V.D. CHAUDHARY versus STATE OF U.P. AND ANR.

V.D. CHAUDHARY v. STATE OF U.P. AND ANR. SEPTEMBER I, 2005 [AR!JIT PASAYAT AND ARUN KUMR, JJ.] Code oJCriminal Procedure, 1973: Sections 438, 439-Bail-Cancel/ation of-Accused delaying and prolonging the case-Held: Case fit for cancellation of bail-However, Trial C court directed to complete trial in four months as the prosecution evidence was practically complete.

Offence-Nature of offence indicated in FIR found to be inappropriate- Held : Police can indicate appropriate offence in the charge-sheet. A case was registered against the accused-respondent No. 2 under Section 304A and 338 IPC. After investigation, charge sheet was filed under Section 304 and 338 IPC. Accused was granted bail for offence under Section 304A, 338 IPC. He applied for bail for offence under Section 304 and 338. High Court directed Magistrate to allow bail for E added offence under Section 304 IPC.

In appeal to this Court, complainant contended that High Court should not have accepted plea of accused that on bail, trial was prolonged. Disposing of the appeal, the Court HELD :

1. High Court has not indicated any reason for grant for bail. The charge sheet was filed alleging the commission of offence under Section 304 IPC. Merely because at some earlier point of time the investigation proceeded on the line as if offence punishable under Section G 304-A is committed yet there is no embargo on the police filing charge- sheet indicating appropriate offence. [1098-BJ

Omar Usman Chamadia v. Abdul and Anr., JT (2004) 2 SC 176, referred to.

2. Though this is a fit case for C:ancellation for bail in view or the infirmiti~ pointed out above c~nsideri~g the fa~t that pros~ut~~~ lidence is practically dosed, the tri~l C~urt is d!rected to complete the trial by end of December, 2005; Respondent No. 2 – accused directed· to fully co- ·.operate for completion of trial and not seek unnecessaryadjournments; B if the Court feels that he is taking advantage of the bail granted which is being continued for nearly five years, and respondent no. l is found to be respons~ble for delay and/or tampering with evidence, the trial Court shall direct cancellation of bail. (1099-D, Et F)

· . . CRIMINAL APPELLATE JURISDICTION C 1115 of2005.; . · Criminal Appeal No. From the Judgment and O~der dated 19 .II.:i003 of the Allahabad High Court in Crl.M.A. No. 9682 of 2003.

P.K. Jain, Adv. for the Appellant. K.B. Sinha, O.K. Goswami and Atishi Dipanlcar for the Respondents. The Judgment of the Court was delivered by ARIJIT PASAYATt J.: Leave granted.

i . Informant calls in question legality of the order passed by a teamed Single Judge of the Allahabad High Court granting bail to respondent No.2 (hereinafter referred' to as "the 'accused').

Background facts sans unnecessary details are as follows: On 5.2.2000 comptaimmt lodged ·the First Inf~rmaticin Repdrt. It was stated therein ·that when he and hiS son were att~nding a marriage party. the · G .. responden·t-accused 'started fsrini shots from his gun. When he. was asked not to do so, he. did no"t stop and continued th·e frring. The ~ppellant's son Saurabh . received injuri~s du~ tO the shots. fir~d by the accuse& and he died due.~ the . . ….

injuries. ·Initially, the police registered a case alleging commission of offences punishable under Sections 304-A and 33&. of the Indian Penal Code, 1860 (in H."' short the ·xrC'). After investigation charge sheet was filed under Sections 304., .. V.D. CHAUDHARY v. STATE [PASAYAT, J.]

and 338 IPC. Cognizance was taken and process was issued. Accused filed A an application for being released o~ baiL By the impugned order bail has been granted. ·' ' · ./ —- – ~ –

-:· /·· . –·( According to the appellant. the accused was abscondmg fo~ about 2 years. His prayer' for bail was initially rejected. Non·bailable. warrant and B process under Sections 82 and 83 of the Code of Cruninal Procedure, 1973 (in short the 'Co'de') were issued. Subsequently he was arrested. It was. submitted for the accused that he was already on bail for offence punishable under Sections 304-A and 3381PC. On a reading ~fFIR and other documents offence . under Section 304~A could' appear against the. ~ccused but C "surreptitiously'' the same has been converted into offence under Section 304 . IPC. With the following observations the High Court. granted bail by the iinpugned order:

~' ' "It is said that even if allegations made in the FIR and other papers are ~ccepted to be t~e on _its face value, offence under Secti~n D · 304A and 338 IPC would appear against the accused applicant in Case Crime NO.l07212002 State v. Dev Kumdr; P.S. Sadar Bazar District Saharanpur. But surreptitiously it was converted into the offence unde{ Section 304 IPC. It was said that the applicant was . a~eady on bail for the offences under Section 304A and 338 IPC. · E , Looking to the facts and circumstances of the case, learned Magistrate is directed also to accept fresh bail bonds for the added offence under , Section 304 IPC in the Case No.270212002.

Application is disposed of accordingly.", · Complain:Utt has filed this. ap~eal questioning the ~orr~Ctness of the order passed. According to him, the High CoUrt should not have accepted plea of accused that pol_ice surreptitiously changed the nature of the offence. It is clearly contrary to facts. In fact. on completion of investigation it has been noted that the applicable offence is Section 304 IPC-~d not 304-A. There G was no surreptitious act involved and, therefore, grant of bail is not proper .. High Court has not even indicated any reason for grant of bail. It is pointed out that taking advantage of the fact that the accused is on bail, there is an effbrt to prolong the trial and hardly any progress has been made tho~gh nearly 5 .years have elapsed.

·I c In response, learned counsel for the respondent No.2-accused submitted that after considering the relevant factors bail has been granted. We find that that the High Court has not indicated any reason for grant of bail. As the facts go to show the charge sheet was filed alleging the commission of offence under Section 304 IPC. Merely because at some earlier point of time the investigation proceeded on the line as if offence punishable under Section 304-A is committed yet there is no embargo on the police filing charge-sheet indicating appropriate offence. At this juncture it would be appropriate to take note of a decision of this Court in Omar Us man Chamadia v. Abdul and Anr., JT (2004) 2 SC 176. In para 10, it was observed as follows:

"However, before concluding, we must advert to another aspect of this case which has caused some concern to us. In the recent past, we had several occasions to notice that the High Courts by recording the concessions shown by the counsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower courts. In our opinion, this is not proper if such orders are appealable, be it on the ground of concession shown by the learned counsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower courts. The High Court should not, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought up in appeal, the c;ourt of appeal has every reason to know the basis on which the impugned' 1 order has been made. It may be that while concurri~g)Vlth-'tlfe lower courts' order, it may not be necessary Js>r-the said appellate court to assign reasons but that is not so while reversing such orders of the lower courts. It may be convenient for the said court to pass orders without indicating the grounds or basis but it certainly is not convenient for the court of appeal while considering the correctness of such impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law which has to be complied with in all appealable orders. This Court in a somewhat similar situation has deprecated the practice of non-speaking orders in the case of V.D. CHAUDHARY v. STATE [PASAYAT, J.]

State of Punjab & Ors. v. Jagdev Singh Talwandi, AIR (1984) SC A 444)." It was submitted by learned counsel for the accused that there is no allegation of misuse ofliberty after grant of bail. Though the respondent No.2-accused's stand is that the trial is at the verge of conclusion according to the appellant, on some ground or the other the matter has been adjourned. As the quoted impugned order go to show the High Court had not considered the application in its proper perspective. It is submitted by learned counsel for respondent No.2-accused that examination of all the witnesses is over and only the investigation officer (in short the '10') is to be examined. It is submitted that unnecessarily adjournments shall not be sought for and in any event the respondent No.2-accused shall fully cooperate for early completion of the trial.

c Though this is a fit case for cancellation of bail in view of the infirmities pointed out above considering the fact that prosecution evidence is practically D closed, we dispose of the appeal in the following terms:

D.G. (i) The trial Court would try to complete the trial by end of December, 2005. (ii) The respondent No.2-accused shaH fully co-operate for completion of trial. He shall not seek unnecessary adjournments. If the Court feels that he is taking advantage ofthe bail granted which is being continued for nearly five years, it shall direct cancellation of bail.

(iii) In case the trial is not completed within the stipulated time and respondent no.2 is found to be responsible for delay and/or tampering with evidence, the trial Court shall direct cancellation of baiL

The appeal is accordingly disposed of. Appeal disposed of.