Punjab-Haryana High Court
Sandeep Goyal And Anr. vs State Of Punjab And Anr. on 12 May, 1997
Equivalent citations: 1998CRILJ507
Author: R.L. Anand
Bench: R.L. Anand
ORDER R.L. Anand, J.
1. Sarvshri Sandeep Goyal-(informant) and Dildar Singh (injured) have filed the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, for the cancellation of the bail granted to respondent No. 2 Bikramjit Singh alias Biki by the Additional Sessions Judge, Fatehgarh Sahib, vide order dated 5th March, l997 in case F.I.R. No. 19, dated 17th February, 1997 under Section 307, Indian Penal Code, registered at Police Station, Gobindgarh.
2. First of all I would like to refer to the allegations of the F.I.R. which was lodged at the instance of Sandeep Goyal, petitioner No. 1, who stated that he was proprietor of Gulmohar Hotel. Last evening i.e. 16-2-1997, he along with Rajinder Singh Banti and Dildar Singh, residents of Guru Ki Nagari, Mandi Gobindgarh, had participated in the marriage ceremony of the son of Raj Kumar Channi, resident of Gobindgarh in Vassehra Ground. At about 11.45 p.m. he along with Rajinder Singh and Dildar Singh after urinating outside were entering the marriage camp (Pandal) and were just near entrance of the Pandal, when respondent No. 2 Bikramjit Singh alias Biki of Patiala Mill, Mandi Gobindgarh, came there who pulled his hand on the shoulder of Dildar Singh and exhorted him that the latter had gone to the Police Station, Sirhind against the former and, therefore, he would be taught a lesson on that day. It is alleged by the complainant that within the view of Shri Rajinder Singh, the accused took out a pistol from the right pocket of his pant and fired a shot upon Dildar Singh, hitting on his left thigh, due to which said Dildar Singh fell on the ground. The accused again fired a shot aiming at Dildar Singh, but it did not hit him. The Complainant overpowered the accused, who fired a third shot, aiming at the complainant, and this shot also missed. Many people gathered there on hearing the noise of firing Upon this Biki ran away from the spot along with his pistol. The complainant and Rajinder Singh took Dildar Singh in an injured condition in a car to Civil Hospital, Mandi Gobindgarh for treatment. It is finally alleged in the F.I.R. that respondent No. 2 had fired the shot from his pistol at Dildar Singh with an intention to murder him. This statement was recorded by S. I. Harbhajan Singh and case F.I.R. No. 19, dated 17th February, 1997 under Section 307, I.P.C., was registered at Police Station, Mandi Gobindgarh.
3. Respondent No. 2 Bikramjit Singh made an application on 25th February, 1997 before the Court of Additional Sessions Judge, Fatehgarh Sahib, who vide order dated 5th March, 1997 allowed the bail application, and the operative portion of the impugned order passed by the learned Additional Sessions Judge can be incorporated as follows :-
7. It was a case of sudden fight during the midnight occurred at 11.45 p.m. when the complainant and the accused-applicant were present in the marriage party. No case has been registered against the complainant regarding the injuries given to the applicant-accused Bikramjeet Singh. As per the medical evidence available on the file the applicant/accused Bikramjeet Singh is still admitted in Rajindra Hospital for the injuries he received whereas the injured Dildar Singh had already been discharged from the Hospital.
8. Taking into consideration the number of the injuries existing on the person of the applicant and the fact that he is still in the Rajindra Hospital, Patiala and is under treatment and the fact that the injury attributed to the present applicant is on the non-vital part of the injured Dildar Singh and the injured has since been discharged from the hospital and it is difficult and rather it would be premature to say who out of the two parties is aggressor one, and without touching the merits of the case the applicant is ordered to be released on bail on his furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount, to the satisfaction of the illaqa Magistrate, Amloh Copy of the order be sent to the concerned Court at once.
