Mahant
Chand Nath Yogi & Anr Vs. State of Haryana [2002] Insc 440 (24
October 2002)
Doraiswamy
Raju & Shivaraj V. Patil. Shivaraj V. Patil J.
Leave
granted.
Heard
learned counsel for the parties at length.
We
feel it necessary to state the facts leading to the filing of these appeals
giving some details. There is a Trust by name - Shri Baba Mast Nath Ayurvedic
and Sanskrit Shikshan Sansthan. Mahant Sh. Shreyo Nath removed Karan Nath, Azad
Nath and others from the Committee of the Trust and appointed the appellant No.
1 as his successor. Mahant Shreyo Nath expired on 7.1.1985. The appellant No. 1
became the Mahant of the Gaddi of Shri Baba Mast Nath Math at Asthal Bohar, Rohtak.
The appellant No. 1 claims to have dedicated himself to the field of
development of education, social reforms and all-round progress of various
institutions run and established by the Math; he is the founder and the
chairperson of number of institutions including the dental college and
hospital, engineering college, ayurvedic college, charitable eye hospital named
after Baba Mast Nath; he has undertaken projects for setting up a blind school,
orphanage, deaf and dumb school, Shree Mast Nath Medical College and Shree Baba
Mast Nath Deemed University; and claims to serve the poor and downtrodden
persons to uplift their educational status. It is also stated that the various
institutions run by Math do not receive any aid from the Government or
Non-Governmental Organizations.
He
contested election in the year 1999 to Haryana State Assembly as an Independent
candidate against the wishes of Shri Om Prakash Chautala who wanted him to
contest from his party. It is further alleged that Shri Chautala demanded money
and the appellant No. 1 invited his wrath by refusing to meet his demand.
He
states that Shri O.P. Kaushik, the Vice-Chancellor of M.D. University, Rohtak,
also demanded huge sum of money from him who subsequently contested Assembly
election in the year 1999 on the party ticket of Shri Om Prakash Chautala. Shri
Kaushik had passed orders canceling admissions made to the institutions run by
the appellant No. 1 which were subsequently set aside by the courts.
He is
falsely involved in the case in the background stated above with the change of
Government in the State.
An
F.I.R. was registered with police station Bawal stating that on 24.1.1999 at
about 5.00 P.M. complainant Randhir Singh, S/o Chhote Lal had gone to see Baba Azad
Nath (deceased) in Shiv temple at village Assalwas. At about 6.15 P.M., Baba Azad Nath came out and was sitting with Sewaks
Tej Pal, S/o Ami Lal, Jaina S/o of Prabhata and Ombir S/o of Ram Pal and
others. At that time, one man aged 25/26 years wearing a pant and shirt and a
black loi came there and wanted to smoke sulpha, on which Baba replied that it
could not be done but he could take meal. The young man refused to take meal.
On asking, he said that he was Sangwan from Jind. Baba told him to go from
front gate if he did not want to take meal. Thereafter complainant and others
started taking meals and Baba had gone for urination. Within 4-5 minutes, there
was a big noise of Phatakas (fire works) and Baba gave a call "Bhajjio"
(run). On hearing, the complainant and others left their meals and went towards
back side and found that Baba was lying with his mouth downward near a tree
with bleeding from the right side of his chest. In the F.I.R., it is further
stated that complainant and others had doubts that person by hiding in the
cover of darkness had fired at Baba and he died because of gun shots and that
if the person comes before them, they could identify him.
It is
the case of the appellant No. 1 that the police with mala fide and oblique
motive and under the pressure of the present Government of Haryana wanted to
implicate him in F.I.R. No. 17/99 dated 24.1.1999 registered under Sections
302/120-B IPC and Section 25/54/59 of the Arms Act. A false case was tried to
be made out against him to mar his reputation and create hurdles in the
developmental activities. The police officials attempted to falsely involve him
in the criminal case with the aid of one Kishan, S/o of Randhir Singh, resident
of Mehandipur. The said Kishan is a hardened criminal and a life convict
against whom several criminal cases pertaining to heinous offences are pending.
