Delhi District Court
Sdn Buildcon Pvt. Ltd vs The State Of Nct Of Delhi on 8 February, 2016
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL
SESSIONS JUDGE3 (SOUTH), SAKET COURTS, NEW DELHI
Crl. Revision No. 21/15
SDN Buildcon Pvt. Ltd.
C6, Ground Floor
Panchsheel Enclave
New Delhi - 110017
Through its Director
Mr. Shailendra Nigam .... Petitioner/Complainant
Vs.
1. The State of NCT of Delhi .... Respondent no. 1
2. Manish Chopra
S/o. Sh. P.M. Chopra
R/o. F29, Preet Vihar
Delhi 110092 .... Respondent no. 2/accused
Date of Institution : 04.07.2015
Final arguments heard on : 17.12.2015
Order pronounced on : 08.02.2016
O R D E R
1. SDN Buildcon Pvt. Ltd. in this application filed u/s. 439 (2) Cr.PC, 397 and 399 Cr.PC, seeks cancellation of bail granted to CR No. 21/15 1/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra respondent no. 2 Manish Chopra vide order dated 15.05.2015 passed by learned Chief Metropolitan Magistrate (South), in case FIR No. 24/12. At the outset, Mr. Aman Sarin, learned counsel for respondent no. 2 submitted that this petition is not maintainable as petitioner cannot avail two remedies against same impugned order. This application is being treated as one filed u/s. 439 (2) Cr.PC for cancellation of bail granted to respondent no. 2 Manish Chopra.
2. This case has a chequered history which needs to be discussed for deciding the present petition.
3. Petitioner company SDN Buildcon Pvt. Ltd. got registered FIR bearing no. 24/12 against respondent no.2 and one Surjit Singh alleging that complainant has been cheated to the tune of Rs.3.71 crores by respondent no. 2 and coaccused Surjit Singh. After registration of FIR, respondent no. 2 filed an application u/s. 437 Cr.PC before learned Chief Metropolitan Magistrate (South) for bail. Respondent no. 2 was granted interim bail vide order dated 29.05.2013 subject to the condition that respondent no. 2 will deposit a sum of Rs. 2.22 crores in the Court in two installments. Respondent no. 2 failed to deposit the amount as directed by learned Chief Metropolitan Magistrate and filed an application seeking extension of time for depositing the amount in the Court. Learned Chief Metropolitan Magistrate refused to CR No. 21/15 2/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra extend the time for depositing of amount in the Court and cancelled the interim bail granted to respondent no. 2 vide order dated 30.08.2013. Thereafter, respondent no. 2 filed an application for bail before learned Addl. Sessions Judge which was dismissed vide order dated 10.09.2013 with the observation that respondent no. 2 has not only deceived the complainant but is also playing tricks to obtain relief from the Court on the basis of false submissions.
4. On 09.10.2013, respondent no. 2 Manish Chopra gave an undertaking before learned Additional Sessions Judge (South) and offered to pay Rs.2.22 crores to complainant/petitioner herein. Respondent no. 2 handed over two cheques of Rs.10 lacs each amounting to Rs. 20 lacs to petitioner and got recorded his statement before the Court of learned Additional Sessions Judge (South) undertaking to pay entire amount of Rs. 2.22 crores to the applicant within the stipulated period and learned Additional Sessions Judge granted bail to respondent no. 2 vide order dated 09.10.2013. However, respondent no. 2 failed to pay any amount to petitioner/complainant nor he sought extension of time to make payment as per his undertaking. Accordingly, the bail application of accused was cancelled by learned Additional Sessions Judge vide order dated 29.03.2014 on an application moved by petitioner. CR No. 21/15 3/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra While cancelling the bail of accused vide order dated 29.03.2014, learned Additional Sessions Judge (South) observed that the contention raised on behalf of respondent no. 2 reflects that respondent no. 2 wanted to come out on bail and was prepared to resort to anything including assuring the court of something which he did not intend to do. It was further observed that this brings bona fide of the accused under cloud. Thereafter, learned Chief Metropolitan Magistrate (South) initiated proceedings u/s. 82 Cr.PC against respondent no. 2 and on 17.12.2014, statement of Investigating Officer was recorded, to the effect that process u/s. 82 Cr.PC has been executed against respondent no. 2. On 23.12.2014, accused/respondent no. 2 surrendered before the Court. Thereafter, respondent no. 2 filed another bail application before learned Chief Metropolitan Magistrate (South) which was dismissed vide order dated 09.01.2015.
