Punjab-Haryana High Court
Om Parkash Jain vs Central Bureau Of Investigation on 12 September, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-28960 of 2013 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-28960 of 2013
Om Parkash Jain ..........Petitioner
Versus
Central Bureau of Investigation ..........Respondent
Crl. Misc. No. M-29251 of 2013
Zile Ram Sharma ..........Petitioner
Versus
Central Bureau of Investigation ..........Respondent
Date of decision: 12.9.2013
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Bipan Ghai, Senior Advocate with
Mr. Mandeep Kaushik, Advocate
for the petitioner in Crl. Misc. No. M-28960 of 2013.
Mr. S.K. Garg Narwana, Senior Advocate with
Mr. Ravinder S. Sheokand, Advocate
for the petitioner in Crl. Misc. No. M-29251 of 2013.
Mr. S.S. Sandhu, Advocate
for CBI.
Mr. N.S. Shekhawat, Advocate
for the complainant.
****
DAYA CHAUDHARY, J.
Crl. Misc. No. 39827 of 2013 in Crl. Misc. No. M-28960 of 2013 Application is allowed as prayed for.
Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (2) Crl. Misc. No. 39828 of 2013 in Crl. Misc. No. M-28960 of 2013 This is an application for placing on record Annexures P-7 and P-8.
Application is allowed and Annexures P-7 and P-8 are taken on record.
Crl. Misc. No. 39785 of 2013 in Crl. Misc. No. M-28960 of 2013 This is an application for impleading Rajinder S/o Late Sh. Karam Singh R/o village Kambopura, District Karnal as complainant- respondent No.2.
Application is allowed and Rajinder S/o Late Sh. Karam Singh R/o village Kambopura, District Karnal is ordered to be impleaded as complainant-respondent No.2.
Crl. Misc. No. 39783 of 2013 in Crl. Misc. No. M-28960 of 2013 Application is allowed as prayed for.
Crl. Misc. No. 39784 of 2013 in Crl. Misc. No. M-28960 of 2013 This is an application for placing on record short affidavit of complainant along with annexures.
Application is allowed and affidavit of complainant along with annexures is taken on record.
Crl. Misc. No. 39767 of 2013 in Crl. Misc. No. M-29251 of 2013 Application is allowed as prayed for.
Crl. Misc. No. 39786 of 2013 in Crl. Misc. No. M-29251 of 2013 Application is allowed as prayed for.
Crl. Misc. No. 39788 of 2013 in Crl. Misc. No. M-29251 of 2013 This is an application for impleading Rajinder S/o Late Sh. Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (3) Karam Singh R/o village Kambopura, District Karnal as complainant- respondent No.2.
Application is allowed and Rajinder S/o Late Sh. Karam Singh R/o village Kambopura, District Karnal is ordered to be impleaded as complainant-respondent No.2.
Crl. Misc. No. 39787 of 2013 in Crl. Misc. No. M-29251 of 2013 This is an application for placing on record short affidavit of complainant along with annexures.
Application is allowed and affidavit of the complainant along with annexures is taken on record.
Crl. Misc. No. M-28960 of 2013 and Crl. Misc. No. M-29251 of 2013 This order will dispose of two petitions bearing Crl. Misc. Nos. M-28960 of 2013 and M-29251 of 2013 filed by Om Parkash Jain and Zile Ram Sharma, respectively as the prayer in both the petitions is for grant of anticipatory bail in case FIR RC No. 0512012S007 dated 25.9.2012 under Sections 302,201,323 read with Section 34 IPC at Police Station CBI, Special Crime Branch, Chandigarh.
Briefly, the facts of the case are that FIR No. 439, dated 7.6.2011 was registered under Sections 302,201,323 read with Section 34 IPC at Police Station Civil Lines, Karnal, on the basis of statement made by Rajinder, the son of deceased-Karam Singh against Om Parkash Jain and Zile Ram Sharma. After registration of said FIR, the complainant filed Crl. Misc. No. M-19965 of 2011 tiled as "Rajinder Versus State of Haryana and others" for transfer of investigation to the Central Bureau of Investigation or to some independent agency. Aforesaid petition was treated as CWP No. 23980 of 2011 and vide order dated 31.8.2012 passed by this Court, the matter was referred to the Central Bureau of Investigation for investigation. Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (4) During investigation conducted by the CBI, the case was found to be of an offence under Section 306 IPC and accordingly report under Section 173 Cr.P.C. was filed before the Court of Special Judicial Magistrate, CBI at Panchkula. However, during investigation, the petitioners were not arrested. A petition for anticipatory bail was moved before CBI Court by petitioner-Om Parkash Jain, which was declined vide order dated 21.8.2013.
Now both the petitioners have approached this Court by way of filing two separate petitions, wherein, anticipatory bail has been prayed for on the ground that they have falsely been implicated in the case whereas no connecting evidence is there to involve them with the alleged offence in any manner. The only allegation against the petitioners is that an amount was paid to them for providing employment but neither the employment was provided nor money was returned.
