Lachhman Dass vs Resham Chand Kaler

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.161 of 2018 (Arising out of SLP (Crl.) No. 3168/2017)

LACHHMAN DASS …APPELLANT (S)

VERSUS

RESHAM CHAND KALER AND ANR. …RESPONDENT (S)

With

Criminal Appeal No.162 of 2018 (Arising out of SLP (Crl.) No. 3167/2017)

LACHHMAN DASS …APPELLANT (S)

VERSUS

MOHINDER PAL CLAIR & ANR. …RESPONDENT (S)

Criminal Appeal No.163 of 2018 (Arising out of SLP (Crl.) No. 3169/2017)

LACHHMAN DASS …APPELLANT (S)

VERSUS

SUKHWINDER SINGH & ANR. …RESPONDENT (S)

JUDGMENT

2

N.V. RAMANA, J.

Criminal Appeal No.161 of 2018 @ SLP (Crl.) No. 3168 of 2017

1. Leave granted.

2. This case arises out of an order dated 19.01.2017, passed by the

High Court of Punjab and Haryana, at Chandigarh, in

CRM-M-36539/2016, wherein the High Court has granted

regular bail to the respondent no.1 in FIR 205/2015, dated

05.11.2015, filed under Sections 302, 307, 324, 148 & 149 of

Indian Penal Code of 1860 [hereinafter ‘IPC’ for brevity] and

Sections 25, 27, 54 & 59 of the Arms Act, 1959.

3. The facts as alleged in the FIR portray that, on 05.11.2015 at

about 5 to 5.15p.m., when complainant’s brother (Harbilas) and

one Shingar Chand, were present near the crime scene, Resham

Chand Kaler (respondent no. 1—an NRI) accompanied by Kulbir

Singh and various other persons, arrived there and started

quarrelling with Harbilas and Shingar Chand. In this incident

Kulbir Singh is alleged to have fired a shot from his revolver at

Shingar Chand. Further, it is alleged that, complainant as well

his family members sustained various injuries inflicted by armed

cohorts accompanying Resham Chand Kaler (respondent no. 1

herein).

4. After completion of the investigation Sections 326 and 120B of 3 IPC were added in addition to those sections reported under the

FIR and a final report was filed by the concerned Police Officer

against the accused persons including respondent no. 1. It is

brought to our notice that the aforesaid challan was submitted

before the Sessions Court on 22.03.2016 and the trial is pending.

5. The respondent no. 1 first approached the trial court in Bail

Application 3018/2016, wherein the trial court vide order dated

14.09.2016, rejected the bail application on the ground that,

there were serious allegations as to the culpability of respondent

no. 1 and the nature of the offences were serious which was

committed on broad daylight.

6. Aggrieved, by the rejection of bail by the trial court, respondent

no. 1 approached the High Court of Punjab and Haryana,

Chandigarh, in CRM-M-36539/2016, wherein the High Court

has granted bail on usual terms to respondent no. 1. It would be

apt to reduce the reasoning of the High Court-

“Heard.

Notice of motion.

On asking of the Court, Mr. Ashish Sanghi, DAG Punjab, who is present in the Court accepts notice and submits that intimation by Registry informing of fixation of the petition has already been received and record of the case is available with him.

Allegation against the petitioner is that he was main conspirator in the occurrence, in which Shingara Chand was given fire shot injury, who died at the spot while 4

complainant and his nephew Jiwan Kaler were caused injuries with sword.

It is a case of land dispute. The petitioner was arrested in this case on 06.11.2015 and the challan has already been presented. No injury has been attributed to petitioner. Without expressing any opinion on merits of the case and keeping in view the fact that conclusion of trial will take considerably long time, the present petition is allowed. Petitioner-Resham Chand Kaler is ordered to be released on regular bail on furnishing bail bond and surety bond to the satisfaction of concerned trial court/Chief Judicial Magistrate/Duty Magistrate, subject to following terms:-

a) The petitioner shall comply with the conditions mentioned in Section 437(3) CrPC.

b) In the event of his absence on any date of hearing, the benefit of bail allowed to the petitioner shall stand withdrawn. The trial court shall be competent to cancel his bail bond and surety bond and proceed to procure his presence in accordance with law. In that eventuality the petitioner shall have to apply for bail afresh.

c) He shall not leave the country without the previous permission of the Court.” (emphasis supplied)

7. Aggrieved by the order of the High Court granting bail to the

respondent no.1, the appellant has approached this Court by

way of special leave petition.

