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Long Delay In Lodging FIR A Valid Consideration To Grant Anticipatory Bail: Supreme Court

In a well-articulated, well-worded, well-reasoned and well drafted judgment titled Sumedh Singh Saini vs State of Punjab and another in exercise of its criminal appellate jurisdiction in Criminal Appeal No. 827 of 2020 (Arising from SLP(Criminal) No. 4336/2020) delivered most recently on December 3, 2020, a three Judge Bench of the Apex Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah have been forthright in observing that a long delay in lodging FIR can be a valid consideration for grant of anticipatory bail. The Bench headed by Justice Ashok Bhushan observed thus while allowing the anticipatory bail plea of Sumedh Singh Saini who is the former Director General of Police (DGP), Punjab who had sought the bail in relation to the 1991 Balwant Singh Multani murder case. Earlier we had seen how the Punjab and Haryana High Court had dismissed his anticipatory bail application which was bound to disappoint him greatly.

To start with, this latest, landmark, learned and laudable judgment authored by Justice MR Shah for himself, Justice Ashok Bhushan and Justice R Subhash Reddy after granting leave as mentioned in para 1 then while stating the brief facts states in para 2 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08.09.2020 passed by the High Court of Punjab and Haryana at Chandigarh in CRMM No. 26304 of 2020, by which the application submitted by the appellant herein for anticipatory bail in connection with FIR No. 77 dated 06.05.2020 for the offence punishable under Section 302 IPC, lodged with Police Station City Mataur, District S.A.S. Nagar, Mohali has been dismissed, the original petitioner-accused has preferred the present appeal.”

To say the least, the Bench then observes in para 3 that, “That one Palwinder Singh Multani, brother of one Balwant Singh Multani (deceased) has lodged an FIR against the appellant at Police Station City Mataur initially for the offences punishable under Sections 364, 201, 344, 219 and 120B of the IPC, and subsequently the offence punishable under Section 302 IPC has been added.”

More revealingly, it is then stated in para 3.1 that, “It is alleged that in the year 1991 one Balwant Singh Multani – brother of the informant was illegally abducted from his residence at Mohali by a team of officials operating under the instructions of the appellant; that he was severely and inhumanly tortured while in custody, by and at the behest of the appellant. It is further alleged that a false and fabricated FIR No. 112 of 1991 might have been registered at the instance of the appellant to suggest that the victim was brought to the police station Qadian from where the victim was alleged to have escaped.”

While elaborating in detail, the Bench then observes in para 3.2 that, “That apprehending his arrest in connection with FIR No. 77 dated 06.05.2020, the appellant filed anticipatory bail application before the learned Additional Sessions Judge, Mohali. At this stage, it is required to be noted that when the appellant applied for anticipatory bail, the allegations in the FIR against the appellant were only for the offences punishable under Sections 364, 201, 344, 330, 219 and 120B of the IPC. That by order dated 11.05.2020, the learned Additional Sessions Judge, Mohali granted anticipatory bail in favour of the appellant. That thereafter as the appellant was apprehending that the offence under Section 302 IPC may be added, he approached the learned Additional Sessions Judge, Mohali for anticipatory bail for the offence punishable under Section 302 also. By order dated 10.07.2020, the learned Additional Sessions Judge granted protection by way of three days’ advance notice in case of addition of offence under Section 302 IPC. It appears that thereafter three co-accused in FIR No. 77 dated 06.05.2020 wanted to become approver and they submitted the applications before the learned Chief Judicial Magistrate, Mohali for grant of pardon and declaring them as approver under Section 306 Cr.P.C. However, all the three applications came to be dismissed by the learned Chief Judicial Magistrate, Mohali, vide order dated 7.8.2020. However, thereafter the applications submitted by the other co-accused – Jagir Singh and Kuldip Singh to grant them pardon and permit them to become approver  came to be allowed by the learned Chief Judicial Magistrate, Mohali, vide order dated 18.08.2020. That thereafter the statements of Jagir Singh and Kuldip Singh were recorded by the learned Judicial Magistrate (First Class), Mohali, which were against the appellant. On the basis of the statements of the aforesaid two co-accused who subsequently turned approver – Jagir Singh and Kuldip Singh, an application was submitted before the learned Judicial Magistrate, First Class (Duty Magistrate) seeking addition of Section 302 IPC in FIR No. 77 dated 06.05.2020. That by order dated 21.08.2020, the learned Judicial Magistrate, First Class (Duty Magistrate) allowed the said application and thus Section 302 IPC came to be added.”

