State Through Delhi Police vs Amardeep Singh Gill, Vikas Yadav & Others on 7/7/1999
Madan B. Lokur, J.
1. In Crl. M. (M) No. 1630/99 the State through Delhi Police is seeking the setting aside/striking off of the order dated 20th May, 1999 whereby the learned Metropolitan Magistrate, New Delhi has granted bail to the Respondents. The Respondents in the case are Amardeep Singh Gill @ Tony Alok Khanna and Amit Jhingan. They are hereinafter respectively referred to as Tony, Alok and Amit.
2. In Crl. M. (M) N0. 1701/99 the State through Delhi Police has challenged the grant of bail to Vikas Yadav (hereinafter referred to as Vikas). He was granted bail by the learned Metropolitan Magistrate, New Delhi by an order dated 29th May, 1999.
3. Both these petitions arise as a result of F.I.R. No. 287/99 registered in Police Station Mehrauli, New Delhi for offences under Section 302/201/120B/211/34 of the Indian Penal Code (hereinafter referred to as the IPC). The order dated 29th May, 1999 relies upon the observations made in the order dated 20th May, 1999. Consequently, with the consent of learned counsel for the parties, both these petitions were heard together.
4. Arguments were addressed by learned counsel for the parties on 25th, 29th and 30th June, 1999 when orders were reserved. Learned counsel for the Respondents have filed detailed written submissions which have also been considered.
5. The occasion for registering the F.I.R. arose because of an incident which occured in a restaurant called Tamarind Court Cafe in Qutub Colonnade in the Mehrauli area of New Delhi. in the night of 29th April, 1999, a party was on at the restaurant. The admitted position is that more than a hundred people were attending that party. At around 2.00 A.M. On the night of 29/30th April, 1999, one Sidharth Vashisht alias Manu Sharma approached the bar counter. At that place about 5-6 people and one waiter were present. Manu Sharma asked the waiter for two drinks of alchohol. The waiter did not serve him. Manu Sharma told by one lady named Malini Ramani and another lady named Jessica Lal that the party was over and liquor was not available. It is alleged that Manu Sharma said words to the effect that he would now have to adopt his own way. Jessica Lal tried to persuade him not to get angry. However, Manu Sharma pulled out a pistol from his trousers and fired one shot towards the ceiling. He then fired another shot which hit Jessica Lal above her left eye and she fell down.
6. Jessica Lal was then taken to a nearby hospital in Safdarjung Enclave. The police were also informed of the incident. They arrived at the hospital and recorded the statement of one witness and registered a case under Section 307 of the IPC. In the early hours of 30th April, 1999, Jessica Lal was declared dead whereupon the F.I.R. was converted from Section 307 of the IPC to Section 302 of the IPC.
7. The sequence of events as brought out during the investigation and as placed before me suggests that Tony, Alok, Vikas and Manu Sharma had assembled at Tony’s residence in Friends Colony (West) on the evening/night of 29th April, 1999. From there, they departed for the Tamring Court Cafe. Tony and Alok came together in a Tata Sierra while Vikas and Manu Sharma came in Vikas’s Tata Safari. Prior to their leaving Tony’s residence, a phone call was made to Amit who reached Tamrind Court Cafe separately in his Maruti Gypsy.
8. After the shooting, it appears that Tony, Alok and Vikas left together in the Tata Sierra and Amit went home on his own. Manu Sharma made his way back to tony’s residence via Indian Cottage Industries, Mehrauli. It is alleged that somewhere near Indian Cottage Industries, he concealed the pistol (which was the weapon of offence) and thereafter proceeded to reach Tony’s house. After Tony, Alok, Vikas and Manu Sharma were together again in Tony’s residence. Tony and Vikas went back to the Mehrauli area to pick up Vikas’s Tata Safari. While Vikas was in the process of boarding and driving off with the Tata Safari, he was challenged by one Sarvan Kumar of the Delhi Home Guards but despite resistence, Vikas managed to drive off with the Tata Safari. Sarvan Kumar had, however, managed to damage a window screen of the Tata Safari and note its registration number.
9. Tony and Vikas then came back to Tony’s residence.
10. It is alleged that at Tony’s residence, a decision was then taken to retrieve the pistol but Tony and Alok (and Vikas) were not inclined to participate in the retrieval. Accordingly, Amit was asked to come to Tony’s residence and after he came there, he, Vikas and Manu Sharma went to the site near Indian Cottage Industries and retrieved the pistol. After retrieval of the pistol, Amit dropped Vikas and Manu Sharma at Tony’s residence and went home. From Tony’s residence, Vikas and Manu Sharma went to the residence of Vikas’s father.