Learned senior counsel for the petitioners have vehemently argued on the ground that for invoking Section 306 IPC there has to be an abetment as defined under Section 107 IPC. Even in case the allegations are found to be correct regarding return or non return of money, there was no reason for the deceased to commit suicide and it cannot be a case of abetment in any manner. The petitioners have not instigated the deceased to commit suicide directly or indirectly. Learned senior counsel further submitted that even in the polygraphy test, the petitioners were not found to be involved. Learned senior counsel also submitted that the petitioners joined investigation as and when required and also cooperated with the investigation. There is no chance of their fleeing from the courts of justice. They also undertake to appear before the trial Court on each and every date of hearing and not to influence any witness in any manner. During arguments, learned senior counsel for the petitioners have brought to the Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-28960 of 2013 (5) notice of the Court a hand written letter of the deceased submitted to the police authorities, wherein, nowhere, it was mentioned that he was harassed by the petitioners or any pressure was put upon him. The only allegation levelled is that the amount was paid to both the petitioners and the same was not returned and legal action be taken against them. Learned counsel also submits that the said letter was written one day prior to the date of incident. Learned counsel has also relied upon the judgment of Hon'ble the Supreme Court in Susanta Ghosh Vs. State of West Bengal 2012 (1) Criminal Court Cases 673 (S.C.) and of Delhi High Court in Court on its own motion Vs. Central Bureau of Investigation 2006 (4) RCR (Criminal) 206.
Mr. S.S. Sandhu, learned counsel for CBI opposed grant of anticipatory bail to the petitioners on the ground that the petitioners may influence the witnesses who are going to depose against them and they can misuse concession of anticipatory bail but learned counsel for CBI has not been able to explain as to why in such circumstances the petitioners were not arrested during investigation or at that time there was no threat to the witnesses inspite of the fact that one witness, namely, Chamel Singh was also killed immediately after the death of deceased-Karam Singh. Learned counsel has also relied upon the judgment of Hon'ble the Supreme Court in HDFC Bank Ltd. Vs. J.J. Mannan @ J.M. John Paul and another 2010 (1) RCR (Criminal) 569.
Learned counsel for the complainant submitted that the petitioners are influential persons and belong to ruling party and because of that reason they were not arrested after registration of FIR. The petitioners have put pressure upon the complainant to compromise/settle the dispute and even an offer of payment of huge amount was also given. Learned counsel further submitted that the material witness, namely, Chamel Singh Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-28960 of 2013 (6) was murdered at the instance of petitioners and subsequently son of deceased-Chamel Singh, who was complainant in that case, has been won over by the petitioners and thereafter a cancellation report was submitted by the police, which was accepted by the trial Court. Learned counsel also submitted that both the petitioners being former Minister and Chief Parliamentary Secretary, respectively are misusing their position by putting pressure upon the witnesses. Learned counsel for the complainant also submitted that object of amended Act of 2008 in the Code of Criminal Procedure was to ensure fair and speedy justice and to adopt certain measures to prevent growing tendency of witnesses who are being threatened or induced to turn hostile by the accused party. Learned counsel for the complainant has also relied upon the judgments of Hon'ble the Supreme Court in Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and another AIR 1958 SC 376 (1), Ram Govind Upadhyay Vs. Sudarshan Singh and others AIR 2002 SC 1475 (1), Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others 2011 (1) Criminal Court Cases 261 (SC), Jai Prakash Singh Vs. State of Bihar and another 2012 (1) Recent Apex Judgments (RAJ) 462 as well as of this Court in R.K. Ranga Vs. State of Haryana 1997 (2) RCR (Criminal) 611 and Mohd. Zakir Hussain Vs. State of Haryana 2004 Crl. L.J. 469, in support of his contentions.
Heard the arguments advanced by learned senior counsel for the petitioners, CBI as well as complainant and have also perused the allegations levelled in the FIR and other documents available on the record.
Undisputedly, initially FIR was registered under Sections 302, 201, 323 read with Section 34 IPC against the petitioners on the basis of Pooja Sharma statement made by Rajinder, who is son of deceased-Karam Singh. 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (7) Thereafter a petition was filed by the complainant before this Court and investigation of the case was handed over to the CBI. During investigation, the CBI found it to be a case of Section 306 IPC and challan was presented under Section 306 IPC only. It is also an admitted fact that Chamel Singh, who is witness of the case was killed immediately after the death of deceased-Karam Singh. As per allegations in the FIR, the deceased was lying near the cremation ground and his clothes were torn. The injuries were also found on the person of the deceased. As per investigation an amount of ` 5 lacs was demanded by Mr. Om Parkash Jain the then Transport Minister and he asked Karam Singh to pay that amount to Rajinder Sharma who was his PA, at his residence and accordingly an amount of ` 4.5 lacs was paid to said Rajinder Sharma for employment of one Sandeep but selection was not made and that amount was demanded back by the deceased. Similarly an amount of ` 5 lacs was demanded by Zile Ram Sharma for employment of one Sunil in Haryana Police and in lieu thereof an amount of ` 4.95 lacs was paid to Zile Ram Sharma. Said Sunil could not qualify the written test and the amount was demanded back but the same was not returned. It has also come in the investigation that there was constant two-way communication between the deceased and the accused. A complaint was also made by the deceased one day prior to the date of incident, wherein, a request was made for taking legal action against the petitioners. It has also come in the investigation that the deceased told the names of the accused while he was admitted in the hospital in critical condition before his death.