It was
alleged by the police that the said Kishan in custody made a disclosure
statement implicating the appellants under Section 120-B of the IPC. In that
connection, the appellant No. 1 was rigorously interrogated on 24.6.1999 by
various police officials including Inspector, CID/Crime, Faridabad and found that the appellants were
not involved and found them innocent after the investigation was verified by
the superior officers. However, on finding that the disclosure statement of Kishan
was wrong, on an application made for discharge, the CJM, Rewari passed the
order of discharge on 3.11.1999 which reads as under:- "An application for
discharge of the accused has been filed which is allowed as the accused has
been found innocent during the investigation of the case and, therefore, the accused
is discharged. He be released forthwith if not required in the other case. File
after needful be consigned to the record room." In February, 2001, the
appellant No. 1 received threatening demand over phone to pay Rs. 10/- crores
by March, 2001 failing which he would be kidnapped and murdered. On this, he
filed a complaint and F.I.R. No. 42 dated 5.2.2001 was registered under Section
387 IPC. He requested for adequate security. On police refusing to do so, he
approached the District and Sessions Judge who directed the S.P., Rohtak to
provide adequate security. Even then, no security was provided to him.
The
police at the behest of senior politicians made yet another attempt to
implicate him with the help of another hardened criminal Manjit Singh, S/o Tek
Ram and Ashok Kumar, resident of Delhi. Manjit Singh had remained in police and judicial custody in various
criminal cases. No plausible explanation has been given by Manjit Singh as to
why he did not disclose alleged involvement of appellants in the crime after
the registration of aforesaid F.I.R. No. 17 dated 24.1.1999 and till his arrest
on 10.3.2001 in the present case.
Under
these circumstances and due to continued illegal acts of the police, the
appellants filed an application for bail under Section 438 Cr.P.C. on 20.3.2001
in the Sessions Court. The learned Addl. Sessions Court, Rewari, after hearing both sides initially granted
anticipatory bail on 9.4.2001 for six weeks, which was confirmed and bail was
continued by the order dated 5.6.2001.
The
State filed a Criminal (Misc.) Application No. 27699-M of 2001 on 18.7.2001
under Section 439(2) R/w Section 482 Cr.P.C. in the High Court for cancellation
of anticipatory bail granted to the appellants. The appellant No. 1 sent
letters dated 23.7.2001, 21.8.2001 and 15.9.2001 to In-charge, CIA Staff
Police, Sonepat offering to join the investigation which letters were
acknowledged. Although the appellants went to join investigation in response to
the notice dated 19.9.2001 but nothing was done and they were sent back saying
that they would be called on some other date. Suspecting some evil designs, the
appellants made an application to the CJM, who after notice to the State fixed
27.10.2001 for joining investigation at CIA Staff Police, Sonepat.
The
appellants did appear for investigation on that date. They were interrogated upto
2.00 P.M. on 27.10.2001 and for two hours
again on 28.10.2001. The Investigating Officer completed the investigation. The
appellants filed a detailed reply to the petition filed by the State under
Section 439(2) R/w Section 482 Cr.P.C. placing on record all material documents
of facts. The High Court after considering the matter on 21.12.2001 partially
allowed the said Criminal Misc. Application and set aside the order of the
Addl. Sessions Judge dated 9.4.2001 but the High Court did not deal with the
bail Order dated 5.6.2001 inasmuch as the High Court did not consider the facts
and subsequent circumstances, as taken into consideration by the learned Addl. Sessions
Judge, while confirming bail. Thus the bail order dated 5.6.2001 remained
undisturbed; despite the same, police tried to arrest the appellants; hence
they filed Criminal Misc. Application No. 52331-M/2001 under Section 438 R/w
482 Cr.P.C. restraining the respondents from arresting them. The High Court on
28.12.2001 issued notice on the application returnable by 8.3.2002 and directed
the respondent not to arrest the appellants in the meanwhile. The
respondent-State filed an application on 4.1.2002 under Section 482 Cr.P.C. for
clarification/modification of order dated 21.12.2001 to the effect that the
order dated 5.6.2001 granting bail by the Addl. Sessions Judge is also set
aside;
Criminal
Misc. Application No. 52331-M/2001 be heard along with the application filed
for clarification; notice issued for 8.3.2002 by Hon'ble Mr. Justice R.L.Anand
be preponed and for some other directions. The High Court by the order dated
22.2.2002 allowed the application filed for clarification holding that by
oversight or omission, the order dated 9.4.2001 was mentioned instead of
5.6.2001 and that the real intention was to cancel the order dated 5.6.2001. By
the same order dated 22.2.2002, the learned Judge set aside the order dated
28.12.2001 passed by another learned Judge of the coordinate bench of the High
Court in Criminal Misc. Application No. 52331-M of 2001 observing that the
learned Judge ought not to have passed such an order and the said order in any
case became infructuous. Hence these appeals.
