Rajasthan High Court - Jodhpur
(Om Prakash vs . Central Bureau Of Investigation ) on 13 January, 2015
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
(1) S.B.CRIMINAL MISC. BAIL APPLICATION NO.5083/2014 (Om Prakash Vs. Central Bureau of Investigation ) (2) S.B.CRIMINAL MISC.2nd BAIL APPLICATION NO.6926/2014 (Paras Ram Vishnoi Vs. State of Rajasthan & Anr.) Date of Order : : 13th January, 2015 HON'BLE MS. JUSTICE NIRMALJIT KAUR Mr.H.S.Sandhu with Mr.Hanuman Khokhar, counsel for the petitioner -Paras Ram Vishnoi.
Mr.N.K.Bohra, counsel for the petitioner-Om Prakash. Mr.S.S.Yadav, Mr.Ashok Joshi & Mr.Panney Singh, Special Public Prosecutors for C.B.I. Mr.K.K.Rawal, counsel for the State.
Reportable <><><><><> Both the present bail applications shall stand disposed of by this common order as they arise out of the same FIR.
The prayer in the present petitions is for grant of bail under Section 439 Cr.P.C. The petitioners have been arrested in connection with FIR No.RC.7(5)2011-SC.1/CBI/New Delhi registered at Police Station C.B.I., New Delhi for offence under Section 120-B read with Sections 364, 302, 201 of the IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The matter relates to the abduction and subsequent killing of a lady Bhanwari Devi wherein three charge-sheets were filed by 2 the C.B.I. in quick succession to each other. A missing report was lodged by her husband Amar Chand before the Police Station Bilara, District Jodhpur. Subsequently, Amar Chand registered another FIR alleging the involvement of one of the sitting MLA and a Cabinet Minister in abduction of his wife and it was also apprehended that she had been killed. The Investigation was handed over to the C.B.I. by the State Government and the first charge-sheet was filed whereby certain accused persons were arrested and forwarded to the Magistrate. The story as disclosed by the C.B.I. was that Bhanwari Devi was abducted and killed by the accused-persons for monetary considerations. Accused Paras Ram, petitioner in Bail Application No.6926/2014 was called for interrogation by the C.B.I. on 2.12.2011 and arrested on the spot. One other accused person, namely, Mahipal Maderna was also arrested on the same date. The allegations against Mahipal Maderna were confined to a sleaze CD having explicit sex contents with the deceased and it was stated that she was murdered because of the blackmailing being done by her and by extending threats for exposing the said accused. The real elder brother of the petitioner-Paras Ram, namely Malkhan Singh was a sitting MLA (INC) from Luni Constituency, Jodhpur and subsequently, he was also arrested on the allegations that he had illicit relations over the years with the deceased and having fathered a girl child from such relations, he was being threatened by the deceased for exposing his name in the general public and as such to get rid of the threats, a conspiracy was hatched to get 3 her killed.
Earlier, the petitioner-Paras Ram had filed S.B.Criminal Misc. Bail Application No.5891/2012 under Section 439 Cr.P.C. before this Court which was dismissed by the learned Single Judge of this Court vide order dated 23.8.2012 on merits.
On 4.10.2012, the trial court discharged the petitioner-Paras Ram from the charges under Sections 120-B, 364, 302 of the IPC and Section 3(2)(V) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and was ordered to be charged only under Section 202 of the IPC. Similarly, accused-Om Prakash, petitioner in Bail Application No.5083/2014 was discharged by the trial court from the charges under Sections 120-B, 364, 302 of the IPC and Section 3(2)(v) of the SC/ST Act, 1989 and was ordered to be charged only under Section 201 of the IPC while other accused persons, namely, (1) Sohan Lal, (2) Sahi Ram, (3) Mahipal, (4) Malkhan Singh, (5) Kumbha Ram (6) Umesha Ram, (7) Reshma Ram, (8) Pukhraj, (9) Dinesh, (10) Bishna Ram, (11) Kailash, (12) Ashok and (13) Shahabuddin have been ordered to be charged under Sections 302/120-B, 364/120-B, 201 and 120-B of the IPC and Section 3(2)(V) of the SC/ST Act and the accused Amar Chand, who himself was a Scheduled Caste, was ordered to be charged only under Section 120-B and 364/120-B of the IPC by the trial court. The C.B.I. preferred Revision Petition No.1022/2012 before this Court against the said order of discharge. The said revision petition was disposed of by the learned Single Bench of this Court vide its order dated 30.1.2014 as under:- 4
15. Confessional statements of accused Sahi Ram, Vishna Ram, Kailash and statements of other witnesses Shyam Lal, Deva Ram, Lakha Ram have also been ignored by the trial court. If we go through these statements, charge of abduction and murder and criminal conspiracy should have been framed against Om Prakash and Paras Ram also. If a lady was abducted by some of the accused-persons and she was then murdered by some of the accused-persons and then her body was unscrupulously disposed of by some of the accused persons, then all these accused persons should have been charged for conspiracy, abduction and murder of the lady and causing disappearance of evidence and at the stage of charge, benefit of doubt could not have been and should not have been given to any of the accused-persons including Om Prakash and Paras Ram. S.B. Criminal Revision Petition No. 1022/2012 stands disposed of accordingly.
