SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

State Through Special … vs Sajjan Kumar on 22 February, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C.338/2017 Crl.M.C.339/2017

Judgment reserved on : 12th December, 2017
Date of decision : 22nd February, 2018

+ CRL.M.C. 338/2017

STATE THROUGH SPECIAL INVESTIGATION TEAM
S.I.T.(1984 RIOTS) ….. Petitioner
versus
SAJJAN KUMAR ….. Respondent
AND

+ CRL.M.C. 339/2017
STATE THROUGH SPECIAL INVESTIGATION TEAM
S.I.T.(1984 RIOTS) ….. Petitioner

versus

SAJJAN KUMAR ….. Respondent

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1. Vide the present petitions both under Section 439(2) read with
Section 482 of the Code of Criminal Procedure, 1973, the petitioner,
i.e., the State through the Special Investigation Team (1984 Riots) has
assailed the impugned orders in Bail Appln. No. 14072/2015 and in

Crl.M.C 338/2017 339/2017 Page 1 of 132
Bail Appln. No. 14073/2015 both dated 21.12.2016 of the learned
Additional Sessions Judge-01/Special Judge (P.C. Act) (CBI-03),
Dwarka Courts in FIR No.227/1992, under Sections
147/148/149/295/395/307/302 and 436 of the Indian Penal Code,
1860, Police Station Janakpuri and FIR No.264/1992, under Sections
147/148/149/302/307 of the Indian Penal Code, 1860 Police Station
Vikaspuri. As virtually common grounds are urged against the
respondent in both the FIRs i.e., FIR No. 227/1992, Police Station
Janakpuri and FIR No. 264/1992, Police Station Vikaspuri as virtually
similar impugned orders dated 21.12.2016 have been passed by the
learned ASJ-01, Dwarka Courts in the respective bail applications, it
has been considered appropriate to take up both the petitions together
inasmuch as the arguments addressed on behalf of the petitioner and
on behalf of the respondent were common qua both the petitions.

REGISTRATION AND CLOSURE OF FIRs INITIALLY

2. The FIR No.227/1992, Police Station Janakpuri is indicated to
have been registered on the basis of the DD Entry No.15 A dated
17.4.1992 lodged at 12.05 a.m. under Sections
147/148/149/295/395/307/302 and 436 of the Indian Penal Code,
1860, and the FIR No.264/1992, Police Station Vikaspuri is indicated
to have been registered on the basis of the DD Entry No.21 A dated
25.6.1992 at 8:20 p.m. under Sections 147/148/149/302/307 of the
Indian Penal Code, 1860.

3. The FIR No.227/1992, Police Station Janakpuri relates to an
occurrence of riots on 1.11.1984 at 11 a.m. and the FIR No.264/1992

Crl.M.C 338/2017 339/2017 Page 2 of 132
relates to an occurrence at 7 a.m. on 2.11.1984. Both occurrences
relate to the 1984 anti Sikh riots in Delhi, pursuant to an aftermath to
the assassination of Smt. Indira Gandhi, the then Prime Minister of
India. Both the FIRs are on the basis of the same affidavit of the
complainant Sh. Harvinder Singh dated 8.9.1985 submitted to the
Justice Ranganath Mishra Commission of Inquiry to examine the
cases relating to the 1984 riots in Delhi recommended registration of
two fresh cases. As the incidents narrated had not been investigated as
recommended vide letter dated 7.2.1992 of the Justices J.D.Jain and
D.K.Aggarwal Committee constituted by the Delhi Administration,
these two separate FIRs are indicated to have been registered on the
basis of the affidavit of the complainant Sh. Harvinder Singh dated
8.9.1985. The Riots Cell of the Delhi Police investigated both the FIRs
which were both sent as untraced by the Riots Cell, Delhi Police i.e.,
FIR No.264/1992 Police Station Vikaspuri was sent as untraced on
22.12.1992 and was accepted as untraced by the learned Metropolitan
Magistrate on 27.8.1994 and FIR No.227/1992 was sent as untraced
by the Riots Cell of the Delhi Police on 5.1.1994 and the concerned
learned Metropolitan Magistrate accepted the untraced report in the
said case on 16.2.1996, and thus the investigations and proceedings in
relation to both the FIRs were closed.

JUSTICE G.P.MATHUR COMMITTEE REPORT

4. After the recommendations of the Justice G.P.Mathur
Committee report, the Government of India, Ministry of Home Affairs
vide order dated 12.2.2015 constituted a Special Investigation Team,

Crl.M.C 338/2017 339/2017 Page 3 of 132
i.e., SIT for investigation/re-investigating the cases of the 1984 riots
with the following terms of reference.

“To re-investigate the appropriately serious
criminal cases which were filed in the National
Capital Territory of Delhi in connection with the
1984 riots and have since been closed. For this
purpose, the SIT shall examine the records afresh
from the Police Stations concerned and also the
files of justice J.D Jain and Sh. D.K. Agrawal
Committee and take all such measures under the
law for a thorough investigation of the criminal
cases:

To file charge sheet against the accused in the
proper court where after investigation sufficient
evidence is found available.”

5. The office of the Special Investigation Team (SIT 1984 riots)
was notified as a police station with jurisdiction over the entire
National Capital Territory of Delhi by the Lt. Governor of Delhi vide
GNCT Delhi Notification No.6/13/2015/2124 to 2131 dated
09/07/2015.

AFFIDAVIT DATED 8.9.1985 OF SH.HARVINDER SINGH

6. The affidavit of Sh.Harvinder Singh dated 8.9.1985 submitted
before the Justice Ranganath Mishra Commission of Inquiry, as
already adverted to herein above, forms the basis of the registration of
both the FIRs in relation to the occurrences stated to have taken place
on 1.11.1984 in the area of Police Station Janakpuri and in relation to
the occurrences on 2.11.1984 in the area of Police Station Vikaspuri.

Crl.M.C 338/2017 339/2017 Page 4 of 132

7. As regards the incident of 1.11.1984, it has been stated in the

affidavit dated 8.9.1985 of the complainant, Sh. Harvinder Singh, to

the effect:

“Too much smoke was seen from the
neighbouring colonies at about 11.00 morning of
1.11.84. That smoke started coming nearer
slowly. Meanwhile, a crowd consisting of 200/250
people at once reached in front of the Gurdwara
of our colony and set the Gurdwara on fire and
started looting the things kept in the Gurdwara.
The people of the mob came by a D.T.C. bus
boarded on the same bus after looting and
burning. One white car and the other red driven
by some leader-brand people were leading the
mob. The residents of the colony came out when
mob had gone ahead and started extinguishing the
fire of the Gurdwara. The mob again came back
when they were still standing and thinking what to
do next. They attacked the Sikhs with bricks,
stones and rods as a result of which we sustained
injuries. Then they burnt our house.

On reaching home, I found my father who
sustained a deep rod injury. He was lying
unconscious. Whole of his body was blood
stained. A mob of about 200/250 culprits attacked
the house of Sardar Nath Singh, the president of
our colony in the street of our back side, when I
was still helping my father. They started beating
the members of his family and set the truck on
fire, parked outside. I and the members of my
family were witnessing all the incident peeping
through the holes of rear door of our house. They
threw 15/16 years old son of Sh. Nath Singh, alive
into the burning truck but the residents of the
colony saved him later on. We were so scared

Crl.M.C 338/2017 339/2017 Page 5 of 132
that we ran away leaving the doors of the house
open. My jeejaji (husband of the sister) and my
father went to the house of one old lady who
locked the house from the outside. Then we came
to know that some Hindu brother had got my
injured mother admitted in to the Rana Nursing
Home, Rajouri Garden. The noises of burning
were heard by us while sitting inside the closed
room. The condition of the father was going to be
much more poor. All the three of us were hungry
and helpless in the closed room. We passed the
night there.”

8. As regards the incident of 2.11.1984, it was stated in the said
affidavit:

“The old mother opened the door at 5.00 morning
of the 2nd date and borrowed two cycles from
somewhere. I started on one cycle with my father
and the other was driven by my brother-in-law
and a Hindu boy. We reached Uttam Nagar when
it struck 7.00 O’ clock. A crowd of about
200/250 persons surrounded us there in front of
the office of the cong.(I) Party and started beating
us with rods. We fell down with the injuries. They
gave rod blows at my head, legs and hands. The
blood coming from my head. Meanwhile a noise
of shouting came, they should be burnt alive with
Kerosene oil. I started running on hearing it.
They were going to give me rod blows at the back
side. I reached near the police post, Uttam Nagar
running fast. I requested the police with folded
hands to save my brother-in-law and my father
who were being beaten by the mob in the opening
on the road. But they started abusing me and did
not listen to me, on the other hand, they said ”
you Sikhs deserve such behavior”. The S.P.Said ”
What can we do?” The dead bodies of the Hindus,

Crl.M.C 338/2017 339/2017 Page 6 of 132
filled in the roads are too coming from Punjab.”
Blood was coming from my head, hands were not
in working order. I begged the police for help but
they refused to help me. I prayed to allow me to
phone. I phoned the owners of my factory. They
were also Sardars. I remained lying till 3.00 O’
Clock at noon. The police refused to provide me
medical aid in spite of my repeated requests. They
said, “It will make no difference if you die when
thousands of Sikhs are dying. The S.P. Uttam
Nagar, came to the police post at about 3.15
noon. I requested him to send me to the hospital.
That S.P. brought some injured mothers and
children to the police post from the Najafgarh
side. About 40/50 sardars had reached there till
5.00 in the evening. He sent me and two or three
more injured to Din Dayal Hospital, Hari Nagar.
My head was stitched and I was again sent to the
police post, Uttam Nagar, after a short while. My
masters came to bring me at 8.00 at night. They
left me and some other Sikhs to the Gurdwara of
Hari Nagar. Charanjit Singh, a friend mine, took
me to his house at Hari Nagar, where I was got
treated medically from a private doctor.

2. I saw two or three constables who came to the
police post with the goods looted from the
neighbouring shops when I was praying for water
in the injured condition, in the Police post, Uttam
Nagar. They had soap cakes, tooth paste and
honey bottles in their hands. The policemen were
enjoying and watching sitting carefree when the
shops of the Sikhs were being looted opposite to
them. My brother-in-law and my father lost their
lives during this incident. My sister who had only
twenty seven days old son at that time, became
widow. I have been disabled due to the injuries at
the hands.”

Crl.M.C 338/2017 339/2017 Page 7 of 132

9. The letter dated 7.2.1992 of the Secretary of the Delhi
Administration Committee to examine the cases relating to the riots in
Delhi during October and November, 1984 addressed to the
Administrator, Union Territory of Delhi, Raj Niwas, Delhi, puts forth
the incident of 1.11.1984 and 2.11.1984 as follows:

“2. The deponent has alleged inter-alia that on 1st
November, 1984 a large mob came to their colony
in a D.T.C. bus and set the Gurdwara on fire and
looted the same. Sometime after, the mob attacked
the houses of Sikhs with brick bats, stones and
iron rods, as a result of which his father also
sustained a deep injury. The mob also attacked
the house of S.Nath Singh, the President of their
colony and the deponent saw that his (Nath Singh)
house-hold goods were looted and the son of Nath
Singh was thrown in a burning truck which was
set on fire by the mob. The boy was however
saved by the residents of the colony. Feeling
scared and apprehensive, he along with his father
and his sister’s husband, went to the house of a
Hindu and spent the night there. He learnt that
his injured mother was got admitted in the Rana
Nursing Home, Rajouri Garden.

3. The deponent has further alleged that on 2nd
November, 1984 he along with his father and
brother-in-law proceeded towards Uttam Nagar
on borrowed cycles. At Uttam Nagar a mob of
200-250 persons surrounded them and started
beating them with rods, as a result he sustained
injuries on his head, legs and hands. He reached
police post Uttam Nagar and requested for
protection but in vain. At about 3.15 p.m. when
S.P.came to the police post with some other
injured women and children, he was sent for
medical aid to Deen Dayal Upadhyaya Hospital,

Crl.M.C 338/2017 339/2017 Page 8 of 132
Hari Nagar along with others. His brother-in-law
and his father were killed in the incident and he
himself was disabled on account of injuries
sustained by him.”

10. It is further stated in the said letter dated 7.2.1992 that Sh.
Harvinder Singh had been examined by the Committee who had
confirmed his affidavit and gave the name of his brother-in-law as
being Avtar Singh, s/o Raghubir Singh R/o B-I/96, Janakpuri, and that
the scrutiny of the police records revealed that the incidents narrated
by them had neither been investigated nor linked in any of the case
registered at Police Station Najafgarh vide FIRs No. 256/84, 257/84
and 258/84 relating to the October-November, 1984 riots. In view of
the injuries as a very serious nature of the crime was revealed in the
affidavit, the Committee recommended that fresh cases be registered
regarding the incidents narrated by the deponents with it having been
observed to the effect that two cases had to be registered one under
Sections 147/148/149/295/395/307/302 and 436 of the Indian Penal
Code, 1860 qua the incident of 1.11.1984 and the other in regard to an
incident date 2.11.1984 under Sections 147/148/149/302 307 of the
Indian Penal Code, 1860 to be investigated by an independent agency
other than the local police.

SUBMISSIONS OF THE PETITIONERS

11. Through the petitions it has been submitted that on the scrutiny
by the SIT which took up the present case along with few other
cases/FIRs for further investigation of the case records of the previous
FIR/ complaint made at that relevant time which had been closed and

Crl.M.C 338/2017 339/2017 Page 9 of 132
it found that the complainant due to fear could not disclose the name
of the respondent as an accused as the respondent was then very
influential with a lot of influence in the then Government and that the
complainant also could not depose fearlessly against the respondent. It
is further submitted through the petitions that it had also been found
that at the relevant time when the case was under investigation,
important and relevant evidences through available had not been
collected and enquired upon by the then Investigating Team due to the
reasons best known to them and thus the closure report had been filed.

12. The State has further submitted that pursuant to the
recommendations of the Justice G.P. Mathur Committee on the SIT
having been constituted with the specific mandate to investigate/re-
investigate the criminal cases which were filed in the National Capital
Territory of Delhi in connection with the 1984 anti sikh riots and to
examine the record afresh, intimation regarding further investigation
of the case was given to the Court and further investigation was taken
up and during the course of investigation by the SIT, the complainant,
Harvinder Singh, was examined afresh and some fresh witnesses were
also examined under Section 161 of the Code of Criminal Procedure,
1973 for the very first time who corroborated the contents of the FIR
and the affidavit of the complainant, and that they had never been
examined by any other agency previously.

13. It was further stated through the petitions that it had been
categorically stated by the complainant and the fresh witnesses that the
respondent, the then Member of Parliament from the outer Delhi
constituency had formed an unlawful assembly armed with deadly

Crl.M.C 338/2017 339/2017 Page 10 of 132
weapons for the purpose of committing criminal acts including rioting,
arson, murder, causing disharmony and hatred between the different
religious groups and destruction of properties belonging to the Sikh
Community during the 1984 riots.

14. It was further submitted by the State that despite the Justices
Jain Aggarwal Committee having recommended that the
investigation be conducted by an independent agency other than the
local police, the investigation of FIR No.227/92 Police Station
Janakpuri for the incident of 1.11.1984 and of the FIR 264/92, Police
Station Vikaspuri for the incident of 2.11.1984, the investigation of
these cases was not handed over to any independent agency as
recommended and the closure report was filed by the Delhi Police
through its Riots Cell. The State further submitted that the delay in
registration of the FIR and non-assigning of the investigation of the
cases to an independent agency clearly suggests the influence of the
respondent herein even at that time. It has been submitted through the
petitions that in the affidavit before the Justice Ranganath Mishra
Commission of Inquiry, the complainant, i.e., Sh.Harvinder Singh,
mentioned that some leaders were leading the mob who came in a
white car but the name of the leader was not disclosed due to
fear/influence of the respondent herein but in the further investigation
conducted by the SIT, the complainant had disclosed clearly that the
leader who came in the white Car was the then Congress-I Member of
Parliament, Sajjan Kumar, i.e., the respondent herein herein and he
further deposed that after the assassination of Smt.Indira Gandhi on
1.11.1984 during the day time a violent mob led by the respondent

Crl.M.C 338/2017 339/2017 Page 11 of 132
herein came towards the Gurudwara near Gulab Bagh and that the
witnesses could clearly identify the respondent amongst the mob
whom they know very well and the respondent pointed out towards
the Gurudwara near Gulab Bagh and then the violent mob rushed
towards the Gurudwara Saheb and started looting and burning the
property of the Gurudwara and also set the Gurudwara on fire. It was
also stated by Sh. Harvinder Singh in his affidavit that the rioters led
by the respondent herein attacked the Sikhs in order to kill them in
which the complainant, his father Sohan Singh S/o Amar Singh and
the mother Smt. Jaspal Kaur sustained serious injuries and that the
violent mob also attacked the houses and shops of the Sikh community
including the house of one Sardar Nath Singh who was the Pradhan of
the Gurdwara as well as the Gulab Bagh Colony and the respondent
also set their truck on fire. It has been further submitted through the
petition that Gurcharan Singh son of Sardar Nath Singh was thrown in
the burning truck who was saved by the neighbours. It was further
submitted through the petitions that on 2.11.1984 the complainant
along with his injured father and brother-in-law proceeded towards the
hospital, after remaining in hiding overnight on two bicycles for the
treatment of his injured father and reached at the main road Uttam
Nagar Bus Terminal, when about 20/25 persons came from the nearby
Congress-I office and after the crowd further swelled, they were
attacked. It was further averred through the petition that the
complainant‟s father Shri Sohan Singh and brother-in-law Sh.Avtar
Singh were also killed by the mob and set on fire but the complainant
managed to escape and reached the Police Post Uttam Nagar.

Crl.M.C 338/2017 339/2017 Page 12 of 132

15. The affidavit dated 8.9.1985 of the complainant in relation to
the incident dated 1.11.1984 makes mention of one white car and
another red car driven by some leader brand people leading the mob
on the date 1.11.1984. No specific name of the leaders of the mob,
who came in the white and the red cars on 1.11.1984, have been
mentioned in the affidavit dated 8.9.1985 of the complainant. In the
incident of 2.11.1984 as mentioned in the affidavit dated 8.9.1985 of
the complainant there is no reference to any person by a specific name
as being the assaulter or the instigator of assault on him, i.e., the
complainant. Through the petition it has been submitted that during
the investigation conducted by the SIT, the complainant and other
witnesses had disclosed that the leader who came in the white car was
the then Member of Parliament, Sajjan Kumar, i.e., the applicant,
whom the witnesses could clearly identify amongst the mob as they
knew him very well and that the respondent had directed the mob by
pointing towards the Gurudwara Saheb whereafter the mob started
looting, burning and damaging the property of the Gurudwara Saheb
and that the so led mob also set the Gurudwara Saheb on fire and the
rioters also led by the respondent had attacked the Sikhs in order to
kill them and that the violent mob /rioters under the leadership of the
respondent herein, also attacked the house of Sardar Nath Singh the
Pradhan of the Gurudwara as well as the president of the Gulab Bagh
Colony.

STATEMENT UNDER SECTION 164 OF THE CODE OF
CRIMINAL PROCEDURE, 1973

Crl.M.C 338/2017 339/2017 Page 13 of 132

16. It has been submitted on behalf of the State through the SIT that
the statement under Section 164 of the Code of Criminal Procedure,
1973 of the complainant, Harvinder Singh, recorded by the SDJM
Dara Bassi District Mohali, Punjab in FIR No.264/1992, Police
Station Vikaspuri, speaks volumes against the present respondent
whereby the complainant has categorically identified the respondent
and that the statements of other witnesses recorded under Section 161
of the Code of Criminal Procedure, 1973 also corroborated the said
averment of the complainant. Vide a letter dated 2.2.2017, the SHO
Inspector Anil Kumar Police Station SIT (1984 Riots Cell) requested
that the statement under Section 164 of the Code of Criminal
Procedure, 1973 of the complainant which was recorded in Punjabi be
got translated by the Punjabi Academy, Government of Delhi. The
translated version thereof was received by the SHO, Police Station
SIT (1984 Riots Cell) from the Secretary of the Punjabi Academy,
Ministry of Home Affairs on 3.2.2017.

17. As per his statement under Section 164 of the Code of Criminal
Procedure, 1973, it was stated by the complainant to the effect that in
November, 1984, he used to live with his parents and brothers and
sisters at Delhi in House No. RZ-134-A, Gulab Bagh, Near Nawada,
New Delhi – 69 and that he woke up at about 9 .00 a.m. and after his
bath at about 11.00 a.m., he came out and saw that there was a black
smoke spreading in the sky till the fire stopped and that on going to
the main road he asked the passers-by as to why there was a black
smoke then he was informed by a passer-by that riots had broken out
after the death of the then Prime Minister Smt. Indira Gandhi and that

Crl.M.C 338/2017 339/2017 Page 14 of 132
the vehicles belonging to the Sikh residents and the places where they
reside had been got set on fire. The complainant further stated that at
the time of the incident he was aged 25 years and when he gave his
statement under Section 164 of the Code of Criminal Procedure, 1973
to the SDJM Dara Bassi, District Mohali, he was aged 58 years and
that he went home and told his family members about the incident. He
further stated that his brother-in-law i.e. Avtar Singh had also come to
his house in the evening he had also come to the road and saw a crowd
of 100/150 persons coming who were armed with lathies and sarias,
and that when the crowd came near him then they also saw the two
cars came from the back and stopped near the crown. One car was
white and the other car was almost red. It was further stated through
the affidavit of the complainant that from those cars five/six persons
got down, one of them being the then Member of Parliament, Sajjan
Kumar and the entire crowd collected around him. As sated in his
affidavit at that time itself a DTC bus came and stopped near Sajjan
Kumar. He further stated that from that DTC bus 50/60 persons got
down and got mixed in the crowd and that Sajjan Kumar gave a signal
to those persons and also had a conversation and since Sajjan Kumar
had given a signal with his hands pointing towards the Gurudwara
Saheb, the crowd of rioters ran towards the Gurudwara Saheb and set
it on fire and started looting from the same and he, i.e., the
complainant and his brother-in-law stood behind the wall on the other
side of the road and were watching the incident from the side of the
wall.

