SUMEDH SINGH SAINIversusSTATE OF PUNJAB AND ANOTHER

812                       [2020]REPORTS
                SUPREME COURT   13 S.C.R. 812                    [2020] 13 S.C.R.


A                             SUMEDH SINGH SAINI
                                            v.
                      STATE OF PUNJAB AND ANOTHER
                          (Criminal Appeal No. 827 of 2020)
B                               DECEMBER 03, 2020
             [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                        M.R. SHAH, JJ.]
              Code of Criminal Procedure, 1973: s.438 – Anticipatory bail –
      Brother of the victim-deceased lodged an FIR against the appellant for
C
      offence alleged to have taken place in 1991 – FIR was lodged for offence
      punishable under ss.364, 201, 344, 219 and 120-B IPC and subsequently
      the offence punishable under s.302 IPC was added on the statements of
      two of the co-accused who were allowed to become approver – Appellant
      applied for anticipatory bail for offence under s.302 IPC – Sessions Judge
D     dismissed the application – High Court also dismissed the bail application
      filed before it – In the instant appeal, plea of appellant was that the
      present FIR was not maintainable as being second FIR on the same set
      of facts and having been registered after delay of 29 years of alleged
      incident – It was submitted that earlier attempt to falsely implicate appellant
      failed and similar FIR for the very incident in question with similar
E
      allegations was quashed by Supreme Court in the case of *Davinder Pal
      Singh Bhullar – It was further submitted that the informant had heavily
      relied upon the liberty that was reserved in favour of father of the deceased
      to file fresh proceedings – However during his lifetime, father of the
      deceased did not initiate any fresh proceedings and the present FIR was
F     filed after nine years of judgment in case of *Davinder Pal Singh Bhullar
      and 29 years after the incident that too by the brother of the deceased –
      Held: Considering the fact that the impugned FIR was lodged by the
      brother of the deceased after a period of almost 29 years from the date
      of incident and after a period of 9 years from the date of decision in the
      case of *Davinder Pal Singh Bhullar and nothing was on record that in
G
      between he had taken any steps to initiate criminal proceedings and/or
      lodged an FIR, a case is made out by the appellant for grant of anticipatory
      bail – Whether the fresh/present proceedings are permissible in law are
      yet to be considered in the pending proceedings for quashing the impugned
      FIR – In view of status of the appellant that he retired in 2018 as Director
H     General of Police, Punjab after 30 years of service and the alleged incident
                                            812
SUMEDH SINGH SAINI v. STATE OF PUNJAB AND ANOTHER                              813


was of the year 1991 and even in the present FIR initially there was no        A
allegation for the offence under s.302 IPC and the allegations were only
for the offences under ss.364, 201, 344, 330, 219 and 120-B of the IPC,
for which there was an order of anticipatory bail in favour of the appellant
and subsequently the offence under s.302 IPC was added on the basis of
the statements of approvers only, the appellant has made out a case for
                                                                               B
anticipatory bail.
      Allowing the appeal, the Court
       HELD: 1. Informant and the State are relying upon the
observations made by this Court in the case of *Davinder Pal
Singh Bhullar and the liberty reserved in para 117 to the applicant            C
who earlier filed the petition under Section 482 Cr.P.C. (father of
the deceased) to take recourse to fresh proceedings, if permissible
in law. However, the said liberty was as such in favour of the father
of the deceased who in the earlier round of litigation before the
High Court filed the petitions under Section 482 Cr.P.C. This
Court reserved the liberty in favour of the father of the deceased             D
to take recourse to fresh proceedings by specifically observing
that if permissible in law. The father of the deceased died in the
year 2014. Till 2014, the father of the deceased did not initiate
any fresh proceedings. After a period of 9 years from the date of
decision of this Court in the case of Davinder Pal Singh Bhullar,              E
all of a sudden, now the informant – brother of the deceased woke
up and initiated the present criminal proceedings. Whether the
fresh/present proceedings are permissible in law are yet to be
considered by this Court in the pending proceedings for quashing
the impugned FIR. [Para 8][819-F-H; 820-A-B]
                                                                               F
      2. Looking to the status of the appellant that he has retired
in the year 2018 as Director General of Police, Punjab after 30
years of service and the alleged incident was of the year 1991 and
even in the present FIR initially there was no allegation for the
offence under Section 302 IPC and the allegations were only for
the offences under Sections 364, 201, 344, 330, 219 and 120-B of               G
the IPC, for which there was an order of anticipatory bail in favour
of the appellant and subsequently the offence under Section 302
IPC was added on the basis of the statements of approvers only,
the appellant has made out a case for anticipatory bail. [Para 9]
[820-C-D]                                                                      H
814            SUPREME COURT REPORTS                         [2020] 13 S.C.R.


