SUMEDH SINGH SAINI versus STATE OF PUNJAB AND ANOTHER on 3 December 2020

Conclusion

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 08.09.2020 passed by the High Court of Punjab andHaryana at Chandigarh in CRM-M No. 26304 of 2020, by which theFapplication submitted by the appellant herein for anticipatory bail inconnection with FIR No. 77 dated 06.05.2020 for the offence punishableunder Section 302 IPC, lodged with Police Station City Mataur, DistrictS.A.S. Nagar, Mohali has been dismissed, the original petitioner – accusedhas preferred the present appeal.G3. That one Palwinder Singh Multani, brother of one Balwant Singh

3. That one Palwinder Singh Multani, brother of one Balwant SinghMultani (deceased) has lodged an FIR against the appellant at PoliceStation City Mataur initially for the offences punishable under Sections364, 201, 344, 219 and 120-B of the IPC, and subsequently the offencepunishable under Section 302 IPC has been added.

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3.1 It is alleged that in the year 1991 one Balwant Singh Multani –brother of the informant was illegally abducted from his residence atMohali by a team of officials operating under the instructions of theappellant; that he was severely and inhumanly tortured while in custody,by and at the behest of the appellant. It is further alleged that a false andfabricated FIR No. 112 of 1991 might have been registered at the instanceof the appellant to suggest that the victim was brought to the police stationQadian from where the victim was alleged to have escaped.

3.2 That apprehending his arrest in connection with FIR No. 77dated 06.05.2020, the appellant filed anticipatory bail application beforethe learned Additional Sessions Judge, Mohali. At this stage, it is requiredto be noted that when the appellant applied for anticipatory bail, theallegations in the FIR against the appellant were only for the offencespunishable under Sections 364, 201, 344, 330, 219 and 120-B of the IPC.That by order dated 11.05.2020, the learned Additional Sessions Judge,Mohali granted anticipatory bail in favour of the appellant. That thereafteras the appellant was apprehending that the offence under Section 302IPC may be added, he approached the learned Additional Sessions Judge,Mohali for anticipatory bail for the offence punishable under Section 302also. By order dated 10.07.2020, the learned Additional Sessions Judgegranted protection by way of three days’ advance notice in case of additionof offence under Section 302 IPC. It appears that thereafter threeco-accused in FIR No. 77 dated 06.05.2020 wanted to become approverand they submitted the applications before the learned Chief JudicialMagistrate, Mohali for grant of pardon and declaring them as approverunder Section 306 Cr.P.C. However, all the three applications came tobe dismissed by the learned Chief Judicial Magistrate, Mohali, vide orderdated 7.8.2020. However, thereafter the applications submitted by theother co-accused – Jagir Singh and Kuldip Singh to grant them pardonand permit them to become approver came to be allowed by the learnedChief Judicial Magistrate, Mohali, vide order dated 18.08.2020. Thatthereafter the statements of Jagir Singh and Kuldip Singh were recordedby the learned Judicial Magistrate (First Class), Mohali, which were againstthe appellant. On the basis of the statements of the aforesaid twoco-accused who subsequently turned approver – Jagir Singh and KuldipSingh, an application was submitted before the learned Judicial Magistrate,First Class (Duty Magistrate) seeking addition of Section 302 IPC in FIRNo. 77 dated 06.05.2020. That by order dated 21.08.2020, the learnedJudicial Magistrate, First Class (Duty Magistrate) allowed the saidapplication and thus section 302 IPC came to be added.

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A3.3 That thereafter the appellant applied for anticipatory bail forthe offence under Section 302 IPC before the learned Additional SessionsJudge, Mohali by way of bail application no. 1527 of 2020. That thelearned Additional Sessions Judge vide order dated 01.09.2020 dismissedthe said application. That thereafter the appellant approached the HighCourt of Punjab and Haryana at Chandigarh with an application for grantBof anticipatory bail being CRM-M No. 26304 of 2020. By the impugnedjudgment and order, the High Court has dismissed the said anticipatorybail application. Hence, the appellant has preferred the present appeal.

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4. Shri Mukul Rohatgi, learned Senior Advocate has appeared forthe appellant – accused, Shri Sidharth Luthra, learned Senior AdvocateChas appeared for the State of Punjab and Shri K.V. Vishwanathan, learnedSenior Advocate has appeared on behalf of the original informant.