11. On 2nd May, 1999 the Tata Safari was seized as unclaimed in Noida (U.P.). The vehicle had been repaired and abandoned in the meantime. An inspection of the vehicle led to the recovery of one live bullet which was similar to the two empty shells recovered from the scene of the crime.
12. During the investigations, the police arrested Tony and Alok on 5th May, 1999 for offences under Section 120-B/212/201/34 of the IPC. On the same day, an application was moved by the police for their remand to judicial custody for a period of 14 days on the ground that the investigations were yet to be completed. On this application, the learned Magistrate ordered that they by kept in judicial custody till 6th May, 1999 in view of the fact that the offence was grave and a test identification parade was to be held in respect of an offence under Section 302/34 of the IPC against the accused persons.
13. The reference to Section 302/34 of the IPC was pointedly made by the Special Public Prosecutor in his rejoinder in view of the submissions made by the learned counsel for the Respondent that there was no allegation of their involvement in any murder; that as per the remand application, the accused were alleged to have committed, at best, bailable offences and that it was mentioned by the learned Magistrate in his order dated 20th May, 1999 that he had remanded Tony and Alok to judicial custody “despite the fact that in the application it was mention sic) that two accused have been arrested for the charges u/s 201/212/120-B/34 IPC are made out, the Court as a abundant caution, the case being at the initial stage had re- jected the application”.
14. On 6th May, 1999, the police presented another application for the remand of Tony, and Alok to judicial custody. On this application, the learned Magistrate ordered their remand to judicial custody till 20th May, 1999.
15. Subsequently, they moved an application for bail on which arguments were heard on 20th May, 1999 and the impugned order passed.
16. In so far as Amit is concerned, he was arrested on 8th May, 1999 and on the same day he was produced before the learned Magistrate who remanded him to judicial custody till 21st, May, 1999. On 8th May, 1999 itself, Amit applied for bail which was rejected by the learned Magistrate on the same day since the investigation was at the initial stage and in view of the seriousness of the offence and the facts of the case.
17. Thereafter, Amit moved another application for bail to which a reply was filed by the State and arguments thereon were heard on 20th May, 1999 along with the application for bail moved by Tony and Alok.
18. The facts pertaining to Vikas are substantially different. He moved an application for grant of anticipatory bail under the provisions of Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr. P.C.). This application was moved by him in Imphal (Manipur) and by an order dated 15th May, 1999, the learned Sessions Judge, Manipur East, Imphal was pleased to grant anticipatory bail to Vikas “in order to enable him to approach the competent court having jurisdiction within a reasonable period of time, preferable within two months from today”.
19. On the same day, Vikas applied for anticipatory bail in the court of the learned Additional Sessions Judge, Delhi. In this application, there was no mention of the fact that similar proceedings had been initiated by him in Imphal. On 17th May, 1999, when the application was taken up for hearing, the learned counsel appearing for Vikas stated before the learned Additional Sessions Judge that a writ petition had been filed in the Delhi High Court for transferring the investigation of the case to the Central Bureau of Investigation and that “Some additional facts are also required to be given by the applicant and therefore present application may be dismissed as withdrawn”. In view of the prayer made by learned counsel, the application was dismissed as withdrawn. The learned Additional Sessions Judge was not told anything about the proceedings initiated by Vikas in Imphal.
20. Feeling aggrieved by the grant of anticipatory bail to Vikas on 15th May, 1999, the State of Manipur filed Criminal Revision Case No. 6/99 in the Imphal Bench of the Gauhati High Court. By an order dated 26th May, 1999, a learned Single Judge of the Gauhati High Court stayed the order granting anticipatory bail to Vikas ,till the final disposal of the petition.
21. In his reply filed in this Court, Vikas states that on 12th May, 1999 he had sent a telegram from Mumbai to the Commissioner of Police (Delhi) and to the Lieutenant Governor (Delhi) that he is ready and willing to join the investigations. After Vikas was granted anticipatory bail by the learned Sessions Judge, Imphal, he is said to have given a letter addressed to the Commissioner of Police and surrendered himself at the Police headquarters, New Delhi on 19th May, 1999 ostensibly to join the investigations, but he was not interrogated. On 27th May, 1999, he is said to have given another communication for joining the investigations but again to no effect. Consequently, he “surrendered” before the learned Magistrate on 28th May, 1999 on which date he also moved an application for grant of bail. Notice was issued in this application returnable on 29th May, 1999.
