Sunita vs State of Punjab

P.K. Jain, J.—During the investigation of F.I.R. No. 43 registered on 6-4-1995 at Police Station City Moga for the offences under Sections 30236434 Indian Penal Code the investigating agency arrested five persons as accused, i.e. Preet Mohinder Singh Jain, Raghu Nath Rai, Suraj Parkash, Sunita and Gyatri Devi. Three bail applications were moved by the accused persons i.e. one by Preet Mohinder Singh Jain which was decided on 27-5-1995 by Shri K.S. Uppal, Additional Sessions Judge, Faridkot and he was granted bail, second one by Raghu Nath Rai and the third one by the remaining three accused. Both of these applications were rejected by the same Additional Sessions .Judge vide order dated 13-7-1995. Accused Sunita has approached this Court seeking bail by filing a petition Criminal Miscellaneous No. 14344-M of 1995. She has annexed P. 1 the order dated 13-7-1995 whereby the Additional Sessions Judge, Faridkot has rejected her application including the three others, as well as copy of the order dated 27-5-1995 (Annexure P. 2) whereby Preet Mohinder Singh Jain has been granted bail by the same Additional Sessions Judge. During the course of hearing of the application moved on behalf of Sunita, after a perusal of the two orders Annexures P. 1 and P. 2, this Court of its own motion issued a notice to Preet Mohinder Singh Jain to show cause why not bail granted to him vide order dated 27-5-1995 be cancelled.

The prosecution story in brief is that Preet Mohinder Singh Jain and Raghu Nath Raj contractors, had friendly relations with the deceased Doctor Subodh Singla. These two accused had borrowed a sum of Rs. 2.5 lacs from the deceased with a promise to return the same within a short time. When the deceased visited Chandigarh and asked these accused to return the loan amount, they postponed the same on one pretext or the other. Ultimately a cheque of Rs. 1 lac dated 31-1-1995 favouring Doctor Subodh Singla issued by Preet Mohinder Singh Jain was handed over to the deceased but according to the information receieved from the bank there were not sufficient funds in the account of the said accused to honour the said cheque. On a message sent by the deceased, both the accused Preet Mohinder Singh Jain and Raghu Nath came to the house of the deceased in Moga on 5-4-1995 and they asked the deceased to accompany them to Chandigarh so that the cheque may be honoured with an assurance that there were sufficient funds in the account and there was some erroneous information given to him. Ashok Bansal brother-in-law of the deceased present there, expressed his reluctance and advised the deceased not to go with these accused but the deceased accompanied these two accused persons in his own Maruti car bearing No. PB 04 9293. Since the deceased did not come back F.I.R. u/s 364 I.P.C. was got registered by the wife of the deceased on 6-4-1995 at Police Station City, Moga. The aforesaid Maruti vehicle was intercepted by the police party on Ludhiana-Kotkapura by-pass and from the rear seat dead body of Dr. Subodh Singla was recovered. On the front seat three accused Suraj Parkash, Sunita and Gyatri Devi were found sitting. During investigation, it was revealed that the accused Preet Mohinder Singh Jain and Raghu Nath hired Suraj Prakash, his wife Sunita and Gyatri Devi to commit murder of Doctor Subodh Singla and to dispose of the dead body. On interrogation of accused Raghu Nath an attache case belonging to the deceased and containing the wearing clothes of the deceased was recovered from the house of the said accused. From the possession of accused Preet Mohinder Singh Jain the aforesaid cheque of Rs. 1 lac was recovered. Accused Preet Mohinder Singh Jain and Raghu Nath Rai are alleged to have made extra-judicial confession before Jagdish Pal Singh, Krishan Kumar and Parveen Kumar.

While accepting the application of the accused Preet Mohinder Singh Jain and granting bail to him, the Additional Sessions Judge discussed the various aspects of the prosecution in details and gave positive findings as if he was recording a judgment at the final stage. In his order running into 11 pages the said Additional Sessions Judge has given a categorical finding that the First Information Report has been ante-time that the story of the prosecution that the dead body was recovered from the aforesaid vehicle from its rear seat while three accused were sitting on the front seat when the car was being brought from Chandigarh to Moga, is highly unnatural, that the allegations of the prosecution that the accused Preet Mohinder Singh Jain and Raghu Nath made extra-judicial confession before Jagdish Pal Singh or any other person, does not accused to do so, that the cheque dated 31-1-1995 appears to have been planted by the police and could not be recovered from accused Preet Mohinder Singh Jain, and as such the story set up by the prosecution is quite unnatural. With these findings the Additional Sessions Judge allowed the application of the accused Preet Mohinder Singh Jain and granted bail to him vide order dated 27-5-1995.