8. Learned counsel for the appellant (complainant) submits that the

nature of crime is very serious and the High Court without

application of mind, casually granted bail to respondent no.1

even after observing that there were serious allegations of

criminal conspiracy in accompanying a habitual criminal (Kulbir 5

Singh) who is alleged of being an accused in nineteen criminal

cases including thirteen murder cases. It is further contended

that the evidence on record clearly establishes the fact of

respondent no. 1 hatching criminal conspiracy and in that

pursuit of the same accompanied the accused-Kulbir Singh to

the place of incident where Shingar Chand was shot dead. The

criminal conspiracy between respondent no. 1 and Kulbir Singh

in accompanying the latter to the scene of crime cannot be

ignored, more so when Section 149 of IPC was invoked. Learned

counsel finally submitted that there is also a likelihood of the

accused—respondent no.1 tampering with the process of

investigation, but the High Court granted bail to the accused

ignoring the established principles of criminal jurisprudence and

hence the order of High Court needs be set aside.

9. Learned counsel for the respondent no. 1 submits that he is a

British citizen and the genesis of the crime is a land dispute. The

involvement of respondent no. 1 in the alleged conspiracy is a

matter of trial and this court should assess only prima facie

culpability, concerning the involvement of respondent no. 1. He

further submitted that this court should take into consideration

the difference between the rejection of a bail and cancellation of a

bail while analyzing the instant case.

10.Learned counsel appearing on behalf of the State, while fully 6

supporting the complainant’s case, agrees with the contention

that the bail was granted against established tenets under the

bail jurisprudence. Learned counsel of the State has referred a

detailed counter affidavit for the perusal of the Court and has

submitted that the accused Kulbir Singh was a notorious

criminal who was extradited from USA and he is a henchman of

respondent no. 1 with whose support the accused persons

attacked the complainant party to grab their land. The High

Court has ignored all these material facts and has wrongly

granted bail to the respondent no. 1.

11.Having heard the learned counsel appearing on behalf of the

parties and perusing all the material available on record,

particularly the compact disk (CD) filed with the petition, we are

of the considered opinion that a prima facie case is made out

against the respondent—accused, as the group of persons are

seen committing the offence using deadly weapons and sticks.

The seriousness and gravity of the offence can be clearly

observed from the CD. However, aforesaid observations must not

be construed as findings on merits. Though the respondent no. 1

is not a citizen of this country (British national), yet the fact

remains that he along with other persons has indulged in the

criminal activity. The case of the prosecution mainly revolves

around him as he is alleged to be the kingpin of the criminal 7

conspiracy which demands his custodial interrogation. In such

circumstances, it is unfortunate that the High Court did not

appreciate the facts of the case with prudent legal perception. We

see no reason to accord any special consideration for respondent

no.1 by virtue of a simple fact that he is a citizen of different

country. The law under Section 439 of Cr.P.C is very clear and in

the eyes of the law every accused is the same irrespective of their

nationality.

12.Apart from the above, it is also important to note the legal

principles governing this case. We make it clear that this case is

not an appeal seeking cancellation of bail in any sense rather,

this case calls for the legal sustainability of the impugned order

granting bail to the accused-respondent herein. The difference

between the cancellation of the bail and a legal challenge to an

order granting bail for non-consideration of material available on

record is a settled proposition. To clarify, there is no ground

pleaded herein that a supervening event breaching bail

conditions is raised. [refer State through C.B.I. vs. Amarmani

Tripathi, (2005) 8 SCC 21; Prakash Kadam v. Ramprasad

Vishwanath Gupta, (2011) 6 SCC 189].

13.Having cleared this confusion, we may clarify, though seriously

urged by the counsel appearing on behalf of the respondent no.1,

that there is no warrant for cancellation of bail as there has been 8

no breach of bail condition, yet such submission is not

countenanced under the law.

14.For all the aforesaid reasons, the appeal is allowed. We,

therefore, set aside the order of the High Court granting bail to

the respondent no. 1 and direct the concerned police authorities

to take the respondent no. 1 into custody immediately.

Criminal Appeal No.162 of 2018 @ SLP (Crl.) No. 3167/17

15.Leave granted.

16.We have perused the impugned judgment which granted bail to

the respondent in this SLP on the basis of parity with Resham

Chand Kaler (respondent no. 1 in SLP(Crl) No. 3168 of 2017). As

we have already set aside the bail of Resham Chand Kaler,

thereby effacing the footing on which the grant of bail by the

High Court stood. Otherwise also, we do not think that this case

is fit for extending the liberty of bail for the reasons as provided

above. Therefore, we allow the appeal and set aside the impugned

order passed by the High Court granting bail to respondent no. 1

herein.

