Gp Capt Dipendra Kumar Singh vs State Govt. Of Nct & Anr on 6 July, 2022

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Delhi High Court - Orders

Gp Capt Dipendra Kumar Singh vs State Govt. Of Nct & Anr on 6 July, 2022

1. This petition has been filed for setting aside of order dated 08.12.2021 passed by learned Session's Court in case FIR No.58/2017 under Section 406/409/420/120B IPC registered at police station EOW.

2. In the present case the FIR was registered against the accused and subsequently investigation commenced. The accused filed anticipatory bail application, in which learned Sessions Court had directed the Investigating Officer to give 10 days' notice to accused, prior to arresting him. Later on, accused filed another anticipatory bail application which was dismissed by learned Sessions Court. Accused thereafter, preferred anticipatory bail application before this Court, which was also dismissed. Accused then was arrested on 18.06.2019 and subsequently, accused entered into a Memorandum of Understanding on 25.06.2019, which was entered into by accused through his wife Ms.Vandana Pathak.

CRL.M.C. 3268/2021 Page 1 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.07.2022 17:09

3. The accused was granted interim bail, vide order dated 25.06.2019 by Learned Sessions Court, in view of MoU arrived at between the parties. It was subject to the conditions recorded in the MoU.

4. The land in question was thus de-freezed vide order dated 13.08.2019 passed by Learned Sessions Court and the accused was directed to proceed with the sale of land in question and the time for payment of second instalment was rather extended by four weeks. Subsequently, vide order dated 28.09.2019, the conditional bail dated 25.06.2019, was made absolute, subject to the accused complying with all the terms of MoU, lest his bail was to be automatically cancelled.

5. The complaint filed present application under Section 439 (2) Cr.P.C, stating the accused did not pay interest as mentioned in 'clause 3' of MoU dated 25.06.2019.

6. Admittedly, the accused had paid the entire principal amount of Rs.9.5 crores plus Rs.75.00 lacs in addition thereof. However, he failed to pay the interest @ 12 % per annum on the admitted amount as per the MoU and hence his bail was cancelled by the learned Sessions Court vide order dated 08.12.2021.

7. He filed this criminal miscellaneous case before this Court wherein he got protection from surrender. It is submitted by learned counsel for the petitioner that in the changed circumstances, the bail application may be reopened before the learned Session's Court, to be heard on merits.

8. The learned counsel for the respondent / complainant in his arguments has referred to various decisions i.e. Bhupinder Singh vs Unitech Limited Civil Appeal No.10856/2016 decided on 18.03.2021; Manish Jain vs State of NCT of Delhi & Others ILR (2012) III Delhi 572; and Sandeep CRL.M.C. 3268/2021 Page 2 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.07.2022 17:09 Chaudhary & Others vs State and Others 2007 (94) DRJ 604 to say if there is a violation of an undertaking given by the accused and on such undertaking the accused has secured an interim bail, such interim bail needs to be cancelled and he should surrender prior to argue the bail application afresh, much less even on merits.

9. He also referred to para No.5 of Sandeep Chaudhary & Others (supra), which notes:-

5. In the present case, bail application of the petitioners was never decided on merits. The petitioners were arrested and were in custody when their bail applications were considered. On 25.8.2005, interim bail was granted for a period of one month on the submission of the parties to enable them to arrive at amicable settlement. This interim bail was extended from time to time in subsequent orders after taking note of the fact that the petitioners had entered into separate MOU with all the three respondents. Thus, de hors the talks of settlement, there was no consideration by the trial court as to whether the petitioners were entitled to bail or not and only interim bail was granted when the petitioners expressed their desire to settle the matter and thereafter to make the payment in accordance with the said settlement. The judgment in the case of Biman Chatterjee (supra) shall have no application where regular bail was granted and the question was as to whether such a bail could be cancelled if the accused was not co-operating in the compromise talks. The Court subsequently observed that though in the original order granting bail there was a reference to an agreement of the parties to have a talk of compromise, there was no submission made to the Court that there would a compromise or that the accused would take back his wife. In the present case as mentioned above, the petitioners wanted sojourn for some time to enable them to settle the matter and in view of this, the Court granted the petitioners a breather. The petitioners cannot take advantage of such an interim protection and thereafter breach the agreement and still say that the interim protection should be confirmed. If the petitioners are not in a position to make the payment, as alleged by them, it would be proper for the trial court to consider the bail application of the petitioners on merits and to decide as to CRL.M.C. 3268/2021 Page 3 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.07.2022 17:09 whether the petitioners have backed out, for whatever reason. They cannot continue to enjoy such an interim protection. Therefore, while dismissing this petition and upholding the order of the trial court, matter is remanded back to the learned ASJ to consider the bail application of the petitioners on merits de hors the MOU or breach thereof. Since the petitioners have been granted interim protection, that shall remain operative for a period of two weeks during which period the petitioners shall apply for regular bail before the trial court and the said bail application shall be considered on its own merits without being influenced by the MOU or breach thereof. The petition is disposed of in the aforesaid terms.