4.1 Number of submissions have been made by Shri Rohatgi, learnedSenior Advocate appearing on behalf of the appellant – accused in supportof his prayer to grant anticipatory bail.D

It is vehemently submitted that the present FIR is filed witha malafide intention to harass the appellant and at the instance of thepresent party in power in the State. It is submitted that even otherwisethe present FIR is not maintainable as being a second FIR on the sameset of facts and has been registered after delay of 29 years of the allegedEincident. It is submitted that earlier attempt to falsely implicate theappellant failed and a similar FIR for the very incident in question andwith somewhat similar allegations came to be quashed by this Court inthe case of State of Punjab v. Davinder Pal Singh Bhullar, reported in(2011) 14 SCC 770.

F4.2 It is further submitted that the informant heavily placed relianceupon the liberty reserved in favour of the father of Balwant Singh Multanito file fresh proceedings. It is submitted that however during his life timethe father of Balwant Singh Multani did not initiate any fresh proceedingsand after a period of six years and after the death of the father of BalwantSingh Multani, the present FIR has been filed after 9 years of the judgmentGof this Court in the case of Davinder Pal Singh Bhullar (supra) and after29 years of the incident and that too by the brother of Balwant SinghMultani with the political support of the current State Government. It issubmitted that, as such, when initially the present FIR was lodged, it waslodged on 6.5.2020 only for the offences under Sections 364, 201, 344, H

330, 219 and 120-B of the IPC. It is submitted that thereafter theinvestigating agency with a malafide intention pressurised two co-accusedand made them approver and obtained the statements against the appellantand on the basis of the statements of the two co- accused whosubsequently turned as approver, the offence punishable under Section302 IPC has been added.

4.3 It is further submitted that even the present FIR also suffersfrom a serious jurisdictional error, inasmuch as, the FIR is registered inMohali on the directions of the SSP, Mohali, whereas, in fact, all theevents even as per the complainant occurred within the jurisdiction ofP.S. Chandigarh. It is submitted that as per Sections 177 and 178, Cr.P.C.the ordinary place of investigation and trial is within whose local jurisdictionthe offence has occurred. It is submitted that the present FIR No. 77 andthe proceedings initiated pursuant thereto are a blatant abuse of process,malafide and misuse of policing power. It is submitted that as such theappellant has already moved an application for quashing FIR No. 77dated 6.5.2020, which came to be dismissed by the High Court againstwhich a special leave petition is pending before this Court.

4.4 It is further submitted that even otherwise while adding thecharge under Section 302 IPC in FIR No. 77 dated 6.5.2020, the procedureas required to be followed as per the decisions of this Court in the casesof Pradeep Ram v. State of Jharkhand, reported in 2019 (9) SCALE 120and Sushila Aggarwal v. State (NCT of Delhi), reported in (2020) 5 SCC1, has not been followed. It is submitted that even the procedure adoptedby the learned Magistrate, who allowed the prosecution to add the offencepunishable under Section 302 IPC is unknown to the procedure requiredto be followed under the provisions of the Cr.P.C.

4.5 It is further submitted by Shri Rohatgi, learned Senior Advocateappearing on behalf of the appellant that the appellant is ready and willingto co-operate with the investigation, however, without prejudice to hisrights and contentions in the pending proceedings before this Court forquashing the FIR. It is submitted that the appellant is highly decoratedofficer with a distinguished service record. Shri Rohatgi has also madesubmissions on malafide, political vendetta and the harassment by thepolice.

4.6 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to allow the present application andgrant anticipatory bail to the appellant.

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A5. The present application is vehemently opposed by Shri SidharthLuthra, learned Senior Advocate appearing on behalf of therespondent-State and Shri K.V. Vishwanathan, learned Senior Advocateappearing on behalf of the original informant. Relying upon the statementsof Jagir Singh and Kuldip Singh which were recorded during the courseof investigation, it is vehemently submitted that a case has been madeBout against the appellant-accused for the offence under Section 302 IPC.It is submitted that the offence punishable under Section 302 IPC hasbeen added after obtaining the permission from the learned Magistrate.It is submitted that considering the material available on record, the learnedMagistrate allowed the application submitted by the prosecution/Cinvestigating agency to add the offence punishable under Section 302IPC. It is submitted that therefore a prima facie case is made out againstthe appellant.

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5.1 Now so far as the delay in lodging the FIR is concerned, it issubmitted that as per catena of decisions of this Court, mere delay and/Dor political vendetta cannot be a ground to quash the criminal proceedings,more particularly when the allegations are very serious and the allegationsagainst the police officers are of misuse of power, misuse of position,kidnapping and thereafter killing the innocent person. It is submitted thattruth must come out. It is submitted that the custodial interrogation of theappellant is required.E

5.2 It is further submitted that even the present FIR cannot besaid to be the second FIR as submitted on behalf of the appellant. It issubmitted that the present criminal proceedings/FIR is by the brother ofthe deceased who lost his brother and considering the liberty reserved bythis Court in the case of Davinder Pal Singh Bhullar (supra).F

5.3 It is vehemently submitted by Shri Sidharth Luthra, learnedSenior Advocate appearing on behalf of the State and Shri K.V.Vishwanathan, learned Senior Advocate appearing on behalf of the originalinformant that the appellant is a very influential person and may tamperwith the evidence and therefore this is not a fit case to grant anticipatoryGbail to the appellant under Section 438 Cr.P.C.