5. On 20.11.2015, an application was filed by respondent no. 2 before learned Chief Metropolitan Magistrate (South) for information/clarification about the undertaking given by him to the Court and the said application has been kept pending. On 29.01.2015, respondent no. 2 moved another application for bail before learned Chief Metropolitan Magistrate (South) which was withdrawn on 14.05.2015. Accused filed fresh application for bail CR No. 21/15 4/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra before learned Chief Metropolitan Magistrate (South) on 07.05.2015 which was allowed vide impugned order dated 15.05.2015.
6. Mr. Manish Sharma, learned counsel for applicant/complainant submitted that it was not proper for learned Chief Metropolitan Magistrate (South) to grant bail to accused when four months before grant of bail, learned Chief Metropolitan Magistrate (South) had himself observed that considering that the bail of accused was cancelled by Sessions Court and since there is no change of circumstance, judicial discipline demands that any fresh bail application of accused be considered by Sessions Court or the Higher Court. Mr. Manish Sharma, learned counsel for applicant/complainant referred to various orders available at page no. 45, 51, 53 and 70 of the paper book. Learned counsel for applicant/complainant further submitted that all the proposals on behalf of accused appearing in various orders were given by accused himself. Learned counsel for applicant/complainant also referred to various applications filed by nonapplicant/respondent before learned Chief Metropolitan Magistrate (South) and submitted that approach of learned Chief Metropolitan Magistrate (South) was not correct in dealing with those applications. Learned counsel for applicant/complainant, during the course of CR No. 21/15 5/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra arguments, relied upon following judgments :
(i) AIR 2005 SC 921 - Kalyan Chandra Sarkar Etc. Vs. Rajesh Ranjan @ Pappu Yadav & Anr.
(ii) 50 (1993) DLT 36 - S.Amrik Singh Vs. State & Anr.
(iii) 2013 (2) Bom CR (Crl) 48 - Vimal Narayan Kabre Vs. The State of Maharashtra
(iv) 1994 Crl. LJ 638 - Bimal Devi (Smt.) Vs State of Bihar & Ors.
(v) 2009 (3) KLT 653 - Jayaraj Vs. State of Kerala
7. Mr. Aman Sarin, learned counsel for nonapplicant/accused submitted that there is change of circumstance since the dismissal of earlier bail application by learned Chief Metropolitan Magistrate (South) as charges were framed against accused on 05.03.2015 and trial has commenced. Mr. Aman Sarin, learned counsel for nonapplicant/accused further submitted that there is no averment/allegation in the application that accused has tempered with or is likely to temper with evidence. Learned counsel for nonapplicant/accused tried to highlight the conduct of complainant by referring to various orders which were passed by learned Chief Metropolitan Magistrate (South) after charges were framed.
8. In Kalyan Chandra Sarkar's case (supra), Hon'ble Supreme CR No. 21/15 6/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra Court held in para 20 as under :
" Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.
9. In S.Amrik Singh's case (supra), Hon'ble Delhi High Court commenting upon the approach of learned ASJ while dealing with the bail application observed that it is rather strange that he (learned ASJ) himself first observed that he was not to weigh evidence at this stage, he (learned ASJ) breached his own observations by discussing the evidence at a great extent. It was further held that no new circumstances were shown to exist before the learned ASJ on account of which he (learned ASJ) could have exercised jurisdiction for grant of bail to the respondent after the rejection of his bail application by the Court.
10. It is crystal clear that in both above mentioned judgments, the legal propositions laid down was to the effect that jurisdiction for grant of bail can be exercised after rejection of bail application by the same Court after new circumstance are shown to exist. CR No. 21/15 7/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra
11. In Bimal Devi (Smt.)'s case (supra), two successive bail applications of accused for grant of bail were rejected by Hon'ble High Court and yet learned Magistrate granted provisional bail. Hon'ble Supreme Court observed that the course adopted by learned Magistrate is not only contrary to settled principal of judicial discipline and propriety but also contrary to statutory provisions.
12. In Jayaraj's case (supra), Hon'ble Kerala High Court observed in para 5 as under :
"Subordinate courts are bound to obey the orders passed by a Superior Court so far as such orders remained in force. That is a matter of propriety and judicial discipline. That principle applies in the matter of grant of bail also, though an order refusing bail by a court need not and may not operate as res judicata on the same court. On proof of change of circumstances, the same court can consider a request for bail again. Jurisdiction of grant of bail can be exercised after rejection of bail application by same Court if new circumstances are shown to exist."
