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Thursday, January 25, 2018

courts cannot issue mandatory directions which breach the independence of subordinate courts. Therefore, such circuitous method undertaken by the respondent in obtaining a bail is a gross abuse of the court process undertaken in bad faith. - LACHHMAN DASS …APPELLANT (S) VERSUS RESHAM CHAND KALER AND ANR. …RESPONDENT (S)

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REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.161 of 2018
(Arising out of SLP (Crl.) No. 3168/2017)
LACHHMAN DASS …APPELLANT (S)
VERSUS
RESHAM CHAND KALER AND ANR. …RESPONDENT (S)
With
Criminal Appeal No.162 of 2018
(Arising out of SLP (Crl.) No. 3167/2017)
LACHHMAN DASS …APPELLANT (S)
VERSUS
MOHINDER PAL CLAIR & ANR. …RESPONDENT (S)
Criminal Appeal No.163 of 2018
(Arising out of SLP (Crl.) No. 3169/2017)
LACHHMAN DASS …APPELLANT (S)
VERSUS
SUKHWINDER SINGH & ANR. …RESPONDENT (S)
 J U D G M E N T
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 N . V . R A M A N A , J .
Criminal Appeal No.161 of 2018 @ SLP (Crl.) No. 3168 of 2017
1. Leave granted.
2. This case arises out of an order dated 19.01.2017, passed by the
High Court of Punjab and Haryana, at Chandigarh, in
CRM-M-36539/2016, wherein the High Court has granted
regular bail to the respondent no.1 in FIR 205/2015, dated
05.11.2015, filed under Sections 302, 307, 324, 148 & 149 of
Indian Penal Code of 1860 [hereinafter ‘IPC’ for brevity] and
Sections 25, 27, 54 & 59 of the Arms Act, 1959.
3. The facts as alleged in the FIR portray that, on 05.11.2015 at
about 5 to 5.15p.m., when complainant’s brother (Harbilas) and
one Shingar Chand, were present near the crime scene, Resham
Chand Kaler (respondent no. 1—an NRI) accompanied by Kulbir
Singh and various other persons, arrived there and started
quarrelling with Harbilas and Shingar Chand. In this incident
Kulbir Singh is alleged to have fired a shot from his revolver at
Shingar Chand. Further, it is alleged that, complainant as well
his family members sustained various injuries inflicted by armed
cohorts accompanying Resham Chand Kaler (respondent no. 1
herein).
4. After completion of the investigation Sections 326 and 120B of
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IPC were added in addition to those sections reported under the
FIR and a final report was filed by the concerned Police Officer
against the accused persons including respondent no. 1. It is
brought to our notice that the aforesaid challan was submitted
before the Sessions Court on 22.03.2016 and the trial is pending.
5. The respondent no. 1 first approached the trial court in Bail
Application 3018/2016, wherein the trial court vide order dated
14.09.2016, rejected the bail application on the ground that,
there were serious allegations as to the culpability of respondent
no. 1 and the nature of the offences were serious which was
committed on broad daylight.
6. Aggrieved, by the rejection of bail by the trial court, respondent
no. 1 approached the High Court of Punjab and Haryana,
Chandigarh, in CRM-M-36539/2016, wherein the High Court
has granted bail on usual terms to respondent no. 1. It would be
apt to reduce the reasoning of the High Court“Heard.
Notice of motion.
On asking of the Court, Mr. Ashish Sanghi, DAG
Punjab, who is present in the Court accepts
notice and submits that intimation by Registry
informing of fixation of the petition has already
been received and record of the case is available
with him.
Allegation against the petitioner is that he
was main conspirator in the occurrence, in
which Shingara Chand was given fire shot
injury, who died at the spot while
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complainant and his nephew Jiwan Kaler
were caused injuries with sword.
It is a case of land dispute. The petitioner
was arrested in this case on 06.11.2015 and
the challan has already been presented. No
injury has been attributed to petitioner.
Without expressing any opinion on merits
of the case and keeping in view the fact
that conclusion of trial will take
considerably long time, the present petition is
allowed. Petitioner-Resham Chand Kaler is
ordered to be released on regular bail on
furnishing bail bond and surety bond to the
satisfaction of concerned trial court/Chief Judicial
Magistrate/Duty Magistrate, subject to following
terms:-
a) The petitioner shall comply with the conditions
mentioned in Section 437(3) CrPC.
b) In the event of his absence on any date of hearing, the
benefit of bail allowed to the petitioner shall stand
withdrawn. The trial court shall be competent to cancel
his bail bond and surety bond and proceed to procure his
presence in accordance with law. In that eventuality the
petitioner shall have to apply for bail afresh.
c) He shall not leave the country without the previous
permission of the Court.”
