Crl.Misc. No. M -20237 of 2009 v. Mr.Baljinder Singh Sra, Addl.A.G.Punjab

In the present case, FIR No. 19 dated 24.1.2006 was registered against respondents No.2 to 5 under Sections 406/420/120-B IPC at P.S.Divsion No.6, Ludhiana. On registration of the case, respondents No. 2 to 5 apprehending arrest, filed three different applications before the learned Addl. Sessions Judge, Ludhiana and they were granted bail vide order dated

4.1.2007 on the basis of affidavit dated 3.1.2007 filed by respondent No.2 to the effect that balance material would be supplied within a period of nine months from 3.1.2007. Prior to the filing of the said affidavit dated 3.1.2007, respondent No.2 entered into an agreement dated 30.9.2006 with the Crl.Misc. No. M -20237 of 2009 [2] petitioner-complainant, wherein he undertook to supply material within nine months from the date of incorporation of the said Memorandum of Settlement. The petitioner filed three applications under Section 439(2) Cr.P.C. for cancellation of anticipatory bail granted to respondents No.2 to

5. Those applications were dismissed by the learned Additional Sessions Judge, Ludhiana vide orders dated 12.2.2009 by holding that respondents No.2 to 5 had joined the investigation and they were no more required for further investigation. Moreover, respondents No. 3 to 5 had no business dealings and the material in the shape of documentary evidence collected by the Investigating Agency is part of challan which showed that respondent No.2 had transferred substantial amount which was subject- matter of FIR in the accounts of respondents No. 3 to 5. Now the present petition has been filed to challenge the order passed by Addl. Sessions Judge of dismissal of the application for cancellation of bail of respondents No. 2 to 5 on the ground that concession of anticipatory bail was granted only because of the affidavit dated 3.1.2007 and the intention of respondents No. 2 to 5 was dishonest as the commitment made through the said affidavit was not honoured. Mr.Sunil Chadha, learned counsel for the petitioner submits that as per compromise dated 15.9.2007 (Annexure P-6), the last date for supply of balance material was 31.12.2008 but respondent No.2 did not honour that commitment. Not only the cheques were dishonoured but also two cheques issued later on under the compromise deed in lieu of the aforesaid four cheques, were also dishonoured. Learned counsel further Crl.Misc. No. M -20237 of 2009 [3] submits that the intention of respondents No.2 to 5 was never to honour their commitment but the same was used as a tool to hoodwink the Court as well as the petitioner just to secure anticipatory bail which was granted on

