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Lily Gupta Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 525 of 1984
Judge
Reported in26(1984)DLT112
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 439; Indian Penal Code (IPC), 1860 - Sections 302
AppellantLily Gupta
RespondentState and anr.
Advocates: K.L. Arora,; Harish Gulati,; S.T. Singh,;
Excerpt:
.....the position and the status of the accused with reference to the victim and the witnesses ;the likelihood of the accused fleeing from justice ;of repeating the offences ;of jeopardising his own life, being faced with a grim prospect of possible conviction in the case ;of tampering with witnesses, the history of the case as well as its investigation; it is equally well settled that rejection of bail when bail is applied for, is one thing, cancellation of bail, already granted, is quite another. it is equally well settled that in an application for cancellation of bail, it is unnecessary for the prosecution to prove that the accused has misused the liberty granted to him and the prosecution can establish its case in an application for cancellation of bail by showing on a..........would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. cancellation of bail is, however, not intended to be a punitive measure. it is equally well settled that in an application for cancellation of bail, it is unnecessary for the prosecution to prove that the accused has misused the liberty granted to him and the prosecution can establish its case in an application for cancellation of bail by showing on a 'preponder. acne of probabilities' that the accused has attempted to tamper or has tempered with its witnesses. proving by test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course justice is all that is necessary for the prosecution to do.....
Judgment:

H.L. Anand, J.

(1) By this petition, under Section 439 of the Code of Criminal Procedure, Smt. Lily Gupta, widow of late Shri Arun Gupta, seeks cancellation of bail, granted by this Court to H.S. Suri, respondent no. 2, who Along with his wife, Manjeet Kaur, is charged with the murder of Arun Gupta.

(2) F.I.R. 259/82 was registered, at the instance of the petitioner, at police station Farash Bazar, on the night between August 26, and 27, 1982. The report was a sequel to the mysterious disappearance of Arun Gupta, a young industrialist. H.S. Suri; respondent a consulting engineer, who also owns a factory, was known to the deceased, and they have bad business dealings. According to the Fir, the petitioner, who went to the factory of the deceased, Along with a servant, and a driver, in search of the deceased, when did not turn up until 11.30 p.m., per chance found respondent no. 2 driving the car, belonging to the deceased, and who on being enquired, told the petitioner that Arun left for his residence in the car of the respondent as Arun's car which the respondent was driving, was out of order. According to the petitioner, she did not find the deceased at the residence, on which she went to the residence of the respondent but the wife of the respondent who answered the knock, did not let the petitioner in and put her off. The petitioner claims to have then gone to the factory of another industrialist, Charan Dass, but being unable to get in, returned to the house of respondent and found that the car of the deceased, which on her earlier visit was parked outside the house, had disappeared. She claims to have eventually found the car of the deceased parked on a payment, when she turned towards Loni Road. The car was lying 'abandoned and an attache case was lying opened in it'. She claimed that she suspected 'foul play', as her husband had not returned and, thereforee, sought 'help'. A case u/s 302 read with Section 364 Indian Penal Code was accordingly registered. It is claimed that in the course of invertigation, the dead body of Arun Gupta was recovered from the residence of respondent H.S. Suri, packed in a holdall, and a pistol belonging to the said respondent was also recovered, from his residence, pursuant to a disclosure statement made by him. respondent H.S. Suri his wife and 5-6 other persons were arrested in connection with the murder of Arun Gupta within a few days of the report. Manjeet Kaur, wife of respondent eventually surrendered to the police in September, 1983.

(3) On October 7, 1983. respondent was granted bail by this Court, on the condition that the respondent would furnish a further personal bond in the sum of Rs. 3000.00 with one surety in the like amount undertaking to 'abjure violence and to be of good conduct during the pendency of the trial'. Manjeet Kaur was also admitted to bail after she had surrendered. respondent his wife, Manjeet Kaur, and certain others, were sent up for trial and charges u/s 302 Indian Penal Code were framed against the respondent and his wife. The other accused persons were discharged. The wife of the respondent challenged the order, framing a charge against her, and the Revision petition of Manjeet Kaur has been admitted by this Court, Jagdish Chandra J. The petition is pending, and the proceedings in the trial court have been stayed.

(4) Cancellation of bail of respondent is sought on two grounds, viz., (1) having regarding to all the circumstances respondent ought not to have been admitted to bail ; 2) respondent has been misusing the liberty granted to him.