The
learned Senior Counsel for the appellants in support of these appeals strongly
contended that the learned Judge who passed the impugned orders seriously erred
in allowing the application filed by the respondent for recalling the order
dated 28.12.2001 passed by another learned Judge of the co-ordinate bench; such
an application was itself not maintainable in view of the decision of the
respondent was not entitled to the relief sought for in respect of the order
dated 28.12.2001 passed in Criminal Misc. No.27699-M of 2001 in view of the express
and clear bar contained in Section 362 Cr.P.C. in the matter of
alteration/review of a judgment; the High Court also has failed to appreciate
that there is a political rivalry and the police officials are acting at the
behest of certain politicians and higher officials; the appellant No. 1 having
dedicated himself to the service of the poor and has deep roots in the society
with name and good reputation; from the facts narrated and the records, it is
clear that the appellants were falsely implicated in the case to wreck personal
vendetta;
the
High Court has also failed to see that the appellants were already rigorously
interrogated by the police officials and it was found that they were not
involved in the offence as alleged.
According
to learned Senior Counsel, the appellants did not misuse the anticipatory bail
granted by the learned Additional Sessions Judge; the application filed for
cancellation of the orders dated 9.4.2001 and 5.6.2001 is primarily based on
the contention that the appellants are not joining investigation and that they
are tempering with the evidence but the High Court has failed to appreciate
that the appellants after grant of anticipatory bail on 9.4.2001 joined
investigation on more than one occasion and they were interrogated sufficiently
and that even the case was committed for trial having completed the
investigation; further a co-accused Ashok Kumar had been released on bail on
3.9.2001 during the pendency of Criminal Misc. Petition before the High Court;
he finally submitted that the police officials at the instance of politicians
are bent upon to harass the appellants by getting them into police custody.
In
opposition, the learned counsel for the State seriously contended that the
appellant No. 1 is a very influential person and is not cooperating in
investigation; in order to investigate, particularly as regards the offence
under Section 120-B IPC in the facts and circumstances of the case, the
custodial interrogation of the appellants is very much required; he took pains
to narrate the details about the prosecution case and the investigation done so
far. He made submissions in support and justification of the impugned orders.
He maintained that the accidental error could be corrected by the High Court on
the application filed for clarification by the State; the powers of High Court
to cancel the bail are wide enough to cover the cases like the one on hand
particularly when the order of bail granted by the learned Addl.
Sessions
Judge was not based on proper judicial discretion. He urged that in the
interest of justice, the impugned orders may be sustained. He reiterated the
submissions that were made before the High Court.
We
have carefully considered the contentions and submissions made on behalf of
either side.
We
consider it unnecessary to deal with the contentions whether an order of
clarification or modification could be passed by the High Court as is done in
the impugned order dated 22.2.2002 or whether the bar contained under Section
362 Cr.P.C. applies to the present case or whether an order passed by one
learned Judge of coordinate bench of the High Court could be recalled by
another learned Judge. Keeping in view the facts and circumstances of the case,
in the backdrop of facts narrated in sufficient details, we think it is just
and appropriate to examine the main question and decide whether the
anticipatory bail granted to the appellants could be sustained or not. The case
against the appellants is for an offence under Section 120-B IPC i.e.
conspiracy for the murder of Baba Azad Nath and in furtherance of the same,
co-accused Manjit Singh had murdered the said Baba Azad Nath on 24.1.1999 at
about 6.15 P.M.; the learned Sessions Judge, Rewari, after elaborate and
detailed consideration, keeping in view the rival contentions granted
anticipatory bail for six weeks on 9.4.2001;
as can
be seen from this very order, everyone of the contentions raised by the learned
Public Prosecutor are dealt with; it is noticed in the said order that the
statements of the eye-witnesses named in the F.I.R. No. 17/99 of police
station, Bawal had not been recorded till then regarding identity of Manjit
Singh, accused as assailant, who is said to have committed the murder;
the
alleged disclosure statement of Kishan on the basis of which offence under
Section 120-B IPC was added later after about four and half months from the
date of the murder against the appellants, was proved to be false and police
even got the said Kishan discharged in terms of the order dated 8.11.1999.
