matter. Bail once granted can be cancelled only when there exist very
cogent and overwhelming circumstances. It is settled law that parameters
for grant of bail and cancellation of bail are different. However, if the Trial
Court while granting bail acts on irrelevant materials, bail can be cancelled.
The bail can be cancelled even in cases where the order granting bail suffers
from serious infirmities resulting in miscarriage of justice. If the Court
granting bail ignores relevant materials indicating prima facie involvement
of the accused or takes into account irrelevant material, which has no
relevance to the question of grant of bail to the accused, the High Court
would be justified in cancelling the bail. Such orders are against the well
recognised principles underlying the power to grant bail. Such orders are
legally infirm and vulnerable leading to miscarriage of justice and absence
of supervening circumstances such as the propensity of the accused to
temper with the evidence, to flee from justice etc. would not deter the Court
from cancelling the bail (‘Kanwar Singh Meena vs. State of Rajasthan &
Anr.’, AIR 2013 SC 296).
IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : MAY 31, 2017.
CRL.M.C. 844/2017 & CRL.M.A.No.3554/17
ROHIT BANSAL
V
STATE & ANR.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
1. The instant petition under Section 439(2) read with Section 482
Cr.P.C. has been preferred by the petitioner-Rohit Bansal to challenge the
legality and correctness of an order dated 27.2.2017 of learned Additional
Sessions Judge in FIR No.1187/2015 registered under Sections
302/308/201/212/34 IPC at Police Station Hauz Khas whereby the
respondent No.2- Anil Yadav (hereinafter referred to as ‘the respondent’)
was granted regular bail. The petition is contested by ‘the respondent’.
2. I have heard the learned counsel for the petitioner, learned APP
and learned Senior counsel for ‘the respondent’ and have examined the file.
Undisputedly, ‘the respondent’ is facing trial in case FIR No.1187/2015
registered under Sections 302/308/201/212/34 IPC.
3. Briefly stated the facts as projected in the charge-sheet are that
on 22.10.15 on receipt of DD No.10A regarding admission of injured
Rupesh Tanwar and Rohit Bansal at Trauma Centre, AIIMS, ASI Dalbir
Singh went there and lodged First Information Report after recording
petitioner’s statement. The petitioner informed that on 21.10.2015, he along
with his friends Vinit, Sonu, Rupesh (since deceased) and Monu had gone to
Shanghai Club in two cars i.e. Santro and Honda Civic at 12.00-12.15
(night). During dance on the floor of the club, the petitioner’s hand stuck
with an individual to whom he said ‘sorry’. The said individual abused and
boosted him if he did not know him. The matter was pacified by the
bouncers. Thereafter, they came out of the club and reached IIT Gate in cars.
The petitioner further disclosed that he found his mobile to have fallen
during quarrel. He along with his friends Rupesh, Sonu and Monu went
back in Santro car to the club. When they reached near the club at some
distance before it, he found that a Mercedes and EON car had blocked the
road; Bolero car was parked on the road-side. When they asked them to
remove the car, one of the boys with whom an altercation had taken place in
the club, threatened to teach them lesson as they were the individuals who
had misbehaved in the club. Thereafter, all the 7/8 assailants started beating
them. Out of them, one brought a rod from the car and started hitting
Rupesh. When he intervened to save Rupesh, they also made him to fall on
the road. One of the assailants lifted a cemented brick and hit him on his
head. They all ran towards different directions to save themselves leaving
Santro at the spot. He further informed that when he returned to take back
his car, he saw Rupesh lying at the spot unconscious; he had sustained
various injuries on the body. He and his friend Sunil put Rupesh in Santro
and took him to AIIMS Trauma Centre. The complainant gave description
of the assailants in the complaint. A case under Section 307/308/34 IPC
came to be registered.
4. During the course of investigation, statements of Sagar Sharma
@ Sonu, Jitender, Vinit, Mohinder @ Monu and Sunil conversant with facts
were recorded. Statement of Vinod Sharma and Jeyavelu, Managers of the
club, were also recorded. CCTV footage of the camera installed at the spot
was viewed; footage was obtained and photographs were developed.