Crl.M.C 338/2017 339/2017 Page 15 of 132

18. It was further stated by the complainant in the statement that
they ran till the colony and shouted and informed the residents of the
colony that the Gurudwara Saheb had been set on fire and that after
setting the Gurudwara Saheb on fire, Sajjan Kumar, i.e., the
respondent herein and his associates had sat in two cars and the
persons coming through the bus boarded the bus and the rioters who
were on foot went forward. After the rioters went, the residents of the
colony ran to the Gurudwara and started putting out the fire on the
Gurudwara and whilst they were putting out the fire, both those cars,
the bus and the mob of rioters suddenly attacked them with Sarias,
dandas and stones and the residents of the colony ran towards the
colony. As per the statement of the complainant the mob of rioters
entered into the colony and his father Sohan Singh s/o Amar Singh
and mother Jaspal Kaur came into the clutches of the rioters and both
got injured. He further stated that he somehow dragged his father into
the house but he had been seriously injured with having been
repeatedly assaulted with a saria on his head and his mother was also
injured on the forehead with a brick by having been hit with a brick
but as she was within the crowd, he could not bring her into the house.
As per this statement under Section 164 of the Code of Criminal
Procedure, 1973 of the complainant, the mob of rioters entered into
the house of Nath Singh which was behind the house of the
complainant and also set on fire trucks standing outside the house of
Nath Singh and the rioters threw Gurcharan Singh s/o Nath Singh
aged 15 to 16 years into the burning truck in the presence of the
complainant and on seeing this, he, i.e., the complainant and his

Crl.M.C 338/2017 339/2017 Page 16 of 132
family members i.e. his brothers, sisters, brother-in-law and his
injured father left their house open and went into the house in front of
their house and his sisters entered the house of Tilak Raj in front of
their house, whereas his brother hid in a house in another lane and his
brother-in-law, injured father and he i.e. the complainant hid in an old
lady‟s house and that old lady locked them inside the house and
herself sat inside the temple. That old lady, as per the statement of the
complainant, was a Hindu and whilst they continued to be locked
inside the house, they could continuously hear the sound of shouting,
beatings and of burning fires. As per this statement of the complainant
under Section 164 of the Code of Criminal Procedure, 1973, after an
hour he learnt that some Hindu brother had admitted his mother to the
Rana Nursing Home at Rajouri Garden. He further stated that he
along with his injured father and brother-in-law hid without food and
water throughout the night and the next morning at 5 a.m. that old lady
opened the lock and asked them to run away from there as the rioters
had learnt of their having been hidden in her house and she also stated
that they would kill them. As per this statement of the complainant,
Harvinder Singh, he went to the house of Tilak Raj, who resides in
front of his house and requested him to help them as his father‟s
condition was very bad and Tilak Raj got two bicycles arranged and
also sent a Hindu boy with them and that he made his brother-in-law
sit on one of the cycles and his brother-in-law tied his father to him i.e.
the complainant with a Pagdi inasmuch as the complainant‟s father
was very seriously injured and the complainant thus sat with his
father. He further stated that on the other cycle his brother-in-law and

Crl.M.C 338/2017 339/2017 Page 17 of 132
the Hindu boy took his father to Uttam Nagar which was at a distance
of 4 to 5 km from their house but as they were crossing by the
Congress-I office at Uttam Nagar then the rioters surrounded there and
started beating them with Sarias. The complainant further stated that
his brother-in-law Avtar Singh, who was coming on the other cycle
was also surrounded by the rioters and the rioters were assaulting all
three of them and that in the meantime a sound came from the truck
“Aag lagakar maar do, i.e., set on fire and kill” and on hearing this he,
i.e., the complainant started running blindly and the rioters were
running behind him and he ran towards the Police Post, Uttam Nagar
and requested the police personnel that his father and his brother-in-
law were being assaulted by the rioters on the road but the police did
not help him and that he continued to cry that his father and brother-
in-law be saved, but the police personnel started abusing him, saying
that these Sikhs had killed Indira Gandhi and thus they should be dealt
with as they were being dealt. He further stated that he was bleeding
profusely as he had been assaulted with the Sarias on his head and that
four of his bones of his two arms had also got broken and that his eyes
had also been seriously injured because of the fist blows given to him
and that he had asked them that he be provided medical aid but he
was not provided any medical assistance and rather the police
personnel were spreading rumors that corpses of Hindus were coming
in trains from Punjab and after sometime they spread another rumor
that the Sikhs had put poison into the water tank.

19. In his statement under Section 164 of the Code of Criminal
Procedure, 1973, the complainant Harvinder Singh, also stated that at

Crl.M.C 338/2017 339/2017 Page 18 of 132
about 2 to 3 p.m. a senior officer whose name he learnt from his
badge, as V.K. Katna came to the police post and the complainant
requested him for medical assistance and in the meantime the Officer
received a wireless message and thus went in his jeep from the spot
and returned after two hours with a police bus containing 40/50
injured Sikh men, ladies and children and then put the complainant
and four other persons into the jeep and took them to the D.D.U
Hospital Hari Nagar, where due to the lack of doctors, nurses and
other staff without any anesthesia he was given 14/15 stitches on his
head and was also treated for his eyes but there was no treatment
given that day for his broken bones. As per this statement under
Section 164 of the Code of Criminal Procedure, 1973 of the
complainant, the complainant requested the police in the hospital to
leave him at his friend‟s house at Hari Nagar but the police left him
and the two other injured persons at the Uttam Nagar, Police Post and
from 7 a.m. till 5 p.m., he remained at the Police Post, Uttam Nagar
and that he could see from the Police Post that shops near the road
were being looted and burnt and that the police was sitting as a silent
spectator and that he also saw some police personnel were taking out
the looted articles from the shop and brought them to the Police Post.
As per the statement under Section 164 of the Code of Criminal
Procedure, 1973 the entire day he continued to remain hungry and
thirsty and injured at the Police post and despite his repeated requests
he was given one glass of water and on inquiries at the Police Post, he
learnt that his father and brother-in-law had been burnt alive and they
were also not handed over the dead bodies of his father and brother-in-

Crl.M.C 338/2017 339/2017 Page 19 of 132

law. It was learnt by him subsequently that the police had burnt
several dead bodies together.

20. As per this statement under Section 164 of the Code of Criminal
Procedure, 1973 at about 9 p.m. the complainant and other persons at
the Police Post were taken by the complainant‟s friend Charanjit Singh
and his employer Sharan Singh were taken to the Fateh Nagar
Gurudwara Saheb and on the next day he was treated for his broken
bones and other injuries. Through the statement under Section 164 of
the Code of Criminal Procedure, 1973, the complainant stated that he
would make an appeal to the Court that Sajjan Kumar (the respondent
herein) and other persons who brought the crowd had killed his father
Sohan Singh and brother-in-law Avtar Singh and had injured his
mother and he thus sought action against them and stated that the
massacre had taken place at the instigation of Sajjan Kumar i.e. the
respondent herein. He also requested through the statement under
Section 164 of the Code of Criminal Procedure, 1973 that a day-to-day
trial be given in the instant case inasmuch as 32 years had already
elapsed and he sought that he got justice during his lifetime and sought
the incarceration of the killers.

21. As per the certificate issued by the learned SDJM, District
Mohali, Punjab, the said statement under Section 164 of the Code of
Criminal Procedure, 1973 was as per her belief made voluntarily by
the complainant Sh. Harvinder Singh in her presence and was read
over to the complainant Sh. Harvinder Singh who admitted the same
to be correct and to contain a true account of the statement made by
him.

Crl.M.C 338/2017 339/2017 Page 20 of 132

SUPPLEMENTARY STATEMENTS OF THE COMPLAINANT
AND WITNESSES RECORDED BY SIT

22. The State through the SIT has also placed reliance on the
supplementary statements dated 24.11.2016 and 23.12.2016 of the
complainant Sh. Harvinder Singh in FIR No. 227/92 Police Station
Janakpuri and on the statement dated 05.09.2016 and supplementary
statements dated 09.11.2016 and 23.12.2016 of the complainant Sh.
Harvinder Singh in FIR No. 264/92 Police Station Vikaspuri.

23. The State has also placed reliance on the statements of two
witnesses dated 24.11.2016 in the FIR No. 227/92 Police Station
Janakpuri and dated 25.10.2016 in the FIR No. 264/92 Police Station
Vikaspuri, whose names have been requested to be withheld.

FIR NO. 227/92 POLICE STATION JANAKPURI

24. Through his statement dated 24.11.2016 under Section 161 of
the Code of Criminal Procedure, 1973 in FIR No. 227/92 Police
Station Janakpuri, it was inter alia stated by the complainant Sh.
Harvinder Singh that the Investigating Officer had queried from him
that in his affidavit before the Commission he had not given the name
of Sajjan Kumar i.e. the respondent herein in his affidavit to which he
replied that as the respondent herein was a Member of the Parliament
with a lot of power and money and due to the riots, he the complainant
Sh. Harvinder Singh had lost his father and brother-in-law and he had
to bring up his younger brother and had to provide for his old mother
and four sisters and that his house had been completely looted and he
in this condition was unable to put forth the name of the respondent

Crl.M.C 338/2017 339/2017 Page 21 of 132
herein as he did not to want to put his entire family into danger at that
time it was the Government of the Congress Party to which the
respondent herein belonged to and was a Member of the Parliament
and as a consequence he the complainant Sh. Harvinder Singh feared
that if he gave the name of the respondent herein he would not get any
justice and he was also afraid that if he gave the name of the
respondent herein, he would lose the rest of his family members also
as a consequence of which he also sold out his Delhi accommodation
and had gone to Punjab and now all his sisters have got married and
his younger brother was self sufficient and now he / the complainant
was not afraid of anyone and thus he could give the name of the
respondent herein and that he had also due to this reason requested
that his statement under Section 164 of the Code of Criminal
Procedure, 1973 be recorded in Punjab and was so recorded and that
he had given the details of the incident of the dates 01.11.1984 and
02.11.1984 to the Court and that he was even then as on 24.11.2016
afraid to come to Delhi.

25. In this statement under Section 161 of the Code of Criminal
Procedure, 1973 dated 24.11.2016 inter alia the complainant Sh.
Harvinder Singh had stated allegedly to the effect that on the date
01.11.1984 when he was residing at RZ-134A Block, Gulab Bagh,
Nawada at about 9/10 a.m., he had seen black smoke from far about
which he learnt from the people, of rioters having burnt the house of
Sikhs and that the black smoke related to the same and at that time he
saw the black smoke near his house. According to the statement of the
complainant Sh. Harvinder Singh, his elder sister and her husband

Crl.M.C 338/2017 339/2017 Page 22 of 132
Avtar Singh came to his house and that he and his brother-in-law were
outside the house on the main road of Gulab Bagh to see the situation
and saw a group of 100-125 rioters who were coming towards his
house and in the meantime two cars, one white car and another car, the
colour of which he did not recall came and that he did not know the
registration numbers of the those two cars which stopped near the
crowd of rioters and 5-6 members got down from the cars and that his
brother-in-law Avtar Singh and he were watching from the side of the
wall and he saw that one of the persons who got down from the car
was a person named Sajjan Kumar i.e. the respondent herein, who was
known to him previously, inasmuchas had come to his mohalla several
times and as the complainant Sh. Harvinder Singh‟s father also used to
vote for the Congress and thus his family members also used to vote
for the Congress and so he was able to identify Sajjan Kumar i.e. the
respondent herein very well and that the respondent herein i.e. Sajjan
Kumar was standing with the rioters and with the movements of his
hands was telling them something and soon two DTC buses came and
stopped near the crowd and several persons got down from the bus and
that the Congress leader Sajjan Kumar i.e. the respondent herein got
into the crowd and at his instance and signal and pointing out, the
crowd of rioters ran towards the Gurudwara and went inside the
Gurudwara and began breaking and looting some articles and after
breaking and setting the Gurudwara on fire, they then boarded the
DTC bus. It was also stated by this witness that apart from Sajjan
Kumar i.e. the respondent herein he did not recognize any other
person.

Crl.M.C 338/2017 339/2017 Page 23 of 132

STATEMENT DATED 23.12.2016 IN FIR NO. 264/92 POLICE
STATION VIKASPURI OF THE COMPLAINANT

26. Through his statement dated 23.12.2016 under Section 161 of
the Code of Criminal Procedure, 1973, in FIR No. 264/92 Police
Station Vikaspuri, the complainant Sh. Harvinder Singh is stated to
have informed the Investigating Officer and pointed out the place from
where he had seen the incidents whilst hiding and had also seen Sajjan
Kumar i.e. the respondent herein coming from the car and pointing out
towards the Gurudwara and also pointed out to the place where Sajjan
Kumar i.e. the respondent herein was standing with the crowd though
he stated that the area had changed since the time of the occurrence
with constructions having been raised.

STATEMENTS OF WITNESSES DATED 24.11.1986

27. Through his statement dated 24.11.2016 in the FIR No. 227/92
Police Station Janakpuri, one of the witnesses of the prosecution
(name withheld on the request of SIT) stated that after the
assassination of the Prime Minister Indira Gandhi, riots had
commenced on 01.11.1984 at about 10.00 a.m. and they had come out
on to the road to see as to what was happening because his house was
at the main Nazafgarh Road and that it could be seen that there was
smoke of fire at several places and in sometime itself a crowd of 100-
150 persons came shouting slogans and came towards their mohalla
and there were two DTC buses which were loaded with people also
came there and mingled amongst that crowd and at that time two cars
came and stopped near the crowd, the registration numbers of which

Crl.M.C 338/2017 339/2017 Page 24 of 132
he did not know and one of the cars was of white colour and the other
car, the colour of which car he did not recall. As per this statement
from the white car, 3-4 persons came down of which one of them was
Sajjan Kumar i.e. the respondent herein whom he recognized from
before, who spoke to the persons in the crowd and who pointed out
with his hand towards the Gurudwara to the crowd, as a consequence
of which the crowd whilst shouting slogans went towards the
Gurudwara and started breaking the Gurudwara and that that time his
father was the Pradhan of the Gurudwara and of the colony and when
he reached the Gurudwara to put out the fire then the rioters attacked
his father but he somehow escaped but the crowd followed his father
to his house and attacked them and looted their house and started
attacking their house and breaking the same and also set a truck
bearing No. DLL 8770 standing behind their house on fire and also set
their scooter bearing No. DLU 8150 on fire and that the rioters had
also taken out his father Nath Singh and him and his four brothers
from the house and had attacked them with Dandas, Lathis and as a
consequence of which they were all injured seriously.

28. This witness is also stated to have stated in his statement under
Section 161 of the Code of Criminal Procedure, 1973 dated
24.11.2016 that in 1986 his father sold the house of Nawada and went
to Mohali, Punjab with his family and only his elder brother started
living in a small house with his family in Delhi and that one of his
brothers‟ died in 1993 and his father expired on 16.05.1996 and his
mother expired in 2003 and that he had looked after his ailing
brothers. He also stated that his brothers (name withheld on the

Crl.M.C 338/2017 339/2017 Page 25 of 132
request of SIT), who had been injured in 1984 riots was still lying
disabled on the bed due to the injuries.

29. Another witness stated to have been examined u/s 161 of the
Code of Criminal Procedure, 1973 in FIR No. 227/92 Police Station
Janakpuri (whose name has also been requested to be withheld by the
SIT) vide his statement dated 24.11.2016 under Section 161 of the
Code of Criminal Procedure, 1973 allegedly stated qua the role of the
respondent herein i.e. Sajjan Kumar of having instructed the crowd on
01.11.1984 by signaling towards the Gurudwara whereupon the crowd
in anger whilst shouting slogans went inside the Gurudwara and
started breaking it and set it on fire. This witness in his statement
under Section 161 of the Code of Criminal Procedure, 1973 dated
24.11.2016 has further stated that apart from Sajjan Kumar i.e. the
respondent herein, he would not be able to identify any other rioter.
He also stated that because of his being paralyzed he had not made
any complaint and had not given his statement earlier. He also stated
that he was being looked after by his brother (name withheld at the
request of the SIT).

STATEMENT DATED 05.09.02016 OF SH. HARVINDER
SINGH i.e. THE COMPLAINANT

30. Through his statement under Section 161 of the Code of
Criminal Procedure, 1973 dated 05.09.2016 in FIR No. 264/92 Police
Station Vikaspuri, the complainant Sh. Harvinder Singh inter alia
stated to the effect that on 01.11.1984, he along with his brother-in-
law went to the Main Road, Gulab Bagh where about a group of 100-
125 rioters was seen coming and two cars one white and the other of

Crl.M.C 338/2017 339/2017 Page 26 of 132
which he did not recall the colour were seen coming and they came
near the rioters and that he does not know the registration numbers of
those cars and from those cars, 5-6 persons got down and he and his
brother-in-law stood behind the wall and saw Sajjan Kumar i.e. the
respondent herein getting out from the car and that he had also come
several times previously to his mohalla and to his house because the
father of the complainant Sh. Harvinder Singh always used to vote for
the Congress and thus his family always voted for the Congress and
that is why he the complainant Sh. Harvinder Singh recognized the
said Sajjan Kumar i.e. the respondent herein very well and he came
and stood near the road and with the signal of his hands said
something to the rioters and in the meantime two DTC buses came and
stopped and from the same also a large number of people got down
and Sajjan Kumar i.e. the respondent herein, the leader of the
Congress pointed out towards the Gurudwara and just as he did the
same, the group of rioters started running towards the Gurudwara and
started causing damage and set it on fire and after setting it up on fire,
started looting the same and thereafter boarded the DTC bus. It was
also stated by the complainant Sh. Harvinder Singh that apart from
Sajjan Kumar i.e. the respondent herein he did not recognize any of
the other rioters.

SUPPLEMENTARY STATEMENT DATED 09.11.2016 OF THE
COMPLAINANT SH. HARVINDER SINGH

31. Through his supplementary statement dated 09.11.2016 in FIR
No. 264/92 registered with Police Station Vikaspuri, the complainant
Sh. Harvinder Singh stated that his statement dated 20.09.2016 under

Crl.M.C 338/2017 339/2017 Page 27 of 132
Section 164 of the Code of Criminal Procedure, 1973 made after Dera
Basti Court was correct and that the Hindi translation of the same also
was to the effect as to what he had stated in his statement under
Section 164 of the Code of Criminal Procedure, 1973.
STATEMENT DATED 23.12.2016 IN FIR NO. 227/1992,
POLICE STATION JANAKPURI OF THE COMPLAINANT

32. Through his statement in FIR No.227/1992, registered with
Police Station Janakpuri dated 23.12.2016, the complainant Sh.
Harvinder Singh also identified the places of occurrence where he had
seen Sajjan Kumar i.e. the respondent herein on the date of the alleged
commission of the offence on 01.11.1984.

STATEMENT DATED 25.10.2016 OF WITNESS IN FIR
NO.264/92 POLICE STATION VIKASPURI

33. Through his statement dated 25.10.2016 under Section 161 of
the Code of Criminal Procedure, 1973, the witness of the prosecution
in FIR No. 264/92 Police Station Vikaspuri (name withheld at the
request of the SIT) also stated to the effect that on 01.11.1984 at about
10.00 / 10.30 a.m. riots had commenced after the assassination of the
Prime Minister Indira Gandhi and stated that he had seen outside his
house which falls on the main Najafgarh Road at different places there
was smoke of fire and a crowd of 100-150 persons was coming
shouting slogans towards his mohalla and two DTC buses loaded with
people also came and at that time two cars came, one of them was of
white colour in which there were 3-4 persons, who got down, one of
them being Sajjan Kumar i.e. the Congress M.P., whom he knew from
before, who got down and went into the crowd and started talking to

Crl.M.C 338/2017 339/2017 Page 28 of 132
the persons in the crowd and pointed out towards the Gurudwara
whereafter the crowd started shouting slogans and went towards the
Gurudwara and started attacking the Gurudwara and caused damage
and set it on fire. He stated further that his father was the Pradhan of
the colony and of the Gurudwara and on reaching the Gurudwara the
crowd attacked but somehow his father escaped as a consequence of
which the crowd followed to his house and attacked at their house also
and set the truck bearing No. DLL 8770 standing behind their house
on fire and also set their scooter bearing No. DLU 8150 on fire.

34. The statement of another witness of the prosecution under
Section 161 of the Code of Criminal Procedure, 1973 (name withheld
at the request of the SIT) dated 25.10.2016 in the FIR No. 264/92 is
also to the effect that the respondent herein got down from the white
car on 01.11.1984 when the crowd of rioters had collected and he
spoke to the rioters and on his having pointed out to the Gurudwara as
a consequence of which the crowd went shouting slogans towards the
Gurudwara and caused breakage there and set it on fire. This witness
also identified Sajjan Kumar i.e. the respondent herein whom he stated
that he had seen him several times.

CONTENTIONS OF THE STATE

35. It has thus been submitted by the State through the SIT that in
view of the statement under Section 164 of the Code of Criminal
Procedure, 1973 of the complainant Harvinder Singh and the
statements of other witnesses under Section 161 of the Code of
Criminal Procedure, 1973, the witnesses during investigation had

Crl.M.C 338/2017 339/2017 Page 29 of 132
clearly identified the respondent herein and the interrogation of the
respondent herein was required and a notice dated 19.11.2016 was
issued to the respondent to put in appearance before the Investigating
Officer of the case on 22.11.2016 at 3 p.m. on which date the
respondent herein did come with a fleet of advocates to the office of
the SIT but did not answer any question of the Investigating Officer
and rather tried to dictate the terms of the investigation and in a tone
of instruction asked the Investigating Officer of the SIT to give a
written questionnaire and stated that he would not participate in the
investigation unless a written questionnaire is given to him and stated
that he would only give a written reply to the already prepared
questionnaire. It was further submitted by the State that after all these
tantrums, the respondent herein left with his advocates and the
Investigating Officer failed to proceed with his investigation.