Thereafter the accused challenged the order dated 30.1.2014 before the Hon'ble Supreme Court by way of SLP (Criminal) No.1826/2014, which was dismissed on 25.2.2014.
On 6.3.2014, accused-petitioner Om Prakash surrendered before the trial court. The charges under Section 120-B read with Section 364, 302 and 201 of the IPC were framed against him and he was remanded to judicial custody. Similarly, when accused-petitioner Paras Ram surrendered before the trial court on 6.5.2014, the trial court once again framed charges under Section 120-B read with Sections 364, 302 & 201 of the IPC and send him to judicial custody.
Learned counsel for the petitioners while praying for grant of bail raised the following arguments:-
(i) That the bail applications of both the accused petitioner was cancelled without notice. No application under Section 439 (2) of the Cr.P.C. for cancellation of bail was moved by the 5 prosecution. The petitioner-Paras Ram had moved an application for exemption of his personal appearance before the trial court. He was required to appear before the Court at Bombay and this fact was mentioned in the application.
However, his exemption application was dismissed on 6.3.2014 and the arrest warrants were issued against him. His bail bonds were cancelled notwithstanding the fact that he was required to appear in the Court at Bombay on 6.3.2014 . It is contended that the trial court should have taken into consideration these facts and granted him an opportunity to defend himself before ordering his arrest. Thereafter, the accused-Paras Ram himself had surrendered before the trial court on 6.5.2014, on which date, he was taken into judicial custody. Similarly, the petitioner- Om Prakash himself surrendered before the trial court on 6.3.2014 and he, too, was taken into judicial custody without issuing any notice to him.
(ii) That the learned trial court completely failed to analyze and apply the ratio of Sanjay Chandra case. The ratio of the judgment and the question asked by the Hon'ble Supreme Court was repeated in the case of Dipak Shubhashchandra Mehta Vs. CBI, (2012) 4 SCC 134 in the following words:-
"This Court has repeatedly held that when the under- trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. As posed in Sanjay Chandra's case, we are also asking the same question i.e. whether the 6 speedy trial is possible in the present case for the reasons mentioned above."
The learned trial court failed to read this important question and also failed to apply the same on the case in hand that it is fully applicable in the case of the present petitioner. The learned trial court was duty bound to ask this question to itself and decide the same in view of the inevitable delay in the trial. The learned trial court failed to consider this important aspect.
(iii) That the learned trial court also failed to consider that petitioner-Paras Ram was earlier discharged on 4.10.2012 and his conduct after the same was the only consideration to be taken into account for grant of bail. The C.B.I. admittedly did not make any objections on the merits of the case. Admittedly, no misuse of liberty during the intervening period was attributed to the petitioner-Paras Ram.
(iv) That the learned trial court committed unprecedented illegality in taking up an adversarial role in dismissing the bail application of the petitioner-Paras Ram on its own by entering into merits of the case even when C.B.I refused to argue on merits of the case.
(v) Reliance was placed on the judgment rendered by the Apex Court in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa & Ors., reported in (2001) 1 Supreme Court Cases 169 to state that in a criminal case, the court cannot review its own order and the cancellation of the bail amounted to 7 reviewing of the order. While quoting the judgment in the case of Rambabu Tiwari Vs. State of M.P., reported in 2009 (12) SCC, it was contended that the bail could not have been cancelled on flimsy grounds.
Similarly, reliance was also placed on the judgment rendered by the learned Single Judge of this Court in the case of Chandrapal Singh Choudhary Vs. Vijit Singh & Anr., reported in 2009)1) Cr.L.R. (Raj.) 560 to contend that bail once granted could not have been cancelled merely on the ground that the offence under Section 304-A of the IPC has been converted into Section 304 of the IPC. Further, it is submitted that in the case of Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara & Anr., reported in (2012) 2 Supreme Court Cases 150, it has been held by Hon'ble Supreme Court that the bail granted two years back should not be cancelled unless there was an allegation that the accused during the said period has either tried to tamper with the evidence or committed any other act that may affect the fairness of the trial.
