#4 * + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
8. h November, 2016 BAIL APPLN. 116/2015 YASH KUMARI & ANR. ........ Petitioner
s Through Mr. Neeraj Grover and Mr. Aditya Singh, Advocates versus STATE (NCT OF DELHI) ..... Respondent Through Mr. Keshav Mohan and Mr. Rishi K. Awasthi, Advocate for the complainant along with complainant CORAM: HON’BLE MR JUSTICE SIDDHARTH MRIDUL SIDDHARTH MRIDUL, J (ORAL) Crl. MA No.5895/2016 in Bail Application No.116/2015 1. The present application has been instituted on behalf of the complainant- Mr. C.M. Sethi, in the subject FIR bearing No.841/2014, under Sections 406/4
IPC, registered at Police Station- Preet Vihar, Delhi, seeking recall of the order dated 18th March, 2015 passed by this Court. Bail Application 116/2015 Page 1 of 9 2. In order to appreciate the submissions made on behalf of the applicant/complainant, it is necessary to extract the said order dated 18th March, 2015 and the same reads as follows:-
"“Counsel appearing on behalf of the complainant and the counsel appearing on behalf of the applicant submit that with the intervention of the Delhi High Court Mediation and Conciliation Centre the parties have arrived at an amicable compromise. Counsel for the complainant says that in terms of the said amicable compromise, the applicant has given a post dated cheque in the sum of Rs.1,95,00,000/- (Rupees One Crore Ninety Five Lakhs) in favour of the complainant, towards full and final settlement of all the dues owed to the complainant by the applicant. Counsel for the parties further submit that once the post dated cheque dated 10.10.2015 is encashed, the parties will not have any claim interse. In view of the above, the order dated 19.01.2015 is made absolute, subject to the encashment of the post dated cheque given by the applicant to the complainant. The application is disposed of accordingly. The pending application also stands disposed of.” 3. A perusal of the above-said order dated 18th March, 2015 reveals that the parties had arrived at an amicable compromise with the aid and intervention of Delhi High Court Mediation and Conciliation Centre and in furtherance of the same, the bail applicants had furnished post-dated cheques aggregating to a sum of Rs. 1,95,00,000/- in favour of the present Bail Application 116/2015 Page 2 of 9 applicant/complainant, towards full and final settlement of all the dues owed by the former to the latter.
4. A perusal of the said order dated 18th March, 2015 further reveals that the order dated 19th January, 2015 directing that in the event of the arrest of the bail applicants, the latter be enlarged on bail on their furnishing personal bonds in the sum of Rs. 1,00,000/- (Rupees One Lakh) each with two sureties of the like amount to the satisfaction of the Arresting Officer/Station House Incharge, was made absolute; in view of the aforesaid settlement arrived at by and between the parties.
5. Consequently, vide the said order dated 18th March, 2015, Bail Application No.116/2015 was disposed of in terms of the amicable compromise, leaving the parties to abide by its terms, without demur.
6. Mr. Keshav Mohan, learned counsel appearing on behalf of the applicant/complainant states that the bail applicants have deliberately failed, avoided and neglected to disburse the amount owed to the former in breach of the terms of conditions of the amicable compromise and are resorting to filibuster, in order to delay and frustrate the claim of the applicant/complainant, whilst simultaneously enjoying the benefits of anticipatory bail as enshrined in the order dated 18th March, 2015, of which recall is sought.
7. Mr. Neeraj Grover, learned counsel appearing on behalf of the bail applicants, however, invites the attention of this Court to the circumstance that in order to establish the bona fides of the latter, they have deposited the original perpetual lease deed dated 6th October, 2004 pertaining to a Bail Application 116/2015 Page 3 of 9 commercial property situated at Sector B-4, Pocket-3, Narela, Delhi, with the Registrar General of this Court.
8. Learned counsel appearing on behalf of the applicant/complainant states in this regard that the said property in Narela, Delhi is located on the outskirts of Delhi and the same is unable to attract any buyers.
9. Be that as it may, since the bail applicants have, on their own admission, failed to discharge their obligations, in terms of the amicable compromise arrived at between them, the order dated 18th March, 2015 is hereby recalled.
10. In this behalf, Mr. Neeraj Grover, learned counsel appearing on behalf of the bail applicants has invited the attention of this Court to a decision of this Court rendered in Sandeep Chaudhary and Anr. Vs. State and Ors. reported as (2007) 94 DRJ604 to urge that the bail application of the petitioners was never decided on merits and the same may now be directed to consider on merits, de hors the amicable compromise arrived at between the parties or the breach thereof.