4.1.2007. Learned counsel for the petitioner also relies upon the judgments of Hon'ble the Supreme Court in Arvind Mohan Johari and another vs. State of U.P. and another 2005(2) R.C.R.(Criminal) 840, C.R. Patil vs. State of Gujarat and others 2005 (3) R.C.R. (Criminal) 755, Ms.Sumitra Chauhan vs. State and another 2005(4) R.C.R.(Criminal) 233 and Bhagat Singh and others Vs. State 2004(2) R.C.R.(Criminal)75 to support his contention that the bail was granted because of commitment, which was not fulfilled and it is a good ground for cancellation of bail. Learned counsel for respondents No.2 to 5 submits that after granting bail by Addl. Sessions Judge, Ludhiana respondents never misused the concession of bail. Learned counsel for the accused-respondents also submits that the order passed by the Court was not conditional but it was passed as the respondents had joined the investigation and they were no more required for further investigation. Respondents No. 2 and 3 were not involved in the business dealing and moreover the compromise was also not signed by them and had nothing to do with the business dealing. Respondent No.2 is a graduate and is not working any where and is staying at home whereas respondent No.3 is an old lady, has no connection with the business transactions of M/s N.V.C.Exports. Similarly, respondent No.1 also never resiled from the said compromise and only because of some problems of custom department, the material could not be sent and the Crl.Misc. No. M -20237 of 2009 [4] firm had to pay the duty and the fright charges as per policy of the Government of India. Respondent No.1 has regularly been requesting the petitioner to pay duty and fright charges so that the consignment be sent but the petitioner was not ready to make payment as per compromise. I have heard the arguments of learned counsel for the parties and have also gone through the impugned order. In this case, FIR No. 19 dated 24.1.2006 was registered under Section 406/420/120-B IPC on the basis of statement made by the complainant Shri S.K.Kapur. On registration of FIR, applications were moved under Section 438 Cr.P.C. by the accused-respondents for grant of anticipatory bail and the bail was granted to the accused on the ground that complainant was present in the Court and made statement that the parties had patched up the matter and complainant had no objection in granting anticipatory bail. The copy of the affidavit mentioning compromise was also placed on record. The relevant portion of order dated 4.1.2007 passed by Additional Sessions Judge, Ludhiana vide which the bail was granted, is reproduced as under: “Today, in the Court complainant Sukhdev Kapoor come present in the Court alongwith counsel Sh.P.K.Ghai and made the statement that the parties has patched up the matter and he has no objection if the anticipatory bail application is allowed. He also give photocopy of affidavits showing that the matter has already been compromised between the parties. Learned Addl.P.P. for State pressed the bail Crl.Misc. No. M -20237 of 2009 [5] application alleging that this is not a compoundable offence and the matter is still under investigation. No doubt the matter is still under investigation but the complainant himself appeared in the court through his counsel and made the statement regarding compromise. The present case has been registered against the applicants u/s 406/420 IPC. 406 and 420 IPC are compoundable with the permission of the Court. Since the applicants are not required for investigation and nothing is to be recovered from them and the offences are compoundable with the permission of the Court. The complainant has compromised the matter with the applicants so these applications filed by the applicants for anticipatory bail are allowed and it is ordered that in the event of arrest of the applicants, they shall be released on anticipatory bail to its satisfaction by the arresting/investigating officer subject to the following conditions: a) That the applicants shall join the investigation as and when called upon by the police; b) That the applicants shall not temper with the evidence in any manner; c) That the applicants shall not leave India without prior permission of the Court.” Crl.Misc. No. M -20237 of 2009 [6] The argument of the learned counsel for the petitioner that the order of granting anticipatory bail was conditional and commitment was made by respondents No.2 to 5, which was not complied with, and it is a good ground to cancel the bail. I have perused the order which clearly shows that the complainant appeared before the Court and made statement that he had no objection in granting anticipatory bail as the matter had been compromised between the parties. Learned Additional Sessions Judge has also mentioned in the order that the accused-respondents had joined the investigation and no recovery is to be effected from them. The order is not a conditional order where the commitment was to be fulfilled by the accused- respondents. When the complainant himself appeared before the Court and made statement that the matter had been compromised. Now the complainant has filed the present application for cancellation of bail only on the ground that the commitment has not been fulfilled, is no ground where the bail already granted can be cancelled. The complainant should have thought twice before making any statement. There is a limited scope of interference where the bail has been granted as Hon'ble the Supreme Court in Subodh Kumar Yadav v. State of Bihar and another 2010 (1) R.C.R.(Crl.) 600 has held as under: “ A careful reading of the said observations shows that while considering the factors relevant for consideration of bail already granted vis-a-vis the factors relevant for rejection of bail this Court pointed out that for cancellation of bail, conduct subsequent to release on bail and supervening circumstances Crl.Misc. No. M -20237 of 2009 [7] will be relevant. The said observations were not intended to restrict the power of a superior court to cancel bail in appropriate cases on other grounds. In fact is is now well settled that if a superior court finds that the Court granting bail had acted on irrelevant material or if there was non application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the public prosecutor/complainant where required, an order for cancellation of bail can in fact be made.” Similarly, Hon'ble the Apex Court has observed that an order which is being passed by ignoring material evidence on record and is against the principles of law, the Court can interfere. Some of the observations of Hon'ble the Apex Court in Gursharan Singh vs. State (Delhi Administration) AIR 1978 SC 179 are as under: “Generally speaking, the grounds for cancellation of bail 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. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Crl.Misc. No. M -20237 of 2009 [8] Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected. Further it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconduct himself or because of some new facts requiring such cancellation. The High Court or the Sessions Court may direct any person released on bail to be arrested and committed to custody” “State Vs. Amarmani Tripathi, AIR 2005 SC 3490” If a bail has been granted illegally or improperly by erroneous and arbitrary exercise of discretion, the same is liable to be cancelled even if there is absence of supervening circumstances.” The order of learned Addl. Sessions Judge does not show that it is a conditional order as nowhere it is mentioned that certain commitment is to be fulfilled. Moreover, it has been mentioned that the accused- respondents had joined the investigation and they were no more required for further investigation or interrogation. Even if the argument of the learned counsel for the petitioner is presumed to be correct, then out of Crl.Misc. No. M -20237 of 2009 [9] three cases namely, Joginder Kaur, Manpreet Kaur and Baljit Kaur are the ladies and they are not involved in the business dealings as the said compromise had not been signed by them and they were not bound by the same. Only accused Narinder Pal Singh had signed the said compromise and even he had not resiled from the said compromise as only because of some problem of the custom department, the said amount was not paid. Moreover, since the challan has been presented and the accused are not required for any further investigation and there is no such evidence on record to show that the bail was granted on some irrelevant facts and material or some concealment was there, the judgments relied upon by the learned counsel for the petitioner have no relevancy to the facts of the present case as the order was not conditional and no commitment was there while granting bail. Keeping in view the facts mentioned above, I do not find any ground to interfere with the impugned order dated 12.2.2009 (Annexure P7) passed by Additional Sessions Judge, Ludhiana. The present petition is dismissed. Dated: 1.7.2010 raghav (DAYA CHAUDHARY) JUDGE