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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.