CRM No. M-24379 of 2008 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH.
CRM No. M-24379 of 2008 (O&M)
Date of decision: 22.01.2009
Shri Afzal Alam ...Petitioner
Versus
State of Haryana and others ...Respondents
BEFORE: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. Yogesh Chaudhary, Advocate, for the petitioner.
Mr. Mr. Tarun Aggarwal, Senior DAG, Haryana.
Mr. Akshay Bhan, Advocate, for the complainant.
Rajan Gupta, J.
The petitioner has preferred this petition under Section 439
(2) read with Section 482 Cr.P.C. for cancellation of anticipatory bail
granted to respondent No.4 by Additional Sessions Judge, Fast Track
Court, Gurgaon vide its order dated 6th September, 2008 (Annexure
P-3). The main grouse of the petitioner is that while granting
anticipatory bail, the Additional Sessions Judge, Fast Track Court,
Gurgaon has given observations on merits of the case. This apart, the
said court has not taken into consideration the gravity of the offence and
need for custodial interrogation as recovery of Rs.60.00 lacs was to be
effected from respondent No.4.
The counsel for the petitioner has submitted that the
Additional Sessions Judge while granting anticipatory bail, has adverted
to the merits of the case and thus the trial court may be swayed or
CRM No. M-24379 of 2008 2
influenced by the observations made therein. He has relied upon a
judgment of the apex court reported as Nira Radia v. Dheeraj Singh
and another, (2006) 9 Supreme Court Cases 760 in support of his
contention that while dealing with an application for bail, the court need
not make elaborate and detailed analysis of the evidence/material and
record findings on their acceptability or otherwise.
Learned counsel for respondent No.4 has, however,
submitted that bail once granted can be cancelled only when cogent and
overwhelming circumstances are available for cancellation of the same.
Learned counsel has placed reliance on judgments of the apex court
reported as Dolat Ram and Ors. v. State of Haryana, (1995) 1
Supreme Court Cases 349 and Mahant Chand Nath Yogi and Anr. v.
State of Haryana, (2003) 1 Supreme Court Cases 326 in support of
their contentions.
I have heard learned counsel for the parties and given my
careful thought to the matter in hand. It appears that the petitioner made
a complaint before the Judicial Magistrate 1st Class, Gurgaon, under
Section 156 (3) Cr.P.C. which led to registration of case against
respondent No.4 under Sections 202, 341, 406, 418, 420, 423, 424, 506
IPC and Section 5 (a) (c) and 23-B of the FERA Act. Basically, the
allegations pertained to a fraud having been committed by the accused-
respondent No.4 with the petitioner apart from violation of various
provisions of FERA as enumerated in length in the FIR. This apart,
certain allegations of threats by the accused have been made.
CRM No. M-24379 of 2008 3
During the investigation, the accused-respondent No.4
preferred an application for anticipatory bail before the Additional
Sessions Judge, Fast Track Court, Gurgaon, which was granted by the
said court on 6th September, 2008.
The contention of the petitioner that bail granted to
respondent No.4 be cancelled as the same was granted without taking
into consideration the need for custodial interrogation, is devoid of any
merit. The anticipatory bail once having been granted, very cogent
reasons are required for cancelling the same. Basically, the allegations
against the accused being of having committed a fraud on the petitioner,
grant of anticipatory bail cannot impede effective investigation by the
police in a case of this nature. Moreover, bail having been once granted,
certain parameters have been laid down by the apex court for
cancellation of the same. In para 4 of the judgment reported as Dolat
Ram’s case (supra), the apex court held as under:-
“4. Rejection of bail in a non-bailable case at the initial
stage and the cancellation of bail so granted, have to be
considered and delay with on different basis. Very cogent
and overwhelming circumstances are necessary for an order
directing the cancellation of the bail, already granted.