11. In paragraph 5 of the report in Sandeep Chaudhary (supra), the Court held as under:-
"“5. In the present case, bail application of the petitioners was never decided on merits. The petitioners were arrested and were in custody when their bail applications were considered. On 25.8.2005, interim bail was granted for a period of one month on the submission of the parties to enable them to arrive at amicable settlement. This interim bail was extended from time to time in subsequent orders after taking note of the fact that the petitioners had entered Bail Application 116/2015 Page 4 of 9 in the judgment into separate MOU with all the three respondents. Thus, de hors the talks of settlement, there was no consideration by the trial court as to whether the petitioners were entitled to bail or not and only interim bail was granted when the petitioners expressed their desire to settle the matter and thereafter to make the payment in accordance with the said case of Biman settlement. The Chatterjee (supra) shall have no application where regular bail was granted and the question was as to whether such a bail could be cancelled if the accused was not co-operating in the compromise talks. The Court subsequently observed that though in the original order granting bail there was a reference to an agreement of the parties to have a talk of compromise, there was no submission made to the Court that there would a compromise or that the accused would take back his wife. In the present case as mentioned above, the petitioners wanted sojourn for some time to enable them to settle the matter and in view of this, the Court granted the petitioners a breather. The petitioners cannot take advantage of such an interim protection and thereafter breach the agreement and still say that the interim protection should be confirmed. If the petitioners are not in a position to make the payment, as alleged by them, it would be proper for the trial court to consider the bail application of the petitioners on merits and to decide as to whether the petitioners have backed out, for whatever reason. They cannot continue to enjoy such an interim protection. Therefore, while dismissing this petition and upholding the order of the trial court, matter is remanded back to the learned ASJ to consider the bail application of the petitioners on merits de hors the MOU or breach thereof. Since the petitioners have been granted interim protection, that shall remain operative for a period of two weeks during which period the petitioners shall apply for regular bail before the trial court and the said bail application shall be considered on its own merits without being influenced by the MOU or breach thereof. The petition is disposed of in the aforesaid terms. (Emphasis supplied) ” Bail Application 116/2015 Page 5 of 9 12. Mr. Neeraj Grover, learned counsel would further place reliance on the decision rendered by the Hon’ble Supreme Court in Biman Chatterjee vs. Sanchita Chatterjee & Anr. reported as 2004 AIR SC1699 wherein in paragraph 7 of the report, the Hon’ble Supreme Court whilst overruling the decision of the High Court, whereby the bail granted to the appellant was cancelled on the ground that the appellant had violated the terms of the compromise, held as follows: “Having heard the learned counsel for the parties, we are of the opinion that the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise. Though in the original order granting bail there is a reference to an agreement of the parties to have a talk of compromise through the media of well-wishers, there is no submission made to the court that there will be a compromise or that the appellant would take back his wife. Be that as it may, in our opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfilling the terms of such compromise does not arise. That apart, non- fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or Bail Application 116/2015 Page 6 of 9 the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law.” 13. Learned counsel appearing on behalf of the bail applicants has further relied upon the decision rendered in Pritpal Singh vs. State of Bihar reported as 2002 (2) ACR1927(SC), wherein in paragraph 5 of the report, the Hon’ble Supreme Court held as follows:-
"“5. The Magistrate cancelled the bail granted to the appellant solely on the ground that the terms of the compromise had not been complied with. To say the least, the ground on which the petition was made and was granted is wholly untenable. It is our view that the order, if allowed to stand, will result in an abuse of process of Court. The High Court clearly erred in maintaining the order. Therefore the order passed by the Magistrate cancelling the bail and the order of the High Court confirming the said order are set aside. The bail order is restored. The appeal is allowed.” 14. Learned counsel appearing on behalf of the bail applicants has also placed reliance on the decision rendered in Janak Verma vs. State reported as MANU/DE/0024/2008, wherein in paragraph 5 of the report, the Court held as follows:-
"“5. I am of the view that since the anticipatory bail application of the petitioner was not considered and allowed on merits but only in view of the parties having arrived at a settlement, the most appropriate course to be adopted would be direct re-hearing of the anticipatory bail application of the respondent No.2- accused by the Ld. Additional Sessions Bail Application 116/2015 Page 7 of 9 Judge and its disposal on merits taking into consideration the material which may be available with the investigating agency collected so far during investigation and uninfluenced by the grant of anticipatory bail to the respondent No.2 earlier and failure of the settlement agreement for which both the parties are blaming each other.
6. This petition is accordingly disposed of with a direction to the Ld. Additional Sessions Judge to rehear the anticipatory application of respondent No.2 and disposed it of on merits. Till the disposal of the bail application the anticipatory bail application, to respondent No.2- accused would however continue to remain in force.” the anticipatory bail already granted 15. In light of the above observations of the Hon’ble Supreme Court and this Court in the afore-mentioned decisions, whilst recalling the order dated 18th March, 2015, it is considered just, necessary and proper to restore Bail Application No.116/2015 to its original position and number, since the same was not disposed of on merits vide order dated 18th March, 2015.
16. Directed accordingly.
17. The present application along with other pending application, being Crl. MA No.16166/2016, are disposed of. Bail Application No.116/2015 List the present bail application, before the appropriate Bench according to the roster, for further directions and proceedings in accordance Bail Application 116/2015 Page 8 of 9 with law, on 10th November, 2016, subject to and after obtaining the necessary orders from Hon’ble the Chief Justice. NOVEMBER08 2016/sd SIDDHARTH MRIDUL, J Bail Application 116/2015 Page 9 of 9