CRL.M.C./273/2011 of NAWAL KISHORE Vs STATE & ORS

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 3297/2010 NAWAL KISHORE ..... Petitioner NAWAL KISHORE ..... Petitioner

Through: Mr. S.C.Garg & Mr. Imran Khan, Advocates Advocates

versus

STATE & ANR

..... Respondents Through: Mr. Ravi Naik, Additional Public Prosecutor for State Mr. Prag Chawla, Advocate for Respondent No.2 Prosecutor for State Mr. Prag Chawla, Advocate for Respondent No.2

+ CRL.M.C. 273/2011 & Crl.M.A.No.20246/2012 NAWAL KISHORE ..... Petitioner NAWAL KISHORE ..... Petitioner

Through: Mr. S.C.Garg & Mr. Imran Khan, Advocates Advocates

versus

STATE & ANR. ..... Respondents Through: Mr. Ravi Naik, Additional Public Prosecutor for State Through: Mr. Ravi Naik, Additional Public Prosecutor for State

Mr. Prag Chawla, Advocate for Respondent No.2 Respondent No.2

+ CRL.M.C. 4018/2010

NAVAL KISHORE

..... Petitioner Through: Mr. S.C.Garg & Mr. Imran Khan, Advocates Advocates

versus

STATE

..... Respondent

Through: Mr. Ravi Naik, Additional Public Prosecutor for State Mr. Prag Chawla, Advocate for Respondent No.2

CORAM:HON'BLE MR. JUSTICE SUNIL GAUR O R R% 28.10.2013

InFIR No.118/2010 under Section 324/326/308/34 IPC registered at Police Station Roop Nagar Delhi, respondent-accused Amit@Ganju has been granted regular bail vide order of 9[th]September, 2010 while noting that he is in custody since 27[th]August, 2010. In the aforesaid FIR respondent-accused Rajiv Kumar Brijwasi@Tinku has been granted pre-arrest bail by the concerned Additional Sessions Judge vide order of 04[th] January, 2011 subject to aforesaid accused compensating the victim to the tune of `3.5 lac. Order of 10[th] January, 2011 notes that complainant had refused to accept the compensation amount and the pre-arrest bail order of 4[th] January, 2011 was maintained by the concerned Additional Sessions Judge. Respondent-accused Sunny@Naresh@Minku has been granted pre-arrest bail by concerned Additional Sessions Judge in the aforesaid FIR vide order of 1[st] November, 2010 as aforesaid accused was not namedin the FIR.

In the above-captioned three petitions petitioner is the complainant and eye witness of the FIR in question, who seeks cancellation of bail granted to aforesaid three respondent-accused persons. Since cancellation of bail is sought on similar grounds,

Crl.M.C.Nos. 3297/10, 273/2011 & 4018/2010

therefore above-captioned three petitions were heard together and are being disposed of by this common order.

At the hearing, it was vehemently argued by learned counsel for petitioner that respondents-accused had poured boiling oil on Pradeep Goel, son of petitioner who had sustained 40% burn injuries as well as on Narender Goel and in the quarrel Tanuj Goel had also sustained severe injuries. It was contended on behalf of petitioner that main accused had misrepresented that he is not previous convict whereas he is involved in many cases. It was argued on behalf of petitioner that impugned orders granting bail to respondent-accused persons is liable to be quashed as without considering the gravity of offence, respondent-accused persons have been granted bail. To contend so, reliance is placed upon decisions in Raman Kumar Juneja v. State (NCT of Delhi) 2010 (4) JCC 2439, S.P.Chengalvaraya (D) v. Jaganath (D) 1994 RLR (SC) 102, Rajesh Ranjan @Pappu Yadav v. CBI & Ors. 1999 (2) JCC (Delhi) 581, Dalip Singh v. State of UP 2010 RLR.1 (SC) 3, Hamza Haji v. State of Kerala & Anr. (2006) 7 SCC 416 & Baldev Singh v. Durga Prasad etc. 1989 RLR (Note) 43.

Learned counsel for respondent-accused had supported the impugned orders and submitted that grant of bail to respondent-accused persons does not suffer from any illegality or infirmity and so, these petitions ought to be dismissed. Learned Additional Public Prosecutor had drawn the attention of this Court to the status report filed and had submitted that now the matter is pending trial.

Upon hearing both the sides and on perusal of the impugned orders, status report, material on record and the decisions cited, I find that the bail ought to be cancelled where grant of bail or continuance on bail causes miscarriage of justice. The guiding principles governing cancellation of bail as reiterated by Apex Court in Kanwar Singh Meena v. State of Rajasthan (2012) 12 SCC 180 are as under:-

“xx x x While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is

bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.”

In the instant case, it appears from the FIR of this case that the incident in question was an outcome of dispute between the parties regarding problem of egress and ingress of vehicle due to accused party keeping their goods outside the shops and there was hot exchange of words between them and it appears that in the heat of the moment burning oil was poured over Pradeep Goel by respondent-accused Rajiv Kumar Brijwasi@Tinku and complainant party was assaulted.

It is true that grant of compensation to the victim is not valid consideration for grant of pre-arrest bail and the concerned Additional Sessions Judge has erred in doing so while granting bail to respondent-accused Rajiv Kumar@ Tinku. Vide order of 8[th]December, 2010 Coordinate Bench of this Court had permitted respondent-accused Rajiv Kumar@Tinku to withdraw pre-arrestbail application as the charge-sheet had been filed and to seek bail from the trial court. Aforesaid, order does not indicate that respondent-accused Rajiv Kumar@Tinku was to surrender and then seek regular bail. Previous involvement of respondent-accused Rajiv Kumar@Tinku in other criminal cases is certainly

Crl.M.C.Nos. 3297/10, 273/2011 & 4018/2010

factor which learned Additional Sessions Judge ought to consider while granting pre-arrest bail. The reasoning on which pre-arrestbail has been granted to Rajiv Kumar@Tinku vide order of 4[th]January, 2011 does not commend to reason. However, cancellation of bail granted to respondent-accused Rajiv Kumar@ Tinku after period of two years and nine months is not contemplated as there are no allegations that after grant of bail respondent-accused Rajiv Kumar@Tinku has misused the concession of bail granted to him.

Granting of regular bail to respondent-accused Amit @Ganju on the ground that he had remained in custody for about period of 10 days or so, cannot be said to be perverse order and so order of 9[th] September, 2010 granting bail to respondent-accused Amit@Ganju is maintained.

As regards respondent-accused Sunny@Naresh@Minku, he has been granted pre-arrest bail because he has not been named in the FIR. The discretion exercised by the concerned Additional Sessions Judge to grant pre-arrest bail the respondent accused Naresh@Minku because he was not named in the FIR cannot be said to be termed as perverse.

There are no cogent or overwhelming circumstances necessitating cancellation of bail granted to respondent-accused. Thus, bail granted to respondent-accused persons is not being cancelled but if respondent-State or the complainant party apprehends misuse of bail granted to respondent-accused then this order will not stand in the way of complainant party to seek cancellation of bail granted to respondent-accused.

Crl.M.C.Nos. 3297/10, 273/2011 & 4018/2010

With aforesaid liberty the above-captioned three petitions and the application are disposed of while refraining to comment upon merits, lest it may prejudice either side at trial.

(SUNIL GAUR) Judge

OCTOBER 28, 2013 vn