VIJAY KUMAR GARG Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This petition under Section 439(2) Cr.P.C. has been filed by Vijay Kumar Garg, complainant for cancellation of anticipatory bail granted to respondent No. 2 vide order dt. 11.6.1998 (Annexure P-3) in FIR. No. 38 dated 6.5.1998, P.S. Gidderbaha under Sections 302/34/120-B IPC and under Sections 25/27 of the Arms Act. In this case, FIR regarding commission of crime was lodged by the petitioner. It has been alleged that at the time he lodged the report, he did not know about the enmity and grudge being nursed by respondent No. 2 and as such, could not get it recorded in the FIR that respondent No. 2 who was being referred to by the assailants at the time of occurrence had connection with the commission of crime. On the same day, statement of Meena Kumari, wife of Inderjit deceased was recorded. The grudge as stated by Meena Kumari was that respondent No. 2 had demanded hand of Sheela @ Rani, sister of Inderjit in marriage but Inderjit deceased had not acceded to the same by calling respondent No. 2 as pauper and addict. On 5.4.1998, there was marriage of son of Hem Raj of Bhatinda. That marriage was attended by Inderjit deceased and respondent No. 2 and other relatives and respondent No. 2 had picked up a fight with Inderjit for calling him pauper and addict and for refusing to marry his sister Sheela with him where respondent No.2 had threatened to teach a lesson to the deceased within one month. Copy of the statement under Section 161 Cr.P.C. of Meena Kumari is Annexure P-1. Statement of Sheela @ Rani sister of Inderjit deceased, was also recorded under Section 161 Cr.P.C. copy of which is Annexure P-2. Statement of Hans Raj of whose son's marriage was attended by Inderjit deceased and respondent No. 2 and other relatives was also recorded. The petitioner has also taken the plea that anticipatory bail was granted to the petitioner on misrepresentation and suppression of above referred to facts in asmuch as it was represented to the Court that the motive alleged is of 15 years old and that on the marriage dated 5.4.1998 no untoward incident had taken place but it was false representation. In fact, the statements of Sheela Rani, Meena Kumari and Hans Raj had already been recorded by the Police but the same were not brought to the notice of the Court. Since respondent No. 2 had not come to the Court with clean hands he was not entitled to relief of anticipatory bail. It is also alleged that even after pre-arrest bail, respondent No. 2 is making threatening calls to Meena Kumari wife of Inderjit deceased who is living all alone along with her children.

(2.) Pursuant to the notice issued, respondent No. 2 has filed reply in the form of affidavit. Respondent No. 2 has denied all the allegations contained in the petition pleading therein that the petitioner has not taken any ground for cancellation of bail. It was also pleaded that the petitioner has neither misused the concession of bail in any manner, nor has tried to obstruct the investigation and the witnesses. Investigation has already been completed. Challan has been filed and the case is fixed for evidence. It was also pleaded that FIR was recorded much later. The relationship was also known to the complainant-petitioner but the petitioner now unnecessarily tried to connect respondent No. 2 in an absolutely uncalled for manner. When the anticipatory bail was granted to respondent No. 2, all the aspects of the matter were considered and as on that day, no evidence was brought to the notice of the Court to connect respondent No. 2 with the commission of crime. It was also denied that respondent No. 2 had no grouse. Nothing has been mentioned in the FIR regarding the alleged fight. As regards the statements recorded under Section 161 Cr.P.C. according to the respondent No. 2 it has no relevancy. There is no evidence against the answering respondent and in any case, there was no motive with him. He denied having hatched any conspiracy. It was also denied that he ever hired professionals to eliminate the deceased. The anticipatory bail was granted to respondent No. 2 after taking into consideration all the facts, and there is no evidence of conspiracy or involvement of respondent No. 2 in any manner. It was assertively pleaded that the facts recorded in the order granting anticipatory bail are absolutely convect, and are not disputed. It was again reiterated that respondent No. 2 neither hired any assailant, nor he had any motive to commit the crime. He also denied the allegation of threats given by him to the widow of Indetjit deceased. According to respondent No. 2, story made out is totally incorrect and wrong.

(3.) Before adverting to the contentions raised, it appears necessary to take note of the intervening facts. After the case FIR No. 38 dated 6.5.1998 under Sections 302/34/120-B IPC and Sections 25/27 of the Arms Act was registered at P.S. Gidderbaha, respondent No. 2 filed Crl. M. No. 13760-M/1998 praying for anticipatory bail. Vide detailed order dated June 11, 1998, Pawan Kumar, respondent No. 2 was ordered to be released on anticipatory bail for 2 months from the date of order with certain conditions. It was also made clear that in case some evidence regarding the conspiracy against the petitioner is available or is collected by the Investigating Officer, the prosecution shall be at liberty for recall of the order. During the pendency of Crl. M.No. 20046-M of 1998, Parveen Kumar respondent No. 2 had filed Crl. M.No. 31831 of 1998 in Crl. M.No. 13760-M/1998 praying therein to make the order dated 11.6.1998 absolute. Before the expiry of 2 months i.e. on 5.8.1998, Pawan Kumar filed Crl. M.No. 19938-M of 1998 with a prayer to make the order dated 11.6.1998 absolute. On the facts, the interim concession was extended. When that petition came up for hearing on September 18, 1998 Mr. Vikas Cuccuria learned DAG representing the State of Punjab submitted that bail bonds have been accepted by the trial Court. It was observed that it is common knowledge that bail bonds follow the order on an application for bail. In that situation it was thought that the accused had been granted bail by the trial Court. In view of that statement the order dated September 18, 1998 came to be passed dismissing the Crl. M.No. 19938-M of 1998 as having become infructuous. On September 18, 1998, the correctness of statement made by Mr. Cuccuria was questioned by Mr. Lakhanpal, learned Counsel representing the complainant. When Crl. M.No. 20046-M/1998 came up for hearing on November 13, 1998, the learned Counsel representing the State and Mr. Lakhanpal representing the complainant were directed to produce the copy of the order which might have been passed by the trial Court which led to the acceptance of the bail bonds. On 20.11.1998 no copy of such order was filed by either of the parties. Mr. Lakhanpal produced photocopy of the bail bonds which was purported to have been accepted and attested by SDJM, Gidderbaha furnished by the accused. It was observed that there being no order granting bail, the bail bonds could not be attested and accepted by the learned SDJM and that bail bonds were attested and accepted on some misconception. It was also observed that even if anticipatory bail for some period was granted to accused, the bail bonds were to be accepted by the Investigating Officer during the course of investigation and not by the SDJM. On dismissal of Cr1.Misc. No.19993-M/1998 as having become infrustuous Pawan Kumar entertaining apprehension that interim anticipatory bail granted to him had come to an end, he may not be arrested by the Police or taken into custody by the Court, he made Cr1.M. No. 31831 of 1998 praying therein for interim directions and for making order dated June 11, 1998 absolute, notice of which was given to the A.G. Punjab which was accepted by Mr. G.S. Gill, DAG Punjab. Mr. Atul Lakhanpal Counsel for the complainant was not present, however he was represented by Mr. Surinder Batra, Advocate. Notice was also given to him, and the following order was passed :-