36. It was further submitted by the SIT that on the next date of
appearance i.e. on 14.12.2016 in relation which the notice dated
5.12.2016 was issued to the respondent, he did not appear on the
ground of ill health and he was called thus to put in appearance on
21.12.2016. It was thus submitted on behalf of the SIT that though the
respondent has pretended to join the investigation with his fleet of
advocates, he has in fact not joined the investigation inasmuch as he
did not cooperate in the same.

37. It was further contended on behalf of the petitioner that even
after the order dated 21.12.2016 of the learned ASJ-01, Dwarka
Courts, on the anticipatory bail applications filed by the applicant, the
notice dated 2.1.2017 was issued to the accused to join the

Crl.M.C 338/2017 339/2017 Page 30 of 132
investigation on 4.1.2017 in connection with the FIR No.227/1992,
Police Station Janakpuri but even then during interrogation, the
attitude of the respondent was non-cooperative and he did not reply to
any question asked in connection of the case.

38. Further submissions have been made on behalf of the petitioner
submitting inter alia to the effect:

 that there was no reason for the respondent/the

accused to believe that he might be arrested;

 that the matter was at the stage of investigation

in relation to a very serious crime and anticipatory

bail ought not to have been granted by the learned

ASJ-01, Dwarka Courts;

 that there is all the reason to believe that the

accused might or has the capability to influence

the witness and tamper with the evidences and

thus invocation of Section 438 of the Code of

Criminal Procedure, 1973 would hamper the

overall investigation;

 that anticipatory bail is a grant of an

extraordinary privilege which can be granted only

in exceptional cases and that the applicant has

Crl.M.C 338/2017 339/2017 Page 31 of 132
failed to give any exceptional ground for grant of

anticipatory bail;

 that it was mandatory on the part of the learned

ASJ-01, Dwarka Courts to ensure compliance of

pre-requisite conditions for grant of anticipatory

bail including the nature and gravity of the

accusation;

 that the Court ought to have recorded reasons

for grant of anticipatory bail which could have

been granted if the Court was of the prima facie

view that the applicant had been falsely enroped

in the case and would not misuse his liberty;

 that the learned ASJ-01, Dwarka Courts has

erroneously held the arrest of the applicant for the

purpose of interrogation after 32 years of the

incident was not required inasmuch as there was

nothing to be recovered at the instance of the

applicant;

Crl.M.C 338/2017 339/2017 Page 32 of 132

 that the learned ASJ-01, Dwarka Courts had

failed to appreciate that the complainant had given

his affidavit dated 8.9.l985 before Justice

Ranganath Mishra Commission of Inquiry as the

FIR was registered only after more than seven

years and that investigation despite

recommendation of the Jain Agrawal

Committee had not been handed over to an

independent agency which itself suggests the

influence of the respondent and the lackadaisical

approach of the then investigation agency;

 it was an admitted fact that the complainant

and other eye-witnesses who had shifted from

Delhi to Punjab after riots were apprehensive

about their life and safety and were not willing to

visit Delhi due to fear of the respondent and;

 that it was only after constitution of SIT as an

independent entity to investigate the 1984 riots

cases that the complainant and other witnesses

Crl.M.C 338/2017 339/2017 Page 33 of 132
reposed their faith in the system and gave their

statement and identified the respondent.

39. It has thus been submitted on behalf of the SIT that the
respondent is a very influential person with muscle and money power
and it is not possible to proceed with the investigation without keeping
him in custody and that the learned ASJ-01, Dwarka Courts had failed
to appreciate that the incident in question had such a serious effect that
the witnesses had to flee from Delhi and had given their statements
only after the SIT was constituted.

40. It has also been submitted on behalf of the applicant that
pursuant to investigation being made by the SIT, the respondent is
required to be confronted with the eye-witnesses, facts and the crime
spot and in view of the non-cooperative behavior of the respondent, it
would not be possible for the SIT to proceed smoothly with the
investigation and the constitution of the SIT would become futile.

41. It has also been submitted on behalf of the State that the
anticipatory bail granted to the applicant has been in derogation of the
established principles of the Code of Criminal Procedure, 1973.

42. Inter alia, apart from seeking that the impugned order dated
21.12.2016 of the learned ASJ-01, Dwarka Courts in Bail Appln. No.
14073/16 in FIR No.264/1992 under Sections 147/148/149/302/207 of
the Indian Penal Code, 1860, Police Station Vikas Puri and in Bail
Appln. No. 14072/2016 in FIR No.227/1992, under Sections
147/148/149/295/395/307/302 and 436 of the Indian Penal Code,
1860, Police Station Janakpuri be set aside, the applicant through the

Crl.M.C 338/2017 339/2017 Page 34 of 132
said petition has also sought an expungment of observations made in
paragraphs No.24 and 26 of the impugned orders dated 21.12.2016.

IMPUGNED ORDER DATED 21.12.2016

43. It is essential to advert to the impugned order dated 21.12.2016
of the learned ASJ-01 Dwarka qua the Bail Appln. No. 14073/16 and
Bail Appln. No. 14072/2016 in relation to the FIR Nos. 264/1992
Police Station Vikas Puri and 227/1992 Police Station Janakpuri
respectively, vide which it was observed similarly in each to the
effect:

FIR No.264/1992 registered at Police Station
Janakpuri Vikaspuri and FIR No.227/1992
registered at Police Station Janakpuri.

“16. I have considered the rival submissions
and have carefully perused the police file and
reply of the Investigating Officer.

17. It is an admitted fact between the parties
that the present FIR was registered in the year
1992 on the basis of affidavit dated 09.09.1985 of
complainant Sh.Harvinder Singh sworn before
Justice Ranganath Mishra Commission. It is also
an admitted fact that alleged offence pertains to
incident dated 01.11.1984 and 02.11.1984. It is
also an admitted fact that neither complainant
Sh.Harvinder Singh nor any of the witnesses
examined by the Special Riot Cell had found any
evidence to connect the applicant with the offence
in question. It is also an admitted fact that earlier
investigation was closed as untraced and the
closure report was accepted by the Ld.MM on
27.08.1994/16.02.1996. It is also an admitted fact
that from 1994 till examination of witnesses
including the complainant in the year 2016,

Crl.M.C 338/2017 339/2017 Page 35 of 132
nothing incriminating had come against the
applicant.

18. The deposition made by complainant
Sh.Harvinder Singh under Section 164 Cr.P.C.
statement against applicant has been made for the
first time after 32 years of the incident and in the
previous affidavit dated 09.09.1985, no such
allegations were made.

19. Similarly, some of the witnesses (names
of witnesses withheld at the “request of
Ld.Addl.PP for SIT) examined in 2016 under
Section 161 Cr.P.C. were also examined during
the course of investigation in the year 1992 and at
that time, they had not identified the applicant to
be the person, who had incited the mob to burn
down the property of the Sikhs or to murder them.

20. Some of the witnesses (names of witnesses
withheld at the request of Ld.Addl.PP for SIT),
who have been examined under Section
161Cr.P.C. happen to be the relatives of the
witnesses, who were examined in the previous
investigation and in the previous investigation,
their relatives had not stated anything
incriminating against the present applicant.
Therefore, from where these witnesses have
derived the information regarding the role of the
present applicant is also a matter of trial.

21. Some of the witnesses (names of witnesses
withheld at the request of Ld.Addl.PP for SIT),
who have been examined under Section 161
Cr.P.C. in 2016 are witnesses of hear-say
evidence regarding the role of the present
applicant and their statements do not incriminate
the present applicant.

22. Although an explanation has been given
by the complainant in his statement under Section

Crl.M.C 338/2017 339/2017 Page 36 of 132
164 Cr.P.C. as to why he had not named the
applicant earlier but whether such explanation
can be believed or not, after 32 years, is a matter
of trial. However, some of the witnesses examined
in this case under Section 161 Cr.P.C in 2016,
have not provided any explanation as to why at
the time of their earlier examination in the year
1992, they did not depose anything against the
present applicant. This delay of around 24 years
from the registration of the FIR do not make out
a case for custodial interrogation of the applicant
when admittedly at the time of first investigation,
nothing incriminating had come against the
present applicant. Nothing has come on record to
show that applicant, during this course of 24
years, had threatened or influenced any of the
witnesses so as to refrain any of them from
making statement against him. Further, applicant
is having deep roots in the society and thrice, he
remained as a member of the Parliament.
Therefore, chances of applicant fleeing from
justice are also quite remote.

23. In the opinion of this court, for the
purpose of interrogation of the applicant after 32
years of the incident, arrest of applicant is not
required as there are no allegations that anything
used in the commission of offence is to be
recovered at the instance of the applicant.

24. The submission of the Id.counsel for the
applicant that the case has been re-opened for
political consideration just to falsely implicate the
applicant also cannot be ignored and makes out a
ground for anticipatory bail to the applicant.

25. The judgments relied upon by the
Id.counsel for the complainant as well as Ld.Chief
Public Prosecutor for State delivered in Sajjan
Kumar’s case (supra) are not applicable to the

Crl.M.C 338/2017 339/2017 Page 37 of 132
facts of the present case as same pertain to
framing of charge and none of these judgments
relied upon, pertain to grant or refusal of
anticipatory bail where after a delay of 32 years,
witnesses, who had not deposed anything against
applicant earlier have turned around to depose
otherwise.

26. There can be no dispute with regard to ratio
laid down by the Hon’ble Supreme Court of India
in the matter of Jai Prakash Singh’s case (supra)
regarding the principles for grant of anticipatory
bail relied upon by the Ld.counsel for SIT. In the
present case also, exceptional circumstances have
been made out for grant of anticipatory bail as
there is prima facie material to show that the
applicant has been falsely enroped in the crime in
question after 32 years of the incident and his
chance of mis-using the liberty is also non-
existent.

27. In the facts and circumstances, the
anticipatory bail application of the applicant is
allowed. In the event of arrest, lO/SHO concerned
is directed to release the applicant on bail on his
furnishing a personal bond in the sum of
Rs.1,00,000/- with one surety of the like amount
with the conditions that applicant shall join the
investigation as and when directed by the lO,
shall not threaten or influence any of the
witnesses and shall not leave the country without
prior permission of the concerned court.”

ARGUMENTS OF STATE THROUGH SIT

44. On behalf of the State, it has been submitted that though the
parameters of cancellation of regular bail apply also to cases of
cancellation of anticipatory bail, it was submitted on behalf of the

Crl.M.C 338/2017 339/2017 Page 38 of 132
State by the then learned ASG Sh. Sanjay Jain that the present case
was not a normal case which could fall within the domain of a case in
which anticipatory bail granted could be withdrawn only on violation
of the conditions imposed by a Court. Inter alia, it was contended on
behalf of the SIT that this was a case of massacre/genocide in which
pursuant to the assassination of the then Prime Minister Smt.Indira
Gandhi the anti Sikh riots had taken place and that the complainant
alone could not have got the FIR registered.

45. During the submissions that were made on behalf of the State
through the SIT (1984 riots) the learned ASG contended that there was
a fundamental flaw in the impugned orders of the learned ASJ-01,
Dwarka Courts, New Delhi granting anticipatory bail to the
respondent in Bail Appln. No. 14072/2015 and in Bail Appln. No.
14073/2015 both dated 21.12.2016 of the learned Additional Sessions
Judge-01/Special Judge (P.C. Act) (CBI-03), Dwarka Courts in FIR
No.227/1992, under Sections 147/148/149/295/395/307/302 and 436
of the Indian Penal Code, 1860, Police Station Janakpuri and FIR
No.264/1992, under Sections 147/148/149/302/307 of the Indian Penal
Code, 1860 Police Station Vikaspuri, inasmuchas the seriousness and
gravity of the offences had not been taken into account, that irrelevant
considerations had been taken into account and that the factum that the
complainant and other witnesses had pursuant to the further
investigation done by the SIT had categorically identified the
respondent herein as being the leader of the mob, who had got down
from the white car on 01.11.1984 and on his signaling towards the
Gurudwara, the mob had moved towards to the Gurudwara and had

Crl.M.C 338/2017 339/2017 Page 39 of 132
proceeded towards the Gurudwara and had started plundering, looting
and damaging the same and had set it on fire which had been ignored
and it was thus submitted on behalf of the petitioner by the SIT that
the said statements could not have been ignored by the Trial Court at
the time of consideration of the applications filed by the respondent
herein seeking grant of anticipatory bail.

JUDICIAL VERDICTS LAW RELIED UPON BY THE STATE

46. It was submitted on behalf of the petitioner placing reliance on
the verdict of the Hon‟ble Apex Court on Adri Dharan Das Vs. State
of West Bengal (2005) 4 Supreme Court Cases 303 to submit that the
applicant i.e. the respondent ought to have shown that he had reason to
believe that he may be arrested in a non-bailable offence and the same
was required to be founded on reasonable grounds and that, it could be
so founded only if there is something tangible to go by on the basis of
which it could be said that the applicant‟s apprehension that he may be
arrested was genuine and that mere fear is not belief for which reason
it was not enough for the applicant to show that he has some sort of
vague apprehension that someone is going to make an accusation
against him in pursuance of which he may be arrested and that the
grounds on which the belief of the applicant is based that he may be
arrested in a non-bailable offence must be capable of being examined.

47. In the instant case the SIT has sought to submit that there are
grave allegations against the petitioner in the statements made by the
complainant and other witnesses whose names have been sought not to
be disclosed by the SIT for their safety and well being and the State

Crl.M.C 338/2017 339/2017 Page 40 of 132
has sought the cancellation of grant of anticipatory bail granted vide
impugned order of the learned ASJ-01, Dwarka Courts submitting
inter alia to the effect that the custodial interrogation of the
respondent is required.

48. Reliance was placed on behalf of the petitioner on the verdict of
the Hon‟ble Supreme Court in Kiran Devi Vs. State of Rajasthan and
Another 1987 (Supp) Supreme Court Cases 549 in which it had been
laid down to the effect that in a murder case when the investigation
was incomplete the proper course to adopt was to leave it to the Trial
Court to do the needful if and when the person concerned was arrested
in the light of the record available at that point of time and that the
anticipatory bail ought not to have been granted in a murder case. It
was thus submitted on behalf of the SIT that as the investigation was
in progress there was all the reason to believe that the respondent
might or had the capability to influence witnesses and tamper with the
evidence and that the discretionary relief under Section 438 of the
Code of Criminal Procedure, 1973 ought not to have been granted.

49. Reliance was placed on behalf of the petitioner on the verdict of
the Hon‟ble Apex Court in the Raghuvir Saran Agarwal Vs. State of
UP and Others (1998) 8 Supreme Court Cases 617 in which in a
dowry death case anticipatory bail granted by the Court where the
investigation was still in progress without giving any reasons
whatsoever, was set aside.

50. Placing reliance on the verdict of the Hon‟ble Supreme Court in
Jai Prakash Singh Vs. State of Bihar and Another (2012) 4 Supreme
Court Cases 379 it was contended that the discretion under Section

Crl.M.C 338/2017 339/2017 Page 41 of 132
438 of the Code of Criminal Procedure, 1973 should be guided by law
duly governed by rule and cannot be arbitrary, fanciful or vague and
the Court must not yield to spasmodic sentiment nor to unregulated
benevolence and anticipatory bail cannot be granted without recording
any reason through parameters laid down in judicial pronouncement
without considering the nature and gravity of the offence specifically
where the assailants / the accused were named. Reliance was
specifically placed in para 19 of the said verdict to the effect that : –

“Parameters for grant of anticipatory bail in a
serious offence are required to be satisfied and
further while granting such relief, the court
must record the reasons therefor. Anticipatory
bail can be granted only in exceptional
circumstances where the court is prima facie of
the view that the applicant has falsely been
enroped in the crime and would not misuse his
liberty. (See D.K. Ganesh Babu v. P.T.
Manokaran, State of Maharshtra v. Modh. Sajid
Husain Mohd. S. Hussain and Union of India v.
Padam Narain Aggarwal).”

51. The verdict of the Hon‟ble Apex Court in Japani Sahoo Vs.
Chandra Sekhar Mohanty (2007) 7 Supreme Court Cases 394 was
relied upon on behalf of the State to contend that the observations in
the impugned order to the effect that the statement under Section 164
of the Code of Criminal Procedure, 1973 and the statement under
Section 161 of the Code of Criminal Procedure, 1973 of the
complainant and other witnesses recorded in 2016, and to delay in the
recording of the statements of around 24 years from the registration of
the FIR did not make a case for custodial interrogation could not have

Crl.M.C 338/2017 339/2017 Page 42 of 132
been the sole ground to throw away the prosecution version and that
mere delay in approaching the Court of law by itself is not sufficient
ground for dismissing the case though it may be a relevant
circumstance in reaching the final verdict.

52. Specific reliance was placed in para 14 of this verdict to the
effect that : –

“14. The exercise of judicial discretion in favour
of the respondents, who are ascribed leadership
roles, on irrelevant grounds of they having not
tampered with the evidence or being unlikely to
commit other offence was highly improper and
perverse and calls for interference, particularly
when the investigation is still underway and the
respondents still hold the status or position from
where they can influence the witnesses. The
relevant considerations for grant of anticipatory
bail, viz. gravity of the offence, status and
position of the accused persons, stage of
investigation, likelihood of evidence being
tampered, wider interest of justice and public at
large and prima facie case appearing against the
accused persons as also severity of punishment
to which they may be exposed, are disregarded in
the impugned orders making them even more
vulnerable. The distance in time from the date of
the alleged offences to the present stage of
investigation is unfortunate and attributable to
the failure of law enforcement agencies, but it
cannot derogate from the requirements of
bringing to book all the persons who might have
had a role in rudely disrupting the lives of
millions of citizens eking out their living in
harmony in a progressive state of secular
democratic republic of India, As observed by the

Crl.M.C 338/2017 339/2017 Page 43 of 132
Supreme Court in its order dated 26.3.2008
(supra):

“…Communal harmony is the hallmark of
democracy…. If in the name of religion people
are killed, that is absolutely a slur and blot on
the society governed by the rule of law….
Religious fanatics really do not belong to any
religion. They are no better than terrorists who
kill innocent people for no rhyme or reason….
And, when the State Government is pursuing the
proceedings for proper investigation by the SIT
constituted by the Supreme Court and consisting
of independent high-ranking and experienced
officers, the contention without any supporting
material that there is a conspiracy to frame the
respondents cannot be countenanced.”

53. A further submission was made on behalf of the SIT, placing
reliance on the verdict of the Hon‟ble High Court of Madras in case
titled as V.N. Sudhagaran Vs. Enforcement Officer 1997 CriLJ 2630
to contend that the petitioner therein had been issued summons to join
the investigation and all that was required was that he should appear
before the authority and join the investigation proceeding and to assist
the investigating agency in the matter for which he was summoned
and that it was not proper to grant anticipatory bail, which amounted
to imparting fetters on the powers conferred under the Act, as there
was no accusation and reasonable apprehension of being arrested for a
non-bailable offence. Reliance was thus placed on observations in para
4 of the said verdict tot the effect : –

“4. The exercise of power under section
438 Cr.P.C. contemplates existence of two

Crl.M.C 338/2017 339/2017 Page 44 of 132
conditions, namely, an existing accusation and
reasonable apprehension of arrest on the basis
of such accusation [see Thangapandi Nadar v.
State, 1982 Mad LJ (Cri) 250].

“Reason to believe” is much stronger than the
expression “reason to suspect” and not identical
with the expression “Knowledge”; Mere “fear”
is not “belief”. It must be capable of being
examined by the Court objectively, because, it is
then alone Court can examine whether applicant
has reason to believe that he may be arrested. In
order to successfully invoke the jurisdiction
under Section 438 Cr.P.C. the petitioner has to
make out a special case to secure an order of
anticipatory bail which is of an exceptional type.
He must prove that the charge levelled against
him is mala fide and, stems from ulterior motive
and it is for the petitioner to prima facie
substantiate his allegation that the charge of
serious non-bailable offence against him has
been levelled mala fide [see Mahanthagowda v.
State of Karnataka, 1978 Cri LJ 1045]. The
High Court of Kerala in Thayyanbadi Meethal
Kunhiraman v. Sub-Inspector of Police, Panoor
(1985 Mad LJ (Cri) 263) : (1985 Cri LJ 1111)
has held that a mere apprehension of arrest will
not suffice. That means apprehension must be
reasonable and based on existing facts.
Imaginary accusation or future possible
accusations will not be sufficient. On such
accusations which are yet to come there cannot
be any reasonable apprehension of an existing
threat of arrest. It is a condition, precedent for
an application under section 438 that there must
be an existing reasonable apprehension of arrest
on an existing accusation of having already
committed a non-bailable offence prior to the

Crl.M.C 338/2017 339/2017 Page 45 of 132
point of time of filing the application. That
accusation will have to be specified in the
application and the direction to be sought for is
for the release in case of arrest in connection
with that accusation. In Sankaranarayanan v.
Sub-Inspector of Police, 1983 M.L.J. (Cri) 13
this court has held that where the accused
asserting that he may be arrested, State on the
other hand contending that so far no case has
been registered against the petitioner, the grant
of anticipatory bail on the basis of vague and
general allegation amounts to harming oneself
in perpetuity against a possible arrest.”