Rupesh’s statement could not be recorded as he remained unfit throughout
and finally succumbed to the injuries on 26.10.2015. During investigation,
‘the respondent’ and his associates were arrested and their disclosure
statements were recorded. Certain recoveries were effected at their instance.
The respondent and his associates declined to participate in Test
Identification Proceedings. Upon completion of investigation, a chargesheet
was filed against all of them including ‘the respondent’ for
commission of offences under Sections 302/308/201/34 IPC; charge-sheet
against Siddhant @ Goldy was prepared under Section 201/212 IPC.
5. By a detailed/comprehensive impugned combined order, the
Trial Court ordered to frame charge against all for commission of offence
under Sections 302/308/34 IPC; charge under Section 201/212 was framed
against Siddhant @ Goldy.
The Trial Court noted in para 35 of the order that at the time of
framing of charge, the court has to satisfy itself whether a prima facie case is
made out for proceeding further or not. The court at this stage is not meant
to meticulously weigh the evidence. Even a strong suspicion founded upon
the material is sufficient for framing of charge, it is not open to the court at
this stage, to evaluate the material to bring home the guilt of the accused. It
is sufficient if the material on the record supports a triable issue. Court is not
expected to go into the probative value on record, nor required to discuss
every material placed before it by the police along with the charge-sheet.
It was further observed that there were specific roles assigned
to the assailants. Various discrepancies in the prosecution case pointed out
by the learned counsel for the accused persons regarding the non-disclosure
of name of the accused in the FIR recorded after 10 hours of the incident;
the non-placement of the CCTV footage of the CCTV installed inside the
club to show who was the aggressor to the said scuffle in the club and to
show whether infact any mobile phone of injured Rohit Bansal had fallen
during that scuffle or not; the CCTV did not also corroborate the statement
of the witnesses that the cars of the accused persons were blocking the road
and it also did not suggest that A-4 had apparent role in inflicting injuries to
the injured as well as to the deceased, could not be appreciated at this stage,
despite the fact that these had not been noticed in the CCTV footage. The
court further noted that there were categorical statements of eye witnesses
and other witnesses regarding the involvement of ‘the respondent’ besides
other accused persons in inflicting injuries to the injured Rohit Bansal and
Rupesh Tanwar (deceased). It was further noted that the statements of
witnesses coupled with CCTV footage suggested that the accused persons
had shared common intention formed at the spur of moment to kill Rupesh
Tanwar and cause injuries to the complainant Rohit Bansal and the said fact
also stood corroborated from the MLC where the complainant Rohit Bansal
had suffered head injuries and as per post-mortem report, the deceased had
sustained multiple injuries on the head. The accused person’s contention to
frame under Section 304 IPC was declined. It is unclear if the order on
charge has been challenged by ‘the respondent’ or his associates.
6. By the said order, ‘the respondent’ was, however, granted
regular bail. The Trial Court was of the view that crux of CCTV footage
was deciphered by the Investigating Officer in the charge-sheet and no role
was assigned to ‘the respondent’ in the crime therein. Besides it, there were
other discrepancies as discussed at the time of consideration of charge which
were relevant to be taken into consideration for grant of bail. Moreover, ‘the
respondent’ was in custody since 31.10.2015.
7. Learned counsel for the petitioner urged that the impugned
order granting bail to ‘the respondent’ in a gruesome murder cannot be
sustained. The petitioner and his friend Rupesh were mercilessly beaten by
‘the respondent’ and his associates. The incident was witnessed by many
eye witnesses who have identified ‘the respondent’ and his associates to be
the perpetrators of the crime. In their statements Sagar Sharma @ Sonu,
Jitender, Mohinder @ Monu, Rohit Kumar, Chetan Prakash, Sonu, Praveen
and the petitioner Rohit Bansal have categorically implicated ‘the
respondent’ and his friends and have assigned specific and definite role to
them in the crime. The crime weapon i.e. baseball bat has been recovered at
the instance of ‘the respondent’ pursuant to his disclosure statement made.