Reliance was also placed on the judgment rendered by the Apex Court in the case of Ashok Kumar Vs. State of Uttar Pradesh & Anr., reported in (2009) 11 Supreme Court Cases 392 . Last but not in the least, the judgment rendered by the Apex Court in the case of Central Bureau of Investigation Vs. Amitbhai Anil Chandra Shah & Anr., reported in 2014 Cr.L.R. (SC) 747 was referred to stated 8 that the bail once granted should not be cancelled lightly. Learned counsel for the respondent- C.B.I while vehemently opposing the bail submitted that: (a) the order dated 30.1.2014 passed by learned Single Bench of this Court in S.B.Criminal Misc. Petition No.1022/2012 framing the charges against the petitioners was in their knowledge . The matter was listed before the trial court on 1.2.2014 when the accused-petitioner Paras Ram Vishnoi moved an application for exemption of his personal appearance. The proceedings of the trial court were adjourned to 7.2.2014 at his request. On 7.2.2014 again, his counsel moved an exemption application. The same was repeated once again on 26.2.2014 and the matter was adjourned to 6.3.2014. On 6.3.2014, accused-Paras Ram did not appear before the trial court and his counsel moved the fourth exemption application. The learned Senior Counsel for the other accused-persons made submission to the trial court that the High Court while disposing of the application No.6016/2013 moved by co-accused Ashok Bishnoi had passed an order on 5.3.2014 for hearing of the case on day to day basis. In these circumstances, the application filed by Paras Ram for exemption of his personal appearance was dismissed and it was only after a number of exemption applications filed before 6.3.2014 were allowed that the one moved on 6.3.2014 was dismissed. The learned trial court had given ample opportunity to Paras Ram to appear in the court but he did not appear. It was only when accused-Paras Ram 9 surrendered on 6.5.2014 that the charges could be finally framed. The application under Section 70(2) of the Cr.P.C. moved by Paras Ram was rejected and he was sent to judicial custody. It was, therefore, contended that in view of these circumstances, in case, the accused are released on bail, the same will result in delay of the trial.
(b) That two accused persons, namely Bishna Ram Bishnoi and Kailash Jakhar, accused of this case have tried to escape from judicial custody in court campus by firing, out of which one accused Kailash Jakhar managed to escape but later on he was arrested. There is gang of the said accused-persons with other criminals, who is presently involved in collection of illegal arms and ammunition. Due to this, the witnesses of the prosecution being under terror and fear are not ready to depose the truth before the learned trial court. It is further stated that the Special Director of CBI has already requested to the Chief Secretary of the Rajashan State for providing adequate security to the prosecution witnesses as well as CBI personnel & prosecution team. The argument that accused were not issued any notice before cancelling the bail does not help as both were aware of the order of the High Court dated 30.1.2014 disposing of the revision petition of the C.B.I. directing the trial court to re-consider the framing of charges. Moreover, the accused-Paras Ram had duly moved an application under Section 70(2) of the Cr.P.C. which was rejected by the trial court and it was thereafter that petitioner- 10 Paras Ram Vishnoi was sent to judicial custody.
(c) That the prosecution has examined 31 witnesses, out of which 03 witnesses have turned hostile due to fear of accused persons. 02 prosecution witnesses (including Sahil, son of deceased Bhanwari Devi) lodged written complaints in the trial court alleging that accused persons are threatening them not to depose truthfully otherwise they would face dire consequences. It was further stated that Indra Bishnoi (Proclaimed Offender), real sister of the accused Paras Ram Bishnoi did not appear before C.B.I. for joining investigation as per order dated 23.2.2012 passed by this Court on her own petition and that the court of ACMM, C.B.I. Cases, Jodhpur had issued the process of attachment of property of proclaimed offender Indra Bishnoi due to her non-appearance before C.B.I court since long. Due to terror of present petitioner and his family, no one was ready to purchase her attached property on three occasions of auction. Now, the attached property has been taken over by the State Government.