Furthermore, it was submitted on behalf of the SIT, that the
learned ASJ-01, Dwarka Courts has erroneously held that the case has
been re-opened for political consideration which is just for false
implication of the applicant and that the learned ASJ-01, Dwarka
Courts had failed to appreciate that the SIT has been constituted by
Ministry of Home Affairs on the recommendation of the Hon‟ble
Justice G.P.Mathur Committee keeping in view all the earlier reports
of various commissions and committees pertaining to 1984 riots
formed under earlier governments also, only in order to give justice to
the victims of 1984 riots. It was reiterated on behalf of the petitioner
that the SIT is an independent agency having no influence of any kind
and that the SIT is committed to do a fair investigation on the cases,
and in furtherance thereof, is in the process of connecting the chain of
the events of the evidence collected by them and there was absolutely
no cogent material on record for the learned ASJ-01, Dwarka Courts
to be persuaded by the accused to the effect that the case has allegedly

Crl.M.C 338/2017 339/2017 Page 46 of 132
been re-opened due to the political considerations and thus the very
making of such an observation is an act of judicial impropriety.

54. Reliance was placed on behalf of the petitioner on the verdict of
the case titled as State of Gujarat Vs. Mayaben Surendrabhai
Kodnani and Another (2010) CriLJ 1095 submitting to the effect that
Courts shall consider prima facie case the attitude and activities of
accused while granting anticipatory bail whilst adverting to
observations in para 11 of the said verdict to the effect :

“11. In the facts emerging from the record, it
was clear that the respondents were leaders and
had taken a leadership role in inciting the mob
which attacked absolutely innocent persons,
according to the submission. It was also
submitted that the respondents were, by virtue of
their position and influence, already kept away
from the investigating agency of the State and
hence the apprehension of their wielding
effective influence on the witnesses was real and
perfectly plausible. It was also pointed out that
no sooner their alibis were fully investigated and
their presence was satisfactorily established by
independent record of location of their mobile
phones at the relevant time, they had become
unavailable to the SIT and approached the
Court for anticipatory bail, rather than even
responding to the call of the SIT.”

Specific reference was to paras 21 22 of the said verdict to
the effect that :

“21. Considering all the contentions and
averments made on both sides as also the
material appearing against the respondents, it is
clear and not in serious dispute that the
respondents were, at the relevant time,

Crl.M.C 338/2017 339/2017 Page 47 of 132
prominent leaders of VHP which had called the
bandh, or of the party in power and they were
present at the scenes of offences for some time.
It is also in evidence that violent mobs had
gathered with weapons and the atmosphere was
surcharged with anger and hatred following
burning of a railway coach along with
passengers at Godhra on the previous day; and
54 burnt bodies being brought to Ahmedabad on
28.2.2002. The attitude and activities of the
respondents in that milieu is not even claimed to
be towards quelling or controlling the mobs nor
is it believable that they visited the scenes of
offences for any personal or private purpose. In
such circumstances, prima facie, the allegations
of inciting or encouraging the mobs into wanton
display of hatred, destruction of properties and
killing of innocent men, women and children
produce a chilling picture of communal violence
on an unprecedented scale, leaving on the
psyche of ordinary citizens scars which might
take decades to fade. Therefore, the offences
which are alleged to have been committed by
faceless mobs of thousands of persons led by few
have to be treated as very heinous and having far
reaching implications. As recently observed by
the Apex Court in State of Punjab v. Rakesh
Kumar [2008 (12) SCALE 95

“…For instance, a murder committed due to
deep-seated mutual and personal rivalry may not
call for penalty of death. But an organized crime
or mass murders of innocent people would call
for imposition of death sentence as
deterrence….” While such crimes are
investigated by one after the other agency and
matters have reached upto the highest court for
redressal of grievances about investigation, there

Crl.M.C 338/2017 339/2017 Page 48 of 132
is no doubting that the belated investigation
must not be hampered by providing protective
umbrella to the persons who may be found to be
involved.

22. The exercise of judicial discretion in favour
of the respondents, who are ascribed leadership
roles, on irrelevant grounds of they having not
tampered with the evidence or being unlikely to
commit other offence was highly improper and
perverse and calls for interference, particularly
when the investigation is still underway and the
respondents still hold the status or position from
where they can influence the witnesses. The
relevant considerations for grant of anticipatory
bail, viz. gravity of the offence, status and
position of the accused persons, stage of
investigation, likelihood of evidence being
tampered, wider interest of justice and public at
large and prima facie case appearing against the
accused persons as also severity of punishment
to which they may be exposed, are disregarded in
the impugned orders making them even more
vulnerable. The distance in time from the date of
the alleged offences to the present stage of
investigation is unfortunate and attributable to
the failure of law enforcement agencies, but it
cannot derogate from the requirements of
bringing to book all the persons who might have
had a role in rudely disrupting the lives of
millions of citizens eking out their living in
harmony in a progressive state of secular
democratic republic of India, As observed by the
Supreme Court in its order dated 26.3.2008
(supra): “…Communal harmony is the hallmark
of democracy…. If in the name of religion people
are killed, that is absolutely a slur and blot on
the society governed by the rule of law….

Crl.M.C 338/2017 339/2017 Page 49 of 132

Religious fanatics really do not belong to any
religion. They are no better than terrorists who
kill innocent people for no rhyme or reason….”
And, when the State Government is pursuing the
proceedings for proper investigation by the SIT
constituted by the Supreme Court and consisting
of independent high-ranking and experienced
officers, the contention without any supporting
material that there is a conspiracy to frame the
respondents cannot be countenanced.”

Reliance was further placed on behalf of the SIT on the verdict
of the Hon‟ble Apex Court in the case titled as Pokar Ram Vs. State
of Rajasthan (1085) 2 SCC 597 to contend that the learned ASJ-01,
Dwarka Courts had exercised discretion against the established
principles of law under Section 438 of the Code of Criminal
Procedure, 1973 and that exercise of the discretion under Section 438
of the Code of Criminal Procedure, 1973 has to be guided by law, duly
governed by rule of law and cannot be arbitrary and vague as has been
erroneously done. Specific reference was made to the observations in
para 11 of the said verdict to the effect:

“The only question which we are called upon to
decide is whether : the learned Sessions Judge
was justified in granting anticipatory bail in the
facts and circumstances of this case?
Unquestionably, no case was made out for
granting anticipatory bail in this case. Let it be
made distinctly clear that status in life, affluence
or otherwise, are hardly relevant considerations
while examining the request for granting
anticipatory bail. Anticipatory bail to some
extent intrudes in the sphere of investigation of
crime and the court must be cautious and
circumspect in exercising such power of a

Crl.M.C 338/2017 339/2017 Page 50 of 132
discretionary nature. This case amply illustrates
that the power was exercised sub silentio as to
reasons or on considerations irrelevant or not
germane to the determinations. This Court, to
avoid miscarriage of justice, must interfere.”

55. Reliance was also placed on behalf of the SIT in case titled as
Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189
to contend that it is not an absolute rule that considerations of
cancellation of bail are different from consideration of grant of bail
and that depends on the facts and circumstances. It has thus been
contended on behalf of the SIT that even if it be contended on behalf
of the respondent that he had not misused the grant of anticipatory bail
as granted by the learned ASJ-01, Dwarka Courts, the same did not
amount to a consideration of the aspect as to whether the said bail
ought to have been granted or not, reliance was thus placed on behalf
of the SIT on the paras 17, 18, 19 20 of the said verdict to the
effect: –

“17. It was contended by learned Counsel
for the Appellants before us, and it was also
contended before the High Court, that the
considerations for cancellation of bail are
different from the consideration of grant of bail
vide Bhagirathsingh s/o Mahipat Singh Judeja
v. State of Gujarat, Dolat Ram and Ors. v. State
of Haryana and Ramcharan v. State of M.P.
However, we are of the opinion that that is not
an absolute rule, and it will depend on the facts
and circumstances of the case.

18. In considering whether to cancel the
bail the Court has also to consider the gravity
and nature of the offence, prima facie case

Crl.M.C 338/2017 339/2017 Page 51 of 132
against the accused, the position and standing of
the accused, etc. If there are very serious
allegations against the accused his bail may be
cancelled even if he has not misused the bail
granted to him. Moreover, the above principle
applies when the same Court which granted bail
is approached for canceling the bail. It will not
apply when the order granting bail is appealed
against before an appellate/revisional Court.

19. In our opinion, there is no absolute rule
that once bail is granted to the accused then it
can only be cancelled if there is likelihood of
misuse of the bail. That factor, though no doubt
important, is not the only factor. There are
several other factors also which may be seen
while deciding to cancel the bail.

20. This is a very serious case and cannot
be treated like an ordinary case. The accused
who are policemen are supposed to uphold the
law, but the allegation against them is that they
functioned as contract killers. Their version that
Ramnarayan Gupta was shot in a police
encounter has been found to be false during the
investigation. It is true that we are not deciding
the case finally as that will be done by the trial
court where the case is pending, but we can
certainly examine the material on record in
deciding whether there is a prima facie case
against the accused which disentitles them to
bail.”

56. Reliance was also placed on behalf of the SIT on the verdict of
the Hon‟ble Apex Court in case titled as “Ash Mohammad vs Shiv
Raj Singh @ Lalla Babu Anr 2012 CriLJ 4670 Criminal Appeal
No. 1456 of 2012 decided on 20.09.2012 to contend that whilst
referring to para nos. 18 19 in Prakash Kadam v. Ramprasad

Crl.M.C 338/2017 339/2017 Page 52 of 132
Vishwanath Gupta (supra), the Hon‟ble Apex Court had reiterated to
principles laid down thereunder whilst observing to the effect :

“18. We have referred to the above authorities
solely for the purpose of reiterating two
conceptual principles, namely, factors that are to
be taken into consideration while exercising
power of admitting an accused to bail when
offences are of serious nature, and the
distinction between cancellation of bail because
of supervening circumstances and exercise of
jurisdiction in nullifying an order granting bail
in an appeal when the bail order is assailed on
the ground that the same is perverse or based on
irrelevant considerations or founded on non-
consideration of the factors which are relevant.

19. We are absolutely conscious that liberty
of a person should not be lightly dealt with, for
deprivation of liberty of a person has immense
impact on the mind of a person. Incarceration
creates a concavity in the personality of an
individual. Sometimes it causes a sense of
vacuum. Needless to emphasize, the
sacrosanctity of liberty is paramount in a
civilized society. However, in a democratic body
polity which is wedded to Rule of Law an
individual is expected to grow within the social
restrictions sanctioned by law. The individual
liberty is restricted by larger social interest and
its deprivation must have due sanction of law. In
an orderly society an individual is expected to
live with dignity having respect for law and also
giving due respect to others’ rights. It is a well
accepted principle that the concept of liberty is
not in the realm of absolutism but is a restricted
one. The cry of the collective for justice, its
desire for peace and harmony and its necessity

Crl.M.C 338/2017 339/2017 Page 53 of 132
for security cannot be allowed to be trivialized.
The life of an individual living in a society
governed by Rule of Law has to be regulated and
such Regulations which are the source in law
subserve the social balance and function as a
significant instrument for protection of human
rights and security of the collective. It is because
fundamentally laws are made for their obedience
so that every member of the society lives
peacefully in a society to achieve his individual
as well as social interest. That is why Edmond
Burke while discussing about liberty opined, “it
is regulated freedom”.

20. It is also to be kept in mind that
individual liberty cannot be accentuated to such
an extent or elevated to such a high pedestal
which would bring in anarchy or disorder in the
society. The prospect of greater justice requires
that law and order should prevail in a civilized
milieu. True it is, there can be no arithmetical
formula for fixing the parameters in precise
exactitude but the adjudication should express
not only application of mind but also exercise of
jurisdiction on accepted and established norms.
Law and order in a society protects the
established precepts and sees to it that
contagious crimes do not become epidemic. In
an organized society the concept of liberty
basically requires citizens to be responsible and
not to disturb the tranquility and safety which
every well-meaning person desires. Not for
nothing J. Oerter stated:

Personal liberty is the right to act without
interference within the limits of the law.

21. Thus analyzed, it is clear that though
liberty is a greatly cherished value in the life of

Crl.M.C 338/2017 339/2017 Page 54 of 132
an individual, it is a controlled and restricted
one and no element in the society can act in a
manner by consequence of which the life or
liberty of others is jeopardized, for the rational
collective does not countenance an anti-social or
anti-collective act.”

57. Reliance was also placed on the observation in paras 32 34 of
the said verdict of the Hon‟ble Apex Court, which are to the effect : –

“32. We may usefully state that when the citizens
are scared to lead a peaceful life and this kind of
offences usher in an impediment in
establishment of orderly society, the duty of the
court becomes more pronounced and the burden
is heavy. There should have been proper analysis
of the criminal antecedents. Needless to say,
imposition of conditions is subsequent to the
order admitting an accused to bail. The question
should be posed whether the accused deserves to
be enlarged on bail or not and only thereafter
issue of imposing conditions would arise. We do
not deny for a moment that the period of custody
is a relevant factor but simultaneously the
totality of circumstances and the criminal
antecedents are also to be weighed. They are to
be weighed in the scale of collective cry and
desire. The societal concern has to be kept in
view in juxtaposition of individual liberty.
Regard being had to the said parameter we are
inclined to think that the social concern in the
case at hand deserves to be given priority over
lifting the restriction of liberty of the accused.

34. We may note with profit that it is not an
appeal for cancellation of bail as cancellation is
not sought because of supervening
circumstances. The present one is basically an
appeal challenging grant of bail where the High

Crl.M.C 338/2017 339/2017 Page 55 of 132
Court has failed to take into consideration the
relevant material factors which make the order
perverse.”

It was thus submitted on behalf of the petitioner that the present
petition though couched as being one under Section 439 (2) of the
Code of Criminal Procedure, 1973 was also one under Section 482 of
the Code of Criminal Procedure, 1973 filed on behalf of the petitioner
seeking the setting aside of the grant of the anticipatory bail to the
respondent in Bail Appln. No. 14072/2015 and in Bail Appln. No.
14073/2015 both dated 21.12.2016 of the learned Additional Sessions
Judge-01, Dwarka Courts in FIR No.227/1992, under Sections
147/148/149/295/395/307/302 and 436 of the Indian Penal Code,
1860, Police Station Janakpuri and FIR No.264/1992, under Sections
147/148/149/302/307 of the Indian Penal Code, 1860 Police Station
Vikaspuri granted vide orders dated 21.12.2016 and that both the
petitions filed were not merely ones seeking cancellation of the bail
sought because of any supervening circumstances but rather
challenges to grant of the bail inasmuchas the learned Additional
Sessions Judge-01, Dwarka Courts had failed to take into
consideration the material factors which rendered the impugned orders
perverse.

58. Reliance was also placed on behalf of the SIT on the verdict of
the Hon‟ble Supreme Court in the case titled as Dinesh M.N. (S.P.)
Vs. State of Gujarat (2008) 9 SCC 66 with specific reference to para
23 of the said verdict to contend that at the time of grant of bail, the
Court dealing with an application for the cancellation of bail under

Crl.M.C 338/2017 339/2017 Page 56 of 132
Section 439 (2) of the Code of Criminal Procedure, 1973 can consider
whether irrelevant materials were taken into consideration at the time
of grant of bail. Even though the re-appreciation of the evidence was
not called for and it was thus contended as was also observed vide
para 26 of the said verdict that once it is concluded that the bail was
granted on untenable grounds, the plea of absence of supervening
circumstances has no leg to stand.

59. Reliance was also placed on behalf of the petitioner on the
verdict of the Hon‟ble Apex Court in the case titled as Neeru Yadav
Vs. State of Uttar Pradesh and Another (2014) 16 SCC 508 with
specific reference to para 12 of the said verdict which lays down as
follows : –

“12. We have referred to certain principles
to be kept in mind while granting bail, as has
been laid down by this Court from time to time.
It is well settled in law that cancellation of bail
after it is granted because the accused has
misconducted himself or of some supervening
circumstances warranting such cancellation
have occurred is in a different compartment
altogether than an order granting bail which is
unjustified, illegal and perverse. If in a case, the
relevant factors which should have been taken
into consideration while dealing with the
application for bail and have not been taken note
of bail or it is founded on irrelevant
considerations, indisputably the superior court
can set aside the order of such a grant of bail.
Such a case belongs to a different category and
is in a separate realm. While dealing with a case
of second nature, the Court does not dwell upon
the violation of conditions by the accused or the

Crl.M.C 338/2017 339/2017 Page 57 of 132
supervening circumstances that have happened
subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order
passed by the Court.”

to contend that if in a case, the relevant factors which have been taken
into consideration while dealing with the application for bail ought not
been taken note of and where the grant of bail is founded on irrelevant
considerations, indisputably the superior court can set aside the order
of such a grant of bail.

60. Reliance was also placed on behalf of the SIT on the verdict of
the Hon‟ble Supreme Court in the case titled as Harbans Kaur and
Another Vs. State of Haryana (2005) 9 SCC 195 to the effect : –

“There is no proposition in law that relatives are
to be treated as untruthful witnesses. On the
contrary, reason has to be shown when a plea of
partiality is raised to show that the witnesses had
reason to shield actual culprit and falsely
implicate the accused. No evidence has been led
in this regard. So far as the delay in lodging the
FIR is concerned, the witnesses have clearly
stated that after seeing the deceased in an
injured condition immediate effort was to get
him hospitalized and get him treated. There
cannot be any generalization that whenever
there is a delay in lodging the FIR, the
prosecution case becomes suspect. Whether
delay is so long as to throw a cloud of suspicion
on the seeds of the prosecution case, would
depend upon the facts of each case. Even a long
delay can be condoned if the witnesses have no
motive of implicating the accused and have given
a plausible reason as to why the report was
lodged belatedly. In the instant case, this has
been done. It is to be noted that though there

Crl.M.C 338/2017 339/2017 Page 58 of 132
was cross- examination at length no infirmity
was noticed in their evidence. Therefore, the trial
Court and the High Court were right in relying
on the evidence of the prosecution witnesses.”

61. It was thus submitted on behalf of the petitioner that the
anticipatory bail granted in Bail Appln. No. 14072/2015 and in Bail
Appln. No. 14073/2015 both dated 21.12.2016 of the learned
Additional Sessions Judge-01, Dwarka Courts in FIR No.227/1992,
under Sections 147/148/149/295/395/307/302 and 436 of the Indian
Penal Code, 1860, Police Station Janakpuri and FIR No.264/1992,
under Sections 147/148/149/302/307 of the Indian Penal Code, 1860
Police Station Vikaspuri as virtually common grounds are urged
against the respondent in both the FIRs i.e., 227/1992, Police Station
Janakpuri and 264/1992, Police Station Vikaspuri as virtually similar
impugned orders dated 21.12.2016 be set aside and the observations
made in the para 24 26 of the impugned orders dated 21.12.2016 in
relation to both the FIRs above mentioned be expunged.

RESPONDENT’S CONTENTIONS

62. Through the reply submitted on behalf of the respondent and as
contended by learned counsel for the respondent Sh. Anil Kumar
Sharma, it was submitted at the very outset that both the cases Crl.
M.C. 338/2017 and 339/2017 are in respect of FIR No. 227/92 and
264/92 registered with Police Stations Janak Puri and Vikas Puri
respectively but both the aforesaid FIR’s are on the strength of the
same affidavit dated 08.09.1985 submitted by the complainant before
Justice Ranganthan Mishra Commission pertaining to the same

Crl.M.C 338/2017 339/2017 Page 59 of 132
incident and on the same subject matter i.e. both the said FIR’s stated
the same contents and both the cases were sent for closure by the
investigating agency of the respective Police Stations and both the
closure reports were accepted on 16.02.1996 and 27.08.1994
respectively but the SIT was treating them as two different cases.

63. It was further submitted on behalf of the respondent that the SIT
has no reason to move the application under section 439(2) r/w section
482 of the Code of Criminal Procedure, 1973 against the grant of
anticipatory bail order dated 21.12.2016 neither on the facts nor on the
law and that the impugned order was neither erroneous nor arbitrary
nor a blanket one and that the order was comprehensive, reasoned and
a speaking one taking into consideration the material on record.

64. It was also submitted on behalf of the respondent that the
contention of the prosecution that the respondent had no reason to
believe that he may be arrested on an accusation of having committed
a non-bailable offence was erroneous inasmuchas the respondent had
every reason and apprehension for the same and thus the respondent
had preferred an application for grant of anticipatory bail in the
present case. The respondent also submitted that the prosecution had
stated that there was a likelihood of tampering with the prosecution
witnesses but there was not a whisper of his involvement in the 1984
riots cases and that in the year 1990, i.e. after six years of the alleged
occurrence, the case was registered vide RCl/90/SIV.II/SIC(l), New
Delhi against the Respondent pertaining to riots that took place on
01.11.1984 in the Sultanpuri area in which this Court had granted
anticipatory bail to the respondent in the case titled as “Sajjan Kumar

Crl.M.C 338/2017 339/2017 Page 60 of 132
Vs. State” vide order dated 07.11.1990 which is reported as 43 (1991)
DLT 888 and that this Court had observed that after the lapse of six
long years, the respondent could not be allowed to be detained and had
further observed that for mere interrogation, the arrest of the
respondent was not at all necessary and that in the above said case, the
respondent was also acquitted by the then learned Court of the
Additional Sessions Judge, Patiala House Courts, New Delhi, vide
order dated 23.12.2002.

