CRL.M.C./8389/2024 of MANEESH GUPTA Vs STATE (GOVT. OF NCT OF DELHI) & ANR.

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 03.04.2025

+CRL.M.C. 8389/2024

MANEESH GUPTA..... PetitionerThrough:Mr. Maninder Singh, Sr. Adv. withMr. Ajay Kumar Pipaniya, Ms. NikitaGarg, Ms. Sanjana Nair and Mr.Harjas Pratap Singh, Advs.

Versus

STATE (GOVT. OF NCT OF DELHI) & ANR..... RespondentsThrough:Mr. Pardeep Gahlot, APP for Statewith Insp. Ravi Kumar PS MauryaEnclave.Through:Mr. Pardeep Gahlot, APP for Statewith Insp. Ravi Kumar PS MauryaEnclave.

Mr. Jaideep Malik, Mr. Ravi Soni,Mr. Nitesh Dhankar, Mr. SiddharthSoni, Mr. Tushar Verma and Mr.Pranav Sharma, Advs. for R-2.Mr. Nitesh Dhankar, Mr. SiddharthSoni, Mr. Tushar Verma and Mr.Pranav Sharma, Advs. for R-2.

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J.

1.The present petition has been filed under Section 483(3) read withSection 528 BNSS against the impugned order dated 21.09.2024 passed bythe Court of the learned Additional Sessions Judge-03, North-West District,Rohini Courts, Delhi whereby the respondent no.2 was admitted to regularbail in case bearing FIR No. 330/2021 under Section 302 IPC registered at

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Police Station Maurya Enclave. Consequently, prayer has been made tocancel the bail granted to the respondent no.2.

2.The petitioner is the father of the deceased, who as per theprosecution version, was allegedly killed by the accused/respondent no.2namely, Mayank Antil on 21.04.2021.

3.The case of the prosecution as borne out from the Status Report is thaton 25.04.2021, an information vide DD No.13A at 06:36 a.m. was receivedat Police Station Maurya Enclave regarding dead body in SU Park,Pitampura, Delhi.

4.On receipt of information, ASI Sunil (I.O.) along with staff reached atthe spot where male dead body was found in decomposed condition. Oninspection of the dead body, injury mark on forehead and right hand waspresent and one piece of cloth was found tied around the neck of thedeceased, who was identified as Saksham Gupta, aged about 18 years son ofManeesh Gupta (petitioner herein).

5.The petitioner had previously lodged missing report of his sonnamely, Saksham Gupta vide DD No.48A dated 21.04.2021 at Police StationMaurya Enclave. On the statement of petitioner/complainant, the presentcase was registered. The petitioner in his statement to the police stated thathis son Saksham Gupta went to meet his friend Mayank Antil.He alsostated that he checked the Instagram ID ‘Saksham-Baniya’ of his sonSaksham and the last chat was done with account – ‘hiroisthe’ on21.04.2021. In the said chat, mobile no. [REDACTED] was mentioned andas per the chat dated 20.04.2021, the other side person had called Sakshamto Park Hut of SU Block, Pitampura, Delhi.

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6.The petitioner further stated that on 21.04.2024 his wife was alsoinformed by their son Saksham Gupta that he is going to meet his friendMayank Antil/accused. The petitioner, in effect, leveled allegations ofmurder of his son Saksham by the respondent no.2/Mayank Antil.

7.Mr. Maninder Singh, the learned Senior Counsel for the petitionersubmits that the learned Additional Sessions Judge (for short ‘ASJ’) whilegranting bail to the petitioner vide impugned order dated 21.09.2024 hasignored the relevant material and evidence on record.

8.Elaborating on his submission, he submits that the incriminatingmaterial is available in the form of CCTV visuals and as per the learnedTrial Court’s observations made during the examination of PW-1, the boywho is seen in the CCTV visuals has small tattoo under his left ear and theaccused also has similar tattoo at the same spot.

9.He contends that the blood stained bricks were recovered from thecrime scene at the instance of the respondent no.2. Besides recovery ofSamsung mobile phone of deceased, the Realme Earpods of the deceasedwere also recovered from the possession of the respondent no.2. The lastlocation of mobile of the deceased and the respondent no.2/accused werefound matching with the place of incident on the date of incident i.e.21.04.2021.

10.He further contends that out of 39 prosecution witnesses, only 08witnesses have been examined, of which 02 witnesses have turned hostile,who have been influenced by the respondent no.2/accused.