Generally speaking the grounds of cancellation of bail,
broadly (illustrative and not exhaustive) are: interference or
attempt to interfere with the due course of administration of
justice or evasion or attempt to evade the due course of
justice or abuse of the concession granted to the accused in
any manner. The satisfaction of the Court, on the basis of
material placed on the record of the possibility of the
CRM No. M-24379 of 2008 4accused absconding is yet another reason justifying the
cancellation of bail. However, bail once granted should not
be cancelled in a mechanical manner without considering
whether any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to retain
his freedom by enjoying the concession of bail during the
trial. These principles, it appears, were lost sight of by the
High Court when it decided to cancel the bail, already
granted. The High Court it appears to us overlooked the
distinction of the factors relevant for rejecting bail in a non-
bailable case in the first instance and the cancellation of
bail already granted.”
Similar was the view in Mahant Chand Nath’s case
(supra). In para 17 of the said judgment, the apex court observed as
under:-
“17. This Court in Subhendu Mishra v. Subrat Kumar
Mishra and Anr. [2000 ACC (Cri) 1508] following
principles stated in Dolat Ram and Ors. v. State of
Haryana MANU/SC/0547/1995 has reiterated that there is
a distinction between rejection of bail in a non-bailable
case at the initial stage and the cancellation of bail already
granted. Normally, very cogent and overwhelming grounds
or circumstances are required to cancel the bail already
granted. In the present case, the High Court, it appears, did
not bear this distinction in mind and cancelled the bail in a
mechanical manner.”
Moreover, from a perusal of the order passed by Additional
Sessions Judge, Fast Track Court, Gurgaon, it is evident that the order
CRM No. M-24379 of 2008 5
of anticipatory bail shall enure only till the presentation of challan. In
case the investigating agency finds cogent evidence and presents a
challan against the accused before the competent court on the basis of
such evidence, the accused-respondent No.4 would have to apply for
regular bail and meet the parameters envisaged by Section 439 Cr.P.C.
for grant of regular bail. This apart, the cancellation of bail has not been
sought by the investigating agency in this case. This leads to an
inference that it has been possible for the investigating agency to carry
out the investigation despite the protective order granted to respondent
No.4 by the court below. Besides, FIR was registered on 24th August,
2008. The investigation may have made considerable progress by now.
I am, therefore, of the view that this petition for
cancellation of anticipatory bail granted to respondent No.4 by way of
order Annexure P-3, deserves to be dismissed. However, the option for
seeking cancellation of bail is still available to the investigating agency,
if the circumstances so require. Liberty for the same is hereby granted
to the investigating agency/prosecution.
It is, however, necessary to point out here that certain
observations have been made by the Additional Sessions Judge, Fast
Track Court, Gurgaon in paras 8, 9 and 10 of the order granting bail,
which may amount to an opinion on merits. I am of the considered view
that it was not at all necessary for the said court to advert to merits of
the case while considering an application for grant of anticipatory bail.
In depth analysis of evidence and material on record at the stage of
CRM No. M-24379 of 2008 6
considering an application under Section 438 Cr.P.C. is not at all
required. This approach was disapproved by the Supreme Court in Nira
Radia’s case (supra) with the following observations:-
“We find that while dealing with an application for bail, the
learned Single Judge of the High Court has made elaborate
and detailed analysis of the evidence/materials and has
recorded findings which virtually amounts to acceptability
or otherwise thereof. This is not the course to be adopted
by the High Court while dealing with a bail application.
Though, some reference to the materials would be
necessary, that would not be a substitute for making a
detailed and in-depth analysis of the materials and
recording findings on their acceptability or otherwise. That
essentially is a matter for trial. …………”
In this view of the matter, it is directed that the trial court
shall not take into consideration any observations made in the order
granting anticipatory bail at any stage of the proceedings either at the
time of considering application, if any, for regular bail or at the stage of
trial.
The petition thus stands dismissed.
(RAJAN GUPTA)
JUDGE
January 22, 2009
‘Rajpal’