Clothes which the respondent was wearing at the time of crime have been
seized and the FSL report is awaited. CCTV footage installed at the place of
occurrence, records presence and active participation of all the accused
persons including ‘the respondent’ in the incident. The learned Trial Court
did not appreciate the specific allegations, statements recorded under Section
161 Cr.P.C. and the gravity of the offence. The Trial Court granted regular
bail to ‘the respondent’ in haste and discretion was not exercised in judicial
manner. The complainant was not given an opportunity to assist the court on
the factual matrix of the case.
8. Learned Senior counsel for ‘the respondent’ urged that as per
CCTV footage, ‘the respondent’s presence was not found at the spot. The
complainant Rohit Bansal in his initial statement dated 22.10.2015 did not
name ‘the respondent’ to be one of the assailants; he did not mention if any
baseball bat was used in inflicting injuries to him or the deceased.
Subsequently, in his supplementary statement recorded on 1.11.2015, the
complainant made vital improvements and attributed a definite role to A-4 to
have inflicted injuries with baseball bat. He further urged that as per CDR
record, complainant Rohit Bansal’s presence was actually at Taj
Apartments, Factory Road, Ring Road at 1:37:17 a.m. He further urged that
CCTV footage showed that Mercedes car entered the lane only at 1:37:55
a.m. As per CCTV footage, relied upon by the prosecution, the Mercedes
car entered the lane of incident at around 1:37:56 a.m. and stood at a
distance of 20 meters away from the spot of the brawl. In the Mercedes car,
‘the respondent’ was seen with a girl. However, the police did not try to
identify the said girl. At around 1:39:34 a.m. the said Mercedes car driven
by ‘the respondent’ was seen exiting the lane of the incident. CCTV footage
captured the entire assault and it is clear from the said CCTV footage that no
one had used the baseball bat in committing the assault. The Mercedes car
allegedly driven by ‘the respondent’ was recovered at the instance of coaccused
Vikas @ Shammi and the baseball bat shown to have been
recovered at ‘the respondent’s’ instance did not have blood stains or finger
prints. Similarly, clothes allegedly recovered from ‘the respondent’ did not
contain any blood stains.
9. Learned Senior counsel urged that the discretion has been
exercised judiciously by the Trial Court and ‘the respondent’ was in custody
for the last about 16 months. The occurrence had taken place at the spur of
the moment and there was no preplan to commit Rupesh’s murder.
10. ‘The respondent’ and his associates/co-accused are involved in
a very heinous and gruesome murder whereby Rupesh, an unarmed
individual, was brutally beaten to death over a trivial issue. After beating, he
was disrobed and the body remained lying naked at the crime spot. He
became unconscious after sustaining multiple injuries on various body
organs and was not fit to make statement. Due to forceful blows, Rupesh, a
young boy, finally succumbed to the injuries on 26.10.2015. As per postmortem
examination report, he had suffered 21 injuries on various body
parts including vital ones. The occurrence took place on the night
intervening 21/22.10.2015. In the complaint forming basis of the FIR, the
complainant gave detailed account of the incident and informed the police as
to how the assailants, seven to eight in number, had inflicted injuries to him
and Rupesh over a scuffle taken place in Shanghai Club. He further
disclosed that when they had returned to the spot to search mobile, a
Mercedes, EON car had blocked the road and a Bolero Car was parked on
the side of the road. He took the victim to AIIMS Trauma Centre. Presence
of the Complainant Rohit Bansal at the spot can’t be suspected or doubted,
he being injured himself.
11. Soon after the lodging of the FIR, statements of various
witnesses were recorded under Section 161 Cr.P.C. Sagar Sharma @ Sonu
corroborated the complainant’s version and stated that on return to the club
to take back Rohit Bansal’s mobile, they saw that an EON car and Mercedes
Car had blocked their way. When they asked for removal of the car, the
occupants started quarreling with them. One of them had a baseball bat and
the other was carrying an iron-rod. They were calling each other with the
name of ‘Maddy’, ‘Ashish’, ‘Vishal’, ‘Shammi’, ‘Vikas’ and ‘Anil Bhai’.
