opinion as under :
(i)The Investigating Officer is to take decision seeking
cancellation of bail and the grounds thereof on the basis of
material collected during investigation.
(ii)Section 439(2) of the Cr.P.C. does not envisage any right
upon any stranger to approach the Court for cancellation of
bail, a right which has been conferred only on the Investigating
Officer or under exceptional circumstances to the complainant.
(iii)Application of a stranger cannot be entertained by the Court
without any substantial set of facts and circumstances or
without sound principle of law to call upon the accused for
cancellation of bail who has been protected under Article 21 of
the Constitution of India except the authority empowered under
the Code of Criminal Procedure.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 11th, 2016
CRL.M.C. 1094/2016
PRASHANT KUMAR UMRAO
v
STATE & ANR
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
1. By this order, I shall dispose of both these applications. The
present applications have been filed by the petitioners for cancellation
of bail granted to the Kanhaiya Kumar, respondent no.2 in Crl.M.C.
1094/2016 & respondent no.1 in Crl.M.C. 1095/2016 (hereinafter
referred to as “respondent/accused”) vide order dated 02.03.2016 by
this Court in FIR No.110/2016, under Sections 124-A/120-B/147/
149/34 IPC, Police Station Vasant Kunj North.
2. Vide order dated 02.03.2016, this Court granted interim bail to
the respondent/accused Kanhaiya Kumar for a period of six months.
3. The law regarding cancellation of bail is well settled. In the
judgment of Hon’ble Apex Court in the case of Dolat Ram v. State of
Haryana 1995 SCC (1) 349, it was observed that :
“Rejection of bail in a non-bailable case at the
initial stage and the cancellation of bail so
granted, have to be considered and dealt 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 for 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 accused
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.”
4. Section 439(2) of the Code of Criminal Procedure
(hereinafter referred to as “Cr.P.C.”) envisages the right to move the
application for cancellation of bail with the investigating agency
against the person as per the circumstances mentioned in the judgment
in the case of Dolat Ram (supra). As per the Code of Criminal
Procedure set up, the criminal proceedings are between the State and
the accused or between the complainant and the accused. A stranger
does not have any access to the proceedings particularly when the
investigation is already in progress to prepare the report to submit the
same before the Court. The investigation cannot be interfered with or
intervened in any manner by any stranger and the Investigating Officer
is to take decisions regarding the conduct of the investigation and the
accused as provided by the Cr.P.C.
5. Apart from the judgment referred above, this Court is of the
considered opinion that investigation is the prerogative and domain of
the Investigating Officer and that no other person is allowed to
intervene in the same. The Investigating Officer is to ensure that his
investigation is moving smoothly without any interference or
obstruction caused by the accused. So, as per the principle laid down
in the case of Dolat Ram (supra), the Investigating Officer is the only
appropriate person to move the application for cancellation of bail
through the State, if need arises. In the present case, no hindrance or
obstruction has been brought forth by any of the parties, rather it is the
specific case of the petitioners that they are seeking cancellation of
bail solely on account of the alleged violation of the conditions
imposed in the bail order dated 02.03.2016.
6. The present applications have been moved by the petitioners
in their individual capacity claiming themselves to be citizens of India
and on the basis of judgments in the cases of Sheonandan Paswan v.
State of Bihar and others (1987) 1 SCC 288 and A.R. Antulay v
Ramdas Sriniwas Nayak and another (1984) 2 SCC 500 that there is
no bar to a stranger from putting the criminal process in motion. On
the basis of the judgments cited by the counsel for the petitioners, the
plea taken is that after the grant of bail the accused/respondent made
various statements which tantamount to breach of the conditions of
bail and therefore sought the cancellation thereof.
7. In pursuance of the notice, State/Government of the National
Capital Territory of Delhi was asked to file reply to clear its status and
to know the stand of the prosecution as to whether they wished for the
cancellation of the bail to be granted to the respondent/accused or not.
8. On 28.04.2016, in the interest of justice, the State/Govt. of NCT
of Delhi was directed to file reply within four weeks and the matter
was adjourned to 19.07.2016. Again on 19.07.2016, the State/Govt. of
NCT of Delhi was directed to file the reply within one week and the
matter was adjourned to 09.08.2016. Reply was filed to the present
applications in which it is mentioned that it is for this Court to form an
opinion whether the respondent/accused has violated the conditions of
bail or not. The stand taken by the learned Standing Counsel for the
State/Govt. of NCT of Delhi on the instructions of the Investigating
Officer was that the prosecution is not in favour of cancellation of bail
granted to the respondent/accused.
