Harminder Singh vs Sarvjit Singh and another

H.R. Sodhi, J.—This is an application by Harminder Singh a cousin of Gurcharan Singh father of Gurjant Singh deceased for cancellation of the bail allowed to Sarvjit Singh and Charanjit Singh respondents, sons of Jagjit Singh. It appears that the shareholders of Gondara Transport Company (Private Limited) which has its head office at Faridkot got divided into two groups and there was going on some sort of struggle for power in order to secure management of the company. A meeting of the shareholders is said to have been held on 16th September, 1969, in which Gurcharan Singh father of Gurjant Singh deceased and some others were elected as Directors. It is a common ground that Jagjit Singh father of the two respondents was earlier the Managing Director of the company.

On the fateful day, that is, 16th September, 1969, after the aforesaid meeting of the shareholders which was later declared illegal by this Court on 14th May, 1970, fire-arms were used between the two rival groups resulting in the deaths of Gurjant Singh on one side and Jarnail Singh on the side of the party of Jagjit Singh. A case was registered with the police at the instance of a foot constable who was on traffic duty near the bus stand at Faridkot where the occurrence is alleged to have taken place. The two respondents and three others were arrested under Sections 302/ 149/307/148, Indian Penal Code, for having caused the death of Gurjant Singh. Harbhagwan Singh and three others were also arrested and remanded to judicial lock-up for similar offences for the alleged murder of Jarnail Singh but later on 3rd January, 1970, the police is reported to have withdrawn the case against them by purporting to act u/s 169, Code of Criminal Procedure. Bail was granted to three accused persons, Gurdev Singh, Santa Singh and Wasakha Singh by the Additional Sessions Judge on 15th January 1970. It may be mentioned that earlier bail was refused to these persons on 7th November, 1969 and also on 26th November, 1969. Certified copies of the orders have been produced before me today by Mr. Kuldip Singh, learned counsel for the petitioner. In the last order, the only direction given by the Additional Sessions Judge was that the police should present the challan in Court within a fortnight from the passing of the order. The ground on which bail was allowed on 15th January, 1970, was that the challan had not been produced in Court for about four months and no comments were made on the merits of the case by the Additional Sessions Judge.

There then come another application on behalf of the two respondents, Sarvjit Singh and Charanjit Singh, whose names appear in the dying declaration as having used fire-arms. This application was disposed of by the present Additional Sessions Judge vide impugned order of 10th June, 1970. He granted bail to both the respondents on grounds some of which are not tenable, The judgment of the learned Liquidation Judge had no bearing in the matter of granting bail and the question if the right of private defence was available to the party of the accused has yet to be decided on the evidence produced at the trial. It is not suggested by the Additional Sessions Judge that the accused respondents acted in the exercise of right of private defence but just to get over the fact that the names of these persons appeared in the dying declaration he made an observation that the respondents pleaded that they had exercised the right of private defence. Anyhow, I do not wish to express any opinion on the merits of the case at this stage and suffice to mention that when there appear to be reasonable grounds for believing that a person is accused of an offence punishable with death or imprisonment for life, grant of bail, to say the least, is an improper exercise of discretion.

Mr. Kuldip Singh, learned counsel for the petitioner, contends that the bail was allowed because the party of the accused is very influential. Without there being any more data, it is difficult to accept this contention at its face value more so when it is contended on behalf of the respondents as well that the police acted in a queer and unusual manner in withdrawing the case u/s 169, Code of Criminal Procedure, against the party of Gurcharan Singh when death of Jarnail Singh had been caused by them. The State has not chosen to put in appearance in spite of the fact that notice of this application had been served on it. The District Magistrate strangely enough and for reasons best known to him decided to keep out of these proceedings. As it appears from the report dated 5th August, 1970, he returned the summons issued by this Court with the remarks that State representation was not necessary and that the Advocate-General had been requested not to defend the case on behalf of the state. After this, I issued notice on August 12, 1970, with an observation that it was necessary to have the State imp leaded as a party so that true facts could be ascertained but in spite of that too there is no appearance on its behalf. I am, in these circumstances, compelled to say that some influences might have been working. The District Magistrate did not realise that it was his duty to assist this Court by asking the Advocate-General to represent the State and make available all information that was necessary for the disposal of the present application. It is such conduct of the officials which gives cause for apprehension and an argument that some extraneous influences are working. Facts had, therefore, to be found from the contending parties and I did not like to summon the files as it would have delayed proceedings in the Court below unnecessarily.