According
to the respondent, previous Investigating Officer and Supervisory Officers
acted mala fidely and illegally and this aspect was being investigated
seriously and that it would take some time to collect evidence; the evidence
collected in second phase of investigation is in the form of statements of
three persons, namely, accused Manjit Singh, accused Ashok Kumar and Jai Parkash
Dayiya; the statements of first two persons being co- accused, their disclosure
statements without leading to any recovery may not turn out to be a lawful
evidence; the statement of third person was prima facie tested in the light of
the facts though witness Jai Parkash joined investigation some time in June,
1999; he made the statement for the first time on 13.3.2001 and his statement
runs contrary to the certificate issued by the Branch Manager in regard to
conversion of cash of Rs. 20,00,000/- from currency notes of Rs. 100/- to
currency notes of Rs. 500/- which amount alleged to have been paid to the
killer and if there was threat to witness Jai Parkash to the knowledge of the
police, they could have taken steps; keeping in view the decisions cited at the
bar and the totality of the circumstances, the learned Addl. Sessions Judge
exercised judicial discretion in granting bail to the appellants on 9.4.2001.
Learned
Addl. Sessions Judge, Rewari, by his order dated 5.6.2001 confirmed the
aforesaid order dated 9.4.2001 passed by his predecessor. In the order dated
5.6.2001, the learned Addl.
Sessions
Judge has again objectively considered the submissions made on either side in
the light of the facts of the case. In the said order, it is observed that the
concession of anticipatory bail granted to the appellants was not misused; undisputably,
the appellant No. 1 had succeeded to the Gaddi of the Math on 21.5.1984 in the
life time of Mahant Shreyo Nath; admittedly, there was no legal fight between
the appellant No. 1 and Baba Azad Nath regarding succession to Gaddi of the
Math; Baba Azad Nath was murdered on 24.1.1999 about 15 years after succession
to the Gaddi of the Math; the allegation of tampering of evidence raised by the
learned Public Prosecutor related to the period prior to the granting of
anticipatory bail on 9.4.2001; the investigation against three co-accused
namely, Manjit Singh, Rajesh and Ashok Kumar had almost been completed and challan
was likely to be submitted. The learned Addl. Sessions Judge, in para 11 of the
said order, has summed up thus:- "11. Admittedly, the State had never
approached the court for withdrawal of the anticipatory bail order dated
9.4.2001, alleging that the petitioners were not joining the investigation. In
such circumstances, the contention raised by the learned counsel for the
petitioners has some substance. Thus, in view of the fact that petitioner Mehant
Chand Nath Yogi had succeeded to the Gaddi of the Math as early as on
21.05.1984 in the life time of his Guru Sri Shreyo Nath without any protest
from Baba Azad Nath; that no legal or otherwise battle ensued between the
deceased and the petitioner regarding the succession of the Gaddi to the Math;
that death of Baba Azad Nath was caused as late as on 24.01.1999; that in case,
the petitioners had refused to join the investigation, the police had never
approached the court for the cancellation of the bail order dated 9.4.2001 or
for seeking fresh directions to the petitioners to join the investigation as
and when required; that the investigation of the case, at least concerning
other three co-accused, has already been completed; that the petitioners have
been availing the benefit of anticipatory bail since 9.4.2001 and have not
misused the concession of bail (except the allegation that they did not join
the investigation, which has already been discussed above); and also taking
into consideration the attending facts and circumstances of the entire case,
without expressing my opinion on the merits of the case. I hereby find merit in
the bail application and confirm the order dated 9.4.2001..." After
perusing the orders of the learned Addl. Sessions Judges dated 9.4.2001 and
5.6.2001 and records, we do not get any impression that the judicial
discretion, in granting anticipatory bail was exercised either erroneously or
on any irrelevant consideration. The serious contention advanced before us by
the learned Public Prosecutor is that for further investigation of the case,
custodial interrogation of the appellant is very much required. While stating
the facts in the beginning, we have noticed that the appellants joined
investigation whenever required and as a matter of fact they were interrogated
on two occasions for sufficient time. The appellants were named as accused for
committing offence under Section 120-B IPC almost after a period of four and
half months from the date of the murder, that too based on the disclosure statement
of hardened criminal; the statement of Kishan on whose statement the appellants
were involved in the offence was proved to be false and police got him
discharged. The submission of the learned Public Prosecutor that earlier
investigation made by the police officers and scrutinized by the superiors was
faulty and mala fide, is not a ground to put against the appellants at this
stage. The appellant No. 1 has also alleged that he is falsely involved in the
case because of political rivalry and he was threatened for extracting money;
in that regard he had also made complaint to the police seeking protection.
