09 July 1996
Supreme Court


Bench: S.C. SEN
Case number: Crl.A. No.-000685-000685 / 1996
Diary number: 6943 / 1995






DATE OF JUDGMENT:       09/07/1996




JUDGMENT:                       J U D G M E N T Ahmadi, CJI.      Special leave granted.      The present  appeal seeks to challenge the judgment and order dated  19.4.1995 of  the Punjab  & Haryana  High Court which cancelled  the bail  granted to  the appellant  by the same Court on 11.10.1994.      The facts  that are  relevant for our consideration can be briefly  set out  as follows.   The  appellant,  Kashmira Singh  (hereinafter  called  "the  accused"),  was  arrested subsequent to the registration of an F.I.R. upon a complaint filed by  the respondent,  Duman Singh  (hereinafter  called "the complainant").   The accused and his family members had been involved  in a  long standing  dispute over  a  certain piece of  land.   Being apprehensive of a quarrel, the local police had  initiated proceedings  under Section  145 of the Code  of  Criminal  Procedure,  1973.  In  the  F.I.R.,  the complainant alleges  that he  was led  to believe  that  the accused and  his family  members had, on 28.5.1993, violated the Tehsildar’s order not to interfere with the land and had ploughed the  land and sown a paddy crop.  To verify whether this was true, the  complainant and a few others went to the village of  the accused.    he  alleges  that  after  having confirmed the  news, he  and five  others were  returning in their vehicles  when they  came upon  the accused, his three brothers and  his father,  who were  armed and were standing near the  village chowk.   The  complainant  and  his  party stopped their  vehicles and, one member of the complainant’s party, who  was armed  with a  Dang, went upto the accused’s party to  enquire why  they  had  violated  the  Tehsildar’s order.   According to the complainant, the accused’s brother reacted by  attacking that  person, whereupon an altercation ensued between both sides.  The members of both parties were armed with  Dangs, Sotis  and rifles.  The skirmish resulted in the  death of  some of  the persons present.  (The F.I.R. records the  death of two members of the complainant’s party while the  impugned judgment  states that  one member of the accused’s party was also killed).      Two members  of the  accused’s party,  Tara  Singh  and Chamkaur Singh,  south bail.  On 14.9.1993,  the former  was



enlarged  on  bail  while  the  latter  did  not  press  his application.  Chamkaur Singh, however, did file applications for  bail   on  two  subsequent  occasions  but  in  vain  . thereafter, the  accused filed an application for bail which was heard  on 11.10.1994  and the following order was passed by V.K. Bali, J. :      "There are  two cross  versions and      on both  sides one person had died.      As  to  which  of  the  party  i.e.      accused of this case or the accused      of the  case in  which FIR has been      lodged  by   the  accused,   is/are      aggressor,   is   a   moot   point.      Without expressing  any opinion  on      the merits  of this case, I deem it      a fit  case to  grant bail  to  the      petitioner to  the satisfaction  of      the CJM, Ludhiana."      The  accused   was,  therefore,   released   on   bail, Thereafter, aggrieved  by the  order, the complainant made a representation to  the Chief Minister of Punjab stating that the accused  had issued  threats to him, a copy of which was sent to  the Chief  Justice of  the Punjab  & Haryana Court. This letter  was treated  as a  petition for cancellation of bail and  was heard  by V.K.  Bali J., the learned Judge who had, in the first place granted bail to the accused.      In the impugned judgment, the learned Judge states that while seeking bail, the accused had concealed material facts from the  Court in  that he had only relied on the fact that Chamkaur Singh  had not  pressed his application for bail on 14.9.1993,  without   mentioning   that   Chamkaur   Singh’s applications for  bail were later rejected on two occasions, Moreover, the learned Judge stated that while granting bail, he has  been under  the impression that there were two cross versions and  both parties  had been challaned by the police whereas, in  fact, only  challan, against the accused party, had been issued. For these reasons, the learned Judge saw it fit to cancel the bail granted to the accused.      The accused  preferred an appeal before this Court.  On 12.5.1995, the  matter was  admitted, notice  was issued and the operation  of the  impugned order  was stayed. Hence the accused - appellant herein continues to be on bail.      The learned  counsel for  the  accused  has  put  forth several arguments  to support  his main  contention that the learned High Court Judge had erred in reversing his previous order in  which bail was granted to the accused.  He submits that the  order granting  bail had  been made  after hearing counsel for  the State  as well  as  for  the  accused;  the learned Judge  had given due weight to the fact that persons had died on both sides and that there were cross versions of the actual  incident.   The learned  Judge had also observed that the  identity of  the actual aggressor was still a moot point.   Learned counsel  submits that  the main reasons for the grant  of bail  in the  first place continue to be sound and, in  the impugned  judgment, the  learned Judge  had not sought to  provide any  explanation for  disregarding  these grounds.  The learned counsel further submits that a careful reading of  the F.I.R.  would reveal  that the complainant’s party had a motive to attack the accused; they were carrying arms; they  had covered  a distance of 12 k.ms. in search of the accused’s  party and,  had engaged  in an  assault which left one  person dead  and several  injured in the accused’s party.  The learned counsel states that the reasons given by the learned  Judge for cancelling the bail are unsustainable - he  submits that  the existence  of cross-versions  is not