Aggrieved by the said order, Sarvashri Sandeep Goyal and Dildar Singh have filed the present petition under Section 439(2) of the Code of Criminal Procedure, for the cancellation of bail, and it has been stated in the petition that respondent No. 2 did not suffer any injury at the time of the alleged occurrence, rather he ran away from the spot. When the Police swung into action after the registration of the case, respondent No. 2 manipulated his admission in the Rajendra Hospital, Patiala, on 18th February, 1997, in order to avoid his arrest. In his medical report 7 injuries were noted by the doctor, out of which six injuries were abraded contusions and the 7th injury was only pain in the back. All these injuries were either self-inflicted or self-suffered and there was no fracture or any other serious injury, yet he connived with the doctors at Rajendra Hospital, Patiala, and manipulated his admission, even in the absence of the police request. Petitioner No. 1 moved an application before the Judicial Magistrate, Amloh, for medical examination of respondent No. 2 from a Board of Doctors as he was creating false evidence to avoid arrest. Although the local police had submitted a request in the Court of Illaqa Magistrate for getting police remand of respondent. No. 2, yet respondent No. 2 managed a certificate of bed rest from the doctor and in connivance with the Jail Authorities at Patiala, got himself produced before the Chief Judicial Magistrate, Patiala, who remanded him to judicial custody in the absence of any notice to the local police. It has been further alleged by the petitioners that respondent No. 2 could not be actually arrested and interrogated in the case. He filed a bail application which was allowed by the Additional Sessions Judge, Fatehgarh Sahib vide the impugned order dated 5th March, 1997. It is also the grouse of the petitioner that respondent No. 2 did not think it proper to go to Civil Hospital, Mandi Gobindgarh. Rather he went straightway to the Rajendra Hospital, Patiala, which is at a distance, of 30 Kilometres from Mandi Gobindgarh and this was done by respondent No. 2 just to manipulate his admission. Also it is the grouse of the petitioners that after his discharge from the Hospital, respondent No. 2 is openly threatening the petitioners that in case they did not withdraw the case, he would finish them and the other witnesses. In this regard petitioner No. 2 has already lodged a complaint dated 15th March, 1997, which has been recorded vide D.D.R. No. 10, dated 16th March, 1997. Even otherwise respondent No. 2 is desperado and is involved in F.I.R. No. 394 of 1996 registered at Police Station Sadar, Patiala under Sections 364/506/148/149, I.P.C.
4. With the above main allegations, the petitioners have prayed for the cancellation of the bail granted to respondent No. 2. Their petition is supported by an affidavit.
5. Notice of this petition was given to the respondents. Respondent No. 2 filed a reply and denied the allegations. According to this respondent he never manipulated the medical certificate. He suffered seven injuries on his person and he was also having pain in his back which ultimately turned out to be a serious ailment known as "PI VD". He remained bed-ridden for a pretty long time. He was arrested by the Police on 19th February, 1997 and has been released on bail on 5th March, 1997. This respondent has also stated that even the Senior Medical Officer, Central Jail Hospital, Patiala, also opined that respondent No. 2 was suffering from serious orthopaedic disease and specialised orthopaedic care and treatment was needed in his case. His injuries were X-rayed and were declared simple. Respondent No. 2 also denied that he ever gave threats to petitioner No. 2 and finally he prayed for the dismissal of the petition. It may be highlighted that respondent No. 2 has not come with any version as to how he had suffered the injuries. It may also be stated that the State has not filed any reply. During the course of arguments, learned counsel appearing on behalf of the State has not supported the impugned order, rather he has supported the petition under Section 439(2) of the Code of Criminal Procedure, 1973, and verbally submitted before this Court that the impugned order could not be justified from any legal standard and the bail granted to respondent No. 2 should be cancelled.
6. I have heard Shri A. K. Walia, Advocate, learned counsel appearing on behalf of the petitioners, and Shri R. S. Cheema, Senior Advocate, learned counsel appearing on behalf of respondent No. 2, and with their assistance have gone through the record of this case.