22. On 29th May, 1999, the police moved the learned Magistrate by way of an application with a prayer that Vikas be remanded to police custody for seven days. In the application seeking remand, it was alleged that Vikas actively involved with Manu Sharma and others prior to, at the time of and after commissions of the offence of the murder of Jessica Lal. It was also stated that Vikas has been avoiding arrest and joining investigations and that “accused Vikas has also attempted on more than one occasion to temper (sic) with the evidence of prosecution including by existing threats to the family of the deceased Jessica Lal”. The bail application of Vikas as well as the remand application of the police were heard and disposed of by the learned Magistrate by his order dated 29th May, 1999.
23. Apart from submitting that the orders dated 20th May, 1999 granting bail to Tony, Alok and Amit and the order dated 29th May, 1999 grating bail to Vikas are liable to be set aside, the State has also prayed that some of the observations made by the learned Magistrate in the impugned orders deserve to be expunged/set aside since they were unwarranted and may have an impact on the investigations and in the trial of the case.
24. It may be mentioned that on 6th May, 1999, the main accused Manu Sharma was arrested in Chandigarh. In the application for his remand which was presented by the police on 7th May, 1999, it was stated that Manu Sharma had killed Jessica Lal and that he had disclosed that the pistol used in the crime is with one Ravinder Soodan alias Teetu in Chandigarh. His remand to police custody was sought for seven days but the learned Magistrate remanded him to police custody for five days.
25. On 12th May, 1999, the police presented another application for the further remand of Manu Sharma. In this application, it was stated that the pistol used in the crime is lying in Manali (Himachal Pradesh) and for “effecting recovery of the weapon of offence from Manali and for further interrogation of the accused (since new facts are coming to light)”. Seven days remand to police custody was sought. The learned Magistrate remanded the accused to police custody for five days, that is, till 17th May, 1999.
26. Instead of keeping Manu Sharma in its custody till 17th May, 1999, the police produced him on 15th May, 1999 at 7.50 P.M. at the residence of the learned Magistrate along with an application in which it was prayed that Manu sharma be kept in judicial custody for a period of 14 days. In the application dated 15th May, 1999, it was stated that “verification regarding the weapon of offence has been done on Delhi itself. Hence the accused Manu sharma is no more required in police custody for recovery of the weapon of offence”. In view of the averments in the application, the learned Magistrate remanded Manu Sharma to judicial custody till 20th May, 1999.
27. These facts pertaining to Manu Sharma have been mentioned (even though he is not a party to these proceedings) because the pistol used for committing the offence has not yet been recovered and one of the submissions made by the learned Additional Standing counsel for the State was that Vikas is required to be interrogated in police custody, inter alia, so that the pistol can be recovered.
28. In support of the petitions, the learned Special Public Prosecutor made four principal submissions. Firstly, it was contended that after the learned Magistrate had rejected the bail application of Tony and Alok on 6th May, 1999, (and of Amit on 8th May, 1999) there had been no change in the facts and circumstances till 20th May, 1999 when bail was granted. In the absence of any such change there was no occasion for the learned Magistrate to grant bail to Tony and Alok. In support of his contention, learned counsel relied upon the decision of the Supreme Court in State of Maharashtra Vs. Captain Budhikota Subha Rao, . It was further submitted that if there was any such change, it was to the detriment of the Respondents.
29. The second and third contentions were more or less the same, namely, that by virtue of Section 437(1) of the Cr. P.C., since the offence was non-bailable, the learned Magistrate could not have granted bail since there were reasonable grounds for believing that the accused were guilty of an offence punishable with death or imprisonment for life. It was contended that the learned Magistrate had not applied his mind to the facts of the case and the evidence that was available on record and that if he had done so, he would not have come to the conclusion to which he did. Reliance in this regard was placed upon the decision of the Supreme court in the case of Gurcharan Singh and others Vs. State (Delhi Administration), AIR 1978 SC 179.
30. It was finally submitted that some of the observations made by the learned Magistrate were uncalled for and these may have the tendency to scuttle the investigations and , therefore, these remarks ought to be expunged.