65. It was further submitted by the respondent that in the year 2005,
on the recommendation of the Hon’ble Justice Nanavati Commission,
FIRs no. 250/84, 347/91 and 307/94 of Police Station Sultan Puri and
416/84 of Police Station Delhi Cantt. were re-registered as
RC7(S)/05/SCB-II/DLI/2005, RC8(S)/05/SCB-II, DLI both dated
28.11.2005, RC25(S)/05/SCB-I/SCR-I/DLI dated 22.11.2005 in
respect of Sultan Puri area and RC24 2005 S 2004 dated 22.11.2005
for the Delhi Cantt area and that in these cases this Court vide its order
dated 26.02.2010 had granted anticipatory bail in the aforesaid four
cases whilst observing that it would not be justifiable to detain the
respondent in custody after the lapse of 25 years of the incident and
that against the above said order of this Court, a petition for special
leave to appeal (CrI.) No. 2770 2771 of 2010 was preferred and the
same was dismissed by the Hon’ble Supreme Court of India vide order
dated 29.03.2010.

66. It was further submitted on behalf of the respondent that in the
present case, the respondent was named after 32 years of the incident
and the case was referred by the Ministry of Home Affairs vide its

Crl.M.C 338/2017 339/2017 Page 61 of 132
order dated 12.02.2015 to re-open after constituting the petitioner i.e.
the SIT on the recommendation of the Justice G.P. Mathur Committee
report and the petitioner in-turn had taken up further investigation on
11.08.2016 and prior to that the respondent was never named in any of
the FIRs. It was submitted by the respondent that it can thus not be
said that the impugned order of the learned ASJ-01, Dwarka Courts is
manifestly erroneous, illegal and perverse and it was submitted that
rather the learned ASJ-01, Dwarka Courts had rightly appreciated the
material and rendered just findings where no interference was called
for and that apparently, no custodial interrogation of the applicant was
needed and that the Court of learned ASJ-01, Dwarka Courts had
rightly observed that for the purpose of interrogation of the applicant
after 32 years of the incident, arrest of the applicant was not required
as there were no allegations that anything used in the commission of
offence was to be recovered at the instance of the applicant. Inter alia
it was submitted on behalf of the respondent that there was nothing
that had been stated whether the prosecution has any new material
which was required to be considered and there was no cogent,
overwhelming ground and circumstances, which, so required the
cancellation of the anticipatory granted to the respondent.

67. Inter alia it was submitted on behalf of the respondent that he
had not misused the terms / conditions imposed while granting the bail
nor had he misused the concession of bail and that the prosecution had
not mentioned any specific instances of any abuse of liberty by the
respondent or probable apprehension in relation thereto and that it was

Crl.M.C 338/2017 339/2017 Page 62 of 132
the case of the prosecution that the respondent had never been named
earlier when the matter had been sent for a closure.

68. It was further contended on behalf of the respondent that the
contention of the prosecution through the statements under Section
161 of the Code of Criminal Procedure, 1973 of witnesses that they
had corroborated the contents of the FIR and the affidavit of the
complainant could not be accepted, inasmuchas the said witnesses had
never been examined before any other agency and thus the contention
of the petitioner that they have categorically stated and alleged that the
respondent was an MP from Outer Delhi Constituency and had formed
an unlawful assembly, armed with deadly weapons for the purpose of
committing criminal acts including riots, arson, murder causing
disharmony and hatred between different religious groups and
destruction of the properties belonging to Sikh community during
1984 riots was absolutely incorrect. The respondent further contended
that in 1990, the Special Riot Cell had been created to investigate the
cases of the victims of 1984 riots and not a single word was stated in
the entire petition as to how the Delhi Police was wrong in filing the
closure report/untraced report in both the cases.

69. Inter alia, it has been submitted on behalf of the respondent
that the contents of the affidavit of the complainant are nowhere
suggestive of the fact that the leader leading the mob who came in a
white car was the respondent and thus the petitioner has no reason to
contend that the name of the leader was not disclosed by the
complainant due to fear and influence of the respondent and that the
name of the respondent given now by the complainant after a gap of

Crl.M.C 338/2017 339/2017 Page 63 of 132
32 years speaks aloud that he has been named only to target him. It
has also been submitted on behalf of the respondent that the
statements made under Sections 161 and 164 of the Code of Criminal
Procedure, 1973 of the complainant are weighed on the touchstone of
trial and admittedly the name of the respondent has been brought forth
through the said statements for the first time after the constitution of
the SIT and that prior to the constitution of the SIT neither the
complainant nor any other witness had ever named the respondent and
that it was thus apparent that the respondent has been named after
having been so tutored him.

70. The respondent through his reply has further categorically
stated that he had always cooperated with the Investigating Agency
and stated that he had joined the investigation each time and
categorically denied that he had gone with the fleet of advocates on
22.11.2016 though he was accompanied by his counsel and stated that
the counsel was nowhere involved in the interrogation proceedings.
The respondent also denied that he had not answered any of the
questions of the Investigating Officer though he was interrogated at
length for about 2 hours. The respondent inter alia denied that he
tried to dictate the terms of the investigation and also asked the
Investigating Officer to give a written questionnaire and also denied
that he would not answer till the questionnaire was given and rather
requested the Investigating Officer to supply him a copy of the
complaint/questions, if any, so that he could give appropriate and
comprehensive reply. It was contended thus on behalf of the

Crl.M.C 338/2017 339/2017 Page 64 of 132
respondent that if there was a CCTV surveillance in the office of the
petitioner it must have retained the record. The reply of the respondent
is accompanied by an affidavit of the respondent dated 27.11.2017.

71. The respondent has further submitted that the status report filed
by the petitioner Annexure P-7 supports the apprehension of the
respondent that the petitioner had made up its mind to arrest him and
that the SIT had opposed the anticipatory bail tooth and nail and the
present proceedings under Section 439(2) of the Code of Criminal
Procedure, 1973 also support the intention of the State to arrest him
and thus the respondent apparently had every reason to believe that he
would be arrested and thus the prayer made by the respondent seeking
grant of anticipatory bail was wholly merited. The respondent has
further categorically denied that there is any likelihood of his
influencing the witnesses or tampering with the evidence and has
categorically submitted that the respondent is not even remotely
connected with the case. The respondent has further contended that
the FIR was registered in the year 1997 and that in the affidavit dated
8.9.1985 of the complainant there were no allegations made against
the respondent and that the Justice Ranganath Mishra Commission had
concluded that no responsible person and the authority of the
Congress-I had hatched any conspiracy organizing large scale rioting,
etc. and the Commission had itself recommended new Committees to
be appointed to go through individual cases of omission and non-
registration of the case by the local police whereupon the Delhi
Administration by notification of 21.2.1987 had constituted a

Crl.M.C 338/2017 339/2017 Page 65 of 132
Committee of Hon‟ble Mr.Justice M.L.Jain and Mr. A.K.Banerjee, a
Retired Officer of the IPS, to examine inter alia whether there were
cases of omission to register or properly investigate offences
committed in Delhi during the period of the riots from October 31,
1984 to November 7, 1984. Pursuant to the recommendation of Jain
Banerjee Committee a writ petition being W.P.(C) No.3327/1987 was
preferred by Sh. B.N.Gupta and thereafter on 22.3.1990, the Delhi
Administration appointed another Committee comprising Hon‟ble Mr.
Justice P.S. Poti, the former Chief Justice of Gujarat High Court and
Mr.P.A. Rosha, a retired IPS officer whereafter the riot cell was
constituted which investigated the present case and filed a closure
report which was accepted on 27.8.1994 by the concerned competent
Court. The respondent denied that the Riot Cell constituted in 1990
and which filed the closure reports which were accepted was not an
independent agency as recommended by the Jain Aggarwal
Committee and submitted that the petitioner had no reason to blame
the respondent for delay being under the influence of the respondent.

72. The respondent has further stated that the shifting of the
complainant from Delhi to Punjab after the incident is a matter of
record but denied that the same was due to any fear of the respondent
or because all the witnesses and the complainant were apprehensive
about their life and safety and were not willing to visit Delhi due to
fear of the respondent and that it could not be accepted that the
complainant and other witnesses got faith in the system only after the

Crl.M.C 338/2017 339/2017 Page 66 of 132
constitution of the SIT to investigate the cases in relation to the 1984
riots.

73. Through the written submissions, the respondent reiterated that
the FIRs 227/92 and 264/92 are identical and based on a single
complaint of Harvinder Singh in relation to two different police
stations, i.e., Janakpuri and Vikaspuri based on the affidavit dated
8.9.1985 of Harvinder Singh filed before the Justice Ranganath
Mishra Commission and that the SIT has treated the FIR of Police
Station Janakpuri in relation to the incident dated 1.11.1984 and of
Vikaspuri in relation to the incident of 2.11.1984 but the contents of
the affidavit contained incidents of both the dates and thus the
respondent sought to ascertain whether the complaint with Janakpuri
Police Station would be read to be the portion of the first day and the
remaining contents for the other date and submitted that this brought
forth the intention of the SIT, i.e., the petitioner as to how the
petitioner was trying to multiply one incident.

74. The respondent has further contended placing reliance on the
verdict of the Apex Court Dolat Ram and Others Vs. State of
Haryana; (1995) 1 SCC 349 (para 4) to contend that there is
difference between rejection of bail in a non-bailable case at the initial
stage and the cancellation of bail so granted and that very cogent and
over whelming circumstances are necessary for orders directing
cancellation of bail already granted and that the grounds for
cancellation of bail are (broadly illustrative and not exhaustive). It was
further contended on behalf of the respondent that no concrete

Crl.M.C 338/2017 339/2017 Page 67 of 132
material had been produced by the prosecution to show that the
accused had interfered or attempt to interfere with the due course of
administration of justice or evasion or attempt to evade the due course
of justice or that the abuse of the concession granted to the accused in
any manner. Reliance was placed on the observations in paragraph 4
of the verdict of the Apex Court which lays down to the effect:

“4. Rejection of bail in a non-bailable case at the
initial stage and the cancellation of bail so
granted, have to be considered and dealt with on
different basis. Very cogent and overwhelming
circumstances are necessary for an order
directing the cancellation of the bail, already
granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to
interfere with the due course of administration of
Justice or evasion or attempt to evade the due
course of justice or abuse of the concession
granted to the accused in any manner. The
satisfaction of the court, on the basis of material
placed on the record of the possibility of the
accused absconding is yet another reason
justifying the cancellation of bail. However, bail
once granted should not be cancelled in a
mechanical manner without considering whether
any supervening circumstances have rendered it
no longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the
concession of bail during the trial. These
principles, it appears, were lost sight of by the
High Court when it decided to cancel the bail,

Crl.M.C 338/2017 339/2017 Page 68 of 132
already granted. The High Court it appears to us
overlooked the distinction of the factors relevant
for rejecting bail in a nonbailable case in the first
instance and the cancellation of bail already
granted.”

75. It was also submitted on behalf of the respondent that there was
no concrete material that had been produced by the petitioner to show
that the accused had interfered or attempted to interfere with the due
course of administration of justice by threatening the complainant and
his family members and the truth will surface when the evidence is
adduced and in view of the conditions that have been imposed by the
Sessions Judge for grant of anticipatory bail, the Investigating Agency
could interrogate the accused, i.e., the respondent effectively and that
it is settled law that for cancellation of bail the conduct subsequent to
release on bail and the supervening circumstances alone are relevant.

76. The respondent has contended that the conditions imposed on
the respondent at the time of grant of anticipatory bail vide the
impugned orders were to the effect:

“(i). Respondent Shall join the investigation as
and when directed by the I.O.

(ii) Respondent shall not threaten or
influence any of the witnesses

(iii) And, shall not leave the country without
prior permission of the concerned Court.”

77. Reliance was also placed on behalf of the respondent on the
verdict of the Apex Court in Padamakar Tukaram Bhavnagre and

Crl.M.C 338/2017 339/2017 Page 69 of 132
anr. V. State of Maharashtra and Anr. (2012) 122 AIC 237 (SC),
on para 13 of the said verdict to the effect:

“13. It is true that this Court has held that
generally speaking the grounds for cancellation of
bail broadly are interference or attempt to
interfere with the due course of justice or abuse of
the concession granted to the accused in any
manner. This Court has clarified that these
instances are illustrative and bail can be
cancelled where the order of bail is perverse
because it is passed ignoring evidence on record
or taking into consideration irrelevant material.
Such vulnerable bail order must be quashed in the
interest of justice. No such case, however, was
made out to persuade learned Single Judge to
quash the anticipatory bail order passed in favour
of accused 6 7. Order granting anticipatory
bail to them, therefore, deserves to be confirmed.
We feel that if the conditions imposed by learned
Sessions Judge are confirmed, it would be
possible for the investigating agency to
interrogate the accused effectively.

14. In the circumstances, we quash and set aside
the impugned orders. Anticipatory bail granted to
the appellants-accused 6 and 7 by learned
Additional Sessions Judge by order dated
23/01/2012 is hereby confirmed. The appellants-
accused 6 and 7 shall cooperate with the
investigating agency and abide by the conditions
imposed on them. Needless to say that it will be
open to learned Additional Sessions Judge seized
of the case to vary the conditions if necessary in
accordance with law. Needless to say further that
all observations made by us touching the merits of
the case are prima facie observations and the trial

Crl.M.C 338/2017 339/2017 Page 70 of 132
court shall decide the case without being
influenced by them.”

78. The respondent has further submitted that the conduct of the
respondent indicated that he had fully cooperated and was fully
cooperating with Investigating Agency, inasmuch as the respondent
was granted bail on 21.12.2016 and had been summoned by the
petitioner to join the investigation on 21.12.2016 itself at 3 p.m. and
admittedly the respondent had gone to join the investigation at the
petitioner‟s office on 21.12.2016 at 3 p.m. but the Investigating
Officer was not there and had gone to the Court to collect the case file
and the order. The respondent had never been summoned by the
Investigating Agency for interrogation till date and thus there is no
question of non-cooperation by the respondent and that the respondent
had joined the investigation every time except on 14.12.2016 for
medical reasons which had been appreciated by the petitioner and had
been allowed and merely asking for a copy of complaint, document or
questionnaire to ensure a proper reply cannot be taken as non-
cooperation by the Investigating Agency.

79. The respondent has further contended that it is not the case of
the petitioner that :

“a) the respondent will flee away from justice or
will not be readily available during trial;

b) or, has misused or abused the
concession/liberty granted to him; c) or, has
interfered or attempt to interfere with the due
course of administration of justice;

Crl.M.C 338/2017 339/2017 Page 71 of 132

d) or, has threatened someone or tampered with
the prosecution witnesses and;

e) or, has breached some conditions imposed
upon him while granting the anticipatory bail.”

80. The respondent further contends that there is no material
suggestive of cancellation of bail and that it has not been disputed by
the petitioner that the respondent has been named for the first time
after 32 years of the incident and that the first case was registered
against the respondent in the year 1990 vide RC-1/90/SIV.II/SIC(1)
and that the respondent had been granted bail in this case on 7.11.1990
by this Court in the case titled Sajjan Kumar V. State in Crl.Misc.
(Main) No.2073/1990 though similar stereotyped allegations had been
levelled with specific reference to para 6 of the verdict wherein the
contentions of the Investigating Agency were set forth to the effect:

“(6) The submission of the learned counsel for the
respondent is that the petitioner is politically a
powerful and influential person who can directly
or indirectly interfere in the course of
investigation. Considering the seriousness of the
offence and keeping in view the events that
happened on 11th September, 1990, coupled with
the fact that it has taken six long years to start
investigation, there is every likelihood that if the
petitioner is allowed to remain at large, no
witness will come forward and depose about the
events concerning this case. This potential threat
to the prosecution witnesses, who have already
experienced a haul cast during the riots will
prevent them from bringing to book the accused
and others charged of committing acts of brutality

Crl.M.C 338/2017 339/2017 Page 72 of 132
against the community. Under the circumstances,
it is a fit case where the anticipatory bail be not
confirmed.”

and the observations of this Court in para 29, 30, 31 and 32 in this
verdict were relied upon which are to the effect:-

“(29) Before parting with this case, we may note
that the basic rule for an applicant who seeks his
enlargement on bail from the court may be tersely
put as bail, not jail, except where there are
circumstances suggestive of the applicant fleeing
from Justice or throttling the course of justice or
creating other trouble in the shape of repeating
offences or intimidating witnesses and the like.
…………………………………………………………
………………………………………………

30. The considerations which weigh with the
Courts while granting bail either under Section
438 or Section 439 Criminal Procedure Code are
:-

(1) The nature and gravity of the circumstances in
which the offence is committed;

(2) The position and the status of the accused with
reference to the victim and the witnesses;

(3) The likelihood of the accused fleeing from
justice;

(4) Of repeating the offence;

(5) Of jeopardising his own life being faced with a
grim prospect of possible conviction in the case;

(6) Of tampering with witnesses;

Crl.M.C 338/2017 339/2017 Page 73 of 132

(7) The history of the case as well as of his
investigation; and

(8) Other relevant grounds which may apply to
the facts and circumstances of a particular case.

31. In this case, all these factors were carefully
taken into consideration when the petitioner was
initially granted anticipatory bail and are being
kept in view while disposing of the present
petition. It is now well settled by a catena of
judgments of the Supreme Court that this power is
not to be exercised as if a punishment before trial
is being imposed. The only material
considerations in such a situation are whether the
accused would be readily available for his trial
and whether he is likely to abuse the discretion
granted in his favor by tampering with the
evidence. As observed earlier, there is no material
on record to suggest that the petitioner who has a
status in the society, and enjoys good reputation,
love and affection from the persons at large, is
likely to repeat the offence, abuse the trust placed
in him by the court, or avoid the trial.

32. After a lapse of 6 long years of the incident,
the petitioner cannot be allowed to be detained,
particularly when there is no averment that a
weapon of offence with which the petitioner is
alleged to have caused any injury to the deceased
is yet to be recovered for mere interrogation, in
my opinion, the arrest of the petitioner is not at all
necessary. Even otherwise, the CBl does not
appear to be serious in interrogating the
petitioner. On 27-9-90, when the case was taken

Crl.M.C 338/2017 339/2017 Page 74 of 132
up, learned counsel for the respondent frankly
conceded that from the day when the petitioner
was granted anticipatory bail, he has not been
summoned for interrogation. It was only
thereafter that the petitioner was summoned once
on 28-9-90, and thereafter no attempt has been
made to further interrogative him.”

81. It was also submitted on behalf of the respondent that the
second time the cases were registered by the CBI in the year 2010 on
the recommendations of the Nanawati Commission vide RC7 (S)/ 05/
SCB-II/DLI/2005, RC8(S)/05/SCB-II/DLI, RC25(S)/05/SCB-I//SCR-
I/DLI and RC24.2005(S) 2004 and that the Hon‟ble High Court of
Delhi granted anticipatory bail vide order dated 26.02.2010 in case
titled Sajjan Kumar V. The State through C.B.I. (Bail Appln. No.
306/2010, 311/2010,312/2010 and 313/2010) and it was submitted
that in this case too, similar allegations were levelled which are
levelled now.

82. Reliance was placed thus on behalf of the petitioner on
specific paragraphs of this verdict to the effect:-

“26. As against this, Mr.R.S.Cheema, learned
senior counsel for respondent has contended that
petitioners are involved in serious offences of
murder, arson and rioting. Petitioner Sajjan
Kumar had organized a mob and targeted the
persons of Sikh community; instigated the said
mob to kill and burn the houses of members of
Sikh community. The incident of arson, looting,
killing of male members of Sikh community was

Crl.M.C 338/2017 339/2017 Page 75 of 132
perpetrated in a barbaric, inhuman and cold
blooded manner, as a consequence whereof
victims were isolated, felt insecure, threatened
and at that time had no courage to go before the
investigating agency or the court to make a
statement against the culprits. Some of the close
relatives of the deceased persons had migrated to
Punjab. They had no courage to return to Delhi,
so as to make a statement before the court or the
investigating agency. With the passage of time
they mustered up the courage and approached the
Commission and filed their affidavits. All these
years the truth was not allowed to come to surface
which shows the pervading influence which the
local administration had over the whole matter,
as petitioner Sajjan Kumar was holding high
political position. Accordingly, delay of 25 years
in this case will be of no consequence.

27. Learned senior counsel has further contended
that if petitioners are granted bail witnesses will
not be able to depose freely; the confidence of
people in the system will erode and a fallacious
message will go that these petitioners are above
the law. In case petitioners are granted bail it will
hamper the fair trial, inasmuch as, the witnesses
may not come forward to depose in the matter
and/or they may be threatened or influenced by
the petitioner. In nutshell, it is contended that in
the facts of this case, bail cannot be granted.

28. From what has been stated hereinbefore, it is
clear that in respect of the same incident four
FIRs were registered earlier and the same were

Crl.M.C 338/2017 339/2017 Page 76 of 132
investigated by the Delhi police and statement of
witnesses were recorded. In two FIRs, closure
reports were filed which were duly accepted by
the learned Metropolitan Magistrate after
recording statement of complainants. In two other
FIRs as many as ten charge sheets were filed in
the court of learned Additional Sessions Judge.
After full fledged trial accused involved therein,
were acquitted, which included the petitioners as
well. So far as petitioner Sajjan Kumar is
concerned, he was not sent up to face trial in the
FIRs registered by the Delhi Police. A separate
case was registered against him in the year 1990
by CBI pursuant to the recommendation of above-
referred Committee, wherein role was ascribed to
him that he had instigated the mob by holding
public meeting in the Sultanpuri area and
thereafter, he led the mob which went on rampage
and burnt the properties; looted the belongings
and killed several persons belonging to Sikh
community. However, after a full-fledged trial this
petitioner was also acquitted in the said case.
Several witnesses, whose statements have been
recorded by the CBI had also made statements in
earlier FIRs. Present FIRs are relating to the
same incidents which were involved in earlier
cases. Some more witnesses have come forward
and made statements implicating the petitioners.
So far as other witnesses, who are common in
earlier FIRs as well as in the present FIRs, have
again made statements implicating the petitioners,
however, their version had already been tested in
earlier cases sent for trial. The new witnesses

Crl.M.C 338/2017 339/2017 Page 77 of 132
have to explain as to why they did not come
forward earlier, during the trial.

