JUDGMENT
Santosh Duggal, J.
(1) In this petition moved under Section 439(2) of the Code of Criminal Procedure by S.C. Gaur, complainant in the case, I deem it necessary to set out a narrative of the facts so as to put them in a proper perspective for the order, I propose to pass in this matter.
(2) The wife of the respondent Rakesh Vij, named Vinita married to him on 12th December, 1984, was burnt while at his house, on 10th January, 1987. She had 90 per cent of bum injuries as per medical and postmortem report, and she died as a result thereof on 13th January, 1987, According to the medical report her body smelt of kerosene oil. The report from the Central Forensic Science Laboratory in respect to the examination of the burnt piece of her clothes also records that the said clothes smelt of kerosene oil. In between she had made four statements as to the cause of the burns. including one before the doctor and two before the Sub Divisional Magistrate; one made in the hospital shortly after her admission, and the second on 11th January, 1987, after her parents had also been able to talk to her. A case under Section 302 of the Indian Penal Code was registered, and subsequently after charge sheet was sent into Court under Section 173 of the Code of Criminal Procedure, a charge was framed against the husband, Rakesh Vij, for offences under Sections 302 and 498A of the Indian Penal Code.
(3) The bail petitions moved on behalf of this accused from time to time were rejected, the last order which the learned trial Judge, Shri P. R. Thakur, Additional Sessions Judge, New Delhi rejecting the third petition for bail passed was on 3rd May, 1988 whereby, he thought it not to be a fit case, considering the circumstances on record, that the accused be released on bail.
(4) Thereafter, on an application being moved to the High Court of Delhi, the same was rejected vide order dated 15th July, 1988 passed by Malik Sharief-Ud-Din, J. when the learned Judge inspite of the prayer for withdrawal, after some arguments, thought it fit to record that on the facts and circumstances of the case the petition be dismissed on merits, thereby declining the request for withdrawal.
(5) While the trial was proceeding, and 20 out of the 31 witnesses cited, had been examined; the last one being on 17th January, 1989, the same learned trial Judge Shri P.R. Thakur, who had earlier rejected the bail applications, allowed the petition for bail moved before him, by the impugned order passed on 23rd March, 1989.
(6) The reasons which prevailed this time with the learned trial Judge are recorded in paragraph 4 of the order, reproduced as under:- “Considering all the circumstances of the case, including the facts that the accused has been in judicial custody for the past about 26 months and that the completion of the trial is likely to take yet more time, and without commenting upon the merits of the case, the accused is ordered to be enlarged on bail on furnishing a personal bond in the sum of Rs. 10,000 with one surety in the like amount.”
(7) The complainant, who is father of the deceased has moved for cancellation of the bail, contending that in view of the gravity of the offence and on face of the facts that the earlier petitions for bail were rejected including the order passed by the High Court on 15th July, 1988 there was no fresh ground for the learned trial Judge to have allowed the petition at this stage, and that the reasons given for the exercise of jurisdiction in this matter are not proper, and the order is liable to be set aside by the High Court.
(8) After notice Mr. K.K. Sood has appeared for the accused Rakesh Vij, arrayed as respondent in this petition, and Mr. B.T. Singh for the State (respondent No. 2). It may be stated at the outset that though the State has not moved for cancellation of the bail but Mr. B. T. Singh in response to Court query clarified that the State supports this petition for cancellation of bail. He gave certain dates as being relevant to the effect that the petition for bail moved by the accused was dismissed on 3rd May 1988 by the trial Judge and there was rejection of the bail petition by the High Court on 15th July 1988 whereas the impugned order was passed by the same learned trial Judge on 23rd March 1989 without adverting to that fact: the only reason given being that of delay in trial.
(9) The matter has been argued primarily by Mr. K.K. Sood on behalf of the accused whereas Mr. M.L. Srivastava, Advocate appeared for the petition. In so far as petitioner is concerned. Mr. Srivastava has highlighted the salient features of this case which have already been noticed, and contended that in face of such facts there was no justification for the learned trial Judge to have passed the order of release of the accused on bail after the High Court had rejected the bail petition on merits. and that on the facts and circumstances of this case, the mere fact that the accused had been in custody for about 26 months, was no ground to consider him for bail, end that the trial could have concluded with dispatch if the learned trial court felt concerned about the long period of custody of the accused, and that release on bail was not a proper exercise of discretion.