(d) That as of now, 15 accused-persons of this case are in judicial custody, one is on bail and other is absconding. The bail petitions of co-accused Malkhan Singh have been rejected by this Court twice vide orders dated 10.4.2013 & 25.10.2013 respectively as well as by the Hon'ble Supreme Court of India vide order dated 29.4.2013. The bail petition of other accused Dinesh Bishnoi and Ashok Bishnoi have already been rejected by this Court, vide orders dated 26.7.2012 & 5.3.2014 respectively. Only 11 co-accused Reshma Ram was bailed out by this Court vide order dated 25..5.2013, which has since been challenged by the CBI in the Hon'ble Supreme Court by way of SLP (Crl.) No.9303/2013 in which notice has since been issued to accused Reshma Ram Bishnoi for 27.1.2015. In these circumstances, it is prayed that the present petitions for bail may be dismissed.
(e) Reliance is placed on the judgments rendered by Hon'ble Supreme Court in the case of (i) Kalyan Chandra Sarkar etc. Vs. Rajesh Ranjan alias Pappu Yadav & Anr., reported in 2005 Cri.L.J. 944, (ii) Jagjit Singh alias Jagga Vs. State of Punjab, reported in 2005 Cri.L.J.955, (iii) Chman Lal Vs. State of U.P. & Anr., reported in AIR 2004 Supreme Court 4267), Satish Jaggi Vs. State of Chhattishgarh & Ors., reported in (2007) 11 Supreme Court Cases 195, and (iv) Ahamed Basheer & Anr. Vs. Sub- Inspector of Police, Kasaragod & Anr., reported in 2014 Cri.L.J.
137. Heard.
The question of grant of bail on merits cannot be gone into as the bail of accused-Paras Ram on merits stands already dismissed by coordinate Bench of this Court on 23.8.2012 and nor have the learned counsel for the accused argued on merits before this Court. The order of the High Court setting aside the order of discharge has placed the accused back and prior to the situation when his bail application was dismissed by the High Court. 12
Moreover, in the case of Ahamed Basheer & Anr. Vs. Sub- Inspector of Police, Kasaragod & Anr. (supra), the Kerala High Court while relying on the judgment rendered by Hon'ble Supreme Court in the case of Prahlad Singh Bhati Vs. N.C.T. Delhi, reported in AIR 2001 SC 1444, held that release of an accused on bail when he was an accused in a bailable offence, is proceeded in a crime for non-bailable offence, he becomes disentitle to the liberty granted to him in relation to the minor offence. Para 6 of the said judgment reads as under:-
6. In the present case petitioners(accused) were released on bail by police at a stage when they were accused of a bailable offence. When investigation has revealed that the offence committed by them was an aggravated one, a non-bailable offence, they become disentitled to the liberty granted to them in relation to the minor offence. In such a case no orders from the Sessions Court or High court under section 439(2) of the Code is warranted for their arrest by police. Their previous release on bail by police when they were proceeded only for bailable offence would no way shield them from arrest by police if investigation disclose their culpability in a non-bailable offence. Even where a person is granted bail by the court under section 436(1) of the Code, if he is later proceeded for a non-bailable offence in the same crime no cancellation of bail need be applied by investigating officer but only informing the court of inclusion of the aggravated offence for issue of direction to the accused to apply for bail again for the graver offence. No order of cancellation of bail is required or called for. The argument canvassed by counsel that a person arrested and released on bail under section 436(1) of the Code can be rearrested only under an order passed only by Sessions Court or High Court under section 439 (2) of the Code has no merit.
The words 'under this Chapter' in sub section (2) of Section 439 do not postulate that a person released on bail under section 436(1) of the Code, whether it be by police or court, can be rearrested only by an order of the Sessions Court or High Court. What is provided under that sub section is a plenary power to the High Court or Court of Session for revoking or cancelling bail granted to any person under Chapter XXXIII of the Code for 13 arresting and committing him to custody where circumstances demand such an order to advance the ends of justice. Where no cancellation or revocation of a bail granted in relation to a bailable offence is needed or called for when the person granted bail is proceeded for an aggravated non bailable offence sub section (2) of Section 439 of the Code has no applicability at all. View expressed by this court in Biju v. State of Kerala (2000 (2) KLT 495) that "when an accused has been released on bail under section 436 of the Code and later a non- bailable offence is added, his bail can be cancelled only under section 439(2) or under section 437(5) Cr.P.C and that too on misuse of liberty granted" cannot hold good in the light of judicial pronouncement rendered over that question by the Apex Court in Prahlad Singh Bhati's case referred to above. In a fact situation where a person has been released on bail when proceeded with for a bailable offence alone, adding of aggravated non- bailable offence against him in the crime disentitle him to the liberty granted in respect of the minor offence. In such a case no question of revoking or cancelling the bail granted earlier for the minor bailable offence is called for."