11.He submits that the prosecution witness Manmeet Singh whoprovided the CCTV footage has yet not been examined and there is grave

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apprehension that the respondent no.2/accused may coerce or influence histestimony.

12.He contends that the aforesaid aspects have not been dealt with by thelearned ASJ while granting bail to the respondent no.2. He submits that thebail can be cancelled in cases where order granting bail suffers from seriousinfirmities resulting in miscarriage of justice.

13.He places reliance on the decisions of the Hon’ble Supreme Court in

i. Puran vs. Rambilas and Another, (2001) 6 SCC 338;

ii. Brij Nandan Jaiswal vs. Munna alias Munna Jaiswal and Another,(2009) 1 SCC 678;(2009) 1 SCC 678;

iii. Kunwar Singh Meena vs. State of Rajasthan and Another, (2012) 12SCC 180;SCC 180;

iv. Ranjit Singh vs. State of Madhya Pradesh and Others, (2013) 16SCC 797; andSCC 797; and

v. Prakash Kadam and Others vs. Ramprasad Vishwanath Gupta andAnother, (2011) 6 SCC 189.Another, (2011) 6 SCC 189.

14.Per contra, Mr. Jaideep Malik, the learned counsel for the respondentno.2 submits that in the charge sheet it has been misrepresented that mobilephone of the deceased and the earpods were found from the possession ofthe respondent no.2/accused, whereas the fact of the matter is that samewere found lying near the dead body of the deceased and this fact is evidentfrom the photograph Exhibit as PW-5/D-1, as well as, from the statement ofthe complainant/PW-5, who himself deposed that he had seen one cigarettebox, one match box, chewing gum box and one ear pods box of blue colornear the body of the accused.

15.He submits that the Jeet Pal/PW-6 who is witness to personal searchof respondent no.2 has denied recovery of Samsung mobile phone andearpods at the instance of respondent no.2.

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16.He further contends that perusal of the testimony of PW-2/Deshrajwho was deployed as chowkidar of the park where the incident happenedshows that he has stated to the effect that the earpods, one mobile phone andsome black substance in black polythene was recovered in his presence,which suggests that recovery was made from the park.

17.Inviting attention of the Court to the statement of PW-5/ManishGupta, he submits that there is evident contradiction in his statement on theaspect of whether he was apprised by his wife that his son had gone withaccused/Mayank.He submits that though the FIR mentions that thecomplainant was apprised by his wife that his son is going with accusedMayank but in the missing report this fact was not mentioned, rather PW-5had admitted that he was not suspecting involvement of anyone.

18.He further submits that even the mother of the deceased namely, Ms.Sunita Gupta/PW-8 has also confirmed the fact that she had not apprised herhusband that their son had gone to park along with accused Mayank when hewas going to lodge missing report.

19.He submits that PW-1/Dharmvir (gardener of the park) also turnedhostile and did not support the prosecution case.

20.He, therefore, contends that the circumstances of the present case, donot warrant cancellation of bail as the law is well settled that the bail oncegranted should not be cancelled in mechanical manner without consideringwhether any supervening circumstances have rendered it no longerconducive to fair trial to allow the accused to retain his freedom byenjoying the concession of bail during the trial.

21.To buttress his contention, he has placed reliance on the followingdecisions of the Hon’ble Supreme Court:-

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i.Daulat Ram and Ors. vs. State of Haryana, (1995) 1 SCC 349;

ii.Union of India vs. K.A. Najeeb, Criminal Appeal No.98/2021;98/2021;

iii.Mahipal vs. Rajesh Kumar alias Polia and Anr., CriminalAppeal No. 1843/2019;Appeal No. 1843/2019;

iv.Ragubir Singh vs. State of Bihar, (1986) 4 SCC 481;

v.State (Delhi Administration) vs. Sanjay Gandhi, (1978) 2 SCC411; and411; and

vi.CBI, Hyderabad v. Subramani Gopalakrishnan and Others,(2011) 5 SCC 296.(2011) 5 SCC 296.

22.Mr. Pardeep Gahlot, the learned APP has also supported the case of

the petitioner.

23.I have heard the learned Senior Counsel for the petitioner, as well as,the learned APP for the State and the learned counsel for the respondentno.2 and have also perused the material on record.