(emphasis supplied)
7. Aggrieved by the order of the High Court granting bail to the
respondent no.1, the appellant has approached this Court by
way of special leave petition.
8. Learned counsel for the appellant (complainant) submits that the
nature of crime is very serious and the High Court without
application of mind, casually granted bail to respondent no.1
even after observing that there were serious allegations of
criminal conspiracy in accompanying a habitual criminal (Kulbir
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Singh) who is alleged of being an accused in nineteen criminal
cases including thirteen murder cases. It is further contended
that the evidence on record clearly establishes the fact of
respondent no. 1 hatching criminal conspiracy and in that
pursuit of the same accompanied the accused-Kulbir Singh to
the place of incident where Shingar Chand was shot dead. The
criminal conspiracy between respondent no. 1 and Kulbir Singh
in accompanying the latter to the scene of crime cannot be
ignored, more so when Section 149 of IPC was invoked. Learned
counsel finally submitted that there is also a likelihood of the
accused—respondent no.1 tampering with the process of
investigation, but the High Court granted bail to the accused
ignoring the established principles of criminal jurisprudence and
hence the order of High Court needs be set aside.
9. Learned counsel for the respondent no. 1 submits that he is a
British citizen and the genesis of the crime is a land dispute. The
involvement of respondent no. 1 in the alleged conspiracy is a
matter of trial and this court should assess only prima facie
culpability, concerning the involvement of respondent no. 1. He
further submitted that this court should take into consideration
the difference between the rejection of a bail and cancellation of a
bail while analyzing the instant case.
10.Learned counsel appearing on behalf of the State, while fully
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supporting the complainant’s case, agrees with the contention
that the bail was granted against established tenets under the
bail jurisprudence. Learned counsel of the State has referred a
detailed counter affidavit for the perusal of the Court and has
submitted that the accused Kulbir Singh was a notorious
criminal who was extradited from USA and he is a henchman of
respondent no. 1 with whose support the accused persons
attacked the complainant party to grab their land. The High
Court has ignored all these material facts and has wrongly
granted bail to the respondent no. 1.
11.Having heard the learned counsel appearing on behalf of the
parties and perusing all the material available on record,
particularly the compact disk (CD) filed with the petition, we are
of the considered opinion that a prima facie case is made out
against the respondent—accused, as the group of persons are
seen committing the offence using deadly weapons and sticks.
The seriousness and gravity of the offence can be clearly
observed from the CD. However, aforesaid observations must not
be construed as findings on merits. Though the respondent no. 1
is not a citizen of this country (British national), yet the fact
remains that he along with other persons has indulged in the
criminal activity. The case of the prosecution mainly revolves
around him as he is alleged to be the kingpin of the criminal
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conspiracy which demands his custodial interrogation. In such
circumstances, it is unfortunate that the High Court did not
appreciate the facts of the case with prudent legal perception. We
see no reason to accord any special consideration for respondent
no.1 by virtue of a simple fact that he is a citizen of different
country. The law under Section 439 of Cr.P.C is very clear and in
the eyes of the law every accused is the same irrespective of their
nationality.
12.Apart from the above, it is also important to note the legal
principles governing this case. We make it clear that this case is
not an appeal seeking cancellation of bail in any sense rather,
this case calls for the legal sustainability of the impugned order
granting bail to the accused-respondent herein. The difference
between the cancellation of the bail and a legal challenge to an
order granting bail for non-consideration of material available on
record is a settled proposition. To clarify, there is no ground
pleaded herein that a supervening event breaching bail
conditions is raised. [refer State through C.B.I. vs. Amarmani
Tripathi, (2005) 8 SCC 21; Prakash Kadam v. Ramprasad
Vishwanath Gupta, (2011) 6 SCC 189].
13.Having cleared this confusion, we may clarify, though seriously
urged by the counsel appearing on behalf of the respondent no.1,
that there is no warrant for cancellation of bail as there has been
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no breach of bail condition, yet such submission is not
countenanced under the law.
14.For all the aforesaid reasons, the appeal is allowed. We,
therefore, set aside the order of the High Court granting bail to
the respondent no. 1 and direct the concerned police authorities
to take the respondent no. 1 into custody immediately.
Criminal Appeal No.162 of 2018 @ SLP (Crl.) No. 3167/17
15.Leave granted.
16.We have perused the impugned judgment which granted bail to
the respondent in this SLP on the basis of parity with Resham
Chand Kaler (respondent no. 1 in SLP(Crl) No. 3168 of 2017). As
we have already set aside the bail of Resham Chand Kaler,
thereby effacing the footing on which the grant of bail by the
High Court stood. Otherwise also, we do not think that this case
is fit for extending the liberty of bail for the reasons as provided
above. Therefore, we allow the appeal and set aside the impugned
order passed by the High Court granting bail to respondent no. 1
herein.