Therefore, the judgments relied on by learned counsel for the petitioners, too, do not help the accused petitioner-Paras Ram in the facts of the present case. FIR No.RC.7(5)2011- SC.1/CBI/New Delhi was registered at Police Station C.B.I., New Delhi for offence under Section 120-B read with Sections 364, 302, 201 of the IPC and Section 3(2)(v) of the SC/ST Act, in which, accused-persons including the present petitioners were arrested. The bail application of petitioner-Paras Ram was dismissed by coordinate Bench of this Court on merits by detailed order dated 23.8.2012 passed in S.B.Criminal Misc. Bail Application No.5891/2012. Thereafter, charges under Sections 120-B, 364, 302 of the IPC and Section 3(2)(V) of the SC/ST Act were dropped against accused-petitioners Paras Ram and Om Prakash by the trial court vide order dated 4.10.2012 except for 14 the offence under Section 202 of the IPC against Paras Ram and under Section 201 of the IPC against Om Prakash. In these circumstances, accused-petitioner Paras Ram was released on bail by the trial court upon furnishing bail bonds as the offence surviving against him was only non-bailable offence. Thus, it is not a case of grant of bail in the offence under Sections 120-B, 364, 302 of the IPC but a case of discharge in all the non-bailable offences. The judgments relied on by the learned counsel for the petitioners are cases for considering the orders cancelling bail in a case in which an accused is released on bail in the non-bailable offences registered against him. Hence, there is a material difference in the judgments cited by the learned counsel for the accused and the case in hand. The accused herein were never released on bail in the non-bailable offences registered against them but were released as they were discharged in the non- bailable offences. Thus, the order of discharge having been set aside by the High Court, the trial court rightly sent the accused in judicial custody.
There is no dispute with the judgments rendered by the Apex Court in the cases of Ashok Kumar Vs. State of U.P, reported in 2011 SCC 392, Samardendra Nath Bhattacharjee Vs. State of W.B. & Anr., reported in (2004)11 SCC 165, Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in (2004) 2 SCC 362, Rambabu Tiwari Vs. State of M.P., reported in (2009) 12 SCC 471 and Chandra Pal Singh Choudhary Vs. Vijit Singh & Anr., reported in 2009(1) Cr.L.R. (Raj.) 560, wherein it is held in no 15 uncertain terms that rejection of bail stands on one footing but cancellation of bail is harsh order because it takes away the liberty of an individual granted and should not be lightly resorted to and can be cancelled only where accused misuses his liberty by indulging in similar criminal activity, interferes with the course of investigation, attempts to tamper with evidence, threatens witnesses, there is likelihood of his fleeing to another country, and nor makes himself available to the Investigating Agency. In spite of these observations, the argument of learned counsel for the petitioners that Paras Ram remained outside the jail from 4.10.2012 to 6.5.2014 i.e. precisely for one year, 7 months and 4 days and similarly, accused Om Prakash, too, remained outside the judicial custody from 4.10.2012 to 6.3.2014 approximately 1 year and 3 months, and during this period they did not commit any offence nor tamper or tried to win over the witnesses in any manner, too, does not help the accused herein as the question of their tampering with or winning over the witnesses during this period does not arise inasmuch as both of them stood discharged and they were under the impression that they have been acquitted in all non-bailable offences. Thus, there was no occasion for them to tamper or win over any of the witnesses. Their conduct may have come under scrutiny or appreciated and it would have been altogether different matter, in case, they were on bail in the said offences and outside the jail in spite of the offences.
As stated above, no argument on merits was raised by learned counsel for the petitioners as the bail application of 16 accused- Paras Ram on merits stood already dismissed by the learned Single Judge of this Court vide order dated 23.8.2012. No doubt, the bail application of accused- Om Prakash has come before this Court for the first time but there is nothing to distinguish the case of Om Prakash vis-a-vis the co-accused Paras Ram, whose bail application stands already dismissed on merits by this Court.
With respect to speedy trial, it is noticed that 13 witnesses have already been examined. Moreover, this Court has already issued direction to the trial court vide order on 5.3.2014 in the case of co-accused to complete the trial even if day to day trial has to be held.
In view of the above, both the bail applications filed by accused Paras Ram Vishnoi and Om Prakash are hereby dismissed.
(NIRMALJIT KAUR), J.
NK