29. Be that as it may, the statement of such
witnesses cannot be brushed aside completely at
this stage but at the same time, they have to
explain during trial as to why they had not
deposed against the petitioner on earlier
occasions. 25 years have gone by and this delay
undoubtedly tilts the balance in favour of the
petitioners, at least for the purpose of grant of
bail to them.

30. I do not find much force in the contentions of
learned senior counsel that in case petitioners are
enlarged on bail it will hamper fair trial and
witnesses may not depose against the petitioners
due to the fear and threat. Admittedly all along
for the last 25 years petitioners have remained at
large as they were not in custody. CBI conducted
investigation almost for about five years. During
this period, CBI did not deem it fit to arrest any of
the petitioners. In spite of petitioners being at
large, witnesses came forward and made
statements before the CBI. There is no specific
allegation against the petitioners of having
threatened or influenced any of the witnesses, so
as to refrain any of them from making statement
against them. Besides this, it is evident from the
facts narrated herein above that after the
unfortunate and appalling incident the relatives
or the family members of victims were not left
alone to fend for themselves as members of
various Commission/Committees including

Crl.M.C 338/2017 339/2017 Page 78 of 132
eminent jurists had been visiting the affected
areas and even met the families of the victims
residing in camps and interacted, counselled,
encouraged, offered support to them right from
the beginning.

31. Indeed, it is true, that offence with which
petitioners have been charged by the CBI is of
grave nature and ordinarily in such cases courts
would be slow in admitting the accused on
anticipatory bail, in the face of statements of eye
witnesses. However, in the peculiar facts and
circumstances of this case and for the reasons as
mentioned in the preceding paras hereinabove, I
am of the view that it would not be justifiable to
detain the petitioners in custody, after lapse of 25
years of incident.”

83. Inter alia it was submitted on behalf of the respondent that an
SLP was also preferred against the afore-cited verdict to the Supreme
Court which was dismissed vide order 29.3.2010 in the case titled
Jagdish Kaur v. Sajjan Kumar Ors. Crl.No.2770/2010 and
2771/2010, with it having been observed by the Apex Court to the
effect:

” Permission to file SLPs is granted.
In view of the reasons stated in the impugned
order, we are not inclined to interfere with the
same. We make it clear that the observation and
conclusion arrived by the High Court are
confined only for the disposal of the anticipatory
bail. At the time of trial the court concerned is
free to decide the issue on the basis of the

Crl.M.C 338/2017 339/2017 Page 79 of 132
materials placed and uninfluenced by any of the
observation made in the impugned order.
With the above observations, the special leave
petitions are dismissed.”

84. Reliance was also placed on behalf of the respondent on the
verdict of the Supreme Court in Badresh Bipinbhai Seth v. State of
Gujarat and Anr.; (2016) 1 SCC 152 to contend that bail is not to be
withheld as a punishment and merely because an accused is charged
with a serious offence that by itself cannot be a reason to refuse the
grant of anticipatory bail which is otherwise justified and though it is
also the obligation of an applicant to make out a case for grant of
anticipatory bail, that does not mean that he has to make out a special
case and that a wise exercise of judicial power inevitably takes care of
evil consequences which are likely to flow out of its intended use.
Reference was made in this verdict relied upon on behalf of the
respondent to the judgment of the Division Bench of the SC in
Siddharam Satlingappa Mhetre v., State of Maharashtra; 2001 11
SCC 294 which lays down that the conflicting interests are to be
balanced while taking a decision as to the bail is to be granted or not
and reliance was thus placed on observations in para 1 of the
Siddharam Satlingappa Mhetre’s case (supra):

“1. Leave granted.

2. This appeal involves issues of great public
importance pertaining to the importance of
individual’s personal liberty and the society’s
interest.

Crl.M.C 338/2017 339/2017 Page 80 of 132

3. The society has a vital interest in grant or
refusal of bail because every criminal offence is
the offence against the State. The order granting
or refusing bail must reflect perfect balance
between the conflicting interests, namely, sanctity
of individual liberty and the interest of the society.
The law of bails dovetails two conflicting interests
namely, on the one hand, the requirements of
shielding the society from the hazards of those
committing crimes and potentiality of repeating
the same crime while on bail and on the other
hand absolute adherence of the fundamental
principle of criminal jurisprudence regarding
presumption of innocence of an accused until he
is found guilty and the sanctity of individual
liberty.”

85. Reliance was also placed on behalf of the respondent on the
verdict of the Apex Court in Mahant Chand Nath Yogi V. State of
Haryana; (2003) 1 SCC 326, to contend that where the anticipatory
bail has been granted on relevant considerations supported with
reasons, the same cannot be set aside by holding the grant of
anticipatory bail erroneous and merely because the submission made
by the Public Prosector that earlier investigation made by the police
officers and scrutinized by the superiors was faulty and mala fide, is
not a ground to be put against an applicant.

86. Reliance was also placed on behalf of the respondent on the
verdict of the Division Bench of this Court in Brahmanand Gupta v.
Delhi Administration W.P.(C) No.3337/1987 decided on 4.10.89
whereby notification No.F-1/PS/HS/87- 1227-1244 to 1433 dated

Crl.M.C 338/2017 339/2017 Page 81 of 132
23.2.1987 by virtue of which the Lt. Governor had appointed
Mr.Justice M.L.Jain (Retd.) and Mr.Justice A.K.Banerjee as a
Committee inter alia to monitor the investigation of criminal cases
relating to criminal offence which had been committed during the riots
which had taken place after 31.10.1984 which verdict quashed the said
notification and vide order dated 8.2.1996 the Civil appeal filed by the
Citizen Justice Committee and other against this verdict was dismissed
by the Supreme Court.

87. Reliance was also placed on observations in Brahmanand
Gupta (Supra) on the observations of the Division Bench of this Court
to the effect :

“We are however, in agreement with Mr.Gupta
that the Committee was not authorized to accept
or act on any fresh allegations against individuals
pertaining to the said incidents of rioting. In
other words, whereas it was open to the
committee to get information where there has
been omission to register or properly investigate
offences, the Committee had no jurisdiction to
accept any affidavits in which fresh allegations
were levelled for the first time, which allegations
were not sought to be levelled at the time of or
soon after the riots had taken place.”

88. and it was thus contended on behalf of the respondent that the
setting up of the SIT vide notification dated 12.2.2016 for the
investigation of appropriate and serious criminal cases which were
filed in Delhi in connection with the 1984 riots which had earlier been
investigated and closed, could not be relied upon.

Crl.M.C 338/2017 339/2017 Page 82 of 132

ANALYSIS

89. On a consideration of the rival submissions on behalf of either
side, it is essential to observe that the incident in relation to FIR
227/92, Police Station Janakpuri relates to the incident dated
1.11.1984 at 11 a.m. and the incident in relation to FIR 264/92, Police
Station Vikaspuri relates to an occurrence of 2.11.1984 at 7 a.m. both
the FIRs are registered on the basis of the affidavit of the same
complainant Sh.Harvinder Singh s/o Sh. Sohan Singh dated 8.9.1985
placed before the Justice Ranganath Mishra Commission in relation to
which FIRs after investigation by the Special Riot Cell, the cases were
sent untraced and the closure reports were accepted on 16.2.1996 and
27.8.1984 respectively, both of which cases were reopened after the
Government of India constituted the Special Investigation Team on
12.2.2015 for investigation of the cases of the 1984 anti-sikh riots.

90. The affidavit of the complainant did not name the respondent as
an accused and mentions a white coloured car and another red car
driven by some leader brand people leading the mob on 1.11.1984 at
11 a.m. and makes no mention of the presence of any such leaders on
2.11.1984. The statement under Section 164 of the Code of Criminal
Procedure, 1973 of the complainant was recorded on 20.09.2016 in
the Court of SDJM Dera Bassi Mohali, Punjab after constitution of the
SIT pursuant to notification with the SIT (1984 riots having been
noted as a Police Station). Through his statement under Section 164 of
the Code of Criminal Procedure, 1973, it was stated by the
complainant that he along with his brother-in-law Avtar Singh had

Crl.M.C 338/2017 339/2017 Page 83 of 132
come on to the road and had seen a crowd of 100- 150 persons coming
from a distance who had lathis and sarias with them and when the
crowd came closer, then two cars came from the back and stopped
near the crowd. One of the said cars was white and the other was
almost red and from those cars five/six persons got down and one of
them was the respondent Mr.Sajjan Kumar, a Member of Parliament,
and the crowd collected around him.

91. As per the statement, it was stated by the complainant to the
effect that in November, 1984, he used to live with his parents and
brothers and sisters at Delhi in House No. RZ-134-A, Gulab Bagh,
Near Nawada, New Delhi – 69 and that he woke up at about 9 .00 a.m.
and after his bath at about 11.00 a.m., he came out and saw that there
was a black smoke spreading in the sky till the fire stopped and that on
going to the main road he asked the passers-by as to why there was a
black smoke then he was informed by a passer-by that riots had
broken out after the death of the then Prime Minister Smt. Indira
Gandhi and that the vehicles belonging to the Sikh residents and the
places where they reside had been got set on fire. The complainant
further stated that at the time of incident he was aged 25 years and
when he gave his statement under Section 164 of the Code of Criminal
Procedure, 1973 to the SDJM Dara Bassi, District Mohali, he was
aged 58 years and that he went home and told his family members
about the incident. He further stated that his brother-in-law that Avtar
Singh had also come to his house in the evening he had also come to
the road and saw a crowd of 100/150 persons coming who were armed

Crl.M.C 338/2017 339/2017 Page 84 of 132
with lathies and sarias, and that when the crowd came near him then
they also saw the two cars came from the back and stopped near the
crown. One car was white and the other car was almost red. It was
further stated through the affidavit of the complainant that from those
cars five/six persons got down, one of them being the then Member of
Parliament, Sajjan Kumar and the entire crowd collected around him.
As sated in his affidavit at that time itself a DTC bus came and
stopped near Sajjan Kumar. He further stated that from that DTC bus
50/60 persons got down and got mixed in the crowd and that Sajjan
Kumar gave a signal to those persons and also had a conversation and
since Sajjan Kumar had given a signal with his hands pointing
towards the Gurudwara Saheb, the crowd of rioters ran towards the
Gurudwara Saheb and set it on fire and started looting from the same
and he, i.e., the complainant and his brother-in-law stood behind the
wall on the other side of the road and were watching the incident from
the side of the wall.

92. It was further stated by the complainant in the statement that
they ran till the colony and shouted and informed the residents of the
colony that the Gurudwara Saheb had been set on fire and that after
setting the Gurudwara Saheb on fire, Sajjan Kumar, i.e., the
accused/respondent herein and his associates had sat in two cars and
the persons coming through the bus boarded the bus and the rioters
who were on foot went forward. After the rioters went, the residents of
the colony ran to the Gurudwara and started putting out the fire on the
Gurudwara and whilst they were putting out the fire, both those card,

Crl.M.C 338/2017 339/2017 Page 85 of 132
the bus and the mob of rioters suddenly attacked them with Sarias,
dandas and stones and the residents of the colony ran towards the
colony. As per the statement of the complainant the mob of rioters
entered into the colony and his father Sohan Singh s/o Amar Singh
and mother Jaspal Kaur came into the clutches of the rioters and both
got injured. He further stated that he somehow dragged his father into
the house but he had been seriously injured with having been
repeatedly assaulted with a saria on his head and his mother was also
injured on the forehead with a brick by having been hit with a brick
but as she was within the crowd, he could not bring her into the house.
As per this statement under Section 164 of the Code of Criminal
Procedure, 1973 of the complainant, the mob of rioters entered into
the house of Nath Singh which was behind the house of the
complainant and also set on fire trucks standing outside the house of
Nath Singh and the rioters Gurcharan Singh s/o Nath Singh aged 15 to
16 years and put him into the burning truck in the presence of the
complainant and on seeing this, he, i.e., the complainant and his
family members i.e. his brothers, sisters, brother-in-law and his
injured father left their house open and went into the house in front of
their house and his sisters entered the house of Tilak Raj in front of
their house whereas his brother hid in a house in another lane and his
brother-in-law, injured father and he hid in an old lady‟s house and
that old lady locked them inside the house and herself sat inside the
temple. That old lady, as per the statement of the complainant, was a
Hindu and whilst they continued to be locked inside the house, they
could continuously hear the sound of shouting, bearing and burning

Crl.M.C 338/2017 339/2017 Page 86 of 132
fires. As per this statement of the complainant under Section 164 of
the Code of Criminal Procedure, 1973, after an hour he learnt that
some Hindu brother had admitted his mother to the Rana Nursing
Home at Rajauri Garden. He further stated that he along with his
injured father and brother-in-law hid without food and water
throughout the night and the next morning at 5 a.m. that old lady
opened the lock and asked them to run away from there as the rioters
had learnt of their having been hidden in her house and she also stated
that they would kill them. As per this statement of the complainant,
Harvinder Singh, he went to the house of Tilak Raj, who resides in
front of his house and requested him to help them as his father‟s
condition was very bad and Tilak Raj got two bicycles arranged and
also sent a Hindu boy with them and that he made his brother-in-law
sit on one of the cycles and his brother-in-law tied his father to him
i.e. the complainant with a Pagdi inasmuch as the complainant‟s father
was very seriously injured and the complainant thus sat with his
father. He further stated that on the other cycle his brother-in-law and
the Hindu boy took his father to Uttam Nagar which was at a distance
of 4 to 5 km from their house but as they were crossing by the
Congress-I office at Uttam Nagar then the rioters surrounded there and
started beating them with Sarias. The complainant further stated that
his brother-in-law Avtar Singh, who was coming on the other cycle
was also surrounded by the rioters and the rioters were assaulting all
three of them and that in the meantime a sound came from the truck
“Aag lagakar maar do, i.e., set on fire and kill” and on hearing this he,
i.e., the complainant started running blindly and the rioters were

Crl.M.C 338/2017 339/2017 Page 87 of 132
running behind him and he ran towards the Police Post, Uttam Nagar
and requested the police personnel that his father and his brother-in-
law were being assaulted by the rioters on the road but the police did
not help him and that he continued to cry that his father and brother-
in-law be saved, but the police personnel started abusing him, saying
that these Sikhs had killed Indira Gandhi and thus they should be dealt
with as they were being dealt. He further stated that he was bleeding
profusely as he had been assaulted with the Sarias on his head and that
four of his bones of his two arms had also got broken and that his eyes
had also been seriously injured because of the fist blows given to him
and that he had asked them that he be provided medical aid but he
was not provided any medical assistance and rather the police
personnel were spreading rumors that corpses of Hindu were coming
in trains from Punjab and after sometime they spread another rumor
that the Sikhs had put poison into the water tank.

93. As per this statement under Section 164 of the Code of Criminal
Procedure, 1973, the complainant Harvinder Singh, also stated that at
about 2 to 3 p.m. a senior officer whose name he learnt from his
badge, as V.K.Katna came to the police post and the complainant
requested him for medical assistance and in the meantime the Officer
received a wireless message and thus went in his jeep from the spot
and returned after two hours with a police bus containing 40/50
injured Sikh men, ladies and children and then put the complainant
and four other persons into the jeep and took them to the D.D.U
Hospital Hari Nagar, where due the lack of doctors, nurses and other

Crl.M.C 338/2017 339/2017 Page 88 of 132
staff without any anesthesia he was given 14/15 stitches on his head
and was also treated for his eyes but there was no treatment given that
day for his broken bones. As per his statement under Section 164 of
the Code of Criminal Procedure, 1973 of the complainant, the
complainant requested the police in the hospital to leave him at his
friend‟s house at Hari Nagar but the police left him and two other
injured persons at the Uttam Nagar, Police Post and from 7 a.m. till 5
p.m., he remained at the Police Post, Uttam Nagar and that he could
see from the Police Post that shops near the road were being looted
and burnt and that the police was sitting as a silent spectator and that
he also saw some police personnel were taking out the looted articles
from the shop and brought them to the Police Post. As per the
statement under Section 164 of the Code of Criminal Procedure, 1973
the entire day he continued to remain hungry and thirsty and injured at
the Police post and despite his repeated requests he was given one
glass of water and on inquiries at the Police Post, he learnt that his
father and brother-in-law had been burnt alive and they were also not
handed over the dead bodies of his father and brother-in-law. It was
learnt by him subsequently that the police had burnt several dead
bodies together.

94. As per this statement under Section 164 of the Code of Criminal
Procedure, 1973 at about 9 p.m. the complainant and other persons at
the Police Post were taken by the complainant‟s friend Charanjit
Singh and his employer Sharan Singh were taken to the Fateh Nagar
Gurudwara Saheb and on the next day he was treated for his broken

Crl.M.C 338/2017 339/2017 Page 89 of 132
bones and other injuries. Through the statement under Section 164 of
the Code of Criminal Procedure, 1973, the complainant stated that he
would make an appeal to the Court that Sajjan Kumar (the respondent
herein) and other persons who brought the crowd had killed his father
Sohan Singh and brother-in-law Avtar Singh and had injured his
mother and he thus sought action against them and stated that the
massacre had taken place at the instigation of Sajjan Kumar i.e. the
respondent herein. He also requested through the statement under
Section 164 of the Code of Criminal Procedure, 1973 that a day-by-
day trial be given in the instant case inasmuch as 32 years had already
elapsed and he sought that he got justice during his lifetime and
sought the incarceration of the killers.”

95. Through his statement under Section 164 of the Code of
Criminal Procedure, 1973 dated 20.09.2016, no specific averment in
relation to the presence of the respondent at the spot of occurrence on
the date 2.11.1984 has been stated. Through his statement under
Section 161 of the Code of Criminal Procedure, 1973 dated
24.11.2016 adverted to herein above as well, it was stated by the
complainant to the effect that Sh. Harvinder Singh, his elder sister and
her husband Avtar Singh came to his house and that he and his
brother-in-law were outside the house to the main road of Gulab Bagh
to see the situation and saw 100-125 rioters who were coming towards
his house and in the meantime two cars, one white car and another car
the colour of which he did not recall and that he did not know the
registration numbers of the those two cars which stopped near the

Crl.M.C 338/2017 339/2017 Page 90 of 132
rioters and the crowd and 5-6 members got down from the each car
and that his brother-in-law Avtar Singh and he were watching from
the side of the wall and he saw that one of the persons who got down
from the car was a person named Sajjan Kumar i.e. the respondent
herein, who was known to him previously, inasmuchas had come to
his mohalla several times and as the complainant Sh. Harvinder
Singh‟s father also used to vote for the Congress and thus his family
members also used to vote for the Congress and so he was able to
identify Sajjan Kumar i.e. the respondent herein very well and that the
respondent herein i.e. Sajjan Kumar was standing with the rioters and
with the movements of his hands was telling them something and soon
two DTC buses came and stopped near the crowd and several persons
got down from the bus and that Sajjan Kumar i.e. the respondent
herein got into the crowd was identified as being the Congress leader
and on his signal and pointing out, the crowd again ran towards the
Gurudwara. It was also stated by this witness that the respondent
herein i.e. Sajjan Kumar was a leader of the area of the Congress and
at his instance and signal the rioters went inside Gurudwara and began
breaking and looting the same and after breaking and setting the
Gurudwara on fire, the rioters set the Gurudwara on fire and set its
articles on fire. It was also stated by this witness that apart from Sajjan
Kumar i.e. the respondent herein he did not recognize any other
person.

96. Through his statement dated 23.12.2016 under Section 161 of
the Code of Criminal Procedure, 1973, the complainant Sh. Harvinder

Crl.M.C 338/2017 339/2017 Page 91 of 132
Singh is stated to have seen Sajjan Kumar i.e. the respondent herein,
informed the Investigating Officer and pointed out the place from
where he had seen in hiding and had also seen the Sajjan Kumar i.e.
the respondent herein coming from the car and pointing out towards
the Gurudwara and also pointed out the place where Sajjan Kumar i.e.
the respondent herein was standing with the crowd though he stated
that the area had changed since the time of the occurrence with
construction having been raised.

97. Through his statement dated 24.11.2016 in the FIR No. 227/92
Police Station Janakpuri, one of the witnesses of the prosecution
(name withheld on the request of SIT) stated that after the
assassination of the Prime Minister Indira Gandhi, riots had
commenced on 01.11.1984 at about 10.00 a.m. and they had come out
on to the road to see as to what was happening because his house was
at the main Nazafgarh Road and held that it could be seen that there
was smoke of fire at several places and in sometime itself a crowd of
100-150 persons came shouting slogans and came towards their
mohalla and there were two DTC buses which were loaded with
people also came there and amongst that crowd at that time two cars
came and stopped near the crowd, the number of which he did not
know and from one of the cars which was of white colour and other
car the colour of which car he did not recall and the colour of the other
case from the white car 3-4 persons came down of which one of them
was Sajjan Kumar i.e. the respondent herein whom he recognized
from before, who pointed out from his hands towards the Gurudwara

Crl.M.C 338/2017 339/2017 Page 92 of 132
to the crowd, as a consequence of which the crowd whilst shouting
slogans went towards the Gurudwara and started breaking the
Gurudwara and that that time his father was the Pradhan of the
Gurudwara and of the colony and when he reached the Gurudwara to
put out the fire then the rioters attacked his father but he somehow
escaped but the crowd followed his father to his house and attacked
them and looted their house and started attacking their house and
breaking the same and also set a truck bearing No. DLL 8770 standing
behind their house on fire and also set their scooter bearing No. DLU
8150 on fire and that the rioters had also taken out his father Nath
Singh and him and his four brothers from the house and had beaten
them with Dandas, Lathies and Sariyas as a consequence of which
they were all injured seriously.