(10) Mr. Sood, on the other hand, urged that the nature and seriousness of the offence, may be a relevant consideration while considering the petition for bail, but entirely different factors come into play when a petition for cancellation of bail is being considered. According to Mr. Sood, the gravity of the offence cannot be a ground for cancellation of bail, once the trial court had exercised its discretion, and that unless such facts are brought to notice or alleged, as are prejudicial to the fair trial or proper progress of the case; like apprehension of the accused fleeing away or not being available for trial or there being complaint. duly established, about his intimidating the witnesses or interfering with the trial or otherwise tampering with evidence or similar other supervening factors, this Court ought not lo interfere. He further contended that there are well established principles, laying down guidelines which ought to be taken into consideration by a court while disposing of a petition for cancellation of bail. He placed reliance on two judgments of this court both passed by H.L.Anand. J as he then was. reported as (1) Ramrati v. Ram Kishan and others, and (1) (2) Lily Gupta v. State and another. (2). where on the facts of the given cases, the learned Since Judge, did not find it a fit case to entertain the prayer for cancellation of bail.
(11) It may be noted that in both These cases the bail itself was granted by the said learned single Judge, and then petition for cancellation for bail in the cases was moved before the same learned Judge Judge on the basis of some subsequent developments and there in that context not feeling satisfied about the genuineness or sufficiency of those allegations, it was held that no case for cancellation of bail was made out. With due respect to the learned Single Judge, these two judgments annot be held as laying down any general principles, which can be of any assistance while disposing of this petition for cancellation of bail.
(12) As against that it has been held by the Supreme Court in the case of Gurcharan Singh and others vs. State (Delhi Administration), Air 1978 Supreme Court 179. (3) that although if may not be possible for the same Court who granted bail to consider cancellation 0″ the same in the absence of any new circumstances having crept up : “it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Sessions vis-a-vis the High Court.”
(13) This Judgment is therefore an authority for the view that in case a bill has been allowed by the Court of Sessions, then the High Court as a superior Court can examine the propriety or legality of an order passed on merits, and that it cannot be a necessary pre-condition that other supervening factors are proved.
(14) I have also held in a case that the order granting bail can be treated as a final order so as to entertain a revision petition against such an order because the matter stands concluded so far as that particular court is concerned. The contention raised on behalf of the accused that revision petition would not be entertainable was thus rejected in that case; reported as 1989 (4) Delhi Lawyer 117, Qamaruddin v. R. P. Sharma and another, (4) I therefore do not find any merit in the plea that the order of grant of bail passed by the learned Add!. Sessions Judge cannot be considered on merits by this Court. On the authority of the judgment of the Supreme Court in the case of Gurcharan Singh (supra), this Court, as a superior Court, can examine the propriety of the order, and also held in the case of Qamaruddin (supra), in exercise of revisionary jurisdiction. In that view of the matter the order of bail can be examined in suo moto revision once it has been brought to the notice of the Court.
(15) The contention canvassed by Mr. Sood that unless there are such considerations as apprehension about accused not remaining available for trial, or his tampering with evidence or intimidating the witnesses, the Court should not entertain petition for cancellation of bail, particularly when moved by the complainant apparently out of vendetta, than as a matter of genuine grievance, cannot be wholly accepted for it has been held in the case of Gurcharan Singh (supra) that nature and seriousness of the offence is also one of the relevant considerations. There are other cases, namely, (1) State v. Captain Jagjit Singh, . (5) and (2) State v. Jaspal Singh Gill, , (6) were orders of the High Court granting bail to the accused were set aside, considering the gravity of the offence with which the accused therein were charged,
(16) The decision relied upon by Mr. Sood. reported as Bhagirath Singh Judeja v. State of Gujarat, 1984 Crl. L.J. 160(7), with all respects, does not lay down any general principles as it is manifest that their Lordships of the Supreme Court did not approve the order passed by the High Court in cancelling bail, in view of the observations made in that order taking into consideration status of the victim of the incident, and such extraneous factors as place of incident being inside premises of a hospital and other allied circumstances. This judgment does not take note of the judgment in the case of Gurcharan Singh (supra), to the effect that in suitable cases, the superior Court can examine the propriety of an order of granting bail and interfere accordingly and that the nature and seriousness of the offence, as also other facts and circumstances of the case are relevant factors turn consideration, nor that of the earlier decision in the case of Captain Jagjit Singh (supra).
(17) Similarly in the case of S. Mal Singh and S. Swaran v. Delhi Administration, 26 (1984) Delhi Law Times 198 S.C. (8) the order passed by the learned Single Judge of this Court cancelling the bail was set aside, as , Mohinder Singh v. The State, (9) only on the facts and circumstances of that case, and no general guidelines were laid down.