10. Heard.

11. In Yash Kumari & Anr. V. State (NCT of Delhi) in Bail Appl.116/2015 on 08.11.2016, this Court held as under :

12. Mr. Neeraj Grover, learned counsel would further place reliance on the decision rendered by the Hon'ble Supreme Court in Biman Chatterjee vs. Sanchita Chatterjee & Anr. reported as 2004 AIR SC 1699, wherein in paragraph 7 of the report, the Hon'ble Supreme Court whilst overruling the decision of the High Court, whereby the bail granted to the appellant was cancelled on the ground that the appellant had violated the terms of the compromise, held as follows:

"Having heard the learned counsel for the parties, we are of the opinion that the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise. Though in the original order granting bail there is a reference to an agreement of the parties to have a talk of compromise through the media of well-wishers, there is no submission made to the court that there will be a compromise or that the appellant would take back his wife. Be that as it may, in our opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at CRL.M.C. 3268/2021 Page 4 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.07.2022 17:09 between the parties at all, hence, question of fulfilling the terms of such compromise does not arise. That apart, non- fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law."

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14. Learned counsel appearing on behalf of the bail applicants has also placed reliance on the decision rendered in Janak Verma vs. State reported as MANU/DE/0024/2008, wherein in paragraph 5 of the report, the Court held as follows:-

"5. I am of the view that since the anticipatory bail application of the petitioner was not considered and allowed on merits but only in view of the parties having arrived at a settlement, the most appropriate course to be adopted would be direct re-hearing of the anticipatory bail application of the respondent no. 2- accused by the Learned Additional Sessions Judge and its disposal on merits taking into consideration the material which may be available with the investigating agency collected so far during investigation and uninfluenced by the grant of anticipatory bail to the respondent no. 2 earlier and failure of the settlement agreement for which both the parties are blaming each other.

6. This petition is accordingly disposed of with a direction to the Learned Additional Sessions Judge to rehear the anticipatory application of respondent no. 2 and disposed it of on merits. Till the disposal of the bail application the CRL.M.C. 3268/2021 Page 5 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.07.2022 17:09 anticipatory bail application, the anticipatory bail already granted to respondent no. 2- accused would however continue to remain in force."

15. In light of the above observations of the Hon'ble Supreme Court and this Court in the afore-mentioned decisions, whilst recalling the order dated 18th March, 2015, it is considered just, necessary and proper to restore Bail Application No. 116/2015 to its original position and number, since the same was not disposed of on merits vide order dated 18th March, 2015.

12. The judgments of the Supreme Court in Biman Chatterjee (supra) and Sandeep Chaudhary (supra) have since been considered in Yash Kumari and Another (supra), hence it would be appropriate to relegate the matter to the learned Session's Court/Successor Court who had passed order dated 28.09.2019 whereby the regular bail was granted to the petitioner on the basis of compromise. The said bail application is thus restored to its original position with liberty to the petitioner to take additional grounds in view of the later developments. The interim order granted in this petition shall also stand extended till the time the parties appear before the learned Session's Court to re-argue the bail application on merits.

13. As agreed, an amount of Rs.9.50 Crores, so deposited by the petitioner lying in the form of an FDR before the learned Trial Court be disbursed to the complainant/victim(s) on pro-rata basis after due verification by the Investigating Officer and subject to their furnishing appropriate undertaking / sureties to the effect in case upon conclusion of trial, the learned Trial Court directs, the complainant / victim(s) shall redeposit such amount with interest before the learned Trial Court.

14. Parties to appear before the learned Session's Court/Successor Court for directions on 21.07.2022.

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15. With above observation, the petition stands disposed of. Pending application, if any, also stands disposed of.

16. Needless to state nothing stated herein above shall be treated as an expression of opinion on merit.

YOGESH KHANNA, J.

JULY 06, 2022 M CRL.M.C. 3268/2021 Page 7 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.07.2022 17:09

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Delhi High Court - Orders