5.4 Making the above submissions, it is prayed to dismiss the presentapplication by submitting that when both, the learned trial Court as wellas the High Court have refused to exercise the discretion in favour of theappellant and have refused to grant anticipatory bail to the appellant, thesame may not be interfered with by this Court.H

6. We have heard the learned counsel appearing on behalf of theappellant-accused, learned counsel appearing on behalf of the State andlearned counsel appearing on behalf of the original informant.

At the outset, it is required to be noted that in the present appealthe only question which is required to be considered is whether theappellant is entitled to the anticipatory bail under Section 438 Cr.P.C.?

7. Number of submissions have been made by the learned counselappearing on behalf of the appellant-accused on political vendetta,malafide, delay in lodging the FIR, even the maintainability of the impugnedFIR etc. However, taking into consideration that the quashing petitionfiled by the appellant- accused is pending before this Court and the issuewhether the FIR/criminal proceedings are required to be quashed or notis at large before this Court, we do not propose to elaborately deal withall the submissions made by the learned counsel appearing on behalf ofthe respective parties.

However, considering the fact that the impugned FIR has beenlodged/filed by the brother of the deceased after a period of almost 29years from the date of incident and after a period of 9 years from thedate of decision of this Court in the case of Davinder Pal Singh Bhullar(supra) and nothing is on record that in between he had taken any stepsto initiate criminal proceedings and/or lodged an FIR, we are of the opinionthat at least a case is made out by the appellant for grant of anticipatorybail under Section 438, Cr.P.C. Many a time, delay may not be fatal tothe criminal proceedings. However, it always depends upon the factsand circumstances of each case. However, at the same time, a longdelay like 29 years as in the present case can certainly be a validconsideration for grant of anticipatory bail.

8. Informant and the State are relying upon the observations madeby this Court in the case of Davinder Pal Singh Bhullar (supra) and theliberty reserved in para 117 to the applicant who earlier filed the petitionunder Section 482 Cr.P.C. (father of the deceased) to take recourse tofresh proceedings, if permissible in law. However, suffice it to say thatthe said liberty was as such in favour of the father of the deceased whoin the earlier round of litigation before the High Court (from which theSLP(Criminal) No. 6503-6509/2011 were arisen) filed the petitions underSection 482 Cr.P.C.. This Court reserved the liberty in favour of thefather of the deceased to take recourse to fresh proceedings by specificallyobserving that if permissible in law. It is reported that the father of the AB

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Adeceased died in the year 2014. Till 2014, the father of the deceased didnot initiate any fresh proceedings. After a period of 9 years from thedate of decision of this Court in the case of Davinder Pal Singh Bhullar(supra), all of a sudden, now the informant – brother of the deceased haswoken up and has initiated the present criminal proceedings. Whetherthe fresh/present proceedings are permissible in law are yet to beBconsidered by this Court in the pending proceedings for quashing theimpugned FIR.

9. Looking to the status of the appellant and it is reported that hehas retired in the year 2018 as Director General of Police, Punjab after30 years of service and the alleged incident is of the year 1991 and evenCin the present FIR initially there was no allegation for the offence underSection 302 IPC and the allegations were only for the offences underSections 364, 201, 344, 330, 219 and 120-B of the IPC, for which therewas an order of anticipatory bail in favour of the appellant and subsequentlythe offence under Section 302 IPC has been added on the basis of the Dstatements of Jagir Singh and Kuldip Singh – approvers only, we are ofthe opinion that the appellant has made out a case for anticipatory bail.

10. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe High Court, as well as, the learned Additional Sessions Court dismissingEthe anticipatory bail applications of the appellant for the offence punishableunder 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 herebyquashed and set aside. It is ordered that in case of arrest of the appellant–Sumedh Singh Saini in connection with FIR No. 77 dated 6.5.2020,registered at P.S. City Mataur, District S.A.S. Nagar, Mohali for theFoffence punishable under Section 302 IPC, he shall be released on bailon furnishing personal bond in the sum of Rs.1,00,000/- (Rupees onelakh only) and two sureties of the like amount and to surrender the passportand to cooperate with the investigation (however without prejudice to hisrights and contentions in the pending proceedings to quash the impugnedGFIR).

11. The appeal is allowed to the aforesaid extent.

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Devika Gujral

Appeal allowed