Criminal Appeal No.163 of 2018 @ SLP (Crl.) No. 3169 of 2017

17.Leave granted.

18.It is stated by the learned counsel appearing for the respondent

no. 1 in this SLP that the case of the present-respondent is 9

distinguishable from the rest of the accused in the above two

Criminal Appeals. He further states that his name does not

appear in the FIR and the police investigation did not reveal any

role attributable to the present-respondent, it was only after

recording of the evidence that the court summoned the

present-respondent. Therefore, he should be extended the liberty

of bail as granted by the High Court.

19.Per contra, learned counsel for the appellant drew our attention

to a series of orders passed by the courts below which makes it

apparent that the bail was granted on a rhetorical footing without

there being any application of mind.

20.It would be useful to note certain orders passed by the

Courts below in order to understand the non-application of mind.

21.On 06.10.2016, the Sessions Court rejected the first anticipatory

bail application of the respondent in this case taking into

consideration the gravity and seriousness of the offence.

22.Thereafter, the respondent herein filed an anticipatory bail

application in the High Court being CRM-M No.40457 of 2016. It

is to be noted that the High Court granted interim protection in

the following manner-

“Learned counsel for the petitioner states that the petitioner has not been named in the FIR and the police has found the petitioner innocent. Thus, he was not challaned. It is only on the basis of statement of Jiwan Kaler, the name of the petitioner 10

has cropped up. He further states that even though no role has been attributed to the petitioner, but the petitioner is ready to face the trial.

Notice of motion.

At this stage, Mr. Anil Kumar Spehia, Advocate has put in appearance on behalf of the complainant. Vakalatnama produced on behalf of the complainant in the Court today, is taken on record.

List on 13.02.2017.

Meanwhile, in case the petitioner surrenders before the trial Court within one week from today, he shall be admitted on bail on his furnishing bail bonds and surety bonds to the satisfaction of the trial Court”.

(emphasis supplied)

23.Thereafter, respondent herein made an application, for surrender

and bail as per the order of the High Court dated 11.11.2016,

before the trial court. The trial court by order dated 16.11.2016,

passed the following order granting bail-

“Application for surrender and bail received by entrustment, it be checked and registered, along with it copy of order dated November 16,2016 passed by the Hon’ble High Court in CRM-M-40457 of 2016, vide which the applicant Sukhwinder Singh have been ordered to be released on bail to the satisfaction of Trial Court. the order’s have been got verified through Ahlmad of this Court. In view of the order’s of the High Court, applicant is ordered to be released on bail on (illegible).

Shall not leave India without the permission of the Court.

He shall appear in court on each and every date of hearing Bail/surety bonds accepted and attested. Papers of bail application be attached with the file of the trial pending in this court.” 11

(emphasis supplied)

24.Again, when the matter was listed before the High Court in

CRM-M No.40457 of 2016, which was pending before it, was

dismissed as being infructuous as under-

“Learned Counsel for the petitioner states that in terms of order dated 11.11.2016 passed by this Court, the petitioner has surrendered before the trial court. Thereafter, the petitioner has been ordered to be released on bail.

Accordingly, this petition praying for grant of anticipatory bail the petitioner, has been rendered infructuous.

Dismissed as having become infructuous.” (emphasis supplied)

25.It is unfortunate to note that the order of the High Court on the

first instance clearly points out that it has virtually directed the

course of action to be undertaken by the subordinate court. It is

not expected from the High Court to pass such mandatory orders

commanding the subordinate court to compulsorily grant bail.

Recently, this court on similar facts in Madan Mohan v. State

of Rajasthan1, has laid down that courts cannot issue

mandatory directions which breach the independence of

subordinate courts. Therefore, such circuitous method

undertaken by the respondent in obtaining a bail is a gross

abuse of the court process undertaken in bad faith. Moreover,

our attention is drawn to the fact that he was declared as a

1 Criminal Appeal No. 2178 of 2017.

12

proclaimed offender before the grant of bail, which was not taken

into consideration by the High Court. In light of the above, we

allow the appeal, set aside the order of the High Court and direct

the concerned authorities to take the respondent no. 1 herein

into custody forthwith.

……………………….J. (N. V. RAMANA)

……………………...J. (S. ABDUL NAZEER)

NEW DELHI, JANUARY 23, 2018.