13. Therefore, in above mentioned three judgments, relied upon by learned counsel for applicant/complainant it was held that CR No. 21/15 8/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra application for bail can be considered by the same Court which has earlier dismissed the bail application of accused on proof of change of circumstances.
14. As has been discussed above, bail application of accused Manish Chopra was dismissed by learned Chief Metropolitan Magistrate (South) vide order dated 09.01.2015 on the ground that bail of accused was cancelled by learned Sessions Court and since there is no change of circumstance, judicial propriety demands that any fresh bail application of accuse be considered by learned Sessions Court or Higher Court. While granting bail to accused vide impugned order dated 15.05.2015, learned Chief Metropolitan Magistrate (South) observed that applicant/accused should approach the same court for grant of bail. But it is well settled that when circumstances have changed since cancellation of bail by a higher court, the bail application can be entertained by the lower/trial court. It was further observed in the impugned oder that the circumstances have changed since the trial has commenced and sufficient time was granted to the complainant to conclude his testimony, which could not be completed on account of his non appearance for one reason or the other or strike of lawyers on most of the dates. It is also observed in the impugned order dated 15.05.2015 that charges were framed on 05.03.2015 and part CR No. 21/15 9/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra examination in chief of complainant has been recorded.
15. Now the question before the Court is whether framing of charge constitute change of circumstance or not. Answer to this question is found in 2011 LawSuit (SC) 1239 - Sanjay Chandra and Ors. Vs. Central Bureau of Investigation, wherein Hon'ble Supreme Court held in para 13 as under :
" In the present petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions."
16. In other words, it was held in Sanjay Chandra's case (supra) that framing of charge constitutes change of circumstances. In the present case, charges were framed on 05.03.2015 and thereafter, trial has commenced and one witness has been partly examined. Therefore, learned Chief Metropolitan Magistrate (South) was right in observing that when circumstances have changed since cancellation of bail by higher court, bail application can be entertained by lower/trial court.
17. One of the ground mentioned in the application for CR No. 21/15 10/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra cancellation of bail is that the undertaking given to the Court earlier is alive and till date it has not been fulfilled. Reliance in this regard was placed on Vimal Narayan Kabre's case (supra).
18. In the present case, on account of breach of undertaking given by accused to the Court, his bail was cancelled and he was taken in custody and has spent more than four months in custody. Accused in the present case has been charged u/s. 420 IPC which is punishable with maximum punishable of seven years imprisonment. Hence, the law laid by Hon'ble Supreme Court in Sanjay Chandra's case (supra) is applicable to the facts of present case.
19. Petitioner/complainant also contended in the application that nonapplicant/accused raised false contention in his bail application to the effect that complainant has appeared before learned Chief Metropolitan Magistrate (South) on 22.04.2015 and on 01.05.2015 but still has failed to conclude his examination in chief and his further examination in chief was deferred. Perusal of trial court record would reflect that charges were framed on 05.03.2015 and matter was listed for prosecution evidence on 22.03.2015. Complainant was not present on 22.03.2015 and was directed to appear in person on the next date of hearing i.e. 06.04.2015. As complainant failed to appear on 06.04.2015, CR No. 21/15 11/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra bailable warrants were issued against him. On the next date of hearing i.e. 10.04.2015, complainant appeared and he moved an application for exemption from deposing in the Court on medical ground and hence, he could not be examined on 10.04.2015. Thereafter, complainant was partly examined on 22.04.2015. It transpired from trial court record that complainant is yet to be fully examined. Therefore, it is concluded that non applicant/respondent no. 2 Manish Chopra has not raised any false contention in his bail application.
20. It is amply clear from the bare reading of application filed u/s. 439 (2) Cr.PC that there is no averment or allegations that accused has tempered with evidence or is likely to temper with evidence. Accordingly, the application u/s. 439 (2) Cr.PC filed by applicant/complainant for cancellation of bail granted to non applicant/accused Manish Chopra is dismissed.
Trial court record be sent back along with copy of this order. Revision file be consigned to Record Room.
Announced in open Court (Sandeep Yadav) Additional Sessions Judge3 (South) Saket Courts/New Delhi/08.02.2016 CR No. 21/15 12/12 SDN Buildcon Pvt. Ltd. Vs. State & Manish Chopra