7. I am dealing with a case where the injured and the complainant have moved an application under Section 439(2) of the Code of Criminal Procedure, which lays down that the High Court may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. A reading of Sub-section (2) of Sections 439, Cr.P.C., shows that the power conferred upon the High Court for the cancellation of bail is discretionary and so far as the position of law is concerned it is well settled that the considerations for the cancellation of the bail are different than those for granting the bail. This Court is also conscious of its duties that once the Court of Session or the High Court has utilised the discretion under Section 439(1), Cr.P.C, in a proper manner, such discretion cannot and should not be exercised by invoking the provisions of Section 439(2) of the Code of Criminal Procedure, until or unless strong grounds are made out either by the State or by the complainant for the cancellation of the bail, which has already been granted to the accused. Equally is the law that if the bail has been granted by the Court of Session on irrelevant consideration or by taking into account those facts which were not in existence or which appear to have been manipulated or irrelevant, the High Court will not hesitate in invoking the powers under Section 439(2) of the Code of Criminal Procedure, for the purpose of advancement of justice. The bail granted to the accused should not be cancelled unless there are strong and compelling circumstances and the High Court is not expected to interfere with the discretion exercised by the Court of Session in granting the bail, but once this Court comes to the conclusion that the accused was released on bail on totally irrelevant considerations, the order of bail can be set aside.
8. If the allegations of the complainant are perused, it would be noticed that respondent No. 2 fired shots not only once but thrice and he inflicted an injury hitting on the thigh of Dildar Singh and this injury pierced through his thigh. It will be clear that while using fire-arm, respondent No. 2 repeated the shots and it was a matter of luck for the injured as well as for the complainant that two shots did not further cause any injury to the injured or to the complainant. it has also come in the statement of the complainant that these shots were fired with an intention to commit the murder of Dildar Singh. The motive part has also been attributed to respondent No. 2 by the complainant in the F.I.R. Respondent No. 2 has not stated in his reply that under what circumstances he had suffered the injuries. It is not the case of the complainant that from his side anybody caused injuries to the accused. The accused-respondent No. 2 did not get himself admitted in the Civil Hospital, Mandi Gobindgarh, where the occurrence had taken place; rather his admission has been shown in the Rajendra Hospital, Patiala, after two days. Rajendra Hospital, Patiala, is at a distance of 40 kilometres from Mandi Gobindgarh. We have also to see the nature of the injuries on the person of respondent No. 2, which are to the following effect :-
1. The right upper eyelid and adjoining area is contused and is bluish in colour.
2. An abraded contusion 10 x 1.5 cm. present on the front of left shoulder and going down to the left axilla. - Advised X-ray of left shoulder, joint.
3. An abraded contusion bluish in colour 10 x 1.5 cms. obliquely placed on the right scapular region - tenderness.
4. An abraded contusion bluish in colour 5 x 2 cms. on outer part of the left upper arm in its upper part.
5. An abraded contusion 2x2 cms. bluish in colour 2 cms. above injury No. 4.
6. An abraded contusion 3x 2 cms. bluish in colour in the upper part of left scapular region.
7. C/o pain in the back made in the lumber region. Local tenderness present.
A perusal of the medico-legal report would show that injuries Nos. I to 4 were only abraded contusions of minor dimensions and injury No. 7, in fact, was not an injury but the injured was complaining of pains. I do not want to give at this stage any opinion where the injuries on the person of the accused are self-suffered or not because giving on any opinion either in favour or against him would prejudice the case of either party. Nevertheless it is certain that these injuries were not on the vital parts of the body.
9. Learned Additional Sessions Judge has stated that it was a case of sudden fight during mid-night occurred at 11.45 p.m. This Court has not been able to appreciate how the learned Additional Sessions Judge has come to this finding as the allegations of the F.I.R. are otherwise. The case of the complainant was specific that when he along with Rajinder and Dildar Singh were entering the Pandal after urinating, the accused emerged there and he raised the Lalkara and thereafter fired three shots. In this manner it can be safely said that the learned Additional Sessions Judge was swayed on wrong premises and he took into consideration those facts which never existed; rather he decided the bail application on irrelevant considerations, little realising that it was a case of fire-arm injury, and he fired shots thrice.
10. To proceed further, the learned Additional Sessions Judge, formulated the opinion to grant bail by highlighting that as many as seven injuries were found on the person of the accused and injuries Nos. 2 and 7 were kept under observation. The accused remained admitted in Rajendra Hospital, Patiala, and, therefore, he is entitled to bail. Learned Additional Sessions Judge did not mention about the nature of the injuries. He did not take into account the injury on the person of petitioner No. 2, which was a fir-arm injury. Learned Additional Sessions Judge further thought it proper to grant bail to respondent No. 2 on the ground that the injuries on the person of Dildar Singh were on the non-vital parts of the body. This is not a valid ground for granting bail, keeping in view the extent of damage caused by the fire-arm injury and keeping in view the fact that there was prima facie a motive on the part of the accused to commit the crime.
