Delhi District Court
Raj Kumar Singh vs State And Ors on 3 January, 2024
IN THE COURT OF SHRI ARVIND BANSAL
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
Criminal Appeal No. 36/2021
PS Jyoti Nagar
Raj Kumar Singh
s/o Late Shri Tika Ram
r/o A-467, Gali No. 2, Meet Nagar,
Delhi - 110094.
....... Appellant
Vs.
1. State of NCT of Delhi
2. Archna
w/o Shri Shakal Singh
r/o C-12/A, Gali No. 17, Budh Vihar,
Mandoli, Delhi-110094.
3. Mansi @ Kareena
d/o Shri Chander Pal
r/o C-12/A, Gali No. 17, Budh Vihar,
Mandoli, Delhi-110094.
4. SHO, PS Jyoti Nagar, Delhi.
...... Respondents
Date of institution : 13.04.2021
Date of reserving order : 19.12.2023
Date of order : 03.01.2024
JUDGMENT
1. Vide present appeal, appellant/complainant has assailed an order dated 17.03.2021 of the then Ld. CMM, Shahdara admitting both the accused i.e. respondent no. 2 & 3 Archana and Mansi @ Kareena to bail in case FIR No. 95/2021 u/s 389/411 IPC of PS Jyoti Nagar.
Raj Kumar Singh vs. State & Ors Page 1 of 9
2. The succinct facts leading to filing of present case FIR and this appeal are as follows:
On 27.02.2021, appellant/complainant filed a written complaint with SHO, PS Jyoti Nagar alleging therein that aforesaid two females who used to work for the security firm of his son, extorted a sum of Rs. 45,000/- from him under the threat of falsely implicating him in a case of rape, molestation and sexual harassment. It is alleged on 20.02.2021, both of them again visited the complainant and demanded a sum of Rs. 20 lacs and threatened to implicate him in false case of rape, if the amount was not paid.
Again on 06.03.2021 at about 10:20 am, complainant visited the police station and informed that both the said females shall be visiting him to take an amount of Rs. 01 lac under threat. A trap was laid and both the said accused were arrested and the alleged amount of extortion was recovered from their possession.
On two separate bail applications moved by the accused persons, they were admitted to bail by then Ld. CMM, Shahdara vide impugned order dated 17.03.2021 on furnishing a Bail Bond in the sum of Rs. 30,000/- with one surety in the like amount each. Some other conditions were also imposed on both the accused persons.
3. It is the allegation of appellant/complainant in the present appeal that investigating agency deliberately registered the FIR under minor offences i.e. u/s 389/411 IPC while an offence u/s 384/499/500/506 IPC was also made out. It is submitted that appellant/complainant also made a request to Raj Kumar Singh vs. State & Ors Page 2 of 9 concerned SHO to add relevant penal provisions to the FIR vide his representation vide DD No. 90A dated 22.03.2021, however, no action was taken.
4. It is alleged that both the accused persons i.e. respondent no. 2 and 3 stopped the appellant on the flyover of Meet Nagar on 06.04.2021 at 02:00 pm and threatened him to involve him in a false case of molestation or rape. Appellant immediately got one DD No. 85A dated 06.04.2021 registered in this regard. It is also the submission that conduct of respondent no. 2 & 3 is an apparent violation of the conditions of bail, calling for cancellation of bail granted to both of them. It is stated that respondent no. 2 & 3 have also approached the Court of concerned Ld. MM for registration of FIR against the appellant. It is stated that such an approach of respondent no. 2 & 3 is contrary to the principles of grant of bail as it tends to unreasonably put the appellant under threat. Hence, appellant/complainant has preferred this appeal to cancel the bail granted by the then Ld. CMM, Shahdara.
5. Notice of this appeal was issued to State/Respondent No. 1, and respondent no. 2 & 3 and they both appeared before the Court through their Ld. Counsel. Reply to the present appeal was filed on behalf of both of them. Copy thereof was supplied to appellant/complainant.