98. This witness is also stated to have stated in his statement under
Section 161 of the Code of Criminal Procedure, 1973 dated
24.11.2016 that in 1986 his father sold the house of Nawada and went
to Mohali, Punjab with his family and only his elder brother started
living in a small house with his family and that his one of his brother
died in 1993 and his father expired on 16.05.1996 and his mother
expired in 2003 and that he had looked after his brothers. He also
stated that his brother (name withheld with the request of SIT), who
had been injured in 1984 riots was still lying disabled due to the
injuries on the bed.

99. Another witness (whose name has also been requested to be
withheld by the SIT) vide his statement dated 24.11.2016 under

Crl.M.C 338/2017 339/2017 Page 93 of 132
Section 161 of the Code of Criminal Procedure, 1973 allegedly stated
qua the role of the respondent herein i.e. Sajjan Kumar of having
instructed the crowd on 01.11.1984 to attack on the Gurudwara by
signaling towards it. This witness in his statement under Section 161
of the Code of Criminal Procedure, 1973 dated 24.11.2016 has further
stated that apart from Sajjan Kumar i.e. the respondent herein, he
would not be able to identify any other person. He also stated that
because of his being paralyzed he had not made any complaint and
had not given his statement earlier. He also stated that he was being
looked after by his brother (name withheld at the request of the SIT).

100. Through his statement under Section 161 of the Code of
Criminal Procedure, 1973 dated 05.09.2016 in FIR No. 264/92 Police
Station Vikaspuri, the complainant Sh. Harvinder Singh inter alia
stated to the effect that on 01.11.1984, he along with his brother-in-
law went to the Main Road, Gulab Bagh where about 100-125 a group
of rioters was seen coming and two cars one white and the other
colour of which he did not recall were seen coming and they came
near the rioters and that he does not know the registration numbers of
those cars and from each of those cars, 5-6 persons got down and he
and his brother-in-law stood behind the wall and saw Sajjan Kumar
i.e. the respondent herein getting out from the car and that he had also
come several times previously to his mohalla and to his house because
the father of the complainant Sh. Harvinder Singh always used to vote
for the Congress and thus his family always voted for the Congress
and that is why he the complainant Sh. Harvinder Singh recognized

Crl.M.C 338/2017 339/2017 Page 94 of 132
the said Sajjan Kumar i.e. the respondent herein very well and he
came and stood near the road and with the signal of his hands said
something to the rioters and in the meantime two DTC buses came
and stopped and from the same also a large number of people got
down and Sajjan Kumar i.e. the respondent herein, the leader of the
Congress pointed out towards the Gurudwara and just as he did the
same, the group of rioters started running towards the Gurudwara and
started causing damage and set it on fire and after setting it up on fire,
started looting the same and thereafter boarded the DTC bus. It was
also stated by the complainant Sh. Harvinder Singh that apart from
Sajjan Kumar i.e. the respondent herein he did not recognize any other
rioters. Through his supplementary statement dated 09.11.2016 in FIR
No. 264/92 registered with Police Station Vikaspuri, the complainant
Sh. Harvinder Singh stated that his statement dated 20.09.2016 under
Section 164 of the Code of Criminal Procedure, 1973 made after Dera
Basti Court was correct and that the Hindi translation of the same also
was to the effect as to what he had stated in his statement under
Section 164 of the Code of Criminal Procedure, 1973.

101. Through his statement in FIR No.227/1992, registered with
Police Station Janakpuri dated 23.12.2016, the complainant Sh.
Harvinder Singh also identified the places of occurrence where he had
seen Sajjan Kumar i.e. the respondent herein on the date of the alleged
commission of the offence on 01.11.1984.

102. Through his statement dated 25.10.2016 under Section 161 of
the Code of Criminal Procedure, 1973, the witness of the prosecution

Crl.M.C 338/2017 339/2017 Page 95 of 132
in FIR No. 264/94 PS Vikaapuri (name withheld at the request of the
SIT) also stated to the effect that on 01.11.1984 at about 10.00 a.m.
riots had commenced after the assassination of the Prime Minister
Indira Gandhi and stated that he had seen outside his house which falls
on the main Nazafgarh Road at different places there was smoke of
fire and a crowd of 100-150 persons was coming shouting slogans
towards his mohalla and two DTC buses boarded with people also
came and at that time two cars came, one of them was of white colour
in which there were 3-4 persons, who got down, one of them being
Sajjan Kumar i.e. the Congress M.P., whom he knew from before,
who got down and went into the crowd and started talking to the
persons in the crowd and pointed out towards the Gurudwara
whereafter the crowd started shouting slogans and went towards
Gurudwara and started attacking the Gurudwara and caused damage
and set it on fire. He stated further that his father was the Pradhan of
the colony and of the Gurudwara and on reaching the Gurudwara the
crowd attacked but somehow his father escaped as a consequence of
which the crowd followed to his house and attacked at their house also
and set the truck bearing No. DLL 8770 standing behind their house
on fire and also set their scooter bearing No. DLU 8150 on fire.

103. The statement of another witness of the prosecution under
Section 161 of the Code of Criminal Procedure, 1973 (name withheld
at the request of the SIT) dated 25.10.2016 in the FIR No. 264/92 is
also to the effect that the respondent herein got down from the white
car on 01.11.1984 when the crowd of rioters had collected and of his

Crl.M.C 338/2017 339/2017 Page 96 of 132
having pointed out to the Gurudwara as a consequence of which the
crowd went towards the Gurudwara and caused breakage there. This
witness also identified Sajjan Kumar i.e. the respondent herein whom
stated that he had seen him several times.

104. The presence of the respondent at the time of the incident on
2.11.1984 is not mentioned in the statement under Section 164 of the
Code of Criminal Procedure, 1973 of the complainant. The witnesses
examined by the prosecution under Section 161 of the Code of
Criminal Procedure, 1973 also speak of the presence of the respondent
on 1.11.1984 and not on 2.11.1984. As observed by the learned ASJ-
01, Dwarka Courts all the statements have been made virtually 32
years after the incident when for the first time the respondent is named
as being the leader in question who got down from the white car and
on his instigation there were attacks made on the Gurudwara and on
Sikhs.

105. In the circumstances of the case the observations of the learned
ASJ-01, Dwarka Courts that the veracity of allegations levelled
against the respondent herein can only be determined during trial
cannot be termed to be erroneous at this stage. To the same effect are
the observations made by this Court in Sajjan Kumar V. State in 43
(1991) DLT 88 wherein an affidavit dated 15.7.87 of Anwar Kaur was
taken up for consideration by the Jain Banerjee Committee appointed
on 21.2.1987 and before that she did not make any complaint before
the police from the date of the incident nor before the Justice
Ranganath Mishra Commission, taking into account the factum that

Crl.M.C 338/2017 339/2017 Page 97 of 132
that it was contended by the investigating agency that the investigation
could commence only after six years of the incident as the witnesses
were afraid and frightened and would not come to testify and that if
the respondent herein was allowed to remain enlarged on bail, (who is
also the respondent herein to the present petition), whilst observing
that bail not jail was the basic rule unless the process of justice was
sought to be throttled by the applicant by influencing witnesses or
tampering with the evidence or by creating other trouble in the shape
of repeating offences, bail ought to be granted and anticipatory bail
was thus granted to the very same accused arrayed as the respondent
herein in the said case.

106. During the course of the submissions made on behalf of the
SIT, it was contended that this judgment had been appealed against.
However, no orders in relation thereto have been submitted before this
Court.

107. To the same effect are the observations of this court, in Sajjan
Kumar Vs. CBI in Bail application No. 306/2010 which verdict
significantly has been upheld by the Supreme Court in Crl. M.P. No.
6021/2010 vide verdict dated 29.03.2010 i.e. in Jagdish Kaur Vs.
Sajjan Kumar and Ors. The verdict of the Hon‟ble Supreme Court in
Bhadresh Bipinbhai Sheth Vs. State of Gujarat and Another in (2016)
SCC 152 also spells guidelines on the aspect of grant of cancellation
of anticipatory bail.

Crl.M.C 338/2017 339/2017 Page 98 of 132

108. It is essential to observe that the verdicts relied upon on behalf
of the petitioner are in facts and circumstances of cases, which are not
in pari materia with the facts and circumstances of the instant case.

109. This is so inasmuchas the verdicts relied upon on behalf of the
petitioner are on facts distinguishable from the instant case as set forth
hereinbelow.

110. In Adri Dharandas vs. State of West Bengal; ( 2005) 4 SCC
303 which has been relied upon on behalf of the SIT on the ground
that there exist no reason to believe that the respondent may be
arrested and that mere fear is not belief, and that it was not sufficient
for the respondent to show that he had some sort of vague
apprehension that someone is going make an accusation against him in
pursuance of which he may be arrested, the available record speaks
eloquently in the form of the petitions Crl. M.C. 339/2017 and
Crl.M.C. 338/2017 filed by the petitioner herein seeking cancellation
of anticipatory bail granted to the respondent herein vide orders dated
21.12.2016 of the learned ASJ-01, Dwarka Courts in Bail Appln. Nos.
14072/2015 and 14073/2015 which had been filed on the basis of the
respondent having been named as an accused by the complainant and
other witnesses 32 years after the date of incident and thus the
contention of the respondent that he had the apprehension of his arrest
and had a reason to believe that he could be arrested cannot be
rejected.

111. The verdict of the Supreme Court in Raghuvir Saran Aggarwal
v. State of U.P.; (1988) 8 SCC 617 lays down that anticipatory bail

Crl.M.C 338/2017 339/2017 Page 99 of 132
ought not to be granted without any reason for exercise of such
jurisdiction or else every person against whom a first information
report is lodged alleging a serious crime would rush to the High Court
or the Sessions Court that the case may be considered and may seek
anticipatory bail which would render the provisions of the Criminal
Procedure Code in the matter of arrest, redundant. As regards the
reliance placed on this verdict which related to a case of a dowry
death, it is essential to observe that in the instant case, the impugned
orders dated 21.12.2016 of the learned ASJ-01 South West, Dwarka,
categorically set forth reasons for the grant of anticipatory bail to the
effect :

“17. It is an admitted fact between the parties that
the present FIR was registered in the year 1992
on the basis of affidavit dated 09.09.1985 of
complainant Sh.Harvinder Singh sworn before
Justice Ranganath Mishra Commission. It is also
an admitted fact that alleged offence pertains to
incident dated 01.11.1984 and 02.11.1984. It is
also an admitted fact that neither complainant
Sh.Harvinder Singh nor any of the witnesses
examined by the Special Riot Cell had found any
evidence to connect the applicant with the offence
in question. It is also an admitted fact that earlier
investigation was closed as untraced and the
closure report was accepted by Ld.MM on
27.8.94/16.02.1996. It is also an admitted fact
that from 1996 till examination of witnesses
including the complainant in the year 2016,
nothing incriminating had come against the
applicant.

18. The deposition made by complainant
Sh.Harvinder Singh under Section 164 Cr.P.C.

Crl.M.C 338/2017 339/2017 Page 100 of 132

statement against applicant has been made for the
first time after 32 years of the incident and in the
previous affidavit dated 09.09.1985, no such
allegations were made.

19. Similarly, some of the witnesses (names of
witnesses withheld at the request of Ld.Addl.PP
for SIT) examined in 2016 under Section 161
Cr.P.C. were also examined during the course of
investigation in the year 1992 and at that time,
they had not identified the applicant to be the
person, who had incited the mob to burn down the
property of the Sikhs or to murder them.

20. Some of the witnesses (names of witnesses
withheld at the request of Ld.Addl.PP for SIT),
who have been examined under Section 161
Cr.P.C. happen to be the relatives of the
witnesses, who were examined in the previous
investigation and in the previous investigation,
their relatives had not stated anything
incriminating against the present applicant.
Therefore, from where these witnesses have
derived the information regarding / the role of the
present applicant is also a matter of trial.

21. Some of the witnesses (names of witnesses
withheld at the request of Ld.Addl.PP for SIT),
who have been examined under Section 161
Cr.P.C. in 2016 are witnesses of hear-say
evidence regarding the role of the present
applicant and their statements do not incriminate
the present applicant.

22. Although an explanation has been given by the
complainant in his statement under Section 164
Cr.P.C. as to why he had not named the applicant
earlier but whether such explanation can be

Crl.M.C 338/2017 339/2017 Page 101 of 132
believed or not, after 32 years, is a matter of trial.
However, some of the witnesses examined in this
case under Section 161 Cr.P.C in 2016, have not
provided any explanation as to why at the time of
their earlier examination in the year 1992, they
did not depose anything against the present
applicant. This delay of around 24 years from the
registration of the FIR do not make out a case for
custodial interrogation of the applicant when
admittedly at the time of first investigation,
nothing incriminating had come against the
present applicant. Nothing has come on record to
show that applicant, during this course of 24
years, had threatened or influenced any of the
witnesses so as to refrain any of them from
making statement against him. Further, applicant
is having deep roots in the society and thrice, he
remained as a member of the Parliament.
Therefore, chances of applicant fleeing from
justice are also quite remote.

23. In the opinion of this court, for the purpose of
interrogation of the applicant after 32 years of the
incident, arrest of applicant is not required as
there are no allegations that anything used in the
commission of offence is to be recovered at the
instance of the applicant.

24. The submission of the Id.counsel for the
applicant that the case, has been re-opened for
political consideration just to falsely implicate the
applicant also cannot be ignored and makes out a
ground for anticipatory bail to the applicant.

25. The judgments relied upon by the Id.counsel
for the complainant as -well as Ld.Chief Public
Prosecutor for State delivered in Sajjan Kumar’s
case (supra) are not applicable to the facts of the

Crl.M.C 338/2017 339/2017 Page 102 of 132
present case as same pertain to framing of charge
and none of these judgments relied upon, pertain
to grant or refusal of anticipatory bail where after
a delay of 32 years, witnesses, who had not
deposed anything against applicant earlier have
turned around to depose otherwise.

26. There can be no dispute with regard to ratio
laid down by the Hon’ble Supreme Court of India
in the matter of Jai Prakash Singh’s case (supra)
regarding the principles for grant of anticipatory
bail relied upon by the Id.counsel for SIT. In the
present case also, exceptional circumstances have
been made out for grant of anticipatory bail as
there is prima facie material to show that the
applicant has been falsely enroped in the crime in
question after 32 years of the incident and his
chance of mis-using the liberty is also non-
existent.”

112. The reliance on the verdict in Jai Prakash v. State of Bihar and
Anr.; (2012) 4 SCC 379 is thus placed inasmuch as in the said case, it
was observed that the FIR had been lodged promptly which itself was
an assurance regarding truth of the informant‟s version and that
undeserved and unwarranted sympathy to an accused was shown,
which is not so in the instant case that the parameters for grant of
anticipatory bail had not been applied and rather undeserving and
unwarranted sympathy had been shown to the accused and it had thus
been laid down in the facts and circumstances of that case where the
FIR has been lodged promptly within a period of two hours at the time
of the incident which had occurred at midnight as mentioned in para
11 of the verdict relied upon.

Crl.M.C 338/2017 339/2017 Page 103 of 132

113. The verdict in Japani Sahoo vs. Chandra Sekhar Mohanty:
(2007) 7 SCC 394 is in a case which related to an incident of a threat
of the payment of a demand of Rs.5,000/- was made by a police
personnel to the respondent therein claiming that if the complainant
did not make the payment by the next morning of Rs.5000/- he would
be booked in cases like NDPS and dacoity whereafter the complainant
had silently returned home and on the next day had lodged a complaint
in question before the competent court on the advice of his lawyer and
it was held that the criminal offence is a wrong against the State and
the society even if committed against an individual and it was further
held by the said verdict that normally in serious offences, prosecution
is launched by the State and the Court of law has no power to throw
away the prosecution solely on the ground that there has been a delay
and that mere delay in approaching a court of law would not by itself
afford a ground for dismissing a case although it may be a relevant
circumstance in reaching the final verdict. In the instant case the delay
in naming the respondent is of 32 years. In the case relied upon the
offence was alleged to have been committed by the accused on 2.2.96
and the complaint was filed on 5.2.96.

114. Reliance placed by the State on the verdict of the Apex Court in
Sajjan Kumar v. CBI, (2010) 9 SCC 368, vide which the appeal by
the appellant therein who is the present respondent against the order of
the learned ASJ-01, Dwarka Courts in State Case 26/10 and appeal
against order dated 19.7.2010 of the High Court of Delhi whereby the
order of learned ASJ-01, Dwarka Courts framing charges under
Sections 153A/295/302/395/427/436/339/505 was upheld and the

Crl.M.C 338/2017 339/2017 Page 104 of 132
application which had been filed for discharge by the applicant, i.e.,
the respondent herein had been declined and it had been observed to
the effect that in the said case on hand though delay may be a relevant
ground in the light of materials which were available before the Court
through CBI, without testing the same at trial the proceedings could
not be quashed merely on the ground of delay is wholly inapt. In the
instant case, the petitioner is seeking cancellation of grant of
anticipatory bail granted to the respondent herein vide orders dated
21.12.2016 of the learned ASJ-01, Dwarka Courts.

115. Reliance is placed on State of Maharashtra Ors. V. Mohd.
Sajid Hussain, Mohd. S. Hussain; (2008) 1 SCC 213 to contend that
even though the respondent may not have been named in the First
Information Report as laid down in this Court by the Apex Court it
was sufficient to observe that the FIR may not be encyclopedic and in
the said case the accused had been absconding and had not cooperated
with the Investigating Agency and there was also a mistake in relation
to the age of the prosecutrix who had been allegedly raped and she
was found to be below the age of 16 years is in facts not in pari
materia with the instant case, inasmuchas the respondent herein is not
absconding.

116. In Dinesh M.N. v. State of Gujarat; ( 2008) 5 SCC 66 the order
of grant of bail was held to be vulnerable with it having been held that
the accused could not take a plea while applying for bail that a person
whom he killed was a hardened criminal and this was not a factor
which could be taken into account and irrelevant materials of a
substantial nature having swayed the trial Court by the fact that the

Crl.M.C 338/2017 339/2017 Page 105 of 132
deceased had a shady representation and criminal antecedents while
granting bail to the accused had been taken into account, the
cancellation of anticipatory bail by the High Court of Gujarat was
upheld by the Supreme Court observing to the effect that once it was
concluded that when bail had been granted on untenable grounds, the
plea of absence of supervening circumstances had no legs to stand on
and in that case it was held that irrelevant materials had been taken
into account and relevant materials had been kept out of consideration
while granting bail inasmuch as the factum that the FIR had been
lodged by one of the co-accused to divert attention from the fake
encounter by the appellant accused, a senior police officer and other
police officer for entering into a criminal conspiracy and causing a
fake encounter of a hardened criminal and destroying the evidence
relating to the death of his wife, it was held that these material factors
had been kept out of consideration while granting bail and that even
though the re-appreciation of the evidence as done by the Court
granting bail is to be avoided, the Court dealing with an application
for cancellation of bail under Section 439 of the Code of Criminal
Procedure, 1973 can consider whether relevant materials were taken
into consideration inasmuch as it was not known as to what extent the
irrelevant materials weighed with the Court for accepting the prayer
for bail.

117. The verdict in State v. Anil Sharma (1997) 7 SCC 187 relied
upon by the State held that the apprehension of the CBI that the
respondent in that case who was the member of the legislative
assembly of the State of HP and was also a minister of HP State

Crl.M.C 338/2017 339/2017 Page 106 of 132
Government for three years and a son of a former Union Minister for
Telecommunication and the CBI was conducting an investigation of a
case against him for an offence punishable under Section 13 (2) of the
Prevention of Corruption relating to acquiring wealth, power in excess
of his known sources of income and where according to CBI there
was clear cut evidence pointing to transfer of assets to the respondent
by his father, the contention of the CBI that the respondent‟s was a
clear case of corruption in high places and considering the responsible
and high offices which the respondent held and wide influence which
he could wield and the great handicap which the Investigating Officer
would be subject to while interrogating a person armed with an order
of anticipatory bail and the application having been dealt with by the
High Court as if it was considering the prayer for grant of regular bail
after the arrest, it was observed to the effect that the consideration
which should weigh with the Court while dealing with the request for
anticipatory bail need not be the same as an application to release on
bail after arrest and that the High Court ought not to have side stepped
the apprehension expressed by the CBI (that the respondent would
influence the witnesses) as one which can be made against all accused
persons in all cases and that the apprehension was quite reasonable
while considering the high position which the respondent held and the
nature of the accusation relating to the period during which he held
such office and it was observed also in the said case that in a case of
that kind effective interrogation of a suspected person was of
tremendous advantage in disinterring many useful informations and
also materials which would have been concealed and that often

Crl.M.C 338/2017 339/2017 Page 107 of 132
interrogations in such a condition would reduce to a mere ritual if the
suspected person knew that he was well protected and insulated by a
pre-arrest bail order during the time he was interrogated. The verdict
of the High Court Madras in case titled as V.N.Sudhagaran v.
Enforcement Officer, Enforcement Directorate, Shastri Bhawan
Madras 1196 (2) MWM Cr 30 lays down that as a condition
precedent for an application under Section 438 of the Code of
Criminal Procedure, 1973, that there must be an existing reasonable
apprehension of arrest on an existing accusation of having already
committed a non-bailable offence prior to the point of time of filing
the application and in that case merely because another person has
been arrested, it was held that the applicant could not take it as a basis
to infer arrest and in the said case it was observed that there was no
accusation nor any reasonable apprehension of the applicant and
where in that case where only summons were issued by the
Enforcement Directorate to the applicant it was not proper for him to
presume that he was an accused and at that stage no anticipatory bail
could be granted by putting fetters and spokes in the wheels of
investigation to render nugatory and defeat the very purpose and
scope of FERA 1973, and that in that case there was no accusation or
reasonable apprehension of the applicant being arrested in the non-
bailable offence and the application was thus rejected. As already
observed herein above the factum that the petitioners seeks
cancellation of anticipatory bail of the applicant now itself is bound to
make the applicant apprehensive of arrest.

