LACHHMAN DASS versus RESHAM CHAND KALER AND ANR.

[2018] 1 S.C.R. 326

[2018] 1 S.C.R.

LACHHMAN DASS

RESHAM CHAND KALER AND ANR.

(Criminal Appeal No. 161 of 2018)

JANUARY 23, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Bail:

Prosecution u/ss. 302, 307, 324, 326, 120B, 148 and 149IPC and ss. 25, 27, 54 and 59 of Arms Act, 1959 – Bail applicationsCfiled by respondents-accused rejected by trial court – High Courtgranted bail – Complainant’s appeal – Held: prima facie case ismade out against the accused – The seriousness and gravity of theoffence is evident from the Compact Disc (CD) – There is no reasonto accord any special consideration to the respondent-accused (inDCrl. A. No. 161 of 2018) for his not being Indian National – In theeyes of law every accused is the same,irrespective of their nationality– He is alleged to be the kingpin of the criminal conspiracy whichdemands his custodial interrogation – Accused in Crl. A. No. 162of 2018 was granted bail on the basis of parity with the aboveaccused – Bail order of that accused having been set aside, bail ofEthis accused is also liable to be set aside – Accused in Crl. A. No.163 of 2018 was granted bail without taking into considerationthat he was declared proclaimed offender – His bail is also liableto be set aside – Code of Criminal Procedure, 1973 – s.439.

Appeal seeking cancellation of bail and appeal challengingFan order granting bail – Distinction between.

Judiciary:

Judicial discipline – Held: It is not expected of High Court topass mandatory order commanding the subordinate court toGcompulsorily grant bail – Such mandatory directions breach theindependence of subordinate courts – Bail.

Allowing the appeals, the Court

HELD:

Criminal Appeal No. 161 of 2018:

1. prima facie case is made out against the respondent-accused, as in the Compact Disc (CD) filed alongwith the petition,the group of persons are seen committing the offence using deadlyweapons and sticks. The seriousness and gravity of the offencecan be clearly observed from the CD. However, aforesaidobservations must not be construed as findings on merits.Though respondent No. 1 is not citizen of this country (Britishnational), yet the fact remains that he along with other personshas indulged in the criminal activity. The case of the prosecutionmainly revolves around him as he is alleged to be the kingpin ofthe criminal conspiracy which demands his custodial interrogation.In such circumstances, the High Court did not appreciate thefacts of the case with prudent legal perception. There is no reasonto accord any special consideration for respondent No.1 by virtueof simple fact that he is citizen of different country. The lawunder Section 439 of Cr.P.C is very clear and in the eyes of thelaw every accused is the same, irrespective of their nationality.[Para 11][331-H; 332-A-C]

2. This case is not an appeal seeking cancellation of bail inany sense rather, this case calls for the legal sustainability of theimpugned order granting bail to the accused-respondent. Thedifference between the cancellation of the bail and legalchallenge to an order granting bail for non-consideration ofmaterial available on record is settled proposition. To clarify,there is no ground pleaded herein that supervening eventbreaching bail conditions is raised. [Para 12][332-D-E]

State through C.B.I. v. Amarmani Tripathi (2005) 8 SCC21; Prakash Kadam v. Ramprasad Vishwanath Gupta(2011) 6 SCC 189; Mohan v. State of Rajasthan [2017]14 SCALE 280 – referred to.

Criminal Appeal No. 162 of 2018:

3. The impugned judgment which granted bail to therespondent in this appeal on the basis of parity with respondentNo. 1 in Crl. Appeal No. 161 of 2018. As his bail has alredy been

Aset aside, thereby effacing the footing on which the grant of bailby the High Court stood. Otherwise also, this case is not fit forextending the liberty of bail. Therefore, the impugned orderpassed by the High Court granting bail to respondent No. 1 isset aside. [Para 16][332-H; 333-A-B]

BCriminal Appeal No. 163 of 2018:

4. The order of the High Court on the first instance clearlypoints out that it has virtually directed the course of action to beundertaken by the subordinate court. It is not expected from theHigh Court to pass such mandatory orders commanding theCsubordinate court to compulsorily grant bail. Courts cannot issuemandatory directions which breach the independence ofsubordinate courts. Therefore, such circuitous methodundertaken by the respondent in obtaining bail is gross abuseof the court process undertaken in bad faith. Moreover, he wasdeclared as proclaimed offender before the grant of bail, whichDwas not taken into consideration by the High Court. Therefore,the order of the High Court is set aside and the concernedauthorities are directed to take the respondent No. 1 into custody.[Para 25][335-C-E]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.F161 of 2018.