Specific role was assigned to each of the assailants. Similarly Vineet,
Jitender, Mohinder @ Monu and Sunil have supported his version. After
considering arguments from the both sides, charges under Sections
302/308/34 IPC were framed against ‘the respondent’ and the others.
Undisputedly, Mercedes car was seen at the spot at the time of
occurrence in CCTV footage. Specific query was raised as to whom the said
car belonged. It was fairly informed by the learned Senior counsel that it
belonged to ‘the respondent’. When inquired as to whether ‘the respondent’
had reached the spot in the said Mercedes, the answer was in affirmation.
Respondent’s only contention is that the said Mercedes car was away at a
distance of 20 meters from the spot and he did not reach the place of
occurrence; did not participate in the quarrel and no role was played by him.
Identity of the girls present in the car has not been disclosed
even by ‘the respondent’ who is expected to know it. All the assailants were
together in the club when the scuffle had taken place over a trivial issue.
The complainant and the other eye witnesses in their statements have
categorically identified ‘the respondent’ and others to have participated in
the infliction of injuries to the petitioner and deceased Rupesh Tanwar with
various weapons/objects. ‘The respondent’ and the co-accused declined to
participate in the Test Identification Proceedings. Certain recoveries are
stated to have been effected at the instance of ‘the respondent’ and others.
Nothing is on record to ascertain at this stage if after the initial scuffle in the
club, ‘the respondent’ had left the spot or had not accompanied the coaccused.
No explanation has been offered as to why ‘the respondent’ had
arrived at 1:37:55 a.m. in Mercedes car near the spot. It cannot be believed
that ‘the respondent’ after witnessing the horrible crime nearby would not
intervene or participate or that he will remain a mute spectator and would
not come out of the Mercedes or would conveniently leave the spot without
demur or reaction. Statements of eye witnesses cannot be ignored or
brushed aside at this stage.
12. The learned Trial Court while granting bail put great emphasis
on CCTV footage to conclude that ‘the respondent’ was not involved in the
incident and he did not play any role, whatsoever. The conclusion arrived to
grant bail is presumptive. At the stage of granting bail, a minute examination
of evidence and elaborate documentation of the merits of the case was not to
be undertaken. In Puran etc.etc. vs. Rambilas & Anr.etc.etc.
MANU/SC/0326/2001; AIR 2001 SC 2023, it was held that at the stage of
granting bail, a detailed examination of the evidence and elaborate
documentation of the merits of the case has not to be undertaken. What the
Additional Sessions Judge had done, in the order dated 11.9.2000, was to
discuss the merits and demerits of the evidence. That was what was
deprecated. It was further observed that the High Court has correctly not
gone into the merits and demerits of the matter. The High Court has noted
that evidence prima facie indicated demand of dowry. The High Court has
briefly indicated the evidence on record and what was found at the scene of
the offence. The High Court has given very cogent reasons why bail should
not have been granted and why this unjustified erroneous order granting bail
should be cancelled.
In the instant case, the Trial Court had found ‘the respondent’
and others, prima facie, guilty for committing murder but, strange enough
opted to grant bail to ‘the respondent’ relying upon CCTV footage. I have
examined/viewd the CCTV footage/CD provided by the learned counsel for
‘the respondent’ in the computer in chamber. Seemingly, the footage
recorded in the CCTV did not cover the entire place of occurrence. It was a
revolving camera moving horizontally and vertically. Possibly, it could not
capture the whole incident from all angles at the same time. In the CCTV
footage, Mercedes car is seen to have arrived at the spot at 1:30:26. It
remained at the spot subsequent to it. At 1:39:34, the Mercedes is seen
leaving the spot by reversing it. ‘The respondent’ is seen entering into the
Mercedes. It is, however, not clear as to when the said individual (the
respondent) had come out of the said Mercedes. The petitioner has also
placed on record photographs developed from the footage recorded in the
CCTV. In photographs No.1, 2 and 4, ‘the respondent’ is indicated
inflicting injuries to the victim along with others at 1:37:30; 1:37:31; and
1:37:31 respectively.