31. In the case of Vikas, the learned Additional Standing Counsel for the State made a further submission that after striking down the impugned order, this court should pass a further order that Vikas be remanded to police custody. In this regard, it was submitted that Vikas had not yet been arrested and , therefore, it is permissible to remand him to police custody.
32. On the other hand, learned counsel for the Respondents raised several contentions. Some of these contentions are similar or are nuances of the same contention. Broadly, however, it was contended that the principles for cancellation of bail are quite different from those for rejecting an application for bail and that an order of cancellation of bail can only be on principles known to law. It was submitted that in the present case, the Respondents have fully cooperated in the investigation and there has not been a single occasion when they have not made themselves available for interrogation .There is not even a whisper that any of the conditions of bail have been violated by any of the accused and consequently, there is no reason to cancel the bail already granted. It was also submitted that bail is the rule and jail is the exception. It was pointed out that our Constitution incorporates some of the fundamental human rights which have been universally accepted and which form a part of the Universal Declaration of Human Rights.
33. It was then contended that there has to be a motive for committing the murder and mere suspection of the commission of an offence is not enough.
34. It was also submitted that the petition filed on behalf of the State is not supported by a proper affidavit and even the verification of the affidavit is not proper. It was consequently submitted that both the petition should be dismissed on this Count alone.
35. It was finally submitted that Vikas cannot be remanded to police custody since he had surrendered before the learned Magistrate on 28th May, 1999 and 29th May, 1999, and he was granted bail while in the custody of the Court.
36. There is no dispute on the legal proposition that the principles governing cancellation of bail are quite different from the principles for rejecting an application for bail . Consequently, I need not dwell on this contention of the Respondents.
37. There is also no dispute that the High Court can set aside an order of bail granted by a Magistrate or a Court of Session as distinct from cancelling an order of bail. Consequently, If a Magistrate or a Court of Sessions grants bail, the High Court can set aside that order notwithstanding the fact that during the interregnum, the accused has been complying with all the conditions of bail. In passing such an order, the High Court does not decide on the basis of the principles for cancellation of bail because what the High Court is doing in such a case is setting aside the order granting bail, which has the effect of cancelling the bail. This aspect has been fully dealt with by the Supreme Court in Gurcharan Singh’s case (supra) (see paragraph 16 and 17; also see Court on its own motion Vs. Vishnuy Pandit & Anr., , Nishan Singh Vs. Gian Singh, 1997 (2) RCR 795 para 8, State of West Bengal Vs. Babulal Shaw, 1997 (3) RCR 39 para 4 (e) and Sandeep Goyal & Anr. Vs. State of Punjab & Anr., 1998 Crl. L.J. 507 para 7).
38. The nub of the controversy, therefore, is whether the learned Magistrate has correctly exercised his jurisdiction and discretion in granting bail to the Respondents.
39. According to the learned Special Public Prosecutor, there were reasonable grounds for believing that the Respondents were guilty of an offence punishable with death or imprisonment for life. Therefore, in view of the bar placed by Section 437(1) of the Cr.P.C. the learned Magistrate could not have released them on bail.
40. In Gurcharan Singh’s case (supra), the Supreme Court considered the words “if there appear reasonable grounds for believing that he has been guilty of an offence” appearing in Section 437(1) of the Cr.P.C. These words are really the converse of the words “there are no reasonable grounds for believing that the person accused of or suspected of the ommission of such an offence has been guilty of the same”. Both set of words connote a degree of certainty of opinion. The Supreme Court also expressed the view that a person need not be detained in custody for a period more than what is absolutely necessary. The Supreme Court also held that when an accused person is produced before him, the Magistrate is concerned “with the existence of the material against the accused and not as to whether those mate-rials are credible or not on the merits”. The Supreme Court has recognised the fact that the material available “will naturally change as the investigation progresses and more facts and circumstances come to light”.
41. Consequently, it is possible in a given case that a Magistrate may have (or may not have) reasonable grounds for believing that an accused person is guilty of the offence alleged. Also, in a given case a Magistrate can, in law, have reasonable grounds to believe that an accused is guilty of an offence but at the same time may have reason to hold that he should not be detained in custody because it is no longer absolutely necessary. Similarly, a Magistrate may have reason to believe, at one point of time, that an accused is guilty of an offence but in the light of subsequent investigations and material placed before him, he may change his opinion and hold a contrary view.