(5) The petition is supported by the Administration, although the Administration has not filed a petition for cancellation of bail. It was, however, stated that on the motion of the petitioner, soon after the grant of bail, the Administration had decided to appeal against the order to the Supreme Court but its implementation had been delayed because of the pressure said to have been put on the Police officers concerned on behalf of the respondent. The petition is, however, opposed by the respondent and the grant of bail to him was sought to be justified, and the allegations of any supervening circumstances, which may justify cancellation, were denied.

(6) I have heard leaned counsel for the parties, as indeed, the Standing Counsel for the Administration and after giving the matter my earnest consideration, I am of the view that, while there is no ground to cancel the bail, it is reasonable and proper that further conditions are imposed to control the conduct and movements of the respondent and to make certain directions to ensure a fair trial, and to allay all possible fears of the petitioner, with regard to a threat to her life or that of the other members of the family, and to her property, or to the conduct by her of the industrial activity of the deceased.

(7) It is well settled that the overriding considerations in granting bail are, the nature and the gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to the victim and the witnesses ; the likelihood of the accused fleeing from justice ; of repeating the offences ; of jeopardising his own life, being faced with a grim prospect of possible conviction in the case ; of tampering with witnesses, the history of the case as well as its investigation; and other relevant grounds, which in view of so many variable factors, cannot be exhaustively set out. The two paramount considerations, namely likelihood of the accused fleeing from justice, and his tampering with prosecution evidence, relate to ensure a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. It is equally well settled that rejection of bail when bail is applied for, is one thing, cancellation of bail, already granted, is quite another. It is easier to reject a bail in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can, by and large, be permitted only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. Cancellation of bail is, however, not intended to be a punitive measure. It is equally well settled that in an application for cancellation of bail, it is unnecessary for the prosecution to prove that the accused has misused the liberty granted to him and the prosecution can establish its case in an application for cancellation of bail by showing on a 'preponder. acne of probabilities' that the accused has attempted to tamper or has tempered with its witnesses. Proving by test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. It is also beyond doubt now. that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. Even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favor by tampering with evidence. It is also necessary in such cases to bear in mind the caution that criminal law is not to be used as an instrument of wreaking vengeance by an aggrieved party against the person, who according to it had caused injury to it, and that is why barring a few exceptions, it is insisted that in criminal matters, the party who is treated as the aggrieved party is the State, which is supposed to be the custodian of the social interests of the community at large ; and it is, thereforee, for the State to take all the steps necessary to bring in the person who has acted against the social interests of the community to book and that, strictly speaking, a private party in a matter proceeded on a police report has no locus standi. Even so, the Court would not shut out the aggrieved private party or to brush aside its genuine fears, even if they do not justify the stringent measure of cancellation of bail.

(8) While the investigation has no doubt thrown up important clues to the dastardly act of the murder of the victim, such as, the alleged recovery of the dead body, from the residence of respondent packed in a holdall, the recovery of the instrument from the residence of the respondent said to be pursuant to his disclosure statement, and conduct attributed to the wife of the respondent which could be considered suspicious and may be relevant at the trial, as constituting circumstantial evidence of the implication of one or the other of the accused in the commission of the offence, the alleged incident of the murder of the victim is still, by and large, surrounded in mystery and the case prima facie lacks in direct evidence of the commission of the crime, with doubts lurking as to when and where the act was committed and by whom. Moreover, the prosecution story, as at present delineated, does not disclose a definite motivation for the crime and the investigation appears to have left a number of loose-ends, which may perhaps have to be tied at the trial. Parties have freely made allegations against the police, at different levels, of partiality to one side or the other in the conduct of investigation and this is a matter on which it is difficult for this Court to rule, one way or the other at this stage. A number of persons were initially involved in the case, but all others have since been discharged. The order framing charge against the wife of the respondent forms subject matter of a a quashing up petition, which has already been admitted by this Court and as a result of which the proceedings are bound to remain stalled until its determination. The gravity of the offence or the circumstances of its commission are also not the only factors to be taken into account in granting bail. Respondent is admittedly a respectable person, with clean antecedents. He is a qualified engineer, who has been a practicing consultant, besides running an industrial undertaking. He could not be said to be in the business of crime. He has a wife and childrens. There were no reason to believe that, if released on bail, he would not be available at the trial or that he would attempt to tamper with the witnesses or to threaten the members of the aggrieved family. Respondent was released on bail on October 7, 1983 and the present petition was made only in May, 1984. Having regard to all the circumstances, it could not, thereforee, be said that bail ought not to have been granted to the petitioner.