A           *State of Punjab v. Davinder Pal Singh Bhullar (2011)
            14 SCC 770: [2011] 15 SCR 540; Pradeep Ram v. State
            of Jharkhand 2019 (9) SCALE 120; Sushila Aggarwal
            v. State (NCT of Delhi) (2020) 5 SCC 1 – referred to.
                              Case Law Reference
B            [2011] 15 SCR 540         referred to         Para 4.1
             2019 (9) SCALE 120 referred to                Para 4.4
             (2020) 5 SCC 1            referred to         Para 4.4
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
C     827 OF 2020
            From the Judgment and Order dated 08.09.2020 of the High Court
      of Punjab and Haryana at Chandigarh in CRM-M No. 26304 of 2020.
             Mukul Rohatgi, A.P.S. Deol, Sidharth Luthra, K.V. Viswanathan,
      Sr. Advs., Ms. Misha Rohatgi, Nakul Mohta, Himmat S. Deol, Jaibir
D
      Sethi, Bharat Monga, Sartej Singh Narula, Ms. Diya Sodhi, Ms. Anusha
      Nagarajan, Karan Bharihoke, Pradeep Virk, Avinash Menon, Advs. for
      the appearing parties.
            The Judgment of the Court was delivered by
E           M.R. SHAH, J.
            1. Leave granted.
            2. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 08.09.2020 passed by the High Court of Punjab and
      Haryana at Chandigarh in CRM-M No. 26304 of 2020, by which the
F     application submitted by the appellant herein for anticipatory bail in
      connection with FIR No. 77 dated 06.05.2020 for the offence punishable
      under Section 302 IPC, lodged with Police Station City Mataur, District
      S.A.S. Nagar, Mohali has been dismissed, the original petitioner – accused
      has preferred the present appeal.
G           3. That one Palwinder Singh Multani, brother of one Balwant Singh
      Multani (deceased) has lodged an FIR against the appellant at Police
      Station City Mataur initially for the offences punishable under Sections
      364, 201, 344, 219 and 120-B of the IPC, and subsequently the offence
      punishable under Section 302 IPC has been added.
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SUMEDH SINGH SAINI v. STATE OF PUNJAB AND ANOTHER                               815
                  [M.R. SHAH, J.]

       3.1 It is alleged that in the year 1991 one Balwant Singh Multani –      A
brother of the informant was illegally abducted from his residence at
Mohali by a team of officials operating under the instructions of the
appellant; that he was severely and inhumanly tortured while in custody,
by and at the behest of the appellant. It is further alleged that a false and
fabricated FIR No. 112 of 1991 might have been registered at the instance
of the appellant to suggest that the victim was brought to the police station   B
Qadian from where the victim was alleged to have escaped.
       3.2 That apprehending his arrest in connection with FIR No. 77
dated 06.05.2020, the appellant filed anticipatory bail application before
the learned Additional Sessions Judge, Mohali. At this stage, it is required
to be noted that when the appellant applied for anticipatory bail, the          C
allegations in the FIR against the appellant were only for the offences
punishable under Sections 364, 201, 344, 330, 219 and 120-B of the IPC.
That by order dated 11.05.2020, the learned Additional Sessions Judge,
Mohali granted anticipatory bail in favour of the appellant. That thereafter
as the appellant was apprehending that the offence under Section 302
                                                                                D
IPC may be added, he approached the learned Additional Sessions Judge,
Mohali for anticipatory bail for the offence punishable under Section 302
also. By order dated 10.07.2020, the learned Additional Sessions Judge
granted protection by way of three days’ advance notice in case of addition
of offence under Section 302 IPC. It appears that thereafter three
co-accused in FIR No. 77 dated 06.05.2020 wanted to become approver             E
and they submitted the applications before the learned Chief Judicial
Magistrate, Mohali for grant of pardon and declaring them as approver
under Section 306 Cr.P.C. However, all the three applications came to
be dismissed by the learned Chief Judicial Magistrate, Mohali, vide order
dated 7.8.2020. However, thereafter the applications submitted by the
other co-accused – Jagir Singh and Kuldip Singh to grant them pardon            F
and permit them to become approver came to be allowed by the learned
Chief Judicial Magistrate, Mohali, vide order dated 18.08.2020. That
thereafter the statements of Jagir Singh and Kuldip Singh were recorded
by the learned Judicial Magistrate (First Class), Mohali, which were against
the appellant. On the basis of the statements of the aforesaid two              G
co-accused who subsequently turned approver – Jagir Singh and Kuldip
Singh, an application was submitted before the learned Judicial Magistrate,
First Class (Duty Magistrate) seeking addition of Section 302 IPC in FIR
No. 77 dated 06.05.2020. That by order dated 21.08.2020, the learned
Judicial Magistrate, First Class (Duty Magistrate) allowed the said
application and thus section 302 IPC came to be added.                          H
816             SUPREME COURT REPORTS                           [2020] 13 S.C.R.