From the Judgment and Order dated 19.01.2017 of the High Courtof Punjab & Haryana at Chandigarh in CRM-M-36539 of 2016.

WITH

GCrl. A. Nos. 162 and 163 of 2018.

A. Tewari, Ms. Eliza Bar, Shree Pal Singh, Advs. for the Appellant.

Shubham Bhalla, Roopam Rai, Jeevesh Nagrath, Ms. JaspreetGogia, Vikas Mahajan, Vishal Mahajan, Vinod Sharma, Advs. for theRespondents.H

The Judgment of the Court was delivered by

N. V. RAMANA, J.

Criminal Appeal No.161 of 2018 @ SLP (Crl.) No. 3168 of 2017

1. Leave granted.

2. This case arises out of an order dated 19.01.2017, passed bythe High Court of Punjab and Haryana, at Chandigarh, in CRM-M-36539/2016, wherein the High Court has granted regular bail to therespondent no.1 in FIR 205/2015, dated 05.11.2015, filed under Sections302, 307, 324, 148 & 149 of Indian Penal Code of 1860 [hereinafter‘IPC’ for brevity] and Sections 25, 27, 54 & 59 of the Arms Act, 1959.

3. The facts as alleged in the FIR portray that, on 05.11.2015 atabout 5 to 5.15p.m., when complainant’s brother (Harbilas) and oneShingar Chand, were present near the crime scene, Resham Chand Kaler(respondent no. 1—an NRI) accompanied by Kulbir Singh and variousother persons, arrived there and started quarrelling with Harbilas andShingar Chand. In this incident Kulbir Singh is alleged to have fired ashot from his revolver at Shingar Chand. Further, it is alleged that,complainant as well his family members sustained various injuries inflictedby armed cohorts accompanying Resham Chand Kaler (respondent no.1 herein).

4. After completion of the investigation Sections 326 and 120B ofIPC were added in addition to those sections reported under the FIRand final report was filed by the concerned Police Officer against theaccused persons including respondent no. 1. It is brought to our noticethat the aforesaid challan was submitted before the Sessions Court on22.03.2016 and the trial is pending.

5. The respondent no. 1 first approached the trial court in BailApplication 3018/2016, wherein the trial court vide order dated14.09.2016, rejected the bail application on the ground that, there wereserious allegations as to the culpability of respondent no. 1 and the natureof the offences were serious which was committed on broad daylight.

6. Aggrieved, by the rejection of bail by the trial court, respondentno. 1 approached the High Court of Punjab and Haryana, Chandigarh, inCRM-M-36539/2016, wherein the High Court has granted bail on usualterms to respondent no. 1. It would be apt to reduce the reasoning of theHigh Court-

A“Heard.

Notice of motion.

On asking of the Court, Mr. Ashish Sanghi, DAG Punjab, who ispresent in the Court accepts notice and submits that intimation byRegistry informing of fixation of the petition has already beenreceived and record of the case is available with him.

Allegation against the petitioner is that he was mainconspirator in the occurrence, in which Shingara Chand wasgiven fire shot injury, who died at the spot while complainantand his nephew Jiwan Kaler were caused injuries withsword.

It is case of land dispute. The petitioner was arrested inthis case on 06.11.2015 and the challan has already beenpresented. No injury has been attributed to petitioner.

DWithout expressing any opinion on merits of the case andkeeping in view the fact that conclusion of trial will takeconsiderably long time,the present petition is allowed.Petitioner-Resham Chand Kaler is ordered to be released onregular bail on furnishing bail bond and surety bond to thesatisfaction of concerned trial court/Chief Judicial Magistrate/DutyEMagistrate, subject to following terms:-

a) The petitioner shall comply with the conditions mentioned inSection 437(3) CrPC.

b) In the event of his absence on any date of hearing, the benefitof bail allowed to the petitioner shall stand withdrawn. TheFtrial court shall be competent to cancel his bail bond and suretybond and proceed to procure his presence in accordance withlaw. In that eventuality the petitioner shall have to apply forbail afresh.

c) He shall not leave the country without the previous permissionGof the Court.”

(emphasis supplied)

7. Aggrieved by the order of the High Court granting bail to therespondent no.1, the appellant has approached this Court by way ofHspecial leave petition.

