Delhi District Court
Kanika Kapoor vs Zoya Kapoor on 26 April, 2010
Kanika Kapoor, Zoya Kapoor page1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT NEW DELHI
APPLICATION FOR CANCELLATION OF BAIL No. 0348/2010
Kanika Kapoor
through State ....Petitioner
Versus
Zoya Kapoor
wife of Sh Virender Kapoor
Presently Residing at
Mittal Estate, Dr C.G. Road
Opp. Basant Cinema, Chembur
Mumbai ....Respondent
FIR No. 02/2010
U/s. 406 IPC
P.S. New Friends Colony
Criminal Revision No. 171/10
State ....Petitioner
Versus
Zoya Kapoor
wife of Sh Virender Kapoor
Presently Residing at
Mittal Estate, Dr C.G. Road
Opp. Basant Cinema, Chembur
Mumbai ....Respondent
Kanika Kapoor, Zoya Kapoor page2
Date of Institution
of this revision in
this court : 15/02/2010
Date when arguments
were heard : 23/04/2010
Date of decision : 26/04/2010
ORDER
By this common order I shall decide application filed under Section 439 (2) CrPC by the complainant Kanika Kapoor for cancellation of the bail granted to respondent/accused Joya Kapoor her mother in law. This application is replied and contested by the respondent/accused. Another matter which is being decided by this common order is revision petition filed by the State under Section 397 CrPC against the order dated 25/01/2010 passed by learned Additional Chief Metropolitan Magistrate (South East) refusing police remand to the investigating officer. This revision petition is also replied and contested by the respondent/accused Joya Kapoor. The application for cancellation of the bail of the complainant and the revision petition against refusal of police remand by ld A.C.M.M. ( S.E.) are off shoot of the same impugned common order dated 25.01.2010 passed by ld A.C.M.M.(S.E.). Even otherwise there are also so Kanika Kapoor, Zoya Kapoor page3 inter connected and inter depended that cancellation of bail and the revision petition can conveniently be decided by common order for the simple reason that the revision petition filed against order for refusal of police remand is not maintainable unless the bail granted to the respondent/accused is cancelled and common question of facts and law arises in both the matters.
I am dictating this order in the file pertaining to application under Section 439(2) CrPC and the revision petition filed by the State shall be disposed off accordingly.
The purpose of application for cancellation of the bail filed by the complainant Kanika Kapoor and the revision petition filed by the State is cancellation of bail granted by impugned order by ld A.C.M.M. (S.E.) and grant of police remand sought by the investigating agency against respondent/accused Joya Kapoor to effect recovery of alleged jewellery which allegedly is the case property in this case.
The contentions on behalf of the complainant and the State in short are that there is denial of opportunity to the investigating officer for recovery of the case property from respondent/accused on account of refusal of police remand. It is argued that on account of ill health of her father, respondent/accused went along with her son to Bombay. Thereafter Kanika Kapoor, Zoya Kapoor page4 she returned and operated the locker in question and took away almost all the jewellery of the complainant. It is argued that there is denial of custodial interrogation to the police which is set back to the proper investigation. Reliance is placed upon the authority Adri Dharan Das Vs State of West Bengal AIR 2005 S.C. 1057. It is argued that the disclosure statement was given by the accused so the police should have been given opportunity to recover case property which is worth more than two crores of rupees.
It is also argued by ld Additional Public Prosecutor for State and for complainant that while the F.I.R. in question was lodged on the direction of ld A.C.M.M.(S.E.) in which he was of the considered view that cognizable offence is made out and F.I.R. should be lodged, but later on application for police remand sought, the ld A.C.M.M.(S.E.) gave a contrary finding and refused the police remand which should not been done.
The contention of the ld counsel for the respondent/accused is that the disclosure statement is not signed by the accused and infact the complaint against her is false. It is argued that application for cancellation of the bail is not maintainable nor the request of police remand sought in the present revision petition is maintainable.
It is argued that disclosure statement is not signed by the accused so it has no authenticity. Reliance is placed upon Jaikaran Singh Vs State of Kanika Kapoor, Zoya Kapoor page5 Punjab 1995 S.C. 2345 wherein following observations were made by Hon'ble Supreme Court :
" ........the absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement ............."
It is argued that revision petition is filed against interlocutory order and is not maintainable. It is argued that complainant has no locus standi to file an application for cancellation of the bail. It is argued that police remand cannot be obtained after 15 days of arrest so both these applications for cancellation of bail and revision petition are not maintainable. Reliance is placed upon the authority Chandra Batra Vs State of Punjab 2003(1) C.C. Cases (P&H) .
I have heard learned Additional Public Prosecutor, learned counsel for the complainant Kanika Kapoor and learned counsel for the respondent/accused Zoya Kapoor at length and have gone through the trial court record, revision file and file for application for cancellation of the bail, the relevant provision of law.
The law for cancellation of bail granted to the accused in non bailable offences is more stringent than the law of granting bail in such cases.
Kanika Kapoor, Zoya Kapoor page6 In 'Bhagirathsinh Vs. State of Gujarat (1984) 1 Supreme Court Cases 284' the following observations were made:
"7. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before 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 evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court."
In State (Delhi Administration) Vs. Sanjay Gandhi (1978) 2 Supreme Court Cases 411 following observations were made by Hon'ble Supreme Court:
Kanika Kapoor, Zoya Kapoor page7 "13. 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 non-bailable 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. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused.
Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. Therefore, Mr. Mulla is right that one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have, of their own volition, attempted to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent has obliged them in the past. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent."
