Punjab-Haryana High Court
State Of Haryana And Another vs Pardeep Kumar ---Respondent on 31 July, 2008
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
In the Punjab and Haryana High Court,at Chandigarh.
Crl.Misc. No.M- 8844 of 2008
Decided on July 31,2008.
State of Haryana and another --- Petitioners
vs.
Pardeep Kumar ---Respondent.
Present: Mr.S.S.Goripuria,DAG,Haryana,for the petitioner.
Mr.R.S.Ghai,Sr.Advocate, with Mr.Sandeep Gehlot,Advocate, for the respondent.
Rakesh Kumar Jain,J:
This is a petition under Section 439 (2) Cr.P.C., for cancellation of regular bail in case FIR No. 81 dated 29.4.2006, under Sections 302/307/120-B read with Section 34 of IPC and Section 25 of the Arms Act, registered at Police Station, Sadar Dabwali.
The respondent was granted bail by the trial Court on 1.1.1008, in which following observations were made :-
"There is no scientific formula, nor are there any rigid principles, nor is there uniform test which can govern matters of bail, which always depends on facts and circumstances of each case. The mere fact that an offence is punishable with imprisonment for life or death is not by itself sufficient to refuse bail under Section 439 Cr.P.C. It has been settled through numerous pronouncements that the Court of Sessions should take Crl.Misc. No.M- 8844 of 2008 -2- into consideration various circumstances such as (i) nature and seriousness of offence (ii) the character of the evidence (iii) circumstances peculiar to the accused (iv) a reasonable possibility of the presence of accused not being secured at the trial (v) reasonable apprehension of witnesses being tampered with (vi) the larger interest of the public or State and (vii) similar other conditions which arise when a court is asked to admit the accused to bail in a non-bailable offence. But detailed examination of evidence and elabsorate documentation of the merits of the case is to be avoided. The Court should take all the circumstances together in order to decide whether bail should be granted or not and it is not a single circumstances,but the cumulative effect of all the combined circumstances which must weigh with the Court.
Now reverting to the case in hand the petitioner had joined the investigation on 21.7.2006 on the direction of the learned Addl.Sessions Judge, Sirsa pending disposal of the anticipatory bail application. The petitioner was interrogated by the Inspector of Police as well as by the DSP the whole day starting from 10.15.a.m. The petitioner again joined the investigation on the direction of the Hon'ble High Court for two days. Thereafter, the petitioner remained on police remand for two days from 25.12.2007 to 27.12.2007 . Despite the fact that the petitioner was interrogated five times, nothing incriminating except the evidence already collected and discussed above, could further be collected by the police showing involvement of the petitioner in the commission of crime. At the time of hearing arguments, I had specifically asked the three investigating officers present in the Court whether they were successfully to elicit further Crl.Misc. No.M- 8844 of 2008 -3- new information or collect further evidence showing implication of the petitioner in the crime other than which was already available with them prior to the arrest of the petitioner. They had answered in the negative. It deserves to be pointed out that the petitioner had approached the Court for anticipatory bail in the month of July,2006. He knocked the doors of different Courts up to the Hon'ble Supreme Court of India for seeking relief of anticipatory bail and has now ultimately surrendered in the Court and remained on police remand. Thus the petitioner remained out of custody for a sufficiently long period but nothing has been brought to the notice of the Court that during that period he had ever attempted to tamper with the evidence. Further, he could abscond beyond the reach of the Court during this period. Instead, after exhausting the remedy up to the Hon'ble Supreme Court of India under Section 438 Cr.P.C., he has surrendered in the Court and has now approached this Court for regular bail under Section 439 Cr.P.C. These facts show that there are remote chances of petitioner to abscond or to misuse the concession of bail during trial. Other co-accused named above, are already on bail. The main assailants who had murdered Chand Singh Brar have not been apprehended or arrested so far. There appears to be bleak chances of their apprehension in the given facts and circumstances of the case. In its reply to the bail application, the police has mentioned that an application for subjecting the petitioner to lie detection test was filed before the learned Magistrate. The petitioner has refused to undergo lie detection test. An adverse inference has been sought to be drawn from such denial. But no adverse inference can be drawn such denial of the petitioner from undergoing lie detection test. An accused cannot be Crl.Misc. No.M- 8844 of 2008 -4- made witness against his will in view of Article 20 (3) of the Constitution of India. By introducing Section 311-A in Cr.P.C., the Magistrate has been empowered to carve out an exception of passing an order directing a person to give specimen signatures of handwriting even in the course of investigation. That provision has come into operation only on 23.6.2006. This amended provision only refers to handwriting and bears no reference to the lie detection test and thus cannot be applied here. Moreover, if the learned Magistrate ultimately directs the petitioner to undergo lie detection test , as such application is still pending adjudication, releasing of petitioner on regular bail is no bar in such eventuality. Mere fact that an accused person may be required for undergoing lie detection test during investigation shall not be sufficient ground for refusing to grant bail if he is other-wise entitled to be released on bail. Reference in this respect may be made to the proviso appended to Section 437 (1) of the Code which says that test identification parade could be conducted even when the accused was released on bail.
