State through C.B.I. vs Nirmal Singh

H.S. Bedi, J.

This petition has been filed by the C.B.I. against the order dated 11th May, 1996Annexure P3 to the petition by which the respondent Nirmal Singh had been granted interim bail so as to join in the formation of the New Ministry in Haryana, he being a newly elected M.L.A. from the Nangal constituency.

This case has a chequered history. It relates to the murder of one Satinder Singh Sekhon on 16th July, 1994 at the Dhillon Petrol Station, situated in Ambala Cantonment. On investigation, the C.B.I. found that in addition to the four unnamed persons mentioned in the F.I.R., the respondent too had conspired with the other accused in the commission of the murder. He was, accordingly, arrested on 22nd October, 1994 after he had surrendered in the Court of one of the Judicial Magistrates at Ambala. After his arrest, he applied for the grant of regular bail to the Sessions Judge, Ambala, but the same was rejected vide order dated 10th November, 1994. Against this order, he filed Criminal Misc. No. 18120M of 1994 in this Court and after a detailed consideration of the matter, this Court vide order dated 2nd December, 1994, upheld the order of the Sessions Judge, and rejected the bail application. The S.L.P. filed in the Supreme Court impugning the order was also dismissed. The respondent, thereafter, applied for interim bail before the Sessions Judge for enabling him to attend the marriage of his sister''s son, but this too was rejected on the 20th January, 1995 and Criminal Misc No. 1594M of 1995 impugning the aforesaid order was also dismissed by this Court on 25th January, 1995. On 16th October, 1995, the respondent applied for interim bail, yet again, this time on medical grounds but this application too was rejected. He again applied for the grant of interim bail for the purpose of contesting the elections to the Haryana Vidhan Sabha and this application was rejected by the Sessions Judge, on 20th March, 1996 and Criminal Misc. No. 5403M of 1996 impugning the aforesaid order was also dismissed by this Court on 27th March, 1996 by a detailed order and the Special Leave Petition filed in the Supreme Court was also dismissed as withdrawn on or about the 15th April, 1996. In the meantime, it appears that the respondent had successfully contested the elections to the Haryana Vidhan Sabha as an independent candidate from the Nangal constituency, the result of the election being declared on May 9, 1996. He had, however, already moved an application before the Session Judge, Ambala on the same day, seeking his release on regular bail on the ground that as he was likely to be elected an M.L.A., it his right to participate in the formation of the Haryana Ministry. It was also pleaded, in addition that the prosecution evidence had since been recorded and this change of circumstances warranted his release on bail. Notice of this application was ordered to be served on the C.B.I. for 11th May, 1996. On that date, however, neither the District Attorney representing the State of Haryana nor the Public Prosecutor representing the C.B.I. the prosecuting agency were present, but the Sessions Judge, nevertheless chose to grant interim bail to the respondent upto 20th May, 1996, but left open for consideration on that date the question as to whether this order was to be made absolute or bail was to be denied. It is under these circumstances that the C.B.I. has moved the present petition impugning the aforesaid order. Notice was issued by me on 14th May, 1996 for 17th May, 1996 and the operation of Annexure P3 was also stayed. Mr. R.S. Cheema, Senior Counsel put in appearance on the date and sought time till today to argue the matter.

Mr. S.K. Saxena, the learned Special Public Prosecutor representing the petitioner has argued that as no notice had been served on the C.B.I. as required by Section 439 the Code of Criminal Procedure, the order was not sustainable and even if it be presumed that it had been served, the time was too short and the order passed in undue haste. He has also argued that the trial Court was deeply influenced by the fact that the respondent had a right as an elected M.L.A. representing his political constituency to join in the formation of the Haryana Ministry but the status of an accused was an irrelevant consideration as far as the grant or refusal of bail was concerned. In support of his argument, Mr. Saxena has relied upon State of Maharashtra v. Anand Chintaman Dighe, 1990(1) Recent Criminal Reports 399 (SC) : 1990 Crl.L.J. 788 .