42. Insofar as the case of Tony and Alok is concerned, there is no doubt that the learned Magistrate was of the view on 6th May, 1999 that there were reasonable grounds for believing that they had committed an offence punishable with death or imprisonment for life. It is for this reason that he remanded them to judicial custody for a period of 14 days. This was despite the fact that in the application for remand, the police had stated that they were charged with offences under Section 120-B/212/201/34 of the IPC. In the case of Amit, the position was more or less the same.
43. On 20th May, 1999, when the bail applications were taken up for conideration, the learned Magistrate was entitled to and did take the subsequent investigations into account while passing his order. These subsequent developments were, inter alia, that the main accused Manu Sharma had since then been arrested. (and “verification regarding the weapon of offence” had been done and Manu Sharma was “no more required in police custody for recovery of the weapon of offence”) that the other accused persons (including Vikas) were on bail and that the statements of many witnesses had been recorded. After taking these factors into consideration, it appeared to the learned Magistrate that the allegations against Tony, Alok and Amit were really of harbouring Manu Sharma and shielding him from the process of law. The learned Magistrate was of the view that there were no reasonable grounds to believe that these three Respondents has been guilty of an offence punishable with death or imprisonment for life.
44. Reliance placed by the learned Special Public Prosecutor on the decision of the Supreme court in the case of Capt. Budhikota Rao (supra) is, with respect, in appropriate in that case, Successive bail applications filed by Subha Rao were dismissed by a learned Single Judge of the Bombay High Court by a common order on 6th June, 1989. It seems that the learned Single Judge was unaware of the pendency of yet another bail application filed by Subha Rao. The Supreme court noted That before the ink was dry on the order dated 6th June, 1989, another learned Single Judge of the Bombay High Court granted a prayer which was similar to the one that was rejected on 6th June, 1989. It was noted that between the two conflicting orders, there was a gap of only two days and that it was nobody’s case that during those two days drastic changes had taken place necessitating the release of Subha Rao on bail. In this context, the Supreme Court observed that once an application was rejected there was no question of granting a similar prayer since it amounted to over-ruling the earlier decision without there being a change in the fact situation.
45. The position in the present case is quite different. In the present case, on 6th may, 1999, the learned Magistrate remanded Tony and Alok to judicial custody for a period of 14 days which is the maximum permissible period (at a time) under law. During this period some noticeable, if not important, events (as mentioned above) had occured. These events could not have been ignored by the learned Magistrate. these events, as stated by the learned Magistrate in his order, had given him a clear picture of the facts and circumstances which picture was initially blurred. On a consideration of various factors, the learned Magistrate came to the conclusion that he did not have reasonable grounds for believing that Tony, Alok and Amit were guilty of an offence punishable with death or imprisonment for life.
46. The question that now arises is whether this view of the learned Magistrate was justified and whether it requires to be interfered with.
47. The Supreme court has held in a large number of cases, including in the case of Gurcharan Singh (supra) that ordinarily the High Court will not interfere in the grant of bail by the Magistrate or the Court of Session. Very cogent and overwhelming circumstances have to be made out for the High Court o interfere in such a case and to substitute its judgment for the discretion of the Magistrate.
48. It appears to me that the view taken by the learned Magistrate is a possible view and is not a perverse view in the sense that no reasonable person duly instructed in the law, could come to the same conclusion as the learned Magistrate. The mere fact that a different view can be taken is no ground for saying that the view of the learned Magistrate is wrong and ought to be substituted by another view. It is correct that at the initial stages of the investigation the police may have made out grounds for the Magistrate to believe that Tony, Alok and Amit were guilty of an offence punishable with death or imprisonment for life. However, on an appraisal of the subsequent events and the facts as they unfolded, a reasonable doubt crept into the mind of the learned Magistrate who came around to the view that the offence that was made out against the Respondents was not punishable with death or imprisonment for life but was in fact a bailable offence.
49. The learned Magistrate was not wrong in taking note of the subsequent developments in exercising his discretion in favour of granting bail to Tony, Alok and Amit. In fact, the learned Magistrate was obliged to take note of the subsequent investigations. Under these circumstances, I am not inclined to interfere with the order of the learned Magistrate granting bail with the order of the learned Magistrate granting bail to Tony, Alok and Amit.
50. The learned Special Public Prosecutor submitted that while granting bail to the Respondents, the learned Magistrate conducted a meticulous examination of the material on record and that it was not permissible for him to do so. In this regard, reliance was placed upon Chuna Ram and Others Vs. State of Rajasthan, 1997 Crl. LJ 2727.