6. Ld. Counsel for appellant/complainant reiterated the aforesaid case and emphasised that respondent no. 2 & 3 violated the condition of bail and threatened the appellant making out a clear case of cancellation of bail. He also argued that respondent no. 2 & 3 could not have launched prosecution against Raj Kumar Singh vs. State & Ors Page 3 of 9 appellant/complainant without seeking modification of the impugned order and as such, sufficient grounds to cancel the bail and set aside the said order are made out.
7. Per contra, Ld. Addl. PP for State/Respondent No. 1 justified the impugned order dated 17.03.2021 to be fair and reasonable and also stated that no ground to set aside the same is made out. Ld. Counsel for Respondent No. 2 & 3 argued that present appeal had been preferred by appellant merely to pressurize both of them. Ld. Counsel termed DD No. 85A as false and concocted and submitted that such manipulated complaint cannot form basis of cancellation of bail.
8. Submissions heard. Record perused.
9. Before adverting to the merits of the case, this Court deems it imperative to delve into significant issue which goes to the root of the matter i.e. maintainability of the present appeal. The Court is required to decide if the present appeal is maintainable against the impugned order dated 17.03.2021 granting regular bail to respondent no. 2 & 3 u/s 437 Cr.P.C.
The Code of Criminal Procedure, 1975 deals with 'appeal' u/s 374 and the present petition has also been preferred u/s 374 Cr.P.C itself. Sec. 374 Cr.P.C reads as under:
"374. Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.
(3) Save as otherwise provided in sub- section (2), Raj Kumar Singh vs. State & Ors Page 4 of 9 any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session."
10. A bare perusal of the statutory provision would clarify that it provides filing of an appeal to a higher Court in case of a conviction by Court of Magistrate, Session Court or High Court. Similarly, other provisions under Chapter XXIX titled 'Appeal' deal with right to file an appeal in different situations of conviction or acquittal.
There is no provision in Chapter XXIX of Cr.P.C providing for an appeal against an order of release of accused on bail u/s 437 Cr.P.C. As such, present appeal, putting an order of grant of bail u/s 437 Cr.P.C challenge, is not maintainable either u/s 374 Cr.P.C or any other provision of Chapter XXIX of Cr.P.C.
In fact, a further reading of the scheme of provisions and remedies provided under Cr.P.C, would clarify that a specific provision for seeking 'cancellation of bail' has been provided u/s 437 (5) Cr.P.C and/or u/s 439(2) Cr.P.C. Such a power to cancel bail is provided not only to the same Court which released the accused person on bail but also to a Court of Sessions and High Court.
In the present case scenario, complainant/appellant (and if required, State) could have resorted to any of the aforesaid two provisions instead of approaching this Court u/s 374 Cr.P.C.
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11. In the opinion of this Court, the present appeal deserves to be dismissed on this technical ground alone. Ld. Counsel for appellant relied upon the judgment of Hon'ble Supreme Court in case titled 'Prakash Saran vs. Ram Prasad Gupta', JT 2011 (5) SC 629 to bolster his argument that an appeal is maintainable against an order of grant of bail. This Court perused the judgment relied upon by Ld. Counsel. It is respectfully observed that the said judgment does not carve out any exception to Sec. 374 Cr.P.C permitting either the State or complainant to prefer an appeal against an order u/s 437 Cr.P.C. A mere reference to appellate/revisional Court in the said judgment cannot be considered equivalent to a statutory provision and as such, reliance upon the said judgment is misconceived.
12. Be that as it may, both the sides advanced arguments even on merits. This Court, therefore, deems it appropriate to discuss and decide the issue raised by appellant/complainant in the present petition, as if it were a petition u/s 439(2) Cr.P.C.
13. It is the gravamen of complainant/appellant that since respondent no. 2 & 3 allegedly violated conditions of bail by threatening him, as also by instituting an application u/s 156(3) Cr.P.C, the bail granted vide impugned order dated 17.03.2021 be cancelled. As against this, respondents argued that complaint of threat is false and manipulated.