Unfortunately, the High Court in the impugned order dated 21.12.2001, canceling
the anticipatory bail granted to the appellants and in the subsequent order
dated 22.2.2002, did not consider the contentions raised on behalf of the
parties objectively and in proper perspective and did not deal with the reasons
recorded and consideration made by the learned Addl. Sessions Judges in the
orders dated 9.4.2001 and 5.6.2001 granting anticipatory bail. The High Court
has simply observed in the order dated 21.12.2001 that the learned Addl.
Sessions Judge, Rewari, had not taken all facts into account and that he
granted anticipatory bail to the appellants on 9.4.2001 when the case was at
initial stage. We find this statement is factually incorrect looking to the
order of the learned Addl. Sessions Judges and the records of the case. The
learned Sessions Judge had taken pains to notice the relevant facts and
circumstances of the case and that the case was not at the initial stage. The
High Court has simply stated that the order of the learned Sessions Judge is
based on exercise of judicial discretion in erroneous manner without
considering the material on the file. It is strange that the High Court has
made such an observation without showing how the judicial discretion exercised
by the learned Addl. Sessions Judge was erroneous.
A
considered order of the learned Addl. Sessions Judge supported by reasons in
exercise of judicial discretion does not become erroneous by merely dubbing or
calling it as such. In our view, in the light of what is stated above, both the
orders of the learned Addl. Sessions Judges dated 9.4.2001 and 5.6.2001 after
due consideration of the facts and circumstances of the case to the extent
required for exercise of judicial discretion in the matter of granting bail are
sustainable. The judicial discretion exercised in granting anticipatory bail,
in our opinion, is neither perverse nor erroneous. On the other hand, they are
based on relevant considerations supported by reasons. The High Court has
observed "it is alleged in the present case that the appellant No. 1
wielded great influence and had obtained bail by dubious means".
This
observation is not based on any finding. When the learned Addl. Sessions Judges
have passed the orders granting anticipatory bail exercising judicial
discretion, there is no warrant to say that such an order of bail is obtained
by dubious means. The High Court, except referring to two decisions as to the
position of law, failed to notice the facts and relevant aspects of the case on
hand to apply them.
This
Court in Subhendu Mishra vs. Subrat Kumar Mishra & Anr. [2000 SCC (Cri)
1508] following the principles stated in Dolat Ram & Ors. vs. State of Haryana [(1995) 1 SCC 349] has reiterated
that there is a distinction between rejection of bail in a non- bailable case
at the initial stage and the cancellation of bail already granted. Normally,
very cogent and overwhelming grounds or circumstances are required to cancel
the bail already granted.
In the
present case, the High Court, it appears, did not bear this distinction in mind
and cancelled the bail in a mechanical manner.
Thus,
in our view, the High Court committed a manifest and serious error in passing
the impugned orders setting aside the anticipatory bail granted to the
appellants by the order dated 9.4.2001 as confirmed by the order dated 5.6.2001
of the learned Addl. Sessions Judge. The impugned orders of the High Court under
the circumstances are unsustainable. It is needless to state that the
observations made either by learned Addl. Sessions Judges or the High Court or
this Court in dealing with the matter relating to grant of anticipatory bail do
not impair or injure the prosecution case or prejudice the defence at the
trial. Further, nothing said or observed by the High Court or this Court shall
be taken as any expression of opinion on the merits of the case.
Hence,
we set aside the impugned orders and restore the order dated 5.6.2001 passed by
the learned Addl. Sessions Judge, Rewari. The appeals are allowed accordingly.
Back