(9) If the grant of bail was justified, would the supervening circumstances render it liable to be cancelled, on the material on record This question has to be answered in the negative. The allegations in relation to the supervening circumstances, made in the petition, as indeed, in the First Information Report u/s 506 of the Indian Penal Code, being F.I.R. 162/84, recorded on March 27, 1984, are far too vague and indefinite, and so completely wanting in particulars, to from a basis for a drastic order of cancellation of bail. There are ' also inherent characteristics of the situation, which would make it highly unsafe to act on these allegations. Respondent was admitted to bail on October 7, 1983. The petition for cancellation was made on May 14, 1984. Even the report of an offence u/s 506 Indian Penal Code was made on March 27,1984. It is alleged that meanwhile, the petitioner has been agitating the question of appeal against the order of bail with the investigating authorities but has either not been able to persuade them to move in the matter or the concerned officials were under the undue influence of the respondent or the necessary steps were otherwise delayed with the result that no steps have so far been taken by the Administration to move for cancellation or to file an appeal against the order. The petitioner alleges abuse of liberty, inter alia, by attempted suborning of witnesses, threatening of the petitioner, and the other members of the family, enticing away of one of the witnesses, who happened to be the driver of the petitioner, and attempted obstacles inthe way of the petitioner in carrying on the industrial activity of her late husband. It is further alleged that respondent had recently opened his factory 'opposite the factory' of the deceased, and had also shifted his residence to a place 'just adjacent to the factory'. All these allegations have been vehemently denied by respondent by a detailed affidavit. But the denial of the respondent would not by itself justify a rejection of the allegations, because such allegations need not be established beyond doubt and a reasonable possibility or a preponderance of doubt would be enough. Neither the petition nor the report give any particulars as to when, where, or through whom, were the petitioner, or any member of her family, threatened or as to the manner in which or the place at which or the time when attempt Was made to influence the witnesses. It is alleged that the driver of the deceased has been enticed away, and is reported to have been employed with a 'business associate of the respondent'. Here also, no particulars of the business associate have been given. The allegations that the respondent has been trying to create 'obstacles' in the way of functioning of the petitioner in the pursuit of her industrial activity are also beautifully vague and indefinite. The allegations with regard to shifting of the factory of the respondent and of his residence are equally vague. The allegation that the respondent had shifted his residence was admitted but it was denied that the place of residence of the respondent was in the vicinity of the factory of the victim. It was further explained that the shifting was a sequel to the threat of eviction because the subsisting tenancy was under Section 21 of the Delhi Rent Control Act. The report with regard to the intimidation had interestingly enough been sent to the Deputy Commissioner of Police of an area which is outside the jurisdiction of the police stations, where the petitioner resides, as also the police stations, where the petitioner and the respondent carry on business. The report itself gives no indication as to how threats were held out or as to the time and place or as to the person in whose presence or through whom threats were held out. Interestingly enough, the report requests the D.C.P. that the bail of the respondent 'be cancelled'. Even though a case was registered on this report, and the respondent was also put under arrest, the perusal of the report, which is devoid of any particulars, appears to be tailored to the need of a plea for cancellation of bail. The allegations that the choice of the Deputy Commissioner of Police, to whom it is addressed, and who was not concerned with the territories, within whose jurisdiction the petitioner and the respondent reside and carry on business, was not a sheer coincidence, cannot, thereforee, be lightly brushed aside.

(10) But with all this, and even the possibility that the plea for cancellation of bail is not bona fide, but may be intended to wreak a vengeance, on account of the suffering caused to the aggrieved family, it is, never the less, neither proper nor possible to brush aside possible fears of the petitioner, and the other members of the family, or to obviate the necessity of appropriate directions being made to ensure full protection to the person and property of the petitioner, as also to regulate the conduct and movements of the respondent further with a view to ensure a fair trial and preclude any cause for complaint in future.

(11) I would, thereforee, dismiss the petition for cancellation of bail, but direct that:

(A) the local police would provide all possible protection to the petitioner, and the other members of the aggrieved family, as it may consider reasonable and proper ; (b) the respondent would not, directly or indirectly, contact any member of the aggrieved family, any of their employees, or any other witness in the case ; (c) the petitioner would not enter any area, within a radius of 250 feet from the residence and the factory of the petitioner, without prior written intimation to the local police, during the pendency of the trial.


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