However while dealing with the application of the accused Raghu Nath as well as the application of the remaining three accused persons Suraj Parkash, Sunita and Gyatri Devi, the same Additional Sessions Judge while placing reliance upon the alleged extra-judicial confession made by Raghu Nath before Jagdish Pal Singh, Krishan Kumar and Parveen Kumar, recovery of the attache case containing the clothes of the deceased from the house of accused Raghu Nath, the recovery of the dead body from the rear set of Maruti car in which remaining three accused were sitting on the front seat came to the conclusion that all these four accused are involved in conspiracy whereby heinous crime of murder of Doctor Subodh Singla was committed and as such their bail applications were rejected vide order dated 13-7-1995.

I have heard Shri R.S. Ghai Senior Advocate being assisted by Shri Bipan Ghai Advocate for the petitioner Sunita, Shri P.S. Hundal Advocate for Preel Mohinder Singh Jain and Shri A.R. Sidhu, Deputy Advocate General for the State of Punjab.

Shri R.S. Ghai, Senior Advocate the learned counsel for petitioner Sunita has argued that qua this petitioner there is only alleged extra-judicial confession made by Raghu Nath Rai which has not been believed by the Additional Sessions Judge while deciding the bail application of the accused Preet Mohinder Singh Jain. It has been further argued by the learned counsel that the other piece of evidence collected during investigation against this petitioner is that she was travelling along with her co-accused in the Maruti car from the rear seat of which dead body of the deceased was reocovered and as such at the most an offence u/s 201 34 Indian Penal Code can be said to have been made out against her. Thus it has been urged that the petitioner may be admitted to bail.

Shri P.S. Hundal, Advocate-learned counsel for Preet Mohinder Singh Jain has argued that the order passed by the Additional Sessions Judge granting bail to this accused is based on the facts and circumstances of the case as discussed in the order dated 27-5-1995 (Annexure P. 2). It has further been contended that once bail has been granted to an accused person the same can be cancelled only for considerations germane to cancellation of bail u/s 437(5) or for that matter Section 439(2). The learned counsel has placed reliance on para 11 of the judgment of the apex Court rendered in Aslam Babalal Desai Vs. State of Maharashtra, . It has also been pointed out by the learned counsel that the extra-judicial confession alleged to have been made by Raghu Nath Rai in itself is not enough to implicate the petitioner in the commission of the offences in question and that the First Information Report was recorded after due deliberations and consultations so as to implicate the petitioner falsely. It has also been pointed out by the learned counsel that the story of the porsecution that the dead body of the deceased was being carried in the Maruti vehicle and was intercepted on Ludhiana-Kotkapura by-pass, is highly improbable in nature and as such the bail granted to the said accused cannot be cancelled in the eyes of law.

On the other hand learned Deputy Advocate General Punjab has argued that Preet Mohinder Singh Jain and Raghu Nath Rai are the main accused and there exists evidence collected during investigation to connect them with the commission of the offences in question. It has also been pointed out by the learned State counsel that petitioner Sunita along with her two co-accused were hired for the assassination of the deceased Subodh Singla and then to dispose of his dead body, and that Sunita and her two co-accused were apprehended while carrying the body of the deceased in the Maruti car owned by the deceased itself. The learned Deputy Advocate General has further contended that the Additional Sessions Judge did not exercise his discretion in a judicial manner while granting bail to Preet Mohinder Singh Jain although the said accused is one of the prime accused in this case. It has also been pointed out that the Additional Sessions Judge ignored the real evidence collected during investigation and discussed certain other aspects of the prosecution on surmises and conjectures.

I have given my careful thought to the respective arguments advanced at the Bar.

It may be stated at the outset that the principles for granting or refusal of bail in non-bailable cases have been laid down by their Lordships of the Supreme Court of India from time to time. In The State Vs. Captain Jagjit Singh, while setting aside order of the High Court granting bail their Lordships made the following observations (at page 216 of Cri LJ):

"It (the High Court) should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witness being tampered with, the larger interests of the public of the State and similar other considerations, which arise when a Court is asked for bail in a non-bailable offence. It is true that u/s 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide, even so where the offence is non-bailable, various considerations such as those indicated above have to been taken into account before bail is granted in a non-bailable offence."

The aforesaid observations were approved by their Lordships in a subsequent case Gurcharan Singh v. Delhi Admn. AIR 1978 SC 179 : 1978 Cri. LJ 215). In Aslam Babalal Desai''s case (supra) His Lordship Hon''ble Mr. Justice A.M. Ahmadi (now Hon''ble the Chief Justice of India) pointed out that the paramount consideration must be to balance the need to safeguard individual liberty and to protect the interest of administration of justice so as to prevent its failure. Over solicitous homage to the criminal defendant''s liberty can sometimes defeat the cause of public justice. In some quarters, a feeling seems to exist that the object of criminal law is to protect the rights of the accused and that criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded as the cause of public justice. Pre-trial detention in itself is not an evil nor opposed to the basic presumptions of innocence. Ensuring security and order is a permissible non-punitive objective which can be achieved by pre-trial detention.