To be sure, it is then stated in para 3.3 that, “That thereafter the appellant applied for anticipatory bail for the offence under Section 302 IPC before the learned Additional Sessions Judge, Mohali by way of bail application no. 1527 of 2020. That the learned Additional Sessions Judge vide order dated 01.09.2020 dismissed the said application. That thereafter the appellant approached the High Court of Punjab and Haryana at Chandigarh with an application for grant of anticipatory bail being CRMM No. 26304 of 2020. By the impugned judgment and order, the High Court has dismissed the said anticipatory bail application. Hence, the appellant has preferred the present appeal.”

As we see, it is then pointed out in para 4 that, “Shri Mukul Rohatgi, learned Senior Advocate has appeared for the appellant-accused, Shri Sidharth Luthra, learned Senior Advocate has appeared for the State of Punjab and Shri K.V. Vishwanathan, learned Senior Advocate has appeared on behalf of the original informant.”

To put things in perspective, it is then envisaged in para 6 that, “We have heard the learned counsel appearing on behalf of the appellant-accused, learned counsel appearing on behalf of the State and learned counsel appearing on behalf of the original informant. At the outset, it is required to be noted that in the present appeal the only question which is required to be considered is whether the appellant is entitled to the anticipatory bail under Section 438 Cr.P.C.?”

As it turned out, the Bench then holds in para 7 that, “Number of submissions have been made by the learned counsel appearing on behalf of the appellant-accused on political vendetta, malafide, delay in lodging the FIR, even the maintainability of the impugned FIR etc. However, taking into consideration that the quashing petition filed by the appellant-accused is pending before this Court and the issue whether the FIR/criminal proceedings are required to be quashed or not is at large before this Court, we do not propose to elaborately deal with all the submissions made by the learned counsel appearing on behalf of the respective parties.

However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra) and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, we are of the opinion that at least a case is made out by the appellant for grant of anticipatory bail under Section 438 Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail.”

Be it noted, the Bench then makes it a point to observe in para 8 that, “Informant and the State are relying upon the observations made by this Court in the case of Davinder Pal Singh Bhullar (supra) and the liberty reserved in para 117 to the applicant who earlier filed the petition under Section 482 Cr.P.C. (father of the deceased) to take recourse to fresh proceedings, if permissible in law. However, suffice it to say that the said liberty was as such in favour of the father of the deceased who in the earlier round of litigation before the High Court (from which the SLP (Criminal) No. 6503-6509/2011 were arisen) filed the petitions under Section 482 Cr.P.C. This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law.” It is reported that the father of the deceased died in the year 2014. Till 2014, the father of the deceased did not initiate any fresh proceedings. After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra), all of a sudden, now the informant-brother of the deceased has woken up and has initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR.”

Furthermore, the Bench then goes on to add in para 9 that, “Looking at the status of the appellant and it is reported that he has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120B of the IPC, for which there was an order of anticipatory bail in favour of the appellant and subsequently the offence under Section 302 IPC has been added on the basis of the statements of Jagir Singh and Kuldip Singh – approvers only, we are of the opinion that the appellant has made out a case for anticipatory bail.”

As a corollary, it is then held in para 10 that, “In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court, as well, as the learned Additional Sessions Court dismissing the anticipatory bail applications of the appellant for the offence punishable under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby quashed and set aside. It is ordered that in case of arrest of the appellant – Sumedh Singh Saini in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali for the offence punishable under Section 302 IPC, he shall be released on bail on furnishing personal bond in the sum of Rs.1,00,000/- (Rupees one lakh only) and two sureties of the like amount and to surrender the passport and to cooperate with the investigation (however without prejudice to his rights and contentions in the pending proceedings to quash the impugned FIR).” Finally, it is then held in para 11 that, “The appeal is allowed to the aforesaid extent.”

To conclude, the bottom-line of this learned, latest, laudable and landmark judgment is that the long delay in lodging an FIR is certainly a valid consideration to grant anticipatory bail. All the Judges of all the courts whether it is the District Courts or High Courts or even the Supreme Court itself must always take into account the gist of what has been held so exclusively, so explicitly and so elegantly in this noteworthy case by a three Judge Bench of the Supreme Court comprising of Justice Ashok Bhushan, Justice Subhash Reddy and Justice MR Shah whenever there is a long delay in lodging an FIR without any compelling reasons! There certainly can be no ever denying or disputing it!

Sanjeev Sirohi

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