51. The order passed by the learned Magistrate on 20th May, 1999 is, no doubt, a detailed order but I am unable to persuade myself to take the view that he has embarked upon a detailed examination of the materials on record. On the contrary, the learned Magistrate has come to the conclusion that there was no material on record, inter alia, of any conversation between the Respondents and Manu Sharma to show that there was any conspiracy. The order of the learned Magistrate proceeds on the basis of the absence of material against the Respondents rather than on the basis of the existence of material which, after analysis, led him to believe that there was no reasonable ground for believing that the accused were guilty of anon-bailable offence.
52. It is correct that the learned Magistrate proceeded on a factually incorrect premise that there was no evidence of any conversation between the Respondents and Manu Sharma. during the course of arguments, learned counsel for the Respondents did admit that the Respondents had been in telephonic touch with each other and with the main accused Manu Sharma (contrary to the finding of the learned Magistrate) but it was submitted that there is nothing unusual in this because they were known to each other and would, in the normal course of friendship, be in touch with each other. May be so. however, it is difficult to say what would have been the impact on the mind of the learned Magistrate if he had been aware of these facts. But, it does appear to me that the incorrect assumption did not, by itself, cause a doubt in the mind of the learned Magistrate. On a reading of the order of the learned Magistrate as a whole, it seems that it was the cumulative effect of several facts which caused the doubt to arise in the mind of the learned Magistrate. The absence of any conversation was certainly one of the factors, but it was not the only factor or even the primary factor.
53. The learned Special Public Prosecutor then relied upon the decision of the Privy council in Barendra Kumar Ghosh Vs. King Empror, which was cited with approval by the Supreme court in Tukaram Ganpat Pandare Vs. State of Maharashtra, . The principle laid down on these two decision, as submitted by the learned Special Public Prosecutor, is that “mere distance from the scene of the crime cannot exclude culpability under Section 34 which lays down the rule of joint responsibility for a criminal act performed by a plurality of persons”. The Privy Council had approved the aphorism that “they also serve who only stand and wait”. The purpose of citing these two decisions was that it is not as if the Respondents were totally obvious of what had happened on the night of 29/30th April, 1999. They were admittedly at the party. They accompanied the main accused Manu Sharma and they did nothing to stop him from escaping after the incident.
54. While all this is true, the learned Special Public Prosecutor forgets that this is really a matter of evidence and that both decisions cited by him relate to a post-trial scenario. It appears to me that the view that they also serve who only stand and wait may not be applicable at this stage since only investigations are going on and the evidence has not yet crystalised. moreover, to have reasonable grounds for believing that a person has been guilty of an offence punishable with death or imprisonment for life, I would surely expect the Petitioner to show some more positive material rather then to rely on tacit consent. further, in the post-shooting scenario, the role of Tony and Amit is said to be in recovering the Tata Safari (in the case of Tony) and recovering the pistol used for the commission of the offence (in the case of Amit).
55. The case of Vikas is, however, quite different from the case of Tony, Alok and Amit. Vikas’s Conduct is quite inexplicable. He is said to be a resident of Delhi and very keen on joining the investigations. If it is so, there was no occasion for him to send a telegram from Mumbai to the Commissioner of Police and the Lieutenant governor expressing his desire to join the investigations. To further complicate matters within a few days, Vikas went all the way to Imphal and applied for the obtained anticipatory bail. After having done so, he came back to Delhi and presented himself in the Police Headquarters ostensibly with a view or join the investigations. It is alleged by the State in the petition filed in this Court that efforts were made to serve notices under Section 160 of the Cr.P.C. on Vikas but he was not available. When ultimately a notice was served on him on 28th May, 1999, a reply came from his counsel that Vikas was unwell and suffering from loose motions!! On the same evening, vikas applied for bail before the learned Magistrate. This conduct of Vikas does not inspire much confidence and leads me to believe that he was avoiding the investigations. The learned Magistrate failed to take this aspect of Vikas’s conduct into consideration.
56. The learned Magistrate also overlooked the active participation of Vikas on recovering the Tata Safari from the Mehrauli area and the pistol from near Indian Cottage Industries.
57. The Supreme Court has repeatedly emphasised that before granting bail, the court must take into consideration various factors such as the nature and seriousness of the offence, which in this case was a fearless killing in a party attended by more than a hundred people, the nature of the evidence, circumstances peculiar to the accused person and reasonable apprehension of the witnesses belong tampered with, etc. I am afraid the learned Magistrate has overlooked all these considerations.