Kanika Kapoor, Zoya Kapoor page8 In Dolat Ram v. State of Haryana (1995) 1 SCC 349 it was held:
". . . . . . . . . Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
No authority is cited from either sides to show that bail already granted by the court of ld A.C.M.M./M.M. can be cancelled on the ground that police remand ought to have been given. The Adri Dharam Das's case (supra) relied on behalf of the State shows that the anticipatory bail Kanika Kapoor, Zoya Kapoor page9 should not have granted by Hon'ble Supreme Court or Hon'ble High Court by any blanket order there should be reasonable apprehension that accused is wanted is a case and is to be arrested. It was also directed that the Court should not restrain arrest by issuing interim order while dealing with the application under Section 438 CrPC. Therefore, Adri Dharam Das's case (supra) deals with grant of anticipatory bail by Hon'ble High Court and Sessions Court and not cancellation of regular bail granted under Section 437 CrPC by A.C.M.M./M.M. so it does not help to the State/complainant.
In Gurbaksh Singh Sibbia's case decided by Full Bench of Punjab and Haryana High Court has held that in cases where Section 167 (2) Cr.PC is attracted anticipatory bail should not be granted. This case came up before Constitution Bench of the Supreme Court in AIR 1980 Supreme Court 1632 (1) the observations of Full Bench of Punjab and Haryana High Court fell to the scrutiny of Hon'ble Supreme Court. It was held as follows:
" 19. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under S. 167 (2) of the Code is made out by the investigating agency."
In this case, the following observations were also made by Kanika Kapoor, Zoya Kapoor page10 Constitution Bench of Supreme Court:
" 31. In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these prepositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and " the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh. (1962) 3 SCR 622 : (AIR 1962 SC 253) which, though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking Kanika Kapoor, Zoya Kapoor page11 anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
Therefore, reliance on Adri Dharan Das's case is misplaced though Gurbax Singh Sibbia' s case also deals with anticipatory bail and not cancellation of bail so it also does not have its full effect on the present matter.
Ld. A.C.M.M.(S.E.) by impugned order dated 25/02/2010 has refused police remand to the investigating officer. By an earlier order passed under Section 156(3) CrPC he was of the view that cognizable offence against respondent/accused was made out and the case should have been registered and investigation should have been conducted in this case. But two situations under which said two orders were passed by ld A.C.M.M.(S.E.) cannot be equated. While passing direction under Section 156(3) CrPC dated 24/12/2009 for police investigation and registration of FIR, the ld A.C.M.M.(S.E.) has heard complainant only but at the time of passing impugned order under Section 167 CrPC refusing police remand, he heard both the investigating officer/State based on information provided Kanika Kapoor, Zoya Kapoor page12 by the complainant and he also has heard respondent/accused. He has heard both parties for about 45 minutes. Then refused the police remand by detailing reasons for it and passed the impugned bail order.
The scope of powers of the Court dealing with the revision petition is limited as compared with the power in the appeal. While dealing with revision petition the factual scenario is not to be appreciated like in appeal and the interference with the order of Court below is justified only when there is illegality, material irregularity or impropriety in the impugned order and justification for appreciation of factual scenario is only in those cases where findings of ld Court below are purverse.
In the present case, ld A.C.M.M. (S.E.) while refusing police remand and granting bail to the respondent/accused has given reasons that after the locker in question was operated by the respondent/accused, son and daughter in law of respondent/accused have also operated their lockers. He noticed that all the parties have different bank lockers in their own names. There is allegation that jewellery was worth of Rs. 2.5 crores but no bill of said jewellery has been given and that bill of jewellery has not been placed on record. ld A.C.M.M.(S.E.) noticed that respondent/accused is a sugar patient and depended upon insulin and jewellery in question allegedly taken four months back and the chance of recovery of jewellery was minimal.
Kanika Kapoor, Zoya Kapoor page13 Giving by the reasoning given in the impugned order by ld A.C.M.M.(S.E.) it cannot be said that there is an perversity in the impugned order and the view taken by ld A.C.M.M. is certainly possible in the given facts and circumstances of the case and cannot be said to be not perverse. The respondent/accused is an aged woman suffering from diabetes and so deserves leniency under the provisions of Section 437 CrPC. Further the police remand was sought on the strength of disclosure statement which was not signed by the respondent/accused therefore, in the light of Jaikaran Singh's case (supra) the disclosure statement looses significance. By non grant of police remand to investigating officer, he does not become handicapped. He can still take recourse to request provisions of Cr.P.C. regarding search and seizure provided there is credible information to the effect with him. Further in somewhat similar situation the Hon'ble High Court of Punjab and Haryana in Chandra Batra's case relied on behalf of the respondent was of the opinion that police remand should not be granted and accused is entitled for bail. Therefore, Chandra Batra's case also support the respondent/accused. Thus there is no need to go into further arguments raised from both sides.
In view of the above discussion, there being no illegality or material Kanika Kapoor, Zoya Kapoor page14 irregularity or impropriety in the impugned order dated 25/01/2010 passed by ld A.C.M.M.(S.E.) and there being no sufficient reasons for cancellation of bail, both the application for cancellation of bail filed by the complainant and the revision petition filed by the State are dismissed. The trial court record be returned along with the copy of this order to ld ACMM (S.E.) True copy of this order be placed in revision petition No. 17/10 filed by the State which also stands disposed of by this common order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room. Copy of this order be given dasti to both the parties.
Announced in the open ( S.K. SARVARIA )
court on 26/4/2010 ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT