JUDGMENT
S.C. Jain, J.
(1) This is a petition filed by the State through its Standing Counsel.Shri P.S. Sharma for the cancellation of bail of the accused Nitin Shah, which was granted by Shri B.S. Chaudhary, the then Additional Sessions Judge,Shahdara in case Fir No. 258/92 under Sections 302, 120B and 341.P.C. Police Station Shakar Pur,Delhi on 13.10.1992. In brief the facts of the case, as are apparent on record, are that Shri Lalit Kumar Suneja, was working as distributor at Delhi of M/s Shivnit Enterprises, a proprietary concern of Mr.Nitin Shah, the accused. It is alleged that Mr. Nitin Shah had terminated the appointment of the said Mr. Suneja, as a distributor, which gave rise to disputes and differences between them. According to Mr. Nitin Shah, the accused, the deceased was demanding exhorbitant sums of money from him, the figure of which varied on every occasion, which he claimed were due from the said concern, M/s Shivnit Enterprises to him.
(2) As per the prosecution case, Mr. Nitin Shah, the accused in conspiracy with one Mr. 0m Prakash Srivastava alias Bablu alias Bhai, his henchman hired Mr. Manish Dixit and other co-accused who are known bad characters for killing Mr. Lalit Kumar Suneja, the de- ceased.
(3) It is alleged that a sum of Rs. I lakh was allegedly given to these assailants for this job. As a result of that conspiracy, on 2.8.1992 Manish Dixit along with co-accused Virendra alias Chhotoo went on a motor cycle to Bank Enclave and Manish Dixit fired with a pistol at Lalit Kumar Suneja,who was returning from temple at 8 a.m. The said Mr. Lalit Kumar Suneja, when removed to the hospital was declared brought dead. During investigation Manish Dixit and Manjeet Singh were arrested. It is alleged that the motor cycle used in the offence has been recovered.
(4) It is stated that Mr. Nitin Shah, respondent herein, approached the High Court of Bombay for anticipatory bail on 12.8.1993 and on 138.1993 he was granted anticipatory bail up to 28.8.1993 with liberty to apply to the appropriate Court at Delhi for further relief. The respondent claims that he appeared on ten occasions before the Delhi Police officers investigating the case for interrogation pursuant to Section 160 Cr.P.C. notice issued by the Police.
(5) Shri B.S.Chaudhary,AdditionalSessions Judge,beforewhom the application for anticipatory bail was moved second time as the earlier application was dismissed, granted bail to this accused on 13.10.1992 on the ground that on receipt of notices issued under Section 160 Cr.P.C. this accused made appearance before the 1.0 and joined investigation and in that way the learned Court found that he made himself available for investigation and that even when his earlier bail application was dismissed on 15.9.1992, bu,t the police did not arrest him so it appears that the police is not interested in arresting him, and in such circumstances, he found it a fit case for grant of bail to this accused and he was ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the SHO/IO concerned in the event of his arrest by the police. It is the cancellation of this anticipatory bail granted by the Additional Sessions Judge on 13.10.1992 that this application has been filed by the State.
(6) SUB-SECTION [2] of Section 439 Cr.P.C. provides that a High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. On of the grounds for cancellation of the bail by the High Court is that if the High Court finds that the Lower Court exercised judicial power wrongly.
(7) It is acase’of grant of anticipatory bail because this accused though involved in a case under Section 302, 120-B and 34 Indian Penal Code . was never arrested. Earlier for a limited period he was granted anticipatory bail. by the Bombay High Court and later on he was not arrested by the Delhi Police and Shri B.S. Chaudhary, Additional Sessions Judge admitted him on anticipatory bail on 13.10.1992bythisimpugnedorder.
(8) The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. The power of anticipatory bail has to be exercised sparingly and in exceptional cases. Although the power appears to be unguided, it is in fact required to be exercised subject to limitations imposed by section 437 on the power of granting bail. In addition to the limitations incorporated in section 437, the petitioner must make out a special case for getting anticipatory bail. When power under section 438 Cr.P.C. is exercised without giving reasons or on irrelevant considerations not germane to the determination of the application, the interference by the superior Court is essential in order to avoid miscarriage of justice. Bail should not be granted without due application of mind to the facts of the case. An indirect use of the power to grant bail would be an abuse of the judicial process and would shake the confidence of the general public in the judiciary. While granting anticipatory bail the court must strike a balance so that individuals may be protected from unnecessary humiliation and the faith of the public in the administration of justice is’ not shaken.