8. Learned counsel for the appellant (complainant) submits thatthe nature of crime is very serious and the High Court without applicationof mind, casually granted bail to respondent no.1 even after observingthat there were serious allegations of criminal conspiracy in accompanyinga habitual criminal (Kulbir Singh) who is alleged of being an accused innineteen criminal cases including thirteen murder cases. It is furthercontended that the evidence on record clearly establishes the fact ofrespondent no. 1 hatching criminal conspiracy and in that pursuit of thesame accompanied the accused-Kulbir Singh to the place of incidentwhere Shingar Chand was shot dead. The criminal conspiracy betweenrespondent no. 1 and Kulbir Singh in accompanying the latter to thescene of crime cannot be ignored, more so when Section 149 of IPCwas invoked. Learned counsel finally submitted that there is also alikelihood of the accused—respondent no.1 tampering with the processof investigation, but the High Court granted bail to the accused ignoringthe established principles of criminal jurisprudence and hence the orderof High Court needs be set aside.

9. Learned counsel for the respondent no. 1 submits that he is aBritish citizen and the genesis of the crime is land dispute. Theinvolvement of respondent no. 1 in the alleged conspiracy is matter oftrial and this court should assess only prima facie culpability, concerningthe involvement of respondent no. 1. He further submitted that this courtshould take into consideration the difference between the rejection of abail and cancellation of bail while analyzing the instant case.

10. Learned counsel appearing on behalf of the State, while fullysupporting the complainant’s case, agrees with the contention that thebail was granted against established tenets under the bail jurisprudence.Learned counsel of the State has referred detailed counter affidavitfor the perusal of the Court and has submitted that the accused KulbirSingh was notorious criminal who was extradited from USA and he isa henchman of respondent no. 1 with whose support the accused personsattacked the complainant party to grab their land. The High Court hasignored all these material facts and has wrongly granted bail to therespondent no. 1.

11. Having heard the learned counsel appearing on behalf of theparties and perusing all the material available on record, particularly thecompact disk (CD) filed with the petition, we are of the consideredopinion that prima facie case is made out against the respondent—

Aaccused, as the group of persons are seen committing the offence usingdeadly weapons and sticks. The seriousness and gravity of the offencecan be clearly observed from the CD. However, aforesaid observationsmust not be construed as findings on merits. Though the respondent no.1 is not citizen of this country (British national), yet the fact remainsthat he along with other persons has indulged in the criminal activity.BThe case of the prosecution mainly revolves around him as he is allegedto be the kingpin of the criminal conspiracy which demands his custodialinterrogation. In such circumstances, it is unfortunate that the High Courtdid not appreciate the facts of the case with prudent legal perception.We see no reason to accord any special consideration for respondentCno.1 by virtue of simple fact that he is citizen of different country.The law under Section 439 of Cr.P.C is very clear and in the eyes of thelaw every accused is the same irrespective of their nationality.

12. Apart from the above, it is also important to note the legalprinciples governing this case. We make it clear that this case is not anDappeal seeking cancellation of bail in any sense rather, this case calls forthe legal sustainability of the impugned order granting bail to the accused-respondent herein. The difference between the cancellation of the bailand legal challenge to an order granting bail for non-consideration ofmaterial available on record is settled proposition. To clarify, there isno ground pleaded herein that supervening event breaching bailEconditions is raised. [refer State through C.B.I. vs. Amarmani Tripathi,(2005) 8 SCC 21; Prakash Kadam v. Ramprasad Vishwanath Gupta,(2011) 6 SCC 189].

13. Having cleared this confusion, we may clarify, though seriouslyurged by the counsel appearing on behalf of the respondent no.1, thatFthere is no warrant for cancellation of bail as there has been no breachof bail condition, yet such submission is not countenanced under the law.

14. For all the aforesaid reasons, the appeal is allowed. We,therefore, set aside the order of the High Court granting bail to therespondent no. 1 and direct the concerned police authorities to take theGrespondent no. 1 into custody immediately.

Criminal Appeal No. 162 of 2018 @ SLP (Crl.) No. 3167/17

15. Leave granted.

16. We have perused the impugned judgment which granted bailto the respondent in this SLP on the basis of parity with Resham ChandKaler (respondent no. 1 in SLP(Crl) No. 3168 of 2017). As we havealready set aside the bail of Resham Chand Kaler, thereby effacing thefooting on which the grant of bail by the High Court stood. Otherwisealso, we do not think that this case is fit for extending the liberty of bailfor the reasons as provided above. Therefore, we allow the appeal andset aside the impugned order passed by the High Court granting bail torespondent no. 1 herein.