(18) I therefore am of my considered view that the jurisdiction of the High Court cannot be circumscribed as a general proposition only by the two circumstances as guiding factors, namely, (1) availability of the accused for trial and (2) apprehension or otherwise likelihood of his tampering with evidence.
(19) Reverting to the facts of the present case, the impropriety on the part of the learned trial Judge in granting bail by impugned order dated 23rd March 1989 is glaringly manifest on record for the reason that no new circumstance had come into operation so as to justify the grant of bail, after the High Court had dismissed the petition for bail on merits by order dated 15th July 1988 and before that the same learned trial Judge had dismissed the petition for bail considering the facts of the case as reproduced by him in detail in his order dated 3rd May 1988. Thereafter, by means of a very cryptic order, he thought it fit to grant bail in the midst of trial, for the reason that the accused had been in custody for 26 months. He has rightly not discussed merits of the case because there was no change in facts, and appreciation of evidence could not be undertaken in the midst of trial.
(20) The question then arised as to whether there has been proper exercise of jurisdiction in ordering release of the accused on bail in the setting or facts, as noticed in the foregoing paragraphs, simply on the ground of the accused having been in custody for 26 months. In my view, the present is a case where judicial discretion has been exercised most improperly. I am constrained to say so because at the time this impugned order was passed, 20 of the prosecution witnesses out of 31 cited had already been examined. The record reveals that the last, (PW-20), was examined on 17th January 1989. There is no indication in the order of bail as to why for more than two months from 17th January 1989 to 23rd March 1989, no further witnesses could be examined.
(21) Mr. Sood pointed out that the statement of the complainant H. C. Gaur, who is father of the deceased, had to be discontinued for the reason that one letter allegedly produced by him before the investigating agency was found missing. This letter is alleged to have been written by the deceased to the complainant, her father (Public Witness -11). He stated on oath that he handed over firstly the photo copy, and thereafter the original letter to the investigating officer which fact is borne out from the recovery memo dated 18th February 1987 proved by him as Public Witness -11/A.
(22) As the said letter was not available on record, when this witness was being examined on 20th November 1988. his statement had to be discontinued but thereafter other evidence continued to be examined. It is on record that the prosecution moved an application for secondary evidence, in respect to this letter. The learned Judge had even examined three witnesses as court witnesses with reference to this application; they being the investigating officer, Ahlmad of the Court of the committing Magistrate, as well as of his own court.
(23) That being so, there is no apparent reason as to why the learned trial Judge could not dispose of this application when he had commenced enquiry into this matter as far back as on 11th January 1988, because the investigating officer was questioned on this date, as per order sheet and a detailed statement recorded. That is the reason why the learned Additional Sessions Judge does not give this loss of letter as a reason for grant of bail. It is only Mr. Sood’s effort to supply justification.
(24) It is thus a clear case. where in view of the rejection of the petition on merits particularly by the High Court, the proper course for the learned trial Judge was to expedite the trial which was perfectly within his control, by first deciding the question of secondary evidence and then by examining the remaining evidence, when as many as 20 witnesses had already been examined, and barring father of the deceased, others were formal witnesses. In such cases, the courts in right earnest have to see the conclusion of the trial, rather than having the easy way out by releasing the accused on bail; for, in such an event faith of people in judicial system becomes a casualty. The urgency of seeing an end to the trial is also lost, as has happened in this case, which inference is clear from the record because after the order of bail on 23rd March, 1989, not a single prosecution witness has been examined thereafter.
(25) I, therefore, cannot avoid the conclusion that the learned trial Judge in this case has not properly exercised the judicial discretion vested in him, and rather than making earnest effort to expedite the trial, if he felt strongly about the long custody of the accused, he chose to order release of the accused on bail, when no fresh facts had even been urged, much less established, and when neither the High Court nor he himself had earlier found it to be a fit case for release on bail, in face of the facts of the case. This is thus a case where interference by this Court, as a superior Court, is called for.
(26) I accordingly allow the petition, and set aside the order of grant of bail to the respondent Rakesh Vij, who is accused in the case, vide order dated 23rd March, 1989, and direct that either he should surrender to custody forthwith, or be taken into custody by proper means including warrant of arrest. His bail bonds stand cancelled.
(27) The trial court shall report within two weeks compliance of this order. Thereafter, the court shall proceed with the trial of the case, with utmost expedition.