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Monday 12 July 2021

Whether Session Judge should mention facts of the case while deciding anticipatory bail application?

In the meantime, the Director, Chandigarh Judicial Academy,

Chandigarh is directed to look into the matter and issue appropriate

directions to the judicial officers about the manner by which, while passing

an order on bail application, the facts in the FIR need to be reflected before

forming an opinion whether bail/anticipatory bail is to be granted or

declined.

PUNJAB AND HARYANA HIGH COURT

SUMIT TANWAR VS STATE OF HARYANA

Coram: ARVIND SINGH SANGWAN

Dated: 08.07.2021 

This is a petition under Section 438 Cr.P.C. for the grant of

anticipatory bail to the petitioner in FIR No. 208 dated 14.07.2020 under

Sections 395 and 34 of the IPC (Section 379-A was deleted and Section 395

added later on), registered at Police Station Sector-56, Gurugram, Haryana.

Learned counsel for the petitioner, at the very outset has

referred to the order dated 01.06.2021 passed by the Additional Sessions

Judge, Gurugarm to submit that the order is totally non-speaking reflecting

non-application of mind and lacking the art of writing an order. For a

reference the entire order is reproduced below:

“This bail application under Section 438 of Code of

Criminal procedure, 1973 is filed by applicantaccused

in case arising out of FIR No.208 dated

14.07.2020, under Section 395 IPC, Police Station

Sector 56, Gurugram.

2. Notice of bail application was issued to the

respondent-State. Reply filed and perused.

3. The learned counsel for the applicant-accused has

argued that the applicant-accused has been falsely

implicated in this case. It is further contended that the

entire story of the prosecution is concocted and

fabricated. In the end, a prayer for granting

anticipatory bail to the applicant-accused has been

made.

4. On the other hand, learned Public Prosecutor

vehemently opposed the bail application by arguing

that there are serious allegations of offences under

Section 395 IPC against the applicant-accused and he

is required for custodial interrogation. It is also

submitted that keeping in view the gravity of the

offences committed by the applicant-accused, he does

not deserve for pre-arrest bail. In the end, a prayer

for dismissal of application for anticipatory bail has

been made.

5. I have heard learned counsel for the applicantaccused

and learned Public Prosecutor for the State

and have gone through the record carefully.

6. After hearing learned counsel for the applicantaccused

and the learned Public Prosecutor assisted

by the investigating officer of the case, it is held that

serious allegations for the commission of offences

punishable under Section 395 IPC have been levelled

against the present applicant-accused, therefore, he is

required for custodial interrogation. Hence, without

commenting upon the merits of the case, having

regard to the totality of the facts and circumstances of

the case including the gravity of the offence, this

Court do not deem it a fit case to grant anticipatory

bail to the applicant-accused. Accordingly, the

anticipatory bail application filed by the applicantaccused

stands dismissed. File be consigned to the

record room after due compliance.”

It is a well settled procedure of law that while passing on order

or a judgment, a Judge is required to notice the facts of the FIR; the role of

the person seeking bail/anticipatory bail; his antecedents and the gravity of

offence committed and then form an opinion in the light of the guidelines

given by Hon’ble Surpeme Court in number of judgments regarding granting

or dismissing the bail/anticipatory bail.

The manner in which the order has been passed only reflects

that the Additional Sessions Judge, Gurugarm has noticed that since the

offence is under Section 395 of the IPC, which is serious offence, therefore,

custodial interrogation is required. On the face of it, this order is passed

against the settled norms.

The brief facts of the case are that the FIR was registered at the

instance of complainant-Chandan Kumar that he is a pizza delivery boy at

Tossin Pizza and on 14.07.2020, he had gone to a house for delivering pizza

where 05 boys were present. On seeing him, they started abusing him by

saying that he has come very late and they snatched the pizza from him as

well as his motorcycle. Thereafter, the complainant gave an information to

the police. When the police reached at the spot, four boys had already fled

away with the motorcycle, whereas, 5th boy namely Prince was arrested at

the spot and during investigation, he suffered a disclosure statement giving

name of the other person as Aakash, who was later on arrested.

Learned counsel for the petitioner further submits that one of

the co-accused Sonu has applied for anticipatory bail before this Court and

on 24.09.2020 noticing the allegation in the FIR, he was granted the

concession of interim bail, which was later on confirmed on 14.01.2021 in

CRM-M-29470-2020.

Learned counsel for the petitioner further submits that

co-accused Sonu, Mohit and Aakash, who were arrested, have already been

released on regular bail.

Notice of motion.

Mr. Deepak Kumar Grewal, DAG, Haryana, who is also

appearing through video conferencing, accepts notice on behalf of the

respondent-State.

Learned State counsel does not dispute the factual position that

the allegations are regarding snatching of a pizza and the motorcycle which

were recovered from the co-accused who have already been arrested.

List on 12.08.2021.

Meanwhile, in the event of arrest, the petitioner be released on

interim bail subject to his furnishing personal bonds and surety to the

satisfaction of Arresting/Investigating Officer. However, the petitioner shall

join the investigation as and when called upon to do so and shall abide by

the conditions as provided under Section 438 (2) Cr.P.C.

In the meantime, the Director, Chandigarh Judicial Academy,

Chandigarh is directed to look into the matter and issue appropriate

directions to the judicial officers about the manner by which, while passing

an order on bail application, the facts in the FIR need to be reflected before

forming an opinion whether bail/anticipatory bail is to be granted or

declined.

08.07.2021 

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