58. In the application filed on behalf of the police seeking remand of Vikas to police custody, it has been specifically mentioned that “the accused Vikas has also attempted on more than one occasion to temper with the evidence of prosecution including by extending threats to the family of the deceased Jessica Lal”. The allegation, if correct, is extremely serious but the learned Magistrate has not even adverted to it.
59. Under the circumstances, I am clearly of the view that the learnedMagistrate misdirected himself in law in granting bail to Vikas by the impugned order dated 29th May, 1999.
60. The learned counsel for the Respondents made a submission that the petitions filed by the State are not supported by a proper affidavit. This submission is, with respect, misplaced, it is true that the affidavit in Crl. M.(M) 1701/99 has been drafted extremely casually. This is also the case in Crl. M.(M) 1630/99. However, in the latter case the affidavit does state that the facts, circumstances and developments of the case as given in the petition are true and correct. These facts, circumstances and developments are similar to the averments made in Crl. M.(M) 1701/99; the only additional facts in Crl. M.(M) 1701/99 pertain exclusively to the proceedings initiated by Vikas which in any case have not been denied by him. The affidavit in Crl. M.(M) 1630 does, substantially, meet the requirement of law. Quite apart from this, I feel that this is far too technical an objection to be sustained when the interests of justice are required to be served. I, therefore, reject this contention.
61. The question now is of the final order to be made.
62. I am afraid the State has not been able to make out any case for cancelling the order granting bail to Tony, Alok and Amit or for remanding Vikas to police custody. The reasons for not interfering with the grant of bail to Tony, Alok and Amit have already been stated.
63. As regards remanding Vikas to police custody, admittedly the main accused in this case is Manu Sharma. In spite of the fact that Manu Sharma was remanded to police custody till 17th May, 1999, he was produced before the learned Magistrate on 15th May, 1999 when the police prayed that he be remanded to judicial custody. If the main accused is not required in police custody, I see no reason why Vikas should be remanded to police custody. Moreover, one of the main reasons for asking for the remand of Vikas to police custody is to effect recovery of the pistol. However, when Manu Sharma was in police custody, his transfer to judicial custody was sought on the ground, inter alia, that he is “no more required in police custody for recovery of the weapon of offence”. I am unable to understand how the police custody of Vikas will facilitate the recovery of the pistol (as against Manu Sharma) when there is nothing to show that he was instrumental in causing its disappearances. In this view of the matter, it is not necessary for me to deal with the submissions made by learned counsel for the Respondents that Vikas cannot be remanded to police custody because he had surrendered before the learned Magistrate.
64. Finally, it does appear that the learned Special Public Prosecutor is right in submitting that certain observations and remarks made by the learned Magistrate were uncalled for. It is not necessary (or even advisa- ble) to pin-point these observations and remarks. Suffice it to say that they were apparently made for the purpose of disposing of the applications pending before the learned Magistrate. It is, therefore, made clear that neither party will be entitled to rely upon any of the observations made by the learned Magistrate in any subsequent stage of the case or the proceedings.
65. However, I would like to mention one fact which, I confess, has disturbed me quite a bit. It is that on 20th May, 1999, the learned Magistrate had, apart from granting bail to Tony and Alok, remanded them to judicial custody till 1st June, 1999. This fact was not pointed out to me by the learned counsel appearing for the State it come to my notice on a persual of the record which was summoned at the instance of the learned counsel for the Respondents. What disturbed me is that the learned Magistrate has, on the same day, passed two diametrically opposed orders. It did cross my mind that the later order granting bail to Tony, Alok and Amit may be incorrect in view of the decision of the Supreme Court in the case of Capt. Budhikota Subha Rao (supra). However, it appeared to me that the order remanding Tony and Alok to judicial custody had been passed in a routine and perhaps mechanical manner. All that the order said was that the record had been persued and the Respondents were remanded to judicial custody till 1st June, 1999. No reason whatsoever has been given for remanding them to judicial custody. This is unfortunate. A Magistrate must appreciate that an order remanding a person to custody has grave consequences. It is imperative for a Magistrate to realize that a decision to put a person behind bars must be taken after due deliberation and not routinely or mechanically.
66. In view of the above discussion, Crl. M.(M) 1630/99 is dismissed. Crl. M.(M) 1701/99 is allowed and it is directed that the bail bond of Vikas be cancelled. Consequently, he should be taken into custody.