A            3.3 That thereafter the appellant applied for anticipatory bail for
      the offence under Section 302 IPC before the learned Additional Sessions
      Judge, Mohali by way of bail application no. 1527 of 2020. That the
      learned Additional Sessions Judge vide order dated 01.09.2020 dismissed
      the said application. That thereafter the appellant approached the High
      Court of Punjab and Haryana at Chandigarh with an application for grant
B
      of anticipatory bail being CRM-M No. 26304 of 2020. By the impugned
      judgment and order, the High Court has dismissed the said anticipatory
      bail application. Hence, the appellant has preferred the present appeal.
            4. Shri Mukul Rohatgi, learned Senior Advocate has appeared for
      the appellant – accused, Shri Sidharth Luthra, learned Senior Advocate
C     has appeared for the State of Punjab and Shri K.V. Vishwanathan, learned
      Senior Advocate has appeared on behalf of the original informant.
             4.1 Number of submissions have been made by Shri Rohatgi, learned
      Senior Advocate appearing on behalf of the appellant – accused in support
      of his prayer to grant anticipatory bail.
D
                    It is vehemently submitted that the present FIR is filed with
      a malafide intention to harass the appellant and at the instance of the
      present party in power in the State. It is submitted that even otherwise
      the present FIR is not maintainable as being a second FIR on the same
      set of facts and has been registered after delay of 29 years of the alleged
E     incident. It is submitted that earlier attempt to falsely implicate the
      appellant failed and a similar FIR for the very incident in question and
      with somewhat similar allegations came to be quashed by this Court in
      the case of State of Punjab v. Davinder Pal Singh Bhullar, reported in
      (2011) 14 SCC 770.
F             4.2 It is further submitted that the informant heavily placed reliance
      upon the liberty reserved in favour of the father of Balwant Singh Multani
      to file fresh proceedings. It is submitted that however during his life time
      the father of Balwant Singh Multani did not initiate any fresh proceedings
      and after a period of six years and after the death of the father of Balwant
      Singh Multani, the present FIR has been filed after 9 years of the judgment
G
      of this Court in the case of Davinder Pal Singh Bhullar (supra) and after
      29 years of the incident and that too by the brother of Balwant Singh
      Multani with the political support of the current State Government. It is
      submitted that, as such, when initially the present FIR was lodged, it was
      lodged on 6.5.2020 only for the offences under Sections 364, 201, 344,
H
SUMEDH SINGH SAINI v. STATE OF PUNJAB AND ANOTHER                                  817
                  [M.R. SHAH, J.]

