the accused were that learned predecessor was misled and duped to obtain the bail order in favour of the accused. It was therefore incumbent upon the learned Trial Court to take the whole scenario, a complete picture, into consideration-from misrepresentation to suppression to incrimination of the accused.
27) At the time of bail order it was wrongly submitted that the complainant did not hand over the ownership documents of the said property to the IO whereas same were already seized vide seizure memo dated 23.09.2014. Further, the facts that the said property i.e., a CR No. 137/2018 Page 21 of 25 built up house, belong to DDA and an FIR was registered against the complainant in that regard, were also not correct as DDA never claimed so and the FIR no.1276/15 was registered on the orders of the court with regard to the land of entire area of Abadi village Chilla Bangar, falling in khasra no. 408/274 whereas the property in question situate in khasra no.399/264/2. Interestingly, the accused himself claims to have purchased the said property from the complainant vide unregistered documents. As per IO, the cheque of Rs. One Lac bearing no.954962 through which the accused claimed to have paid consideration amount in respect of property in question was found to be the same cheque through which his elder brother Naresh Chander Sharma also claimed to have paid the consideration amount in respect of property no. D-194, New Ashok Nagar. The accused also furnished different set of documents of the same property to the BSES while applying for electricity connection in his name. Furthermore, the Finger Print Bureau report dated 13.01.2015 which is adverse to the accused, was also withheld from the court at the time of grant of bail.
28) In view of aforementioned facts and circumstances, it is clear that firstly, the learned predecessor Trial Court was misled and duped to obtain the bail order in favour of the accused and then the learned successor Trial Court misdirected itself in passing the impugned order, resulting in the casualty of Justice and shaken belief in its administration.
CR No. 137/2018 Page 22 of 2529) In the entire set of circumstances as discussed above, in my considered opinion, the learned Trial Court, at the first instance, should not have allowed itself to be misled to grant bail to the accused. The often expressed sentiments by the Hon'ble Supreme Court and High Courts in this regard are again echoed in Mohanlal Soni( supra) case that a Court must discharge its statutory functions-whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In its recent judgment Mahipal(supra), the Apex Court reiterated that merely recording "having perused the record" and "on the facts and circumstances of the case" does not sub-serve the purpose of a reasoned judicial order as the duty of judges to give reasoned decisions lies at the heart of this commitment. It was also stressed that the question of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interest of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. (Emphasis supplied)
30) Secondly, in the unfortunate situation of learned predecessor having been misled, it was incumbent upon the learned successor Trial Court to not misdirect itself but to exercise jurisdiction enjoined upon it to uphold the majesty of law.
CR No. 137/2018 Page 23 of 2531) Lastly, with regard to present revision petition and the grounds taken by the State for challenging the impugned order, the observations of Hon'ble Bombay High Court in Prashant Kumar(supra) case are pertinent to be noted when it held that if an order of bail has been unjustifiably passed, to lay down that the same cannot be challenged in the Superior Court would amount to a travesty of justice and the argument that by allowing the revision application, the Superior Court would in terms be cancelling the order of bail, cannot even for a moment be accepted, as that would be an argument open in every case wherein an justified order of bail is cancelled by the Superior Court.
32) At this juncture, a thought also comes to the mind what would be gained in cancelling the bail granted to the accused long back. Then the answer also flashes which is simply to uphold the majesty of law and to convey a message, loud and clear, to not meddle with the legal procedure as if it is not a handmaid of justice but of one individual- in this case, of two individuals. Once this court exercising revisional jurisdiction, comes to a conclusion that the court inferior to it has committed some illegality, some impropriety, there is a legal duty cast upon this court to correct the same, irrespective of consequences.
33) Accordingly, in the entire set of facts and circumstances as discussed above, the revision petition stands allowed. The impugned order dated 17.04.2018 whereby the application under section 437(5) CR No. 137/2018 Page 24 of 25 Cr.P.C. moved by the state was dismissed, is hereby set aside. Consequently, the order dated 09.05.2016 granting bail to the accused is also set aside. Bail granted to the accused is cancelled and bail bonds are discharged. The accused Sunil Kumar Sharma is directed to surrender forthwith failing which the IO is directed to take him into custody and produce before the learned Trial Court.
34) A copy of judgment be sent to the learned Trial Court with TCR.
35) File be consigned to records.
order
Digitally signed by
KULDEEP KULDEEP NARAYAN
Location: East District
NARAYAN Karkardooma Courts, Delhi
Date: 2021.03.06 16:58:11
+0530
(Pronounced in the open court (KULDEEP NARAYAN)
on 06.03.2021) Additional Sessions Judge-04
East District, Court No. 10
Karkardooma Courts, Delhi.
CR No. 137/2018 Page 25 of 25