Before proceeding further it is just and proper to point out that while passing order dated 27-5-1995 whereby bail has been granted to the accused Preet Mohinder Singh Jain, the Additional Sessions Judge has discussed the entire prosecution evidence in minutest details and has entered in an arena of conjectures and hypothesis. He has gone beyond mere discussing the factual aspects and appreciated the prosecution case in-depth is if he was recording a judgment at the final stage of the trial. A note of caution was sounded by their Lordships of the Supreme Court of India in Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, in the following words :-

"Detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing the orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prime facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself."

Therefore, it is evident that while passing order dated 27-5-1995 the Additional Sessions Judge entered in the arena of surmises and conjectures contrary to the principles laid down by the apex Court in the aforesaid case of Niranjan Singh.

I have perused the First Information Report and have also gone through the case diary relating to the investigation of this case. Admittedly this case is based on circumstantial evidence. The prosecution could collect the following circumstances against the accused Preet Mohinder Singh Jain :-

(1) That this accused along with Raghu Nath Rai had borrowed a sum of Rs. 2,50,000/- from the deceased. This accused issued a cheque for Rs. 1,00,000/- being part payment of this loan but there were not sufficient funds in the bank account of this accused to honour that cheque.

(2) That at the asking of Preet Mohinder Singh Jain and his co-accused Raghu Nath Rai the deceased accompanied them in his own Maruti car from Moga to Chandigarh on 5-4-1995.

(3) That the dead body of the deceased was recovered from the rear seat of his Maruti car while the three co-accused Suraj Parkash, Sunita and Gyatri Devi were found sitting on the front seat thereof.

(4) That a cheque of Rs. 1 lac stated to have been issued by the accused Preet Moninder Singh Jain towards part payment was recovered from the possession at the time of his arrest.

(5) That his co-accused Raghu Nath Rai made an extra-judicial confession before three different persons to the effect that he along with Preet Mohinder Singh Jain had hired the remaining three accused to do away with Doctor Subodh Singla and then to dispose off his dead body. In pursuance to his disclosure statement, an attache case containing the clothes of the deceased were recovered from his house.

The aforesaid circumstances prima facie go to show that Preet Mohinder Singh Jain and Raghu Nath Rai are the main accused. Prima facie they had the motive to do away with the deceased. They were the persons with whom the deceased was last seen in as much as he had travelled with them from Moga in his Maruti car. Cheque for Rs. 1 lac stated to have been issued by accused Preet Mohinder Singh Jain has also been recovered from his possession. Extra-judicial confession stated to have been made by Raghu Nath Rai cannot be brushed aside at this stage. All these circumstances go to make out prima facie case regarding the involvement of the accused Preet Mohinder Singh Jain in the commission of the offences in question. It is also important to note that if the story of the prosecution that the accused Preet Mohinder Singh Jain and Raghu Nath Rai had hired the other three accused to do away with the deceased then to dispose of his dead body, is found to be true, then there is every apprehension that accused Preet Mohinder Singh Jain may also tamper with the evidence of the prosecution.

The Additional Sessions Judge has exercised his judicial discretion while granting bail to accused Preet Mohinder Singh Jain in an arbitrary and whimsical manner contrary to the well established principles for grant or refusal of bail in non-bailable cases. The order dated 27-5-1995 passed by the Additional Sessions Judge while granting bail to Preet Mohinder Singh Jain is directly in contradiction with the order dated 13-7-1995 whereby the same Additional Sessions Judge refused bail to Raghu Nath Rai and three other co-accused. All those very facts which are alleged to be unnatural and highly improbable while discussing bail application of accused Preet Mohinder Singh Jain, have been relied upon by the Additional Sessions Judge while rejecting bail application of the remaining accused. Thus the Additional Sessions Judge completely misdirected himself while granting bail to the accused Preet Mohinder Singh Jain. It cannot be disputed that this Court has got the powers to cancel the bail of an accused where Sessions Judge has exercised his judicial discretion in erroneous manner contrary to the well established principles governing grant or refusal of bail in non-bailable cases. Accordingly bail granted to accused Preet Mohinder Singh Jain is required to be cancelled.

As regards the application filed on behalf of accused Sunita, the case of the prosecution is that she along with other two co-accused was hired to do away with the deceased and to dispose of his body. She along with her two co-accused were intercepted while travelling in the same Maruti car in which the dead body of the deceased was found on the rear seat. Extra-judicial confession stated to have been made by the co-accused Raghu Nath Rai implicates her directly in the commission of the offences in question. Therefore, I do not find any justification to grant bail even to Sunita at this stage.

For the reasons mentioned above the application filed by Sunita seeking bail, is hereby rejected. Bail granted to accused Preet Mohinder Singh Jain vide order dated 27-5-1995 is hereby cancelled and he is directed to surrender to the judicial custody before the Sessions Judge, Faridkot. ''

In view of the reasons stated above, it is desirable that the present case shall not be tried by Sh. K.S. Uppal, Additional Sessions Judge, Faridkot. If this trial has been assigned to the said Court, the case shall be withdrawn by the Sessions Judge, Faridkot, to his own file for trial.