330, 219 and 120-B of the IPC. It is submitted that thereafter the                 A
investigating agency with a malafide intention pressurised two co-accused
and made them approver and obtained the statements against the appellant
and on the basis of the statements of the two co- accused who
subsequently turned as approver, the offence punishable under Section
302 IPC has been added.
                                                                                   B
       4.3 It is further submitted that even the present FIR also suffers
from a serious jurisdictional error, inasmuch as, the FIR is registered in
Mohali on the directions of the SSP, Mohali, whereas, in fact, all the
events even as per the complainant occurred within the jurisdiction of
P.S. Chandigarh. It is submitted that as per Sections 177 and 178, Cr.P.C.
the ordinary place of investigation and trial is within whose local jurisdiction   C
the offence has occurred. It is submitted that the present FIR No. 77 and
the proceedings initiated pursuant thereto are a blatant abuse of process,
malafide and misuse of policing power. It is submitted that as such the
appellant has already moved an application for quashing FIR No. 77
dated 6.5.2020, which came to be dismissed by the High Court against               D
which a special leave petition is pending before this Court.
       4.4 It is further submitted that even otherwise while adding the
charge under Section 302 IPC in FIR No. 77 dated 6.5.2020, the procedure
as required to be followed as per the decisions of this Court in the cases
of Pradeep Ram v. State of Jharkhand, reported in 2019 (9) SCALE 120               E
and Sushila Aggarwal v. State (NCT of Delhi), reported in (2020) 5 SCC
1, has not been followed. It is submitted that even the procedure adopted
by the learned Magistrate, who allowed the prosecution to add the offence
punishable under Section 302 IPC is unknown to the procedure required
to be followed under the provisions of the Cr.P.C.
                                                                                   F
       4.5 It is further submitted by Shri Rohatgi, learned Senior Advocate
appearing on behalf of the appellant that the appellant is ready and willing
to co-operate with the investigation, however, without prejudice to his
rights and contentions in the pending proceedings before this Court for
quashing the FIR. It is submitted that the appellant is highly decorated
officer with a distinguished service record. Shri Rohatgi has also made            G
submissions on malafide, political vendetta and the harassment by the
police.
       4.6 Making the above submissions and relying upon the aforesaid
decisions of this Court, it is prayed to allow the present application and
grant anticipatory bail to the appellant.                                          H
818             SUPREME COURT REPORTS                           [2020] 13 S.C.R.


A             5. The present application is vehemently opposed by Shri Sidharth
      Luthra, learned Senior Advocate appearing on behalf of the
      respondent-State and Shri K.V. Vishwanathan, learned Senior Advocate
      appearing on behalf of the original informant. Relying upon the statements
      of Jagir Singh and Kuldip Singh which were recorded during the course
      of investigation, it is vehemently submitted that a case has been made
B     out against the appellant-accused for the offence under Section 302 IPC.
      It is submitted that the offence punishable under Section 302 IPC has
      been added after obtaining the permission from the learned Magistrate.
      It is submitted that considering the material available on record, the learned
      Magistrate allowed the application submitted by the prosecution/
C     investigating agency to add the offence punishable under Section 302
      IPC. It is submitted that therefore a prima facie case is made out against
      the appellant.
             5.1 Now so far as the delay in lodging the FIR is concerned, it is
      submitted that as per catena of decisions of this Court, mere delay and/
D     or political vendetta cannot be a ground to quash the criminal proceedings,
      more particularly when the allegations are very serious and the allegations
      against the police officers are of misuse of power, misuse of position,
      kidnapping and thereafter killing the innocent person. It is submitted that
      truth must come out. It is submitted that the custodial interrogation of the
      appellant is required.
E
             5.2 It is further submitted that even the present FIR cannot be
      said to be the second FIR as submitted on behalf of the appellant. It is
      submitted that the present criminal proceedings/FIR is by the brother of
      the deceased who lost his brother and considering the liberty reserved by
      this Court in the case of Davinder Pal Singh Bhullar (supra).
F            5.3 It is vehemently submitted by Shri Sidharth Luthra, learned
      Senior Advocate appearing on behalf of the State and Shri K.V.
      Vishwanathan, learned Senior Advocate appearing on behalf of the original
      informant that the appellant is a very influential person and may tamper
      with the evidence and therefore this is not a fit case to grant anticipatory
G     bail to the appellant under Section 438 Cr.P.C.
             5.4 Making the above submissions, it is prayed to dismiss the present
      application by submitting that when both, the learned trial Court as well
      as the High Court have refused to exercise the discretion in favour of the
      appellant and have refused to grant anticipatory bail to the appellant, the
      same may not be interfered with by this Court.
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SUMEDH SINGH SAINI v. STATE OF PUNJAB AND ANOTHER                              819
                  [M.R. SHAH, J.]