Mr. Har Parshad, learned counsel for respondent 1, has raised a preliminary objection that an application for cancellation of bail should not be entertained at the instance of a private complainant. Section 498, Code of Criminal Procedure, was amended in the year 1955 by the Criminal Procedure Amendment Act (26 of 1955) whereby Sub-section (2) was added. It may be reproduced hereunder for facility of reference:

498 (1)

(2) A High Court or court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody.

A plain reading of this Sub-section makes it abundantly clear that the High Court and the Court of Session have been conferred very wide powers in the matter of directing rear rest of an accused person who has been admitted to bail under Sub-section (1) of Section 498, Code of Criminal Procedure. This power of cancellation is not hedged by any conditions and the only limitation that one can read in the exercise of such a power is that the discretion must be exercised judicially and not arbitrarily. It will, therefore, be open to the High Court to cause re-arrest or, in other words, to cancel the bail if it finds that the same was granted by the Court of Session on erroneous grounds. It is not necessary that the High Court should be moved only by way of a revision petition u/s 439, Code of Criminal Procedure, against the order granting bail. It can act in this behalf suo motu or on an application made by the State or even by a private complainant. There is, in my opinion, no bar, as contended by Mr. Har Parshad, that an application u/s 498 (2), Code of Criminal Procedure, for cancellation of bail made by a private complainant cannot be entertained. The High Court will, of course, be loath to interfere with the proper exercise of discretion by the Court of Session. If it. however, finds that the order granting bail is patently erroneous, it will not only be justified but duty bound to set aside the order of bail. It was to remove all doubts expressed earlier in some decided cases about the power of the High Court to order re-arrest of an accused person except in exercise of its inherent powers u/s 561-A or in its revisional jurisdiction u/s 439, Code of Criminal Procedure, that the aforesaid new Sub-section (2) was inserted. By this provision of law, the High Court or a Court of Session can cause an accused person released on bail to be re-arrested even if the earlier order of bail has been passed by the same Court. When rearrest is ordered by the same Court, it is tantamount to review of an earlier order which will not normally be allowed unless some new facts come to light which necessitate such a course,

Mr. Har Parshad relied upon a judgment of the Rajasthan High Court reported as Devilal v. Ganpat1, in support of the contention that the High Court will not interfere with an order of bail at the instance of a Private complainant when the State has not filed a revision against the order. This case does not lend any assistance to the argument of the learned counsel. It was decided before Sub-section (2) was added to Section 498, Code of Criminal Procedure, and moreover the High Court had been moved inrevision u/s 439, Code of Criminal Procedure. Sharma J. was of the view that bail had been granted by the Sessions Judge in the proper exercise of his discretionary powers u/s 498, Code of Criminal Procedure, and in such a situation when the order could not be said to be capricious or arbitrary, interference at the instance of a private party-was unjustified. No doubt normally it is the function of the State to question the order of bail but unfortunately the conduct of the District Magistrate in the instant case has been not only indifferent but open to objection. What to say of asking for cancellation of bail, he refused to let the State be represented in this Court and instructed the Advocate-General accordingly. In a case like this, it, would be perpetrating injustice if a private complainant is prevented from moving this Court for cancellation of improperly granted bail It is a fit case where I would have cancelled the bail but for the fact that much of the evidence is said to have been recorded and the commitment proceedings are about to be concluded very shortly. I am informed by the counsel that in the case arising out of the complaint filed by the party of Gurcharan Singh, some evidence has also been recorded. The committing Magistrate is directed to expedite the proceedings and if he finds a prima facie case made out justifying commitment of the accused to the Court of Session, he will be at liberty to cancel the bail and commit them in custody as envisaged u/s 220, Code of Criminal Procedure. He will not in this regard be influenced by the judgment of the Additional Sessions Judge granting bail.

For the foregoing reasons, the application stands dismissed with observation as indicated above.