Naman Alias Naman Harjai v. State Of Punjab
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH CRM-M-11554-2023 DECIDED ON: 09.03.2023 NAMAN ALIAS NAMAN HARJAI .....PETITIONER
VERSUS
STATE OF PUNJAB .....RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL.
Present:
Mr. Tushant Deep Garg, Advocate for the petitioner.
SANDEEP MOUDGIL, J (ORAL) The instant petition under Section 438 jurisdiction of this Court has been invoked seeking anticipatory bail in FIR No.50 dated 10.05.2019 under Section 306 IPC, 1860, registered at Police Station Basti Bawa Khel, District Jalandhar (Annexure P-1).
The question involved for adjudication, before this Court arising out of FIR No.50 dated 10.05.2019, is that whether second anticipatory bail application is maintainable.
While examining the aforesaid question certain facts are material to borne in mind as to role of the petitioner namely Naman as per version narrated in the FIR. According to the statement of Vikas Gupta-complainant, it is stated that he had two sons elder namely Mukul Gupta studying in second year of B.Com and younger one Nikhil Gupta studying in 10+2. It has also been narrated therein that a girl namely Riya was classmate of Mukul Gupta and both have a liking for each other who, therefore, who got entangled in love. The complainant has further stated that my son and the girl namely Riya used to talk to each other but off late Mukul stopped talking to Riya and on that account she started harassing his son threatening with
false implication in a criminal case which disturbed Mukul Gupta severely. As narrated therein, it is the unfortunate day i.e. 09.05.2019 at about 1010.30 AM, a call from Riya was received by Mukul Gupta-complainant's son, who thereafter went to Riya's house. At that occasion the complainant and his wife Meenakshi Gupta also reached there and talked to the girl's parents, Naman-petitioner who is brother of Riya threatened him and his son who was accompanied with 3-4 other boys. According to the complainant, mutually it was agreed between the parties that now Mukul Gupta and Riya will not talk to each other and their relationship is discontinued. Thereafter, they stated to have come back at around 11.15 AM from Riya's house. At 12.
30 PM, Mukul Gupta left the home telling his mother that he is going for studies but he made a call to his mother at 4.00 PM to save him as his life is in danger being captive at Inderprasth Hotel, Room No.502. On receiving the call, the complainant and his wife reached the hotel where Mukul Gupta was lying on the floor who was immediately rushed to hospital after making arrangements of vehicle and after referral to Batra Hospital and therefrom to Tagore Hospital. Finally Mukul Gupta collapsed at Tagore Hospital. The allegations qua Naman holding him responsible for the death of Mukul Gupta is that Mukul Gupta consumed poisonous substance on account of harassment and cruelty caused by Riya and her brother Naman-petitioner.
A suicide note in support thereof was also alleged to have been recovered from the pocket of Mukul Gupta-deceased which was handed over to the police. After investigation, the cancellation report was submitted which was not accepted and petitioner -accused was summoned to face trial. At this stage, the complainant-Vikas Gupta made a statement on 19.01.
police had not conducted the investigation in a just and fair manner vide order dated 18.02.2021, the cancellation report was returned considering the allegations of commissioning the offence under Section 306 IPC which is not compoundable and heinous in nature, for reinvestigation. Subsequently, the case file shows that the trial proceeded against the petitioner and Riya for an offence under Section 306 IPC. During the prosecution, the petitioner was declared proclaimed offender by the Court below and the said proclamation was challenged before this Court vide order CRM-M-55469-2022 titled as Naman @ Naman Harzai and Another V. State of Punjab. Vide order dated 09.01.
2023, the said petition was disposed of in the following terms :- Learned counsel for the petitioners prays to withdraw present petition with liberty to surrender before the trial Court and move an appropriate application seeking bail. In case the petitioners surrenders before the Court below and moves application for anticipatory bail, the trial Court may consider the same in accordance with law and dispose it off expeditiously.
Disposed off in the aforesaid terms.
