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Factors which imply that the accused might flee from justice must not be neglected: Delhi High Court

If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. This was held by Hon’ble Justice Subramonium Prasad in the case of State Vs. Akshay Dagar Alias Shakti [CRL.M.C. 612/2021] on the 16thof August before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, on 02.05.2018, at about 9:55 AM, a PCR call was received regarding firing on a white coloured Swift car near Shiv Mandir, Firni Road, Village Bamnoli, Delhi. The same was recorded vide DD No.24A. Police team reached the spot where they found that a white coloured Swift car bearing No. DL3CAH-1805 had hit an electric poll, both the front window glasses of the car were broken and two injured persons were lying in the front seat of the car. The person on the driving seat was identified as Sandeep Deswal @ Sandeep Mental and another person was identified as Pawan Mann @ Pauna. In her statement under Section 161 Cr.P.C, the mother of the deceased revealed that the deceased was a property She revealed that she knows Rajiv Dagar @ Monu and the respondent herein as they have visited their house multiple times. She stated that Rajiv Dagar used to come to their house in a Silver coloured Santro Car which belonged to Kamlesh. It was revealed by the mother of the deceased that a dispute arose between the deceased and Rajiv Dagar regarding the development of flats and the cost incurred therein. She also revealed that two days prior to the incident, Rajiv Dagar and the respondent came to their house and threatened the deceased with dire consequences. She states that Rajiv Dagar threatened the deceased with dire consequences if the accounts are not settled by the next day. The mother of the deceased saw the CCTV footage and she identified the two persons who were on the motorcycle. She identified the person who was riding the motorcycle as Rajiv Dagar and the person who was sitting pillion was identified as the respondent herein. The mother of the deceased also stated that the Santro Car seen in the CCTV footage belongs to Kamlesh. Charges were framed and trial has begun. PW-1 and PW-2 were examined but they both turned hostile. After they turned hostile the respondent filed an application for bail, being Bail Application No.3198/2020. The learned Additional Session Judge vide order impugned herein granted bail to the respondent herein. The learned ASJ granted bail to the respondent herein on the ground that the respondent herein was in custody since 18.10.2018, two star witnesses (eye-witnesses) have not supported the case of the prosecution, nothing incriminating has been brought on record by the aforesaid prosecution witnesses, there is no apprehension of the accused tampering with evidence because the CCTV footage and the FSL are scientific evidence and therefore there is no possibility of tampering them and that in the present situation created due to Corona pandemic, the respondent herein warrants grant of bail. It is this order which is under challenge in the instant petition.

The counsel for the petitioner state submits that the respondent is accused of a heinous offence under Section 302 IPC which entails the maximum punishment i.e. death or imprisonment for life. He was absconding and he was declared as a proclaimed offender and was only arrested only in October, 2018 in some other case. The learned APP for the State has brought the attention of this Court to an application filed on 17.10.2019, wherein the witnesses had filed an application for exemption from personal appearance on the ground that they are being threatened and there is a likelihood that the witnesses will be attacked by the accused persons. The learned APP for the State submits that none of these factors have been considered by the learned Additional Session Judge before granting bail to the respondent herein and the order grating bail, therefore, should be set aside. The learned counsel for the respondent submits that, the star witnesses have not supported the case of the prosecution. He states that other than the disclosure statement there is nothing to connect the respondent with the crime. He states that the fact that the respondent went with his cousin to the house of the deceased cannot connect him directly with the case in the absence of any evidence and therefore, no prima facie case is made out against the respondent herein.

The learned judges heard the submissions of both the parties and relied on the judgement in Kanwar Singh Meena V. State of Rajasthan, (2012) 12 SCC 180, wherein, “Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail

Applying this to the present case, bail was cancelled and the petition was allowed by holding, “In the facts of the present case, the learned Additional Sessions Judge has failed to consider the fact that the respondent was absconding for five months and had been declared as a proclaimed offender. He was arrested in some other case and later arrested in the case. Therefore, his chances of fleeing from justice cannot be ruled out. He has failed to consider that there is one more case against the respondent wherein he is accused of committing an offence under Section 302 IPC. The learned Additional Session Judge also failed to consider the fact that the mother and the wife of the deceased have moved an application in the Trial Court and have sought protection and protection has been granted to them by the learned ACMM vide order dated 18.07.2018. The learned Additional Session Judge failed to appreciate that the murder of the deceased was well planned and well-orchestrated. The learned Trial Court has failed to take into account the vital factors which have to be considered while granting bail to the accused warranting interference from this Court.”

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