Vivek Gaur v. Naresh Karotia & Ors

judgment of the Apex Court in case titled Siddharam Satlingappa Mhetre Vs. State of -: -~- ~ ;- ~ -'< ." rzz· Maharashtra & Ors. 2011 (XII) AD SC 340 wherein broad principles for grant of bail had been recapitulated and it has been observed that the personal liberty of an accused is the most valuable thing and it should not be permitted to be jeopardized by false and frivolous accusations. The two anticipatory bail applications were withdrawn, and therefore, they could not be treated as dismissal of the anticipatory bail application on merits and even if the one which was decided on merits was not treated as an application dealing with the points on merits which were sought to be urged before the learned Additional Sessions Judge, I am of the view that in case such a reasoning is given then it wnl only open pandora's box and give unlimited number of opportunities to an accused to file repeated applications by observing that earlier -;· _..f, -:-! ' 'V \ I / anticipatory bail application was not decided on merits. This Court in case titled Raj Kumar vs. State (NCT !>f Delhi) 128 (2006) DLT 264 has also observed that it is a common knowledge that when an application for grant of anticipatory bail is filed and argued by the counsel then after sensing that the Court is not in favour of granting bail, the counsel makes a statement seeking permission to withdraw the petition, which permission as a matter of routine is granted by the Courts. But certainly, only on account of the fact that reasons for rejection of the bail do not apparently get recorded does not mean that the withdrawal of the application of the petitioner was for want of non-consideration of his bail application on merits. In the instant case, this had happened admittedly as there was withdrawal of application at least on _ ___ -~ :" ~ ' :sv two occasions. It was contended by the learned counsel for the respondents that the application was withdrawn to be filed before the appropriate Court, where trial was pending. If benefit of this submission is given, even then at least on one occasion the application was withdrawn after being argued which would be treated as rejection on merits.

¶10So far as the third anticipatory bail application which has been considered by the learned Additional Sessions Judge is concerned, it has been observed that this application purported to have been rejected on merits can also not be treated as rejection on merits because the reasons are not given with regard to the evidence against the respondents. - :- ~l

¶11I feel that such a reasoning given by the learned Additional Sessions Judge is fraught with danger, in ! as much as, every time an anticipatory bail application is rejected and it does not deal with a particular aspect of the matter which may not have been urged, though available. This will give rise to an occasion of filing of the successive bail applications on the said grounds before another Bench, for the purpose of reconsideration and will result only in Bench hunting by an unscrupulous accused. The fact of the matter in the instant case __., is that if not on four occasions at least on three occasions the anticipatory bail was either dismissed or withdrawn.

¶12The power of grant of anticipatory bail has been conferred by the Code of Criminal Procedure, concurrently, on the Sessions Court and the High Court. Normally, as a matter of fact, the practice ""' ~~ 3~ which is prevalent in Delhi is that an accused is first relegated to file a petition before the Sessions Court and after having done so, if he is unable to get the requisite relief, he files a second anticipatory bail application before the High Court which is considered by way of judicial review, in as much as, it reconsiders not only the order passed by the learned Sessions Court but also independently assess the facts as to whether the accused person, in the given case, is entitled to grant of bail or not. Once these two opportunities are utilized by an accused and he is unsuccessful, ordinarily, the accused must submit to the processes of law. The law does not countenance that a person who fails to avail the protection of law files successive/repeated anticipatory bail applications, get them rejected and yet does not submit to the processes· of law, and .~ ," ~ )~ thereafter, sits on the fence observing the proceedings and then suddenly resurfaces after the charge sheet has been filed and applies to the Court for grant of anticipatory bail.

¶13This is precisely what has happened in the instant case. The respondents anticipatory bail applications were rejected earlier three or four times after which they ought to have submitted to the processes of law. Normally, a person who seeks protection of law must submit to the processes of law. On the contrary, the respondents were declared proclaimed --" ;· offenders after their anticipatory bail application ~ having been rejected. Certainly, a person declared as a proclaimed offender may not be denied the benefit of anticipatory bail in all circumstances. A distinction has to be made where a person has been declared as a proclaimed offender without his ', / P7 knowledge and cases where a person knows about his being required by law enforcing agency yet tries to escape from the same by hook or by crook and then suddenly finds an opportune time to obtain an order to insulate his liberty. Such a benefit conferred on this kind of unscrupulous accused persons, in my view, is a dis-service to the law. I feel that the learned Additional Sessions Judge, in the instant case, by granting the benefit of · anticipatory bail to the respondents, has not exercised his discretion judiciously and properly as they were declared as proclaimed offenders and their application for anticipatory bail had been rejected.

¶14Having said so now the necessary consequence of such an observation would normally be the cancellation of the order passed by the learned :>f Additional Sessions Judge or either arrest respondents/accused or give them a protection that they must surrender before the Court concerned. It is also observed by . the Courts in different circumstances that if the interim bail is granted to an accused person on couple of occasions and the same has not been misused by him then it would certainly be a valid consideration for grant of regular bail in respect of a serious offence, but in a case of a heinous crime like the present one, it may not be at all the one of the considerations. Reliance in this regard has been placed on case titled Gobarbhai Naranbhai Singla Vs. State of Gujrat & Ors 2008(3) SCC 775.