24.At the outset, it may be noted that although on the face of it, bothsituations i.e., cancellation of bail order and plea challenging the order forgrant of bail, seem to be the same yet, the grounds of contention for both arecompletely different. In application for cancellation of bail, the courtordinarily looks for supervening circumstances. Whereas, in an applicationchallenging the order for grant of bail, the ground of contention is with thevery order of the Court. In other words, once bail is granted, the personaggrieved with such order can approach the competent court to quash thedecision of grant of bail if there is any illegality in the order. However,where there is no illegality in the order but it is case of misuse of bail bytheaccusedorsomesuperveningcircumstanceswarrantingsuchcancellation, then the course available is to apply for cancellation of bail[1].

1 Ansar Ahmad vs. State of U.P. and another, 2023 SCC OnLine SC 974.

25.In the present petition, essentially the challenge is to the order of thelearned Additional Sessions Judge, inter alia, on the grounds that the samesuffers from legal infirmity and is palpably illegal; offence involved is ofserious nature and the learned Additional Sessions Judge did not considerthe gravity of such offence; there is sufficient evidence against respondentno.2/accused for his incrimination; Therefore, the prayer for cancellation ofbail is consequential relief.

26.Ordinarily, the High Court should not interfere with an order of thelearned Trial Court granting bail but at the same time the law is well settledthat though, the grant of bail involves the exercise of the discretionary powerof the Court, it has to be exercised in judicious manner and not as matterof course.

27.The Hon’ble Supreme Court in Prasanta Kumar Sarkar vs. AshisChatterjee (2010) 14 SCC 496 had an occasion to assess the correctness ofan order passed by the High Court granting bail. The accused therein wasfacing trial for an offence punishable under Section 302 IPC and his severalbail applications were dismissed by the learned Additional JudicialMagistrate. The High Court, however, allowed the bail application filed bythe accused. The Hon’ble Supreme Court set aside the order of the HighCourt and observed as under:

“9. …. It is trite that this Court does not, normally, interfere withan order passed by the High Court granting or rejecting bail to theaccused. However, it is equally incumbent upon the High Court toexercise its discretion judiciously, cautiously and strictly incompliance with the basic principles laid down in plethora ofdecisions of this Court on the point. It is well settled that, amongother circumstances, the factors to be borne in mind whileconsidering an application for bail are:

(i) whether there is any prima facie or reasonable ground tobelieve that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released onbail;

(v) character, behaviour, means, position and standing of theaccused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced;and

(viii) danger, of course, of justice being thwarted by grant ofbail.

10. It is manifest that if the High Court does not advert to theserelevant considerations and mechanically grants bail, the saidorder would suffer from the vice of non-application of mind,rendering it to be illegal….”

28.Earlier, the Hon’ble Supreme Court in Ram Govind Upadhyay vs.Sudarshan Singh, (2002) 3 SCC 598 had emphasized that not only thenature of accusations but the severity of the punishment if the accusationentails conviction and the nature of evidence in support of the accusations,are key considerations which govern the grant of bail. The relevant part ofthe decision reads thus:

“4. Apart from the above, certain other which may be attributed tobe relevant considerations may also be noticed at this juncture,though however, the same are only illustrative and not exhaustive,neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only

the nature of the accusations, but the severity of the

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punishment, if the accusation entails conviction and thenature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tamperedwith or the apprehension of there being threat for thecomplainant should also weigh with the court in the matter ofgrant of bail.

(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonable doubtbut there ought always to be prima facie satisfaction of thecourt in support of the charge.

(d) Frivolity in prosecution should always be considered and itis only the element of genuineness that shall have to beconsidered in the matter of grant of bail, and in the event ofthere being some doubt as to the genuineness of theprosecution, in the normal course of events, the accused isentitled to an order of bail.

29.Again, in Kanwar Singh Meena vs. State of Rajasthan and Anr.,

(2012) 12 SCC 180, the Hon’ble Supreme Court observed as under:

“10. Thus, Section 439 of the Code confers very wide powers onthe High Court and the Court of Session regarding bail. But, whilegranting bail, the High Court and the Sessions Court are guidedby the same considerations as other courts. That is to say, thegravity of the crime, the character of the evidence, position andstatus of the accused with reference to the victim and witnesses,the likelihood of the accused fleeing from justice and repeating theoffence, the possibility of his tampering with the witnesses andobstructing the course of justice and such other grounds arerequired to be taken into consideration. Each criminal casepresents its own peculiar factual scenario and, therefore, certaingrounds peculiar to particular case may have to be taken intoaccount by the court. The court has to only opine as to whetherthere is prima facie case against the accused. The court must notundertake meticulous examination of the evidence collected by thepolice and comment on the same. Such assessment of evidence andpremature comments are likely to deprive the accused of fairtrial. While cancelling the bail under Section 439(2) of the Code,