Without approaching the trial court for grant of anticipatory bail in pursuance to the order dated 09.01.2023 in CRM-M-55496-2022, the petitioner did not file the petition before the trial Court and rather preferred CRM-M-60958-2022 with a prayer of anticipatory bail on the same cause of action. Now yet again the petitioner has approached this Court vide instant petition on the same cause of action under Section 438 Cr.P.C. which is a second petition on the ground that the co-accused Riya has been granted concession of bail which has been made absolute by this Court on
09.01.2023 in CRM-M-60755-2022 (Annexure P-4). Apart from the fact that there is no other averment made to show that there is any change of circumstance, fact-situation or in law to entertain the second anticipatory bail petition.
In the light of the submissions made by the counsel and the material on the case file, this Courtneeds to examine the questions and answer the same. In the light of arguments raised by counsel for the petitioner that principle of res judicata could not operate in an application for bail and withdrawal of earlier petition cannot be a ground to deny reagitate the matter on merits placing reliance on a judgment of the Supreme Court in 'Rani Dudeja V. State of Haryana', (2017) 13 SCC SSS categorically to the observations made in Paras 3 and 4 thereafter as reproduced herein below:- "3. The appellant approached the High Court with a petition under Section 438 of the Cr.P.C. By the impugned order daetd 07.03.2017, the petition was rejected on the ground that the appellant had filed a petition earlier and the same had been withdrawn and, therefore, the appellant cannot be allowed to reagitate the matter on merits. 4.
We are afraid, the stand taken by the High Court cannot be appreciated. The petition was for anticipatory bail and the one which had been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits. On change of circumstances, when another application under Section 438 Cr.P.C., was filed, the High Court should have considered the same on merits. The principle of res judicata could not have operated in an application for bail."
I deem it just and fair to begin with noticing the provisions of anticipatory bail as introduced in the Code of Criminal Procedure, 1973 for the first time, since there was no such provision under the old Code of 1898.
Earlier there had been conflicting views holding that bail could be granted to a person against whom a report of an offence was made even though, he was neither arrested nor detained and even in a case, where a person was suspected of an offence for which he might be arrested by a Police Officer but majority of view also held that even the High Court did not have inherent power to grant anticipatory bail by invoking Section 561A of the old Code, thereafter law Commission in its 41st report advocated the grant of power to superior Courts for the purpose of anticipatory bail, which was also endorsed in the 48th report of the Commission and incorporated Clause 447 of the Code of Criminal Procedure Bill, 1970 for the first time, which reads as under:- "31. The Bill introduces a provision for the grant of anticipatory bail.
This is substantially in accordance with the recommendation made by the previous Commission (41st report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the
court is satisfied that such a direction is necessary in the interest of justice......"
The said Clause was enacted as Section 438 in the existing Code of Criminal Procedure, 1973. Thereafter, the Hon'ble five Judges of Supreme Court tested the judicial discretion envisaged under Section 438 Cr.P.C., alongwith other factors connected with the said provision in case 'Gurubaksh Singh Sibbia vs. State of Punjab', ((1980)2 SCC 565) and prompted certain principles which may be summarised as under: " (i) The use of the expression 'reason to believe' in Section 438(1) shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine.
Such belief must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be arrested. Specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief. (Paras 35, 40 and 41).
A blanket order i.e. an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had should
not generally be passed. Such a blanket order-is bound to cause serious interference with the functions of the police. (Paras 40 and 41) (ii) If an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. (Para 36). (iii) The filing of an FIR is not a condition precedent to the exercise of the power under Section 438. (Para 37) (iv) Anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. (Para 38). (v) The provisions of Section 438 cannot be invoked after the arrest of the accused.
(Para 39) (vi) An order of bail can be passed under Section 438(1) without notice to the Public Prosecutor or the Government advocate forthwith and the question of bail should be reexamined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage (Para 42) (vii) Regarding time-limit, if any, for anticipatory bail the court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order.
applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. (Para 42)" In the light of aforesaid judicial pronouncements and the provisions of Section 438 Cr.P.C., 1973, it is crystal clear that the Court must be satisfied that a fit case had been made out for exercise of such discretion. This Court has to make an effort to strike a balance between the individuals right to personal freedom and the investigational rights of the police. This provision is not to be applied mechanically especially in the light of phraseology "if it thinks fit" as envisaged therein with Sub Section(2) is indicative enough that such order on the face of it must show the reasons for granting anticipatory bail.