Some parameters are to be kept in mind while considering application for anticipatory bail as per Section 438 Cr.P.C. as has been laid down by Hon'ble the Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2011 (1) RCR (Criminal) Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-28960 of 2013 (8) 126, which are reproduced as under:-
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-
implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (9)
(ix) The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
(xi) The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
(xii) The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record." The provisions of Section 438 Cr.P.C. lays down guidelines for considering anticipatory bail application, which are as under:-
"438. Direction for grant of bail to person apprehending arrest.-
(1) Where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:-
(i) The nature and gravity of the accusation; Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (10)
(ii) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail."
It has also been held in various judgments that arrest should be the last option but it should not be restricted to those exceptional cases where arrest of the accused is imperative keeping in view the facts and circumstances of the case.
The object of amendment Act of 2008 was to ensure fair and speedy justice and to prevent growing tendency of witnesses being induced or threatened to turn hostile by the accused party who are influential, rich as well as powerful, which is as under:-.
"The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant- cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission's 177th report relating to arrest, it has been found necessary to revise Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-28960 of 2013 (11) the law to maintain a balance between the liberty of the citizens and the society's interest in maintenance of peace as well as law and order.
The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don't have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimize the risk of escape of the remand prisoners during transit and also facilitate utilization of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair trial to persons of unsound mind who are not able to defend themselves."
The Hon'ble Supreme Court in the case of Lovesh Vs. State (NCT of Delhi) Crl. Appeal No. 13331 of 2012 decided on 31.8.2012 has held that normally the accused who is absconding and against whom non- bailable warrants have been issued, or concealing himself is not entitled for anticipatory bail. It has also been held that conduct of said accused does not entitle him to anticipatory bail as prescribed under Section 438 Cr.P.C.
On perusal of facts and circumstances of the present case and keeping in view the entire documents available on record and particularly the allegations, which have been directly attributed to the petitioners duly corroborated by other material and circumstantial evidence available on Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Misc. No. M-28960 of 2013 (12) record and the fact that death of one witness, namely, Chamel Singh, occurred immediately after the murder of Karam Singh and also that a pressure is being put upon the complainant as well as his family members either to compromise or not to proceed with the case as well as the influence being put by the petitioners, which is also clear from the fact that they have not been arrested immediately after registration of the FIR and even after presentation of challan, they have not joined the court proceedings so far, they do not deserve concession of anticipatory bail. Moreover, they are not only absconding but also putting pressure from all corners by taking advantage of their power. Deceased-Chamel Singh was material witness in the case and is stated to be the first cousin of the deceased, has been murdered and his death occurred under mysterious circumstances. An FIR was registered but subsequently a cancellation report was submitted which was accepted by the trial Court. It has also come on record that complainant, who is son of deceased-Chamel Singh has been given a job which shows that the influence has been put in that case also.
In view of the facts and circumstances mentioned above, I am of the considered opinion that it is not a fit case for grant of anticipatory bail as per parameters laid down in various judicial pronouncements and considering the nature and gravity of the offence. Although the relief of anticipatory bail is the discretion of the Court but the discretion has to be guided by law and duly governed by rule and the same cannot be arbitrary, fanciful or vague as has been held in Jai Prakash Singh's case (supra). Accordingly, there is no merit in the contentions raised by learned counsel for the petitioners and both the petitions i.e. Crl. Misc. No. M-28960 of 2013 and Crl. Misc. No. M-29251 of 2013 filed by Om Parkash Jain and Zile Ram Sharma, respectively, being devoid of any merit are dismissed. Pooja Sharma 2013.09.13 13:47 I attest to the accuracy and integrity of this document High Court, Chandigarh
Crl. Misc. No. M-28960 of 2013 (13) However, the petitioners are directed to surrender before the trial Court within a period of one week from the date of receipt of copy of the order and in case they surrender before the trial Court, they are at liberty to move applications for grant of regular bail, which will be decided by the trial Court in accordance with law.
However, it is made clear that any observation made hereinabove shall not be construed as an expression of opinion on the merits of the case.
12.9. 2013 (DAYA CHAUDHARY)
pooja JUDGE
Pooja Sharma
2013.09.13 13:47
I attest to the accuracy and
integrity of this document
High Court, Chandigarh