the primary considerations which weigh with the court arewhether the accused is likely to tamper with the evidence orinterfere or attempt to interfere with the due course of justice orevade the due course of justice. But, that is not all. The HighCourt or the Sessions Court can cancel the bail even in caseswhere the order granting bail suffers from serious infirmitiesresulting in miscarriage of justice. If the court granting bailignores relevant materials indicating prima facie involvement ofthe accused or takes into account irrelevant material, which hasno relevance to the question of grant of bail to the accused, theHigh Court or the Sessions Court would be justified incancelling the bail. Such orders are against the well-recognisedprinciples underlying the power to grant bail. Such orders arelegally infirm and vulnerable leading to miscarriage of justiceandabsenceofsuperveningcircumstancessuchasthepropensity of the accused to tamper with the evidence, to fleefrom justice, etc. would not deter the court from cancelling thebail. The High Court or the Sessions Court is bound to cancelsuch bail orders particularly when they are passed releasing theaccused involved in heinous crimes because they ultimately resultin weakening the prosecution case and have adverse impact on thesociety. Needless to say that though the powers of this Court aremuch wider, this Court is equally guided by the above principlesin the matter of grant or cancellation of bail.”

(emphasis supplied)

30.At this juncture, it would be apt to refer to the relevant part of theimpugned order dated 21.09.2024 which reads as under:

“9. Arguments heard. Record has been perused.

10. Applicant/ accused was arrested on 21.04.2021. He was 19years of age at that time. He had clean antecedents and he was notfound involved in any criminal activity previously. He is incontinuous JC after his arrest in 2021. One of the main objective ofdetention before conviction is to preserve evidence and to protectthe witnesses. In considered opinion of this court, further detentionof the applicant is not going to serve any purpose in this casebecause all the material witnesses have already been examined.

Remaining witnesses are formal police witnesses and the applicant/ accused does not appear to be in any position to exercise anyinfluence upon them. As far as the presence of the applicant duringremaining trial is concerned, that can be ensured by imposing thecondition of sound surety.

11. Accordingly, the present application is allowed. Applicant /accused Mayank Antill be released on bail on furnishing personalbond of Rs.35,000/- with two sureties each of like amount, subjectto the condition that he shall not try to influence any of thewitnesses of this case and shall attend the trial regular.”

31.The impugned order when examined in the light of the law laid downby the Hon’ble Supreme Court makes it plain that the learned AdditionalSessions Judge has failed to consider whether there is prima facie casemade out or reasonable ground to believe that accused had committed theoffence let alone the nature and gravity of accusation and the severity of thepunishment in the event of conviction. The arguments on merits which havebeen advanced by the rival parties before this Court, as well as, the evidencewhich has come on record have also not been adverted to albeit for limitedthe purpose of deciding the bail application. The grant of bail is premisedon factors namely, the long incarceration of respondent no.2, his cleanantecedents and the fact that all material witnesses have been examined.

32.This Court finds that it is manifestly incorrect on part of the learnedAdditional Sessions Judge to have granted bail to the respondentno.2/accused without taking into consideration the relevant facts andcircumstances and the evidence available on record especially when therespondent no.2/accused has been charged with serious offence underSection 302 IPC. The impugned order granting bail to the respondentno.2/accused only on the basis of triple test viz. (i) flight risk, (ii) tampering

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with evidence and (iii) influencing witnesses, thus, suffers from the vice ofnon-application of mind rendering it unsustainable.

33.Accordingly, the petition is allowed. The impugned order dated21.09.2024 passed by the learned Additional Sessions Judge is set aside andthe matter is remitted back to the learned ASJ-03, North West District,Rohini Courts for fresh consideration in accordance with law, moreparticularly keeping in mind observations of the Hon’ble Supreme Court inthe decisions as noted hereinabove.

34.The bail application before the learned ASJ is restored to its originalnumber. The parties are directed to appear before the learned ASJ on21.04.2025. The learned ASJ is directed to hear the accused, thecomplainant and the State and pass fresh order in accordance with lawwithin period of four weeks from the date of receipt of this order.

35.It is further directed that in the meanwhile, no coercive action betaken against the respondent no.2/accused.

VIKAS MAHAJAN, J.

APRIL 03, 2025/dss

CRL.M.C. 8389/2024