Criminal Appeal No. 163 of 2018 @ SLP (Crl.) No. 3169 of 2017

17. Leave granted.

18. It is stated by the learned counsel appearing for the respondentno. 1 in this SLP that the case of the present-respondent is distinguishablefrom the rest of the accused in the above two Criminal Appeals. Hefurther states that his name does not appear in the FIR and the policeinvestigation did not reveal any role attributable to the present-respondent,it was only after recording of the evidence that the court summoned thepresent-respondent. Therefore, he should be extended the liberty of bailas granted by the High Court.

19. Per contra, learned counsel for the appellant drew our attentionto series of orders passed by the courts below which makes it apparentthat the bail was granted on rhetorical footing without there being anyapplication of mind.

20. It would be useful to note certain orders passed by theCourts below in order to understand the non-application of mind.

21. On 06.10.2016, the Sessions Court rejected the first anticipatorybail application of the respondent in this case taking into considerationthe gravity and seriousness of the offence.

22. Thereafter, the respondent herein filed an anticipatory bailapplication in the High Court being CRM-M No.40457 of 2016. It is tobe noted that the High Court granted interim protection in the followingmanner-

“Learned counsel for the petitioner states that the petitioner hasnot been named in the FIR and the police has found the petitionerinnocent. Thus, he was not challaned. It is only on the basis of

Astatement of Jiwan Kaler, the name of the petitioner has croppedup. He further states that even though no role has been attributedto the petitioner, but the petitioner is ready to face the trial.

Notice of motion.

At this stage, Mr. Anil Kumar Spehia, Advocate has put inBappearance on behalf of the complainant. Vakalatnama producedon behalf of the complainant in the Court today, is taken on record.

List on 13.02.2017.

Meanwhile, in case the petitioner surrenders before theCtrial Court within one week from today, he shall be admittedon bail on his furnishing bail bonds and surety bonds to the”satisfaction of the trial Court.

(emphasis supplied)

23. Thereafter, respondent herein made an application, for surrenderDand bail as per the order of the High Court dated 11.11.2016, before thetrial court. The trial court by order dated 16.11.2016, passed the followingorder granting bail-

“Application for surrender and bail received by entrustment,it be checked and registered, along with it copy of orderEdated November 16,2016 passed by the Hon’ble HighCourt in CRM-M-40457 of 2016, vide which the applicantSukhwinder Singh have been ordered to be released onbail to the satisfaction of Trial Court. the order’s have beengot verified through Ahlmad of this Court. In view of theorder’s of the High Court, applicant is ordered to beFreleased on bail on (illegible).

Shall not leave India without the permission of the Court.

He shall appear in court on each and every date of hearing

Bail/surety bonds accepted and attested. Papers of bail applicationGbe attached with the file of the trial pending in this court.”

(emphasis supplied)

24. Again, when the matter was listed before the High Court inCRM-M No.40457 of 2016, which was pending before it, was dismissedas being infructuous as under-H

“Learned Counsel for the petitioner states that in terms oforder dated 11.11.2016 passed by this Court, the petitionerhas surrendered before the trial court. Thereafter, thepetitioner has been ordered to be released on bail.

Accordingly, this petition praying for grant of anticipatorybail the petitioner, has been rendered infructuous.

”Dismissed as having become infructuous.

(emphasis supplied)

25. It is unfortunate to note that the order of the High Court onthe first instance clearly points out that it has virtually directed the courseof action to be undertaken by the subordinate court. It is not expectedfrom the High Court to pass such mandatory orders commanding thesubordinate court to compulsorily grant bail. Recently, this court on similarfacts in Madan Mohan v. State of Rajasthan[1], has laid down that courtscannot issue mandatory directions which breach the independence ofsubordinate courts. Therefore, such circuitous method undertaken bythe respondent in obtaining bail is gross abuse of the court processundertaken in bad faith. Moreover, our attention is drawn to the fact thathe was declared as proclaimed offender before the grant of bail, whichwas not taken into consideration by the High Court. In light of the above,we allow the appeal, set aside the order of the High Court and direct theconcerned authorities to take the respondent no. 1 herein into custodyforthwith.

Kalpana K. Tripathy

Appeals allowed.

1 Criminal Appeal No. 2178 of 2017.