Delhi High Court
Onkar Gulati vs State & Another on 20 January, 1998
Equivalent citations: 1998IAD(DELHI)991, 1998(1)ALT(CRI)19, 1998CRILJ1320, 1998(1)CRIMES479, 71(1998)DLT463, 1998(47)DRJ862, ILR1998DELHI130
ORDER Mohd. Shamim, J.
1. This is an application by the petitioner for cancellation of bail granted to one Shri Brij Mohan alias Pappu. Vide order dated July 15, 1997 passed by the learned predecessor of this Court (Hon'ble Mr. Justice J.K.Mehra as he then was).
2. Learned counsel for the petitioner Mr. Suman Kapoor, has vehemently contended that Shri Brij Mohan accused is missusing the concession of bail granted to him inasmuch as Shri Brij Mohan along with his other coaccused persons on February 15, 1997 when Shri Onkar Gulati was at Tis Hazari Courts in connection with the present case who is now on bail, and was in custody at that time exhorta ted there intends and relatives who had accompanied them to thrash Shri Onkar Gulati. In pursuance to the said exhortation Shri Onkar Gulati was beaten. Shri Onkar Gulati made a statement before the police which was recorded as D.D. No. 14A. However, the police did not register the F.I.R. Hence a writ petition was filed for registration of a case. Now, a case has been ordered to be registered vide judgment and order dated January 17, 1998 passed by a Division Bench of this Court. The learned counsel thus contends that the accused persons, including Shri Brij Mohan, are very dangerous type of persons. They are threatening the complainant and the injured persons who are witnesses in the present case, with dire consequences in case they appear against them before the Court of Session as witnesses.
3. Learned counsel in support of his arguments that the accused persons are out to subvert the course of justice has cited an incident dated August 5, 1997 when Shri Brij Mohan who is now on bail, vide the impugned order dated July 15, 1997 is alleged to have threatened the petitioner on telephone to withdraw the present application for cancellation of bail. The petitioner lodged a report with the police in connection with the said threat extended to him. The same was recorded vide D.D. No. 28A.
4. The application has been opposed by Pt. R.K. Naseem learned counsel for the accused Brij Mohan.
5. I have heard the learned counsel for the petitioner, learned P.P. for the State and Pt. R.K. Naseem learned counsel for the accused Brij Mohan, and have very carefully examined their rival contentions and have given my anxious thoughts thereto.
6. It is a Wellestablished principle of law that it is easier to grant bail in a non bailable case. However, once a bail is granted it cannot be cancelled merely on a request from the side of the complainant unless and until the complainant shows that the same is being misused and it is no longer conducive in the interest of justice to allow him any further to remain on bail. Once a man has been set at liberty through an order of a Court he cannot be deprived of the same unless the complainant makes out a case for cancellation of the same. There is a consensus amongst different High Courts and the Hon'ble Supreme Court on this points that a bail once granted can be cancelled only in those discerning few cases where it is shown that a person to whom the concession of bail has been granted is misusing the same by subverting the course of justice i.e. efforts are being made to suborn the witnesses, threats are being extended to the witnesses and they are being intimidated not to appear against the accused persons and in case they do so they will have to bear dire consequences. The bail can also be cancelled in case the accused on bail fails to appear before the court at the time of the trial and thus there is an abuse of the process of the court.
7. The above view was given vent to by their Lordships of the Supreme Court as reported in Dolat Ram and Others Vs. State of Haryana, (1995) 1 Supreme Court Cases 349,".... Rejection of bail in a nonbailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial......"
8. I am also tempted here to cite the observations of the Hon'ble Supreme Court as reported in Delhi Admn. Vs. Sanjay Gandhi. 1978 Crl.L.J. 950, "..........Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a nonbailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances. It would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over....."
9. With the above background let us now try to find out as to whether the petitioner herein has been able to make out a case for cancellation of the bail. Learned counsel for the petitioner in this connection, as alluded to above, has referred to an incident of February 15, 1997 which is alleged to have happened at Tis Hazari Court. According to the learned counsel, the accused persons and their friends and other relations on the said date belaboured Shri Onkar Gulati, and a report as per the directions of the Division Bench of this Court had been ordered to be registered in connection with the said incident. The learned counsel on the basis of the said incident wants this Court to cancel the bail of the petitioner.
10. The contention of the learned counsel, I feel, is devoid of any force. Admittedly the said incident is alleged to have taken place on February 15, 1997. The bail to Brij Mohan accused was granted by learned predecessor of this Court on July 15, 1997. The learned Judge while granting the said bail took into consideration each and every point and thereafter arrived at a conclusion that the present case was a fit case for grant of bail inasmuch as the role assigned to Shri Brij Mohan accused was that of exhortation only. He did not take any part in the commission of the crime. It was this factor which weighed with the court while granting the bail. I thus feel that the petitioner cannot press into service the said incident for cancellation of bail.
11. The other incident which the learned counsel for the petitioner Mr. Suman Kapoor has tried to take advantage of is alleged to have taken place on August 5, 1997. According to him, the accused Brij Mohan threatened the petitioner on telephone to withdraw the application for cancellation of bail failing which he will have to bear dire consequences. The petitioner in connection therewith has filed an affidavit dated August 21, 1997. However, there is nothing in the affidavit to show as to how the petitioner identified that it was accused Brij Mohan who was threatening him with death. It was not stated by him that he identified the accused Brij Mohan on the basis of his voice which he was familiar with.
12. Furthermore, it does not appeal to the reason that an accused fully knowing that an application for cancellation of bail has been moved against him would create grounds for cancellation of his bail. This is not the conduct of a reasonable and a prudent man and thus I am not inclined to place any reliance thereon.
13. There is another side of the picture. Admittedly bail in the instant case was granted to Shri Brij Mohan accused on July 15, 1997. The application for cancellation was moved on July 29, 1997. Till then the accused persons had done nothing to incur the displeasure of the petitioner: Learned counsel for the petitioner has failed to show any thing on record that during the said period i.e. in between July 15, 1997 and July 29, 1997 the accused persons did anything which would warrant the cancellation of bail at the hands of this Court. It thus appears to me that the petitioner is aggrieved with the order dated July 15, 1997 passed by the learned predecessor of this Court granting bail to the accused Brij Mohan. He thus wants cancellation of the same not by moving an application directly for review of the said order. However, he is trying to do the same thing a bit obliquely by moving the present petition for cancellation of bail.
14. Considering the above facts and circumstances I do not see any force in the present petition. It is hereby dismissed.