(9) Keeping in view this legal proposition, it has to be seen whether the Additional Sessions Judge has rightly exercised his judicial discretion while admitting this accused, who is involved in a heinous and grave offence of murder of an innocent person on anticipatory bail. In this case, the evidence which is on record is to the effect that this accused.Nitin Shah, is the main conspirator,who in collusion with other conspirators, hatched a conspiracy of killing the deceased, Mr. Lalit Kumar Suneja, whom he wanted to get rid of. The actual assailants were the hired persons, as has come on record. It is this accused,Nitin Shah and his henchman.Om Prakash Srivastava alias Bablu alias Bhai,hired the actual assailants for a sum of Rs. 1 lakh and got killed Mr. Lalit Kumar Suneja in the broad day light in front of his house when he was returning from the temple in the presence of his wife.
(10) The said 0m Prakash Srivastava alias Bablu alias Bhai, the henchman of this accused, Nitin Shah is still absconding and has not been arrested. One of the other co- accused, Vimal is also absconding. Granting anticipatory bail in such circumstances when the other co-accused are still to be arrested and without discussing about the gravity of the offence, a question arises whether the Additional Sessions Judge was justified in admitting this accused, Nitin Shah on anticipatory bail. My answer is “No”. (11) Learned counsel for the respondent stated that there is no allegation against this accused that he had tampered with the evidence or he had abused his liberty when admitted on anticipatory bail. He also submitted that there are no chances of this accused absconding and that this accused had joined investigation whenever required to do so and in such circumstances, according to the learned counsel, this application for cancellation of the anticipatory bail should bedismissed.
(12) According to the learned counsel for the respondent, very cogent and over- whelming circumstances are necessary for seeking cancellation of bail. He relied upon the decisions of the Supreme Court as well as of other High Courts [2] Crimes 84 in support of his contention.
(13) According to the learned counsel, rejection of bail when bail is applied for is one thing, and cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case.
(14) I am not impressed by the arguments advanced by the learned counsel for the accused respondent in the present circumstances of the case. The offence in this case is very grave and serious. There is sufficient evidence on record to connect this accused with the said offence. The statements of Ram Swaroop, gardener of the deceased, Smt. Beena, wife of the deceased; statements of the assailants apprehended, the recovery of the motor cycle used by the assailants and other circumstances are very much relevant to show and prove that the offence is grave and serious and the involvement of this accused, Nitin Shah, as the main conspirator cannot be ruled out. Besides these oral statements, there is other documentary evidence on record to show that the deceased Mr. Lalit Kumar Suneja on 23.7.1992 apprehending danger from this accused, Nitin Shah and his associates, lodged a written complaint with the P.S. Hazrat Nizamuddin for seeking police protection.
(15) From the impugned order I find that this Additional Sessions Judge has not applied his judicial mind while granting anticipatory bail to this accused involved in such a heinous and grave offence of the murder of an innocent person. The Additional Sessions Judge while granting anticipatory bail to this accused has exercised his judicial power wrongly. Judiciary is one of the pillars of democracy and if the public at large loses faith and confidence in the judiciary, that will be a dooms day for the democracy. By granting anticipatory bail to this accused without application of mind and without using his judicial discretion rightly this Judicial Officer appears to have tarnished the image of the judiciary and if such type of misuse of the judicial discretion continues, the confidence of the general public in the judiciary would be shaken.
(16) It has been pointed out that this very Additional Sessions Judge has earlier by misusing his judicial discretion admitted an accused “Vishnu Pandit” involved in a grave and serious offence of rape on bail and this Court had to cancel that bail by taking suo moto action.
(17) As the Lower Court has not exercised its judicial discretion rightly while admitting this accused on anticipatory bail in such a grave and heinous offence, I therefore, cancel the bail order passed by the Additional Sessions Judge on 13.10.1992 admitting this accused, Nitin Shah on anticipatory bail. He should surrender immediately before the Court concerned and if he fails to do so, the Court concerned should take appropriate steps to get him arrested to face trial in this case in which he is involved.
(18) It is not out of place to mention here that the Police should also not lag behind in performing its duty in a judicial way. The non arrest of this accused person even though his anticipatory bail granted by the Bombay High Court had already expired indicates the slackness on the part of the Police Department. Tha non arrest of the other co-accused involved in this case also shows the inaction on the part of the Police officers concerned with this case.
(19) With these observations, the application moved by the State for cancellation of the anticipatory bail granted to this accused, Nitin Shah is hereby allowed.