In photograph No.3, Mercedes is seen at the spot at 1:34:49. In
photo No.5 ‘the respondent’ is seen entering the Mercedes at 01:38:29. It
belies the respondent’s contention that the Mercedes entered for the first
time in the lane of the occurrence only at 1:37:56. In photos Mark ‘A’and
‘B’the respondent’s car is seen at the spot at 01:30:41 and 01:31:50 too.
13. This Court is conscious that cancellation of bail is a serious
matter. Bail once granted can be cancelled only when there exist very
cogent and overwhelming circumstances. It is settled law that parameters
for grant of bail and cancellation of bail are different. However, if the Trial
Court while granting bail acts on irrelevant materials, bail can be cancelled.
The bail can be cancelled even in cases where the order granting bail suffers
from serious infirmities resulting in miscarriage of justice. If the Court
granting bail ignores relevant materials indicating prima facie involvement
of the accused or takes into account irrelevant material, which has no
relevance to the question of grant of bail to the accused, the High Court
would be justified in cancelling the bail. Such orders are against the well
recognised principles underlying the power to grant bail. Such orders are
legally infirm and vulnerable leading to miscarriage of justice and absence
of supervening circumstances such as the propensity of the accused to
temper with the evidence, to flee from justice etc. would not deter the Court
from cancelling the bail (‘Kanwar Singh Meena vs. State of Rajasthan &
Anr.’, AIR 2013 SC 296).
14. In Puran etc.etc. vs. Rambilas & Anr.etc.etc.(supra) also the
Supreme Court held that where in a perverse order granting bail is passed in
a heinous crime of the nature of causing dowry death ignoring material and
evidence on record and that too without giving any reasons, bail can be
cancelled. Such an order would be against the principles of law. Interest of
justice would also require that such a perverse order be set aside and bail be
cancelled. It must be remembered that such offences are on the rise and
have a very serious impact on the society. Therefore, an arbitrary and wrong
exercise of discretion by the trial court has to be corrected.
15. In Gobarbhai Naranbhai Singala vs. State of Gujarat and Ors.
(2008) 3 SCC 775, the Supreme Court held that the object underlying the
cancellation of bail is to protect the fair trial and secure justice being done to
the society by preventing the accused from tempering with the evidence in
the heinous crime. When the basic requirements necessary for grant of bail
are completely ignored by the High Court, the Apex Court would be
justified in cancelling the bail. In the said case, the accused’ custody for
more than two years was not considered to be tenable ground to grant bail.
Sixteen months incarceration, in the present, case was also not a valid
consideration to grant bail to ‘the respondent’ considering the gravity of the
offence.
16. During arguments, it was inquired if the other assailants were in
custody or on bail. It was informed by the learned counsel for the petitioner
that the other assailants/accused have also been granted bail on parity. The
impugned order reveals that apprehension was raised that offence committed
was heinous in nature and there was every likelihood that ‘the respondent’
would misuse the liberty of bail and threaten the witnesses. This aspect was
not taken into consideration while granting bail.
17. Since the Trial Court, prima facie, found ‘the respondent’ and
others to have committed the offence under Section 302/308 IPC with the
aid of Section 34 IPC, grant of bail to ‘the respondent’ merely because of
certain discrepancies, cannot be justified.
18. Resultantly, the petition is allowed and the bail granted to ‘the
respondent’ is cancelled. ‘The respondent’ shall surrender and appear before
the Trial Court on 19th June, 2017.
19. Observations in the order shall have no impact on the merits of
the case. These observations are only for the purpose of ascertaining if the
bail granted to ‘the respondent’ was sustainbale or not.
20. Trial Court record (if any) along with the copy of the order for
information be sent back forthwith.
(S.P.GARG)
JUDGE
MAY 31, 2017.
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