Criminal Appeal No.163 of 2018 @ SLP (Crl.) No. 3169 of 2017
17.Leave granted.
18.It is stated by the learned counsel appearing for the respondent
no. 1 in this SLP that the case of the present-respondent is
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distinguishable from the rest of the accused in the above two
Criminal Appeals. He further states that his name does not
appear in the FIR and the police investigation did not reveal any
role attributable to the present-respondent, it was only after
recording of the evidence that the court summoned the
present-respondent. Therefore, he should be extended the liberty
of bail as granted by the High Court.
19.Per contra, learned counsel for the appellant drew our attention
to a series of orders passed by the courts below which makes it
apparent that the bail was granted on a rhetorical footing without
there being any application of mind.
20.It would be useful to note certain orders passed by the
Courts below in order to understand the non-application of mind.
21.On 06.10.2016, the Sessions Court rejected the first anticipatory
bail application of the respondent in this case taking into
consideration the gravity and seriousness of the offence.
22.Thereafter, the respondent herein filed an anticipatory bail
application in the High Court being CRM-M No.40457 of 2016. It
is to be noted that the High Court granted interim protection in
the following manner“Learned
counsel for the petitioner states that the
petitioner has not been named in the FIR and the
police has found the petitioner innocent. Thus, he
was not challaned. It is only on the basis of
statement of Jiwan Kaler, the name of the petitioner
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has cropped up. He further states that even though
no role has been attributed to the petitioner, but the
petitioner is ready to face the trial.
Notice of motion.
At this stage, Mr. Anil Kumar Spehia, Advocate
has put in appearance on behalf of the complainant.
Vakalatnama produced on behalf of the complainant
in the Court today, is taken on record.
List on 13.02.2017.
Meanwhile, in case the petitioner surrenders
before the trial Court within one week from today,
he shall be admitted on bail on his furnishing bail
bonds and surety bonds to the satisfaction of the
 trial Court”.
(emphasis supplied)
23.Thereafter, respondent herein made an application, for surrender
and bail as per the order of the High Court dated 11.11.2016,
before the trial court. The trial court by order dated 16.11.2016,
passed the following order granting bail“Application
for surrender and bail received by
entrustment, it be checked and registered, along
with it copy of order dated November 16,2016
passed by the Hon’ble High Court in
CRM-M-40457 of 2016, vide which the applicant
Sukhwinder Singh have been ordered to be
released on bail to the satisfaction of Trial Court.
the order’s have been got verified through Ahlmad
of this Court. In view of the order’s of the High
Court, applicant is ordered to be released on bail
on (illegible).
Shall not leave India without the permission of the
Court.
He shall appear in court on each and every date of
hearing
Bail/surety bonds accepted and attested. Papers of
bail application be attached with the file of the trial
pending in this court.”
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(emphasis supplied)
24.Again, when the matter was listed before the High Court in
CRM-M No.40457 of 2016, which was pending before it, was
dismissed as being infructuous as under“Learned
Counsel for the petitioner states that in
terms of order dated 11.11.2016 passed by this
Court, the petitioner has surrendered before the
trial court. Thereafter, the petitioner has been
ordered to be released on bail.
Accordingly, this petition praying for grant of
anticipatory bail the petitioner, has been rendered
infructuous.
Dismissed as having become infructuous.”
(emphasis supplied)
25.It is unfortunate to note that the order of the High Court on the
first instance clearly points out that it has virtually directed the
course of action to be undertaken by the subordinate court. It is
not expected from the High Court to pass such mandatory orders
commanding the subordinate court to compulsorily grant bail.
Recently, this court on similar facts in Madan Mohan v. State
of Rajasthan1
, has laid down that courts cannot issue
mandatory directions which breach the independence of
subordinate courts. Therefore, such circuitous method
undertaken by the respondent in obtaining a bail is a gross
abuse of the court process undertaken in bad faith. Moreover,
our attention is drawn to the fact that he was declared as a
1 Criminal Appeal No. 2178 of 2017.
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proclaimed offender before the grant of bail, which was not taken
into consideration by the High Court. In light of the above, we
allow the appeal, set aside the order of the High Court and direct
the concerned authorities to take the respondent no. 1 herein
into custody forthwith.
……………………….J.
 (N. V. RAMANA)
……………………...J.
 (S. ABDUL NAZEER)
NEW DELHI,
JANUARY 23, 2018.

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