14. After careful consideration of the rival submissions, this Court is of the opinion that the factors required to be considered for 'setting-aside' an order, and the ones required for 'cancellation of bail' are totally different and distinct.
Raj Kumar Singh vs. State & Ors Page 6 of 9 Hon'ble Supreme Court in case titled 'Puran vs. Rambilas' (2001) 6 SCC 338 observed 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 misbehaved himself or because of same new facts requiring such cancellation.'
15. As regards cancellation of bail, it is a settled proposition of law that the same can be done only where there is serious infirmity resulting in miscarriage of justice and if the Court granting bail ignores relevant material indicating prima facie involvement, or the accused has misconducted himself.
16. It is the argument of Ld. Counsel for appellant that an offence u/s 384/499/500/506/34 IPC was made out and investigating agency registered the case only u/s 389/411 IPC, and consequently Ld. CMM Shahdara also did not consider invoking additional/relevant provisions, making the order of bail defective. In the thoughtful opinion of this Court, the argument is misconceived. It may be noted that offence u/s 389 IPC is punishable with imprisonment upto 10 years while offence u/s 384 IPC is punishable with imprisonment upto 03 years only. Similarly, offence u/s 499/500 IPC is punishable upto 02 years only. Offence u/s 506 IPC is punishable either upto 02 years or 07 years depending upon the nature of allegations. Thus, Ld. CMM, Shahdara considered the bail application for a major and graver offence and as such, impugned order cannot be termed defective.
17. Complainant/Appellant has placed on record DD No. 85A dated 06.04.2021 alleging that he was threatened. An Raj Kumar Singh vs. State & Ors Page 7 of 9 action taken report filed on behalf of SHO, PS Jyoti Nagar would provide that there is no complaint against any of the respondents by appellant/complainant concerning the present case for last more than 02 years. Further, on the complaint of appellant, one NCR No. 02/2022 u/s 506/507 IPC has been recorded. Since, the said offences are non-cognizable, it was incumbent upon the appellant to take legal recourse against the offenders, however, there is nothing on record to show whether he pursued the said issue any further by filing a separate criminal complaint before the Court of concerned Ld. Magistrate.
18. In its reply, respondents have informed that chargesheet stands filed before Ld. Trial Court after completion of investigation. There is no allegation of the State that respondent no. 2 & 3 ever caused any hinderance in the investigation while the same was pending.
19. It is also the submission that respondents filed an application u/s 156(3) Cr.P.C against the complainant/appellant for commission of offence of rape which amounts to direct threat to him. It is the argument that such a course of action is violative of the conditions of bail. In this regard, it is observed that every victim has a right to approach a Court of competent jurisdiction u/s 156(3) Cr.P.C seeking registration of FIR. It is for the concerned Court to decide if such an application is genuine or frivolous. There is no provision under any applicable law requiring permission of the Court before filing an application u/s 156(3) Cr.P.C. Appellant/complainant has the option of putting forth his case/defence before the enquiry officer during preliminary inquiry leading to the filing of status report/action Raj Kumar Singh vs. State & Ors Page 8 of 9 taken report. Such a course of action of filing an application u/s 156(3) Cr.P.C cannot be considered a violation of the bail order dated 17.03.2021. The argument of Ld. Counsel in this regard is untenable.
20. A composite analysis of all the facts and circumstances leads to the conclusion that there is no justified or reasonable ground warranting 'cancellation of bail' of any of the accused persons i.e. respondent no. 2 & 3. Further, there is no ground either to set aside the impugned order dated 17.03.2021 or to cancel the bail granted vide the said order. The present appeal is, accordingly, dismissed.
Appeal file be consigned to Record Room. Copy of this order be sent to Ld. Trial Court for necessary intimation.
Dictated & announced in the open Court on 03.01.2024.
(ARVIND BANSAL) Addl. Sessions Judge-05 (Shahdara) Karkardooma Courts, Delhi.
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