11. To proceed still further, it is the specific ground of the petitioner that after the occurrence, respondent No. 2, who had a past criminal record, went to the extent of threatening the P.Ws. In these circumstances it has become an additional ground for me to cancel the bail application of respondent No. 2.
12. Learned Senior Advocate Shri R. S. Cheema, appearing on behalf of respondent No. 2, highlighted certain facts and submitted that this Court should not cancel the bail of respondent No. 2 when the discretion has been properly exercised by the Additional Sessions Judge, Fatehgarh Sahib. He submitted that the injury of petitioner No. 2 is on non-vital part of the body. It was a case of sudden fight. Respondent No. 2 was admitted in a most prestigeous hospital of the State, like Rajendra Hospital, Patiala. Though there were injuries on the peson of respondent No. 2, and were X-rayed, but the same have not been explained by the prosecution. Therefore, it was a fit case for grant of bail.
13. I am not in a position to agree with the submissions raised by the learned Senior Counsel Shri R. S. Cheema. It was not a case of sudden fight. It is true that only one shot had hit Shri Dildar Singh injured. While deciding the bail applications the Courts are expected to go by the allegations; The injuries on the person of the accused are not so serious. The accused has not explained under what circumstances he had suffered the injuries. Even the X-ray does not disclose any serious or grievous injury on the person of the accused.
14. Shri R. S. Cheema relied upon Dolat Ram v. State of Haryana (1995) 1 JT (SC) 127, and submitted that the bail granted to the accused should not be cancelled in a mechanical manner. There is no quarrel with the proposition of law as laid down by the Hon'ble Supreme Court. As I have already indicated above, the considerations for the cancellation of bail are totally different than the one for granting the bail. Such considerations should be weighty and strong, leaning towards the prosecution and the injuries suffered by the aggrieved party. Learned Additional Sessions Judge did not decide the bail application in the right perspective, causing serious prejudice to the complainant/injured. In these circumstances the High Court has to perform its duty once it holds that the discretion has been exercised on improper considerations. Shri Cheema then relied upon Bhagirath Singh Judeja v. State of Gujarat AIR 1984 SC 372 : 1984 Cri LJ 160, wherein it was held by the Hon'ble Supreme Court as under :-
Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well-settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before the trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with the evidence.
This authority, in my opinion, strengthens me. I have already highlighted strong and exceptional circumstances leaning towards the prosecution, i.e., (1) a case of fire-arm injury; (2) repetition of shots; (3) motive; (4) tendency on the part of the accused to make his injuries probable; (5) the accused does not explain under what circumstances he suffered the injuries; (6) the nature of the injuries on the person of the accused; (7) the accused does not get himself admitted in Civil Hospital, Mandi Gobindgarh; rather he goes to Rajendra Hospital, Patiala, after two days, getting much time to think over his defence; (8) the fact that the accused was earlier charge-sheeted in a criminal offence; and lastly; (9) he hurled threats on the prosecution witnesses, which alleged fact is corroborated by the injury recorded by the Police.
15. Shri R. S. Cheema, then relied upon Kashmira Singh v. Duman Singh 1996 SCC (Cri) 844 : 1996 Cri LJ 3235. This authority is distinguishable on facts. There was a specific plea from the side of the accused that he also suffered injuries at the hands of the complainant party. In the present case, respondent No. 2 prima facie does not admit his presence at the time of the alleged occurrence.
16. Be that as it may, this Court is of the considered opinion that the case law relied upon by the learned Senior Advocate Shri R.S. Cheema, does not come to the rescue of respondent No. 2, nor from any standards the order of the learned Additional Sessions Judge, Fatehgarh Sahib can be endorsed.
17. Resultantly, the petition is allowed. The impugned order dated 5th March, 1997 passed by the Court of Additional Sessions Judge, Fatehgarh Sahib, is hereby set aside, and the bail granted to Shri Bikramjit Singh alias Biki stands cancelled.
18. Intimation of this order be sent to the S.H.O., Police Station, Mandi Gobindgarh, as well as to the Chief Judicial Magistrate, Fatehgarh Sahib, for compliance.