The insertion of word "or" in sub-Section 1 of Section 438 has invested this Court with concurrent jurisdiction. Evidently the discretionary power to the Court does not flow from Article 21 of the Constitution of India for grant of anticipatory bail but conferred by the Statute enacted by the Parliament, wherein a distinction from the language of Sections 438 and 439 Cr.P.C., is quite evident that the provisions contained in Section 439 flow from Article 21 of the Constitution of India. The constitutional Bench of the Apex Court has interpreted Section 438(1) of Cr.P.C., in the case of Gurubaksh's Singh (supra), which indicated:-
"Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The application must show that he has "reason to believe" that he may be arrested for a nonbailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere 'fear' is not belief for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applicants for anticipatory bail will be, as large as, at any rate, the adult populace. Anticipatory bail is a device "to secure the individual's liberty". it is neither a passport to the commission of crime nor a shield against any and all kinds of accusations, likely or unlikely."
Apart from that, the question "can a formula be devised conferring the power of granting anticipatory bail in straight jacket?" was answered in the negative observing that while laying down cast iron rules in a matter like granting anticipatory bail, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situation. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions and it will be strange, if, by employing judicial artifices and techniques, discretion conferred upon the Courts is cut down by devising a straight jacket formula. Going further, I noticed that the Hon'ble Constitution Bench narrated the situation and contingencies for invoking power under Section 438 indicating in para 8 of the judgment of 'Gurubaksh Singh Sibbia vs. State of Punjab' (supra), which reads as under:
"No one can accuse the police of possessing a healing touch nor indeed does anyone have misgiving in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rule of criminal investigation is concerned. It is thenormal dayto-day business of the police to investigate into charges brought before them and broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of the
life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand cuffs, apparently on way to a court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973".
Having discussed the factual and legal chronology, this Court convincingly able to observe that while exercising powers under Section 438 Cr.P.C., the Court is duty bound to strike a balance between the individuals right to personal freedom and the investigational right of the police, therefore, the provisions of anticipatory bail cannot be allowed to put to abuse at the instance of unscrupulous petitioners. Accordingly, the second or subsequent bail application under Section 438 Cr.P.C., can be filed, if there is a change in the fact-situation or in law, which requires the earlier view being interfered with or where the earlier finding has become obsolete. An accused, who has been denied the bail earlier can move a subsequent application only on in that limited area. If
the issue, which had been canvassed earlier, would not be permitted to be reagitated on the same grounds, as it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting In the instant case, admittedly the second anticipatory bail petition has been moved without even approaching the trial Court in pursuance to the order dated 09.01.2023 (Annexure P-6) in CRM-M-559462022, now yet again merely on the ground that the co-accused Riyapetitioner's real sister, has been granted concession of anticipatory bail by this Court. It is worth noticing here that the Riya was granted anticipatory bail vide order dated 26.12.2022 in pursuance to which she joined the investigation and thereafter only her anticipatory bail petition under Section 438 was made absolute.
Moreover, the circumstances are totally different and the petitioner cannot claim parity with Riya as one of the aspect where she approached the Court below for seeking anticipatory bail and thereafter, came to this Court and joined the investigation as well. The role in the investigation is also different then that of the petitioner who is also a proclaimed offender who despite a concession granted by this Court vide order dated 09.01.2023 in CRM-M-55496-2022 (Annexure P-6), did not adhered to the legal remedies available in accordance with law and is playing hide and seek before the trial Court leaving no stone unturned to evade the process of law.
Such act and conduct of the petitioner tantamounts not only to create hinderance in the judicial process and in furtherance of justice which shows highhandedness on his part who has shown least respect to the directions passed by this Court for availing remedies as per law.
ambit of Section 438 Cr.P.C., the petitioner has failed the test for entertaining the second anticipatory bail application. Hence, holding that second anticipatory bail in such circumstances is not maintainable, the petition is ordered to be dismissed. However, it is made clear that anything stated hereinabove shall not be construed as an expression of opinion on the merits of the case. (SANDEEP MOUDGIL) 09.03.2023 JUDGE pchawla Whether speaking/reasoned Yes/No Whether reportable Yes/No