2020 (12) TMI 1394 - SC - Indian Laws

Seeking grant of anticipatory bail - illegal abduction - delay in lodging FIR - HELD THAT - Number of submissions have been made by the learned counsel appearing on behalf of the appellant -accused on political vendetta, malafide, delay in lodging the FIR, even the maintainability of the impugned FIR etc. However, taking into consideration that the quashing petition filed by the appellant-accused is pending before this Court and the issue whether the FIR/criminal proceedings are required to be quashed or not is at large before this Court, it is not proposed to elaborately deal with all the submissions made by the learned counsel appearing on behalf of the respective parties. However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar 2011 (12) TMI 656 - SUPREME COURT and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, it is opined that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings. This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law. It is reported that the father of the deceased died in the year 2014. Till 2014, the father of the deceased did not initiate any fresh proceedings. After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar, all of a sudden, now the informant brother of the deceased has woken up and has initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR. Looking to the status of the appellant and it is reported that he has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120 B of the IPC, for which there was an order of anticipatory bail in favour of the appellant and subsequently the offence under Section 302 IPC has been added on the basis of the statements of Jagir Singh and Kuldip Singh approvers only, it is opined that the appellant has made out a case for anticipatory bail. The impugned judgment and order passed by the High Court, as well as, the learned Additional Sessions Court dismissing the anticipatory bail applications of the appellant for the offence punishable under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby quashed and set aside - petition allowed.

Summary

Issues Involved:
1. Maintainability of the second FIR.
2. Delay in lodging the FIR.
3. Jurisdictional error in registering the FIR.
4. Procedure followed for adding Section 302 IPC.
5. Grant of anticipatory bail under Section 438 Cr.P.C.

Issue-wise Detailed Analysis:

1. Maintainability of the second FIR:
The appellant argued that the current FIR is a second FIR on the same set of facts, registered after a delay of 29 years. The appellant referenced a previous similar FIR quashed by the Supreme Court in "State of Punjab v. Davinder Pal Singh Bhullar." The respondent countered that the FIR is not a second FIR but a fresh proceeding initiated by the deceased's brother, supported by the liberty reserved in the Bhullar case. The Court noted that the issue of maintainability is pending in a separate quashing petition and did not delve deeply into this argument.

2. Delay in lodging the FIR:
The appellant emphasized the 29-year delay in lodging the FIR, arguing it was filed with malafide intentions and political vendetta. The respondent contended that delay alone cannot quash criminal proceedings, especially when serious allegations are involved. The Court acknowledged the significant delay but considered it a valid factor for granting anticipatory bail, given the circumstances and the appellant's distinguished service record.

3. Jurisdictional error in registering the FIR:
The appellant argued that the FIR was registered in Mohali, whereas the alleged events occurred within the jurisdiction of P.S. Chandigarh, violating Sections 177 and 178 of the Cr.P.C. The Court did not extensively address this issue, focusing instead on the broader context of the anticipatory bail application.

4. Procedure followed for adding Section 302 IPC:
The appellant contended that the procedure for adding Section 302 IPC was flawed and not in accordance with the decisions in "Pradeep Ram v. State of Jharkhand" and "Sushila Aggarwal v. State (NCT of Delhi)." The respondent maintained that the addition was lawful, based on statements from co-accused turned approvers. The Court did not specifically rule on the procedural correctness but noted the subsequent addition of Section 302 IPC as a factor in its decision.

5. Grant of anticipatory bail under Section 438 Cr.P.C.:
The Court considered whether the appellant deserved anticipatory bail. Given the 29-year delay, the appellant's cooperation with the investigation, and his distinguished service record, the Court found a case for granting anticipatory bail. The Court ordered that the appellant be released on bail if arrested, subject to conditions including furnishing a personal bond and cooperating with the investigation.

Conclusion:
The Supreme Court allowed the appeal, quashing the High Court and Additional Sessions Court's orders denying anticipatory bail. The appellant was granted anticipatory bail in connection with FIR No. 77 dated 06.05.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali, for the offence punishable under Section 302 IPC, subject to specific conditions.