related to  the filing  of challands  and, equally,  that it cannot be  presumed that  the accused  was aware of the fact that Chamkaur  Singh’s bail  applications had been rejected. he urges  us to note the fact that the accused had put forth strong, cogent and independent reasons for the grant of bail to him  as also  the fact that Tara Singh, a co-accused, had been granted bail on 14.9.1993.  Lastly, the learned counsel sought to  draw our  attention to  the fact  that one of the deceased members of the complainant’s party was the son of a powerful politician  which fact had  an effect on the manner in which  the case  was investigated and prosecuted; he also free our  attention to  the fact  that the  bail came  to be cancelled after  a letter  was written by the complainant to the Chief Minister of Punjab.  We are also informed that, at the time  of the hearing of the application for cancellation of the  accused’s bail,  it was pointed out that the accused had been  granted bail after having spent one year and three months in jail during which time, not even the evidence of a single witness had been recorded. Learned counsel has denied the charge  that the  accused  had  issued  threats  to  the complainant and  instead, submits  that he  has  in  no  way misused the  grant of  bail to  him.   In view  of all these factors, the learned counsel for the accused urges us to set aside the  order cancelling the grant of bail to the accused while simultaneously  passing  appropriate  orders  for  the grant of bail to him.      We have  carefully examined  the reasons put forward by the learned  Judge for  directing cancellation  of the  bail granted earlier.  At the outset, we must state that we doubt the advisability  of the  learned Judge’s  decision to treat the copy  of a  complaint made to the Chief Minister against grant of  bail as  an application   for  cancellation of the bail.   Nothing had stopped or prevented the respondent from filing a  regular application  for cancellation  of bail  if there existed  valid grounds  for the  same.  We need say no more on this point because, what is important is to find out if the  learned Judge  was justified  in cancelling the bail granted on merits.      In  the   main,  two   grounds  are   put  forward  for cancellation of  the bail,  namely, (i) that the accused was quality of  suppression of  the material  fact that  his co- accused’s bail  application was rejected twice and (ii) that there was  only one  case and  not a  cross case against the complainant’s party  as was assumed while granting bail.  In our  view,   neither  of   the  two  grounds  would  justify cancellation of bail.      Indisputably, there  was a  light between  two  groups. Which party  had launched  the attack  would be  a matter of evidence but  for the purpose of this appeal, we assume that the accused’s  side was  the aggressor.   The fact, however, remains that  there was  casualty on  both sides  since both sides were  armed.   Whether a  cross complaint was filed or not does not alter this factual reality.  The possibility of the respondent’s  side being the aggressor, or there being a free fight  cannot be  overlook altogether.  Non-filing of a cross-complaint may  be a  relevant factor,  but that  there were injuries  on both  sides has to be accepted.  This fact was known  to the court when it granted bail.  Therefore, in our view,  this ground is not strong enough for cancellation of bail.      The ground  regarding suppression  of  facts  is  still weaker.     In  the  first  place,  knowledge  of  two  bail applications of the co-accused having been rejected has been imputed to  the accused  without valid  basis. Secondly, the fact that  the co-accused had applied for bail and has later



not pressed the application, had been disclosed since it was known to  the accused.   That was sufficient indication that the co-accused  had not been enlarged on bail.  His decision not to  press for  bail would be indicative of the fact that the court  was disinclined  to grant bail or, he did not see sufficient grounds  to press  the bail application.  Be that as it  may, the  fact remains  that the court was aware that the co-accused  was not  granted bail.   That was sufficient for the  court when  it considered the accused’s application for bail.   Besides,  it was  the  prosecution/complainant’s duty to bring to the court’s notice that two applications of the co-accused  for bail  were rejected.  If the accused did not mention  it, nothing  prevented the  opposite side  from placing it  on record.   It  seems to  be an omission on the part of  the prosecution/complainants’ side but, for that it would be  wrong to charge them with having suppressed facts. So also for the accused, more particularly because, there is or positive  evidence to attribute knowledge to the accused. Hence we think this ground is unsustainable.      There is  no evidence  of the accused having threatened anyone while on bail.      For the  above reasons,  we allow  this appeal  and set aside the  order of  the High  Court cancelling the bail and restore the  order by which he was released on bail.  Appeal will stand so disposed of.