2020 (9) TMI 1307 - HC - Indian Laws

Seeking grant of (first) bail - it is alleged that petitioner has laid a scathing attack citing political vengeance for false implication of the petitioner in this case - HELD THAT - A perusal of the records is in itself illustrative how the deceased having been illegally apprehended within the jurisdiction of District Mohali, at no point of time over this long period was ever produced before the Judicial Magistrate and it was only before an Executive Magistrate in another District in Gurdaspur he is alleged to have been produced on 14.12.1991 before the SDM from where he is stated to have escaped from huge posse of police and paramilitary forces; rather rightly strengthens the belief of the complainant and a rationale person that it was with a preconceived plan the entire gamut was played to facilitate easy elimination of Balwant Singh Multani. Prior thereto the police admits being in custody of the deceased and therefore a heavy onus lay on it to remove this needle of suspicion which it has not been prima-facie able to succeed. In the case of SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER 2020 (1) TMI 1193 - SUPREME COURT , the Supreme Court has held that an order of anticipatory bail does not in any manner limit or restrict the rights or the duties of the police/investigating agency to investigate into the charges against a person who seeks and is granted pre-arrest bail. More so, a million dollar question arises whether under the garb of interim bail/anticipatory bail, the hands of the investigating agency can be tied so as to frustrate its endeavours to unearth the truth and reach into the circumstances unfolding into the manner of the crime. If it would have been the intention of the legislature then no crime in this world could have been detected and the culprits would have gone scotfree - In JAPANI SAHOO VERSUS CHANDRA SEKHAR MOHANTY 2007 (7) TMI 572 - SUPREME COURT , the Supreme Court of India has held that general rule of criminal justice is that a crime never dies. Applying the same very ratio to the instant case, a look at the complaint and undisplaced facts before this Court, shows that since the day of his disappearance and prior thereto the family had been making every conceivable effort in initiating judicial process and which rather had remained in oblivion to the constitutional rights of the deceased s family, are matters which certainly are of much relevance and substantiate the plea of State the unbridled powers of petitioner. Even in the innumerable cases that one experiences in life, shows that for one reason or the other, be it political or otherwise, many of the crimes remain buried for a period of time and it is with passage of time the same are unearthed and therefore, does not discourage the investigating agency from laying off its hands from such grave crimes against humanity. Since it is at this juncture, the investigating agency has woken up and gathered courage to investigate its own officer and therefore, the vital pieces of evidence which would come handy in leading to various leads would inch towards unraveling this puzzle which too has baffled the citizenry who are looking upon the justice system as a last resort to get justice. Even otherwise, it is a well settled proposition of law that provisions of Section 438 Cr.P.C. are to be sparingly used. In the light of the seriousness of offences that have come about there being every likelihood of petitioner stifling fair investigations and trial and for which custodial interrogation of the petitioner is very much essential to piece together this unfortunate incident, necessitates dismissal of the instant bail application. Bail application dismissed.

Summary

Issues Involved:
1. Legality of the fresh FIR against the petitioner.
2. Validity of anticipatory bail granted earlier.
3. Necessity of custodial interrogation.
4. Impact of political influence on the case.
5. Delay in prosecution and its implications.

Issue-wise Detailed Analysis:

1. Legality of the Fresh FIR Against the Petitioner:
The petitioner argued that the Supreme Court's order dated 07.12.2011 in Criminal Appeals No.753-755 of 2009, which quashed the earlier FIR, precludes fresh prosecution. However, the court noted that the Supreme Court allowed for fresh proceedings if permissible by law. Thus, the argument that the fresh FIR is barred was rejected. The court emphasized that the order did not debar the complainant from seeking new legal recourse.

2. Validity of Anticipatory Bail Granted Earlier:
Initially, the petitioner was granted anticipatory bail on 11.05.2020. However, with the addition of Section 302 IPC and new evidence, the anticipatory bail was dismissed by the Additional Sessions Judge on 10.07.2020. The court referenced the Supreme Court's judgment in Pardeep Ram’s case, which allows for taking an accused into custody upon the addition of graver offenses without necessarily canceling the earlier bail. The court also cited Sushila Aggarwal and others vs. State (NCT of Delhi) and another, which held that anticipatory bail does not restrict the police from investigating the charges.

3. Necessity of Custodial Interrogation:
The court found that custodial interrogation was essential to uncover the details of the alleged torture and elimination of Balwant Singh Multani. The court emphasized that the petitioner’s influence could hinder the investigation, and custodial interrogation was necessary to piece together the evidence. The court noted that crimes do not die with time and can be revived when new evidence surfaces, as stated in Japani Sahoo vs. Chandra Sekhar Mohanty.

4. Impact of Political Influence on the Case:
The respondent argued that the petitioner, a former high-ranking police official, wielded significant political influence, which potentially obstructed justice. The court acknowledged this argument, noting that the petitioner’s influence had previously intimidated judicial processes and witnesses. The court referenced the case of Vinod Kumar vs. The State of Punjab and others, highlighting the petitioner’s attempts to overawe the courts and the judicial process.

5. Delay in Prosecution and Its Implications:
The petitioner argued that the case was stale due to a delay of almost 29 years. However, the court rejected this argument, stating that the family had been making efforts to seek justice since the disappearance of the deceased. The court cited Japani Sahoo vs. Chandra Sekhar Mohanty, which held that mere delay does not afford grounds for dismissing a case, especially in serious offenses. The court emphasized that the delay did not discourage the investigation from pursuing the case.

Conclusion:
The court concluded that the petitioner’s anticipatory bail should be dismissed due to the seriousness of the offenses, the necessity of custodial interrogation, and the potential for the petitioner to stifle a fair investigation. The court ordered the dismissal of the bail application, emphasizing that the provisions of Section 438 Cr.P.C. should be used sparingly, especially in cases involving grave offenses.