9. During the course of arguments, counsels for the petitioners
submitted that there are more than 50 accused persons involved in the
present case and that the information regarding alleged statements
made by the respondent/accused is on the basis of Television and that
they have no personal knowledge. It was further submitted that the
petitioners have not lodged any complaint to any authority against the
respondent/accused and they do not know the respondent/accused
personally.
10. The Code of Criminal Procedure envisages or confer the right to
move the application for cancellation of bail only by the investigating
agency or by the complainant. As per the judgments in the case of
Sheonandan Paswan (supra) and A.R. Antulay (supra), a stranger can
move the application to put the law into motion by the competent
authority i.e. the prosecution. Any application moved by a stranger
should be on the basis of a substantial set of facts and on sound basis
of law and without the same, the application should not be entertained
by the Court. In the facts and circumstances, the petitioners have
failed to bring forth any case which leads to the issuance of notice to
the respondent/accused.
11. The contentions made by the counsel for the petitioners that the
speeches made by the respondent/accused subsequent to the grant of
bail are anti national and violative to the conditions of bail, do not find
any substance on the file. The alleged speeches made by the
respondent/accused have been noticed by the petitioners from the
Television or newspapers. The petitioners have no personal
knowledge of the speeches so made and contents thereof. Even the
petitioners are not aware whether these speeches were declared anti
national by any court of law or whether such speeches are the subject
matter of any prosecution before any court of law. Alleging the
speeches as anti national is the personal perception of the petitioners
and nothing has been brought forth to establish that such speeches
were actually made or that the same were declared anti national by any
court of law.
12. After filing of the applications, the matters came up for hearing
on 16.03.2016 and on the request of the counsel for the petitioners, the
matters were adjourned to 17.03.2016. On 23.03.2016, on the request
of the counsel for the petitioners, matter was adjourned to 28.04.2016.
On 28.04.2016, on the request of the Standing Counsel (Criminal) of
the State/Govt. of NCT of Delhi to file reply to the applications, the
matters were adjourned to 19.07.2016. On 19.07.2016, reply was not
filed by the State/Govt. of NCT of Delhi and the matters were
adjourned to 09.08.2016 to enable the State to file the reply within one
week. In the reply filed by the Investigating Officer it is submitted as
under :
“That the question whether Respondent No.2
violated the conditions of bail order thereby
which he was granted Bail is to be answered in
the light of subsequent event happened whereby
which Respondent No.2 had given various
speeches on 3rd March and 8th March subsequent
thereto. The sequence of events has been placed
before this Hon’ble Court and this Hon’ble Court
may be pleased to form appropriate opinion in the
light of material placed on record.”
It would be pertinent to mention that at no point of time did the
State/Govt. of NCT of Delhi seek the cancellation of bail and
ultimately on 09.08.2016, the Standing Counsel (Criminal), State/
Govt. of NCT of Delhi on the instructions of the Investigating Officer
categorically stated that the “State (Police) is not for cancellation of
bail”.
13. In view of the above discussion, the prosecution does not wish
to enter into the question whether any such speech made is violative to
the condition of bail and instead wishes to continue with the
investigation smoothly without any hindrance and is of the categorical
stand that the bail need not to be cancelled.
14. The argument advanced by the counsel for the petitioners that
the applications have been moved to put the legal process in motion is
without any substance as the state machinery was already in motion
and investigation was being conducted smoothly, so such applications
are unwarranted.
15. In totality of the circumstances, this Court is of the considered
opinion as under :
(i)The Investigating Officer is to take decision seeking
cancellation of bail and the grounds thereof on the basis of
material collected during investigation.
(ii)Section 439(2) of the Cr.P.C. does not envisage any right
upon any stranger to approach the Court for cancellation of
bail, a right which has been conferred only on the Investigating
Officer or under exceptional circumstances to the complainant.
(iii)Application of a stranger cannot be entertained by the Court
without any substantial set of facts and circumstances or
without sound principle of law to call upon the accused for
cancellation of bail who has been protected under Article 21 of
the Constitution of India except the authority empowered under
the Code of Criminal Procedure.
16. In view of the facts and circumstances and discussions dealt
with above, this Court does not find any substance to cancel the bail
granted to the respondent/accused and to issue notice to the
respondent/ accused for cancellation of bail. Thus, the applications
are dismissed.
17. Apart from the above discussion, this Court is of the considered
opinion that much time has already spent on the applications. It would
be appropriate if the Investigating Officer submit his report within a
period of six months from the date of grant of bail for consideration of
the Court.
(P.S.TEJI)
JUDGE
AUGUST 11, 2016
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