As against this, Mr. R.S. Cheema, the learned Senior Counsel appearing for the respondent has urged that the impugned order was merely an interim one and the question of the grant of regular bail had been left open by the Sessions Judge in the light of the fact that the change in circumstances warranted a reexamination of this matter. In this connection, he has pointed out that the respondent had undergone almost one and half years of incarceration after his arrest, that the entire prosecution evidence had been recorded, wherein most of the material witnesses implicating the respondent had not supported the prosecution and that one Gulzar Singh a coaccused had been released on bail by this Court, were all relevant circumstances that required a reexamination of the matter. He has further stated that as the respondent had since withdrawn his bail application, any discussion now would be largely academic. Mr. Cheema finally argued that it was evident from the affidavit filed on behalf of the C.B.I. that notice had been served on it on 9th May, 1996 and in fact, Mr. Saxena the learned Public Prosecutor, who was present in Chandigarh on the 10th May, 1996, had also been intimated the date of hearing and as such, the requirement of a notice to be issued to the Public Prosecutor had been complied with.

I have heard the learned counsel for the parties and am of the view that though the bail application has since been withdrawn, the matter should nevertheless be examined. The parties are clearly divergent on the point as to whether a notice of a hearing of the bail application on 11th May, 1996 had been served on the C.B.I. or not and some allegations and counter allegations have been made by the learned counsel in the course of arguments, I do not, however, deem it necessary to go into this matter as I am of the opinion that even on merits, the order impugned cannot be sustained. It will be evident from a reading of the order that the Sessions Judge was primarily influenced by three factors in arriving at his conclusions (i) that being an elected M.L.A. the respondent was entitled to join in the formation of the new Ministry, (ii) that it was his right as a Legislator to participate in the above proceedings freely as it would otherwise cause great loss to him, and that (iii) in any case, only interim bail was being initially allowed and the question of regular bail was to be considered later on, that is on 20th May, 1996.

The above conclusions have to be examined in the light of the fact that this Court as also the Supreme Court had repeatedly declined bail to the respondent. It bears repetition that on 2nd December, 1994, this Court had rejected the bail application of the respondent on merits and the S.L.P. filed against that order too had been dismissed by the Supreme Court on 28th February, 1995. Viewed in this context, the last four lines of the impugned order which read as under are, indeed, startling :

"He will surrender in this Court on 20th May, 1996 and the counsel for the accusedapplicant will argue on the merits of the bail application as to if this order is to be made absolute or the bail is to be denied."

It is evident from Annexure P2 the bail application filed before the Sessions Judge that full details with regard to all the bail applications filed earlier (though without success) were given, but despite this fact, the learned Sessions Judge, still left the matter open with regard to the grant of regular bail to be decided on 20th May, 1996. To my mind, the quoted observations are absolutely contrary to all judicial norms as regular bail having been denied right up to the Supreme Court, the question of the grant of interim bail being "made absolute" could not have merited even the slightest consideration by him.

Coming now to the question of the grant of interim bail. It will be seen from the facts detailed in the beginning of the order, that repeated applications for this purpose had been declined by this Court and the order of the High Court dated 27th March, 1996 denying bail to the respondent for enabling him to contest the elections, had even been challenged unsuccessfully by way of an S.L.P. in the Supreme Court. The learned Sessions Judge has observed that as an elected M.L.A., the respondent was entitled to join in the formation of the new Ministry and participate in the proceedings of the Assembly as a representative of his constituency. These observations, to my mind, are totally irrelevant in the case of an accused in a murder trial, as the rights visualised by the learned Sessions Judge, are subject to its result. In State of Maharashtra''s case (supra) the Supreme Court dealing with a similar situation observed :

"This Court would not ordinarily interfere with the discretion of the lower court in granting or refusing bail but in cases where bail has been granted on irrelevant considerations, such as the status or influence of the person accused and regardless of the nature of the accusation and relevancy of materials on records, this Court would not hesitate to interfere for the ends of justice."

I am, therefore, of the opinion that even the grant of interim bail to the respondent was not called for. The order impugned is, therefore, unsustainable and is quashed.

On a consideration of the various facts that had been brought out and the observations made in this order, I do not deem it proper that the proceedings should be allowed to continue in the Court of Sh. A.S. Garg, Sessions Judge, Ambala or even in Ambala Sessions Division. I, accordingly, acting under the powers given in Section 407 of the Code of Criminal Procedure, transfer the case to the Court of the Sessions Judge, Chandigarh, as this Court would be most convenient for both parties. The parties are directed to appear before him on 3rd June, 1996 when further proceedings will be taken as per the convenience of that Court. I also direct that the Superintendent of the Central Jail, Ambala will ensure that all the accused are brought punctually to Chandigarh on the dates fixed for the trial. It is also directed that the Sessions Judge, Chandigarh, shall complete the trial, if possible, within three months. A copy of this order be given dasti to the counsel for the parties.