Thus, foregoing discussion of mine shows that the petitioner Pardeep Kumar Godara deserves the concession of regular bail under Section 439 Cr.P.C. As observed above, there are no chances of absconding of the accused or his tampering with the evidence during trial in case he is released on bail. Other co-accused facing similar charge under Section 120- B of IPC are already on bail. Weighing pros and cons of the case and taking into consideration the sound principles of granting bail under Section 439 Cr.P.C., I find it to be a fit case where the accused is entitled to the concession of bail. Hence, I hereby accept this bail application and order for Crl.Misc. No.M- 8844 of 2008 -5- release of petitioner Pardeep Kumar Godara on bail on his furnishing bail bonds in the sum of Rs. 2,00,000/- (two lacs) with one surety in the like amount to the satisfaction of concerned Illaqa /Duty Magistrate, Dabwali. However, this discussion of mine shall not be construed as an expression on the merits of the case. A copy of this order be sent to the concerned Court for compliance. File be consigned to the records".
It is argued by counsel for the petitioner that the respondent has committed a heinous crime. It is further alleged in para 12 of this petition that if he will remain on bail then he will pressurize and threaten the witnesses and will tamper with the evidence and may also abscond and the main accused of this case has not been arrested so far so there is apprehension that accused will likely hamper with the investigation.
On the other hand, Mr.R.S.Ghai, learned Senior Counsel appearing for the respondent has argued that once the bail has been granted , a valuable right has vested in the accused, which cannot be taken away on presumptions and assumptions. Learned counsel has cited a judgment of the Hon'ble Apex Court in the case of Dolat Ram & Ors v. The State of Haryana 1995 CAR 22, Mehboob Dawood Shaikh v. State of Maharashtra (2004) 2 Supreme Court Cases 362 and also a Division Bench judgment of this Court in the case of State of Punjab v. Deepak Gakhar alias Deepak Arora 2003 (4) RCR (Criminal) 57, and has argued that in Dolat Ram's Case (Supra) , it has been held by the Hon'ble Apex Court that for cancellation of bail, very cogent and overwhelming circumstances are necessary which are conspicuously absent in the present petition. So far as Division Bench judgment of this Crl.Misc. No.M- 8844 of 2008 -6- Court is concerned, some guidelines have been laid down for the consideration of petition for cancellation of bail which are as under:-
" (i)the accused misuses his liberty by indulging in similar criminal activity;
(ii)interferes with the course of investigation;
(iii) attempts to tamper with evidence of witnesses;
(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation;
(v)there is likelihood of his fleeing to another country;
(vi) attempts to make himself scare by going underground or becoming unavailable to the investigating agency;
(vii)attempts to place himself beyond the reach of his surety".
In the instant case, the only thrust of the allegations against the respondent/accused for seeking cancellation of bail is that the alleged offence is heinous. Counsel for the petitioner and the complainant were granted an adjournment/opportunity to address the Court on the point that in cases, where the regular bail has been granted and the offence is alleged to be heinous, the same can be cancelled under Section 439 (2) Cr.P.C.
Learned counsels for the State as well as the complainant have failed to refer to any authoritative pronouncement in this regard.
Moreover, cancellation has been sought only on the ground that the respondent/accused will pressurize, will threaten the witnesses, will attempt to tamper with the evidence of witnesses and may abscond with the main accused of this case. In my view, these are no grounds for cancellation of bail unless and until it is proved on record that the same has Crl.Misc. No.M- 8844 of 2008 -7- been misused by the respondent. In the present case, even there is no allegation against the respondent/accused inspite of the fact that bail was granted to him way back on 1.1.2008 and earlier also, he was on bail vide order dated 19.7.2006, the respondent has tried to pressurize, threaten or tamper with the evidence or has even tried to abscond.
Therefore,in view of the above circumstances, I do not find any merit in this petition which is hereby dismissed.
July 31,2008 (Rakesh Kumar Jain) RR Judge