      6. We have heard the learned counsel appearing on behalf of the          A
appellant-accused, learned counsel appearing on behalf of the State and
learned counsel appearing on behalf of the original informant.
      At the outset, it is required to be noted that in the present appeal
the only question which is required to be considered is whether the
appellant is entitled to the anticipatory bail under Section 438 Cr.P.C.?      B
        7. Number of submissions have been made by the learned counsel
appearing on behalf of the appellant-accused on political vendetta,
malafide, delay in lodging the FIR, even the maintainability of the impugned
FIR etc. However, taking into consideration that the quashing petition
filed by the appellant- accused is pending before this Court and the issue     C
whether the FIR/criminal proceedings are required to be quashed or not
is at large before this Court, we do not propose to elaborately deal with
all the submissions made by the learned counsel appearing on behalf of
the respective parties.
        However, considering the fact that the impugned FIR has been           D
lodged/filed by the brother of the deceased after a period of almost 29
years from the date of incident and after a period of 9 years from the
date of decision of this Court in the case of Davinder Pal Singh Bhullar
(supra) and nothing is on record that in between he had taken any steps
to initiate criminal proceedings and/or lodged an FIR, we are of the opinion
that at least a case is made out by the appellant for grant of anticipatory    E
bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to
the criminal proceedings. However, it always depends upon the facts
and circumstances of each case. However, at the same time, a long
delay like 29 years as in the present case can certainly be a valid
consideration for grant of anticipatory bail.
                                                                               F
       8. Informant and the State are relying upon the observations made
by this Court in the case of Davinder Pal Singh Bhullar (supra) and the
liberty reserved in para 117 to the applicant who earlier filed the petition
under Section 482 Cr.P.C. (father of the deceased) to take recourse to
fresh proceedings, if permissible in law. However, suffice it to say that
                                                                               G
the said liberty was as such in favour of the father of the deceased who
in the earlier round of litigation before the High Court (from which the
SLP(Criminal) No. 6503-6509/2011 were arisen) filed the petitions under
Section 482 Cr.P.C.. This Court reserved the liberty in favour of the
father of the deceased to take recourse to fresh proceedings by specifically
observing that if permissible in law. It is reported that the father of the    H
820              SUPREME COURT REPORTS                          [2020] 13 S.C.R.


A     deceased died in the year 2014. Till 2014, the father of the deceased did
      not initiate any fresh proceedings. After a period of 9 years from the
      date of decision of this Court in the case of Davinder Pal Singh Bhullar
      (supra), all of a sudden, now the informant – brother of the deceased has
      woken up and has initiated the present criminal proceedings. Whether
      the fresh/present proceedings are permissible in law are yet to be
B
      considered by this Court in the pending proceedings for quashing the
      impugned FIR.
             9. Looking to the status of the appellant and it is reported that he
      has retired in the year 2018 as Director General of Police, Punjab after
      30 years of service and the alleged incident is of the year 1991 and even
C     in the present FIR initially there was no allegation for the offence under
      Section 302 IPC and the allegations were only for the offences under
      Sections 364, 201, 344, 330, 219 and 120-B of the IPC, for which there
      was an order of anticipatory bail in favour of the appellant and subsequently
      the offence under Section 302 IPC has been added on the basis of the
D     statements of Jagir Singh and Kuldip Singh – approvers only, we are of
      the opinion that the appellant has made out a case for anticipatory bail.
             10. In view of the above and for the reasons stated above, the
      present appeal succeeds. The impugned judgment and order passed by
      the High Court, as well as, the learned Additional Sessions Court dismissing
E     the anticipatory bail applications of the appellant for the offence punishable
      under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020,
      registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby
      quashed and set aside. It is ordered that in case of arrest of the appellant–
      Sumedh Singh Saini in connection with FIR No. 77 dated 6.5.2020,
      registered at P.S. City Mataur, District S.A.S. Nagar, Mohali for the
F     offence punishable under Section 302 IPC, he shall be released on bail
      on furnishing personal bond in the sum of Rs.1,00,000/- (Rupees one
      lakh only) and two sureties of the like amount and to surrender the passport
      and to cooperate with the investigation (however without prejudice to his
      rights and contentions in the pending proceedings to quash the impugned
G     FIR).
             11. The appeal is allowed to the aforesaid extent.


      Devika Gujral                                                    Appeal allowed
H