¶15Though the subsequent facts may not be conclusive in deciding the validity of an order of bail, but these facts do become important because ultimately - .-'< .-! ,, )(; cancellation order impairs the liberty of a person. I am also of the view that the subsequent facts may have some impact on validity of the cancellation order, because with the lapse of time, in case the respondent whose anticipatory bail application was sought to be cancelled and who does not create conditions so as to threaten either fair investigation or fair trial or in other words, has not mis-used his liberty, then it may be a valid consideration for not putting him necessarily in judicial custody as a matter of punishment. But this will again vary from the case to case and further there can be no person better than the trial Judge to appreciate this. Thus, keeping in view the aforesaid points, I feel that the interest of justice would be sub-served in case the order dated 01.08.2011 passed by the learned Additional Sessions Judge is set aside by ,- -' --'• 3Y exercising the powers of the Court under Section 482 read with section 439 (2) Cr.P.C. and the respondents/accused herein are directed to appear before the learned Special Judge within a period of two weeks from today and file an appropriate application for grant of regular bail. The respondents shall not be taken into custody till their regular bail application is decided by the Court afresh on merits after taking into consideration all the facts and circumstances of the case germane to the grant of regular bail. Ordered accordingly. The learned Special Judge shall not get influenced, in any manner whatsoever, by the observations :- ~ -'< passed by this Court hereinabove, as these are only ·~ tentative views formed by this Court for deciding the present petition wherein the order dated )6

01.08.2011 is assailed. With these directions, the petition stands disposed of.

¶16Dasti. JANUARY ~r-dj2012 KP \-,/ ) . y/ lj/'J'N

V.K. SHALl, J. .-! :-..0..

I HIGH COURT OF DELHI: NEW DELHI + VIVEK GAUR Cri.M.C. 2550/2011 Date of Decision: ;.:_ .01.2012 ... Petitioner Through: Mr. Siddharth Luthra, Sr. Versus Adv. with Mr. Gaurav Gaur and Mr. Rupesh Yashpreet, Advs. NARESH KUMAR KAROTIA & ORS. . .. Respondents CORAM: Through: Mr. Navin Sharma, APP for the State. Mr. Shailiendra Babbar with Mr. Joginder Sukhija, Advs. tiON'BlE MR. JUSTICE V.K. SHAll V.K. SHAll, J. 1. This is a petition, filed under section 482 read with Section 439(2) Cr.P.C. for setting aside the order dated 01.08.2011 passed by the learned Additional Sessions judge, Dwarka Courts, New Delhi -----' I ! fei regarding granting of anticipatory bail to the respondents. 2. Briefly stated, the facts of the case are that a case FIR No.30/2010, under section 302/307/34/1471 148/323/325 IPC read with section 25/27 of the Arms Act was registered at P.S. Dabri, New Delhi, on the statement of Sh.Vivek Gaur, s/o Sh.Virender Kumar Sharma, R/o C-25, New Krishna Park, Vikas Puri. He had stated that he, along with his family, has been residing at the above given address and is running a factory of manufacturing scooter parts at Khasra No.38, Village Dabri, New Delhi. On 24.01.2010, at about 9.30/10 am Haryana Police came to Dabri, Delhi in connection with the investigation of case FIR No.2/2010, under section 380/342/147/148/448/506/511 IPC, registered by PS Manesar, District Gurgaon, Haryana, at the ----!. --------'< ) ' instance of one Sameer Gaur s/o Late Sh.R.K.Naseem. The Haryana Police had apprehended three accused persons from the factory of one Vinod Sharma, uncle of the complainant, which was also located in the same Khasra No. 38, Dabri Village, New Delhi. At about 11 am, Vinod Sharma, his son Aman Gaur, the present petitioner and his driver Amrit Lal came to the spot. Neeraj, Rahul, Naresh Karotia, Sunita w/o Ram Mehar Singh, who were employees of Vinod Sharma also came to the spot. Thereafter, it is alleged that Vinod Sharma, his son Aman Gaur, the present petitioner and his workers created riotous situation. Sunita w/o Ram Mehar Singh and another worker of Vinod Sharma Laxman brought lathis (big sticks) from inside the factory. Sh. R.K.Naseem, a noted lawyer, who is the uncle (Phoofaji) of the -----' (2- complainant had also come there and he had tried to pacify both the parties. It is alleged that when Sh.R.K.Naseem stood at one side, facing the factory of Vinod Sharma with his back, Vinod Sharma took a lathi (a wooden plank) and hit it on the head of Sh.R.K.Naseem from the back, with an intention to kill him. As a consequence of this, Sh.R.K.Naseem fell down and became unconscious. Aman Gaur, the present petitioner, is alleged to have taken out a revolver and fired three rounds with an intention to kill Sh.Rajiv Gaur and others but there was a narrow escape and nobody got injured. It is alleged that Aman Gaur threatened to kill while firing towards Sh.Rajiv Gaur and others. It is alleged that Neeraj, Ramesh Raghav, Kailash Khati, Naresh Karotia, Rahul and Amrit Lal belonging to the group of Vi nod Sharma attacked ~" -.-! -.J, ;·! t) the complainant's brothers, namely, Sunny and Monty with the help of sticks (danda) and fists. 3. On the basis of the aforesaid information, the FIR was registered. Sh.R.K.Naseem was admitted to the hospital, where he succumbed to his injuries after a few days without gaining consciousness. The offence of section 302 was subsequently added to the FIR. 4. So far as the bail granted to Naresh Karotia, Amrit Lal and Laxman by the learned Additional Sessions Judge on 01.08.2011 is concerned, I have heard the learned senior counsel Mr. Siddharth Luthra for the petitioner and Mr.Shailendra Babbar on behalf of the respondents/accused. 5. The main contention of the learned senior counsel for the petitioner is that the order of the learned Additional Sessions Judge granting bail to the three respondents/accused was totally arbitrary, unwarranted and improper exercise of discretion on account of t