Crl.M.C 338/2017 339/2017 Page 108 of 132

118. As regards the reliance placed on behalf of the SIT on the
verdict of the High Court of Gujarat in case titled as State of Gujarat
Vs. Mayaben Surendrabhai Kodnani and Another 2010 Cri LJ
1095, it is essential to observe that the FIRs in that case were
registered on the same day when the riots and lootings had not ceased
and it was observed by the Hon‟ble High Court of Gujarat in para 16
of the said judgment to the effect : –

“16. It could also not be disputed that members of
the minority community were fleeing from the
scenes of the offences and taking shelter
elsewhere or in the relief camps set up for the riot
affected people. The statements or complaints
made by such victims of the riots in such
circumstances have to be read in the context of
the prevailing situation and the state of affairs in
which names of prominent persons like the
respondents were clearly alleged to have been
omitted from their statements by the investigating
officer and the complaints about such
investigation had led to filing of petitions before
the Supreme Court and ultimately the constitution
of SIT after six petitions before the Supreme Court
and ultimately the constitution of SIT after six
years. Therefore, absence of important details
about the offences or names of the respondents in
the earlier statements or complaints made before
the investigating agency or the lapse of time of six
years could not by itself make the subsequent
statements of the same witnesses contradictory or
unreliable. However, it is not that no witness has
ever implicated the respondents before the
investigation by SIT. No less than six witnesses
have mentioned the names of the respondents in
the year 2002 itself. Therefore, the argument that
the respondents are being implicated for the first

Crl.M.C 338/2017 339/2017 Page 109 of 132
time by or through the SIT cannot be accepted at
this stage. In both the cases, there are statements
of witnesses indicating that a huge crowd armed
with weapons had gathered at the scene of the
offences when the respondents had reached and
they had incited and instigated the mob into
attacking the area populated by minority
community. The respondents were identified as
operating with the mob after coming to the spot by
particular vehicles and several victims had fallen
to the bullets of the police, while one of the
respondents was present. It is also alleged that the
respondents had offered weapon or cans of
inflammable liquid and subsequently intimidated
some of the witnesses for removal of the name of
one of the respondents presumably from the list of
persons being implicated during investigation by
the SIT. It has been clearly alleged that the names
of the respondents were not being recorded by the
investigating officer while earlier statements were
: recorded in the year 2002.”

Thus it is indicated that in the said case relied upon on behalf of
the SIT that six witnesses had mentioned the name of the accused
persons at the time when the initial investigation was being conducted
and much before the SIT took over the investigation. Furthermore,
there are observations on para 7 of the said verdict that the presence of
the accused in that case was also brought forth through the records of
the mobile phone of the accused persons at the place and at the time of
the occurrence.

119. Qua reliance placed on behalf of the SIT on the verdict of the
Apex Court in the case titled as Pokar Ram Vs. State of Rajasthan
and Others (1985) 2 SCC 597, it is essential to observe that such

Crl.M.C 338/2017 339/2017 Page 110 of 132
reliance was placed on behalf of the SIT on observation in para 11 of
the said verdict to the effect: –

“11. The accusation against the respondent is
that he has committed an offence of murder
punishable-under Sec. 302 IPC. Surprisingly,
when anticipatory bail was granted on
September 30, 1983, there is not a whisper of it
in the order of the learned Sessions Judge,
Jodhpur. When a person is accused of a offence
of murder by the use of a fire arm, the Court has
to be careful and circumspect in entertaining an
application for anticipatory bail. Relevant
considerations are conspicuous by silence in the
order of the learned Sessions Judge. Could it be
said in this case that the accusation appears to
stem not from motives of furthering the ends of
justice but from some ulterior motive ? Could it
be said that the object being to injure and
humiliate the respondent by having him arrested
? What prompted the learned Sessions Judge to
grant anticipatory bail left us guessing and we
arc none the wiser by the discussion in the order
of the learned Single Judge declining to
interfere”

120. It is essential however to advert to the facts of this case which
are reproduced in paras 8 9 of the said verdict to the effect : –

“8. The incident in which Bhanwaria was
injured with fire arm occurred on August 23,
1983 in respect of which the first information
report was lodged on August 24, 1983, in which
it was in clear and unambiguous terms alleged
that the respondent was at the relevant time
armed with a gun and fired towards Bhanwaria
who suffered injuries by gun shot- The incident
occurred as stated earlier around 4.00 P. M. On

Crl.M.C 338/2017 339/2017 Page 111 of 132
August 23, 1983 and this information is lodged
with the Police Station at a distance of 30 k.m.
from the scene of occurrence on August 24, 1983
at 11.30 a.m. Amongst others, the offence
registered was under Sec. 307 IPC i.e. attempt to
commit murder. The first information report
thus discloses use of fire arm with which the
respondent attempted to commit murder of
Bhanwaria. Surprisingly, the Investigating
Officer had not arrested him till September 29,
1983 when he moved an application for
anticipatory bail under Sec.438 of the Code of
Criminal Procedure presumably after coming to
know that injured Bhanwaria has succumbed to
his injuries and the offence would one of
murder punishable under Sec. 302 IPC. This
conduct of the Investigating Officer left us
guessing. Some light is shed by some averments
from the affidavit filed in the High Court and
extracted by the learned Judge in his judgment.
It is stated that the respondent is the Sarpanch of
Vil. Danwara and is an influential person and
that his father Ranjit Singh is ex-M.L.A. and is
at present Pradhan of the Panchayat Samiti. Are
these relevant considerations for not cancelling
anticipatory bail when it appears to have been
granted by a clear misconception of the relevant
considerations governing of anticipatory bail ?
The answer is emphatically in the negative in
view of the extracted observations from the
decision of the Constitution Bench in Gurbaksh
Singh Sibbia’s case.

9. The accusation against the respondent is that
he has committed an offence of murder
punishable-under Sec. 302 IPC. Surprisingly,
when anticipatory bail was granted on
September 30, 1983, there is not a whisper of it

Crl.M.C 338/2017 339/2017 Page 112 of 132
in the order of the learned Sessions Judge,
Jodhpur. When a person is accused of a offence
of murder by the use of a fire arm, the Court has
to be careful and circumspect in entertaining an
application for anticipatory bail. Relevant
considerations are conspicuous by silence in the
order of the learned Sessions Judge. Could it be
said in this case that the accusation appears to
stem not from motives of furthering the ends of
justice but from some ulterior motive ? Could it
be said that the object being to injure and
humiliate the respondent by having him arrested
? What prompted the learned Sessions Judge to
grant anticipatory bail left us guessing and we
arc none the wiser by the discussion in the order
of the learned Single Judge declining to
interfere”.

121. Reliance placed on behalf of the SIT on the verdict in the case
titled as Harbans Kaur And Another Vs. State of Haryana (2005) 9
SCC 195, it is essential to observe that the same is on the basis of the
evidence led and is not in facts pari materia to the instant case
inasmuchas in the instant case the investigation is still in progress.

122. Reliance placed on behalf of the petitioner on the verdict of
Supreme Court in the case titled as Prakash Kadam and Others Vs.
Ramprasad Vishwanath Gupta and Another (2011) 6 SCC 189 is
also on facts not in pari materia to the facts in the instant case
inasmuchas in that case the appellants were policemen accused of
contract killing in Case No. 317 of 2010 then pending before the
Sessions Judge, Greater Bombay and had been charge sheeted for the
offences punishable under Section 302/34/120B, 364/34 of the Indian
Penal Code, 1860 and other minor offences and the prosecution case

Crl.M.C 338/2017 339/2017 Page 113 of 132
was that the appellants were engaged as contract killers by a private
person to eliminate the accused. As observed vide para 20 of the said
verdict the version of the accused therein that the accused was shot
dead in a police encounter was found to be false during investigation
and it was observed vide para 25 of the said verdict that prima facie
some police officers and staff were engaged by some private persons
to kill their opponent and the police officers and the staff acted as
contact killers for them and it was observed further that if such police
officers and staff could be engaged as contract killers to finish some
person there may be very strong apprehension in the minds of the
witnesses about their own safety and if the police officers and staff
could kill a person at the behest of a third person, it cannot be ruled
out that they may kill the important witnesses or their relatives or give
threat to them at the time of trial of the case to save themselves and
that this aspect had been completely ignored by the Sessions Judge
while granting bail to the accused persons and thus it was held vide
para 26 that the High Court was perfectly justified in cancelling the
bail to the appellant accused who were police personnel and it was
their duty to uphold the law but far from performing their duty they
appeared to have operated as criminals and that the protectors had
become the predators.

123. As regards the reliance placed on behalf of the SIT on the
verdict in Neeru Yadav v. State of Uttar Pradesh Anr. (Supra), it
is essential to observe that the accused therein was a history-sheeter of
Police Station Kavi Nagar, District Ghaziabad with 15 cases
registered against him of which four inter alia were in relation to

Crl.M.C 338/2017 339/2017 Page 114 of 132
offences punishable under Section 302 of the Indian Penal Code, 1860
and two cases were punishable under Sections 307 of the Indian Penal
Code, 1860 and three cases were in relation to Section 25 under the
Arms Act and it was observed by the Court that the number and
nature of crimes registered against the accused spoke voluminously
about his antecedents. Furthermore the allegations against the accused
in relation to whom the appellant therein sought cancellation of bail
were found to be not in parity to the facts against the co-accused who
was on bail and it was thus observed vide para 17 of the said verdict
to the effect:

” Coming to the case at hand, it is found that
when a stand was taken that the second
respondent was a history-sheeter, it was
imperative on the part of the High Court to
scrutinize every aspect and not capriciously
record that the second respondent is entitled to
be admitted to bail on the ground of parity. It
can be stated with absolute certitude that it was
not a case of parity and, therefore, the impugned
order clearly exposes the non-application of
mind. That apart, as a matter of fact it has been
brought on record that the second respondent
has been charge-sheeted in respect of number of
other heinous offences. The High Court has
failed to take note of the same. Therefore, the
order has to pave the path of extinction, for its
approval by this Court would tantamount to
travesty of justice, and accordingly we set it
aside.”

124. It has thus to be re-emphasized as already observed herein
above that the verdicts relied upon on behalf of the petitioner herein

Crl.M.C 338/2017 339/2017 Page 115 of 132
are in facts and circumstances of the said cases not in pari materia
with the facts and circumstances of the instant case and on the facts
sought to be put forth in the instant case as alleged are distinguishable
from those in the cases relied upon on behalf of the petitioner.

125. Apart from the factum that the grounds for cancellation of bail,
i.e., an interference or attempt to interfere in the due course of
administration of justice, or attempt to evade the due course of justice
or abuse of the concession granted to the accused in any manner are
not made out against the respondent, in the facts and circumstances of
the instant case the contentions raised on behalf of the State through
the SIT, the petitioner, that the grant of anticipatory bail to the
applicant vide the impugned orders in FIR No.227/1992, under
Sections 147/148/149/295/395/307/302 and 436 of the Indian Penal
Code, 1860, Police Station Janakpuri and FIR No.264/1992, under
Sections 147/148/149/302/307 of the Indian Penal Code, 1860 Police
Station Vikaspuri was perverse by ignoring evidence on record or
taking into account irrelevant considerations cannot be accepted. This
is so inasmuch as the impugned orders dated 21.12.2016 take into
account the factum that the FIR as initially registered in both cases on
the basis of the affidavit of the complainant did not contain a whisper
of any allegation against the respondent regarding his participation in
the 1984 riots in the affidavit dated 8.9.1985 sworn before the Justice
Ranganath Mishra Commission.

126. The impugned orders also take into account the factum that
neither the complainant nor any of the witnesses examined by the
Special Riot Cell had found any evidence to connect the applicant

Crl.M.C 338/2017 339/2017 Page 116 of 132
with the offence in question in relation to incidents dated 1.11.1984
and 2.11.1984 and admittedly earlier investigations were closed as
untraced and the closure reports were accepted by the Courts of the
Metropolitan Magistrates. It was further more observed by the
impugned orders that admittedly from 1994 till examination of the
witnesses including the complainant in the year 2016 (an apparent
reference to statements recorded under Section 161 of the Code of
Criminal Procedure, 1973) nothing incriminating had come against
the respondent herein and that the deposition made by the complainant
under Section 164 of the Code of Criminal Procedure, 1973 had been
made for the first time after 32 years of the incident and some of the
witnesses who were examined in 2016 had also been examined in the
year 1992 and at that time had not named the respondent to be the
person who had incited the mob to burn down the properties of the
Sikhs or to murder them.

127. Undoubtedly a submission has been made on behalf of the State
that some of the witnesses examined under Section 161 of the Code of
Criminal Procedure, 1973, where statements were recorded after re-
investigation by the SIT had been never ever been examined earlier. It
was also observed vide the impugned orders that though an
explanation had been given in the statement under Section 164 of the
Code of Criminal Procedure, 1973 as to why he had not named the
respondent earlier, that as to whether such an explanation would be
believed or not after 32 years was a matter of trial. It was also
observed vide the impugned orders that some of the witnesses who
had been examined in the year 1992 had not deposed anything against

Crl.M.C 338/2017 339/2017 Page 117 of 132
the respondent herein and that the delay of around 24 years from the
registration of the FIR did not make out a case of a custodial
interrogation of the respondent herein when admittedly at the time of
first interrogation nothing incriminating had come against the
respondent. It was also observed vide the impugned orders that there
was nothing on record to show that the respondent herein during this
course of 24 years had threatened or influenced any of the witnesses
to refrain any of them making any statement against him and that
further more the respondent had deep roots in society and had thrice
been a Member of the Parliament and chances of him fleeing from
justice were also quite remote and that there were no allegations
against the respondent that anything used in the commission of the
offence was to be recovered at the instance of the respondent.

128. As observed in Sajjan Kumar v. State 43 1991 DLT 88 by this
Court the basic rule is „bail not jail‟ except where there are
circumstances suggestive of an accused fleeing from justice or
throttling the course of justice or creating other troubles in the shape
of repeating offences or intimidating witnesses and the like.

129. The verdict of this Court in Sajjan Kumar V. State (Through
CBI) in Bail application No.306/2016 dated 26.10.2010 in which the
aspect of re-registration of FIR 250/1984, 347/1991, 307/.94 PS
Sultanpuri and FIR 416/84 PS Delhi Cantt. was ordered on
24.10.2005, in which the charge sheets were submitted after the case
having been submitted untraced, in which the CBI therein had
contended that new witnesses had come forward witnessing the
incidents of arson and killing after the closure report had been filed

Crl.M.C 338/2017 339/2017 Page 118 of 132
and duly accepted by the Metropolitan Magistrate and wherein the
accused had even been acquitted for want of evidence, it was
contended on behalf of the accused that the fresh prosecution on the
same facts having been launched and where the name of the accused
had for the first time surfaced before the Jain Banerjee Committee
which recommended registration of the case, and that some of the
witnesses who had earlier not named the accused which showed that
they had improved their version and that the witnesses had surfaced
after a lapse of 25 years, it was observed by this Court that the delay
in making the statements was required to be explained during trial and
veracity of these witnesses had to be tested when they appear in the
witness-box and it was held that in that case there was a delay of 25
years from the date of incident when the prayer of the respondent
herein seeking anticipatory bail was opposed and it was observed that
it would not be justifiable to detain the appellant in custody after a
lapse of 25 years of taking incident.

130. The contention of the CBI in that case relied upon on behalf of
the respondent herein was that the accused were involved in serious
offences of arson, killing and rioting and the specific contentions
raised on behalf of the CBI were to the effect:

“26………………………… Petitioner Sajjan
Kumar (i.e. the very same respondent herein) had
organized a mob and targeted the persons of
Sikh community; instigated the said mob to kill
and burn the houses of members of Sikh
community. The incident of arson, looting,
killing of male members of Sikh community was
perpetrated in a barbaric, inhuman and cold

Crl.M.C 338/2017 339/2017 Page 119 of 132
blooded manner, as a consequence whereof
victims were isolated, felt insecure, threatened
and at that time had no courage to go before the
investigating agency or the court to make a
statement against the culprits. Some of the close
relatives of the deceased persons had migrated to
Punjab. They had no courage to return to Delhi,
so as to make a statement before the court or the
investigating agency. With the passage of time
they mustered up the courage and approached
the Commission and filed their affidavits. All
these years the truth was not allowed to come to
surface which shows the pervading influence
which the local administration had over the
whole matter, as petitioner Sajjan Kumar was
holding high political position. Accordingly,
delay of 25 years in this case will be of no
consequence.”

131. Undoubtedly, in the case relied upon on behalf of the
respondent, the respondent had already been acquitted in the said case
and witnesses had also been examined during trial but on re-
registration of the case during investigation some of the witnesses
who were common in the earlier FIR again made statements
implicating the respondent accused, i.e., respondent herein and it was
observed by this Court that the new witnesses would have to explain
as to why they did not come forward earlier during the trial and
though their statements could not be brushed aside as they had to
explain during trial as to why they did not depose against the accused
on earlier several occasions and that 25 years had gone by and this
delay undoubtedly tilted the balance in favour of the accused at least
for the purpose of grant of bail to them. This Court also did not

Crl.M.C 338/2017 339/2017 Page 120 of 132
accept the contentions of the CBI in that case that the release of the
accused therein, i.e. the very same respondent to the present petition,
being enlarged on bail would hamper the fair trial and that witnesses
may not depose against the petitioner due to fear and threat was not
accepted by this Court, it having been observed vide para 30 thereof
to the effect:

“30. I do not find much force in the contentions
of learned senior counsel that in case petitioners
are enlarged on bail it will hamper fair trial and
witnesses may not depose against the petitioners
due to the fear and threat. Admittedly all along
for the last 25 years petitioners have remained at
large as they were not in custody. CBI
conducted investigation almost for about five
years. During this period, CBI did not deem it fit
to arrest any of the petitioners. In spite of
petitioners bearing at large, witnesses came
forward and made statements before the CBI.
There is no specific allegation against the
petitioners of having threatened or influenced
any of the witnesses, so as to refrain any of them
from making statement against them. Besides
this, it is evident from the facts narrated herein
above that after the unfortunate and appalling
incident that relatives of the family members of
the victims were not left alone to fend for
themselves as members of various
Commission/Committees including eminent
jurists had been visiting the affected areas and
even met the families of the victims residing in
camps and interacted, counselled, encouraged,
offered support to them right from the
beginning.

Crl.M.C 338/2017 339/2017 Page 121 of 132

31. Indeed, it is true, that offence with which
petitioners have been charged by the CBI is of
grave nature and ordinarily in such cases courts
would be slow in admitting the accused on
anticipatory bail, in the face of statements of eye
witnesses. However, in the peculiar facts and
circumstances of this case and for the reasons as
mentioned in the preceding paras hereinabove, I
am of the view that it would not be justifiable to
detain the petitioners in custody, after lapse of 25
years of incident.

32. Accordingly, it is ordered that in the event of
their arrest, petitioners shall be released on bail,
subject to furnishing personal bond in the Sum
of Rs.50,000/- each with one surety in the like
amount to the satisfaction of Investigating
Officer/Arresting Officer/SHO.”

132. The appeal against this order to the Supreme Court of India was
declined in Crl.M.P. No.(S). 6021/2010 observing to the effect:

“Heard Mr.Anil B. Divan and Mr.Ravi Shankar
Parsad, Senior Advocates appearing for the
petitioner.

Permission to file SLPs is granted.

In view of the reasons stated in the impugned
order, we are not inclined to interfere with the
same. We make it clear that the observation and
conclusion arrived by the High Court are
confined only for the disposal of the anticipatory
bail. At the time of the trial the court concerned
is free to decide the issue on the basis of the
materials placed and uninfluenced by any of the
observation made in the impugned order.”

Crl.M.C 338/2017 339/2017 Page 122 of 132

133. The verdict of the Hon‟ble Supreme Court in Badresh Bipinbhai
Seth V. State of Gujarat and Anr.; (Cr.Appeal No.1134-1135/2015)
reiterates the factors and parameters delineated by the Supreme Court
in Siddharam Salingappa Mhetre v. State of Maharashtra: (2011) 1
SCC 694 which need to be taken into consideration while dealing with
the aspect of grant or rejection of anticipatory bail as under :-

(a) The nature and gravity of the accusation and
the exact role of the accused must be properly
comprehended before arrest is made;

(b) The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a court
in respect of any cognizable offence.

(c) The possibility of the applicant to flee from
justice;

(d) The possibility of the accused’s likelihood to
repeat similar or other offences;

(e) Where the accusations have been made only
with the object of injuring or humiliating the
applicant by arresting him or her;

(f) Impact of grant of anticipatory bail
particularly in cases of large magnitude affecting
a very large number of people;

(g) The courts must evaluate the entire available
material against the accused very carefully. The
court must also clearly comprehend the exact role
of the accused in the case. The cases in which the
accused is implicated with the help of Sections 34
and 149 of the Penal Code, 1860 the court should

Crl.M.C 338/2017 339/2017 Page 123 of 132
consider with even greater care and caution,
because over implication in the cases is a matter
of common knowledge and concern;

(h) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice should
be caused to free, fair and full investigation, and
there should be prevention of harassment,
humiliation and unjustified detention of the
accused;

(i) The court should consider reasonable
apprehension of tapering of the witness or
apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail.”

134. The following observations of the Apex Court in Badresh
Bipinbhai Sheth (Supra) are germane and relevant to the instant
case:

“25.3 It is imperative for the courts to carefully
and with meticulous precision evaluate the facts
of the case. The discretion to grant bail must be
exercised on the basis of the available material
and the facts of the particular case. In cases
where the court is of the considered view that the
accused has joined the investigation and he is
fully cooperating with the investigating agency
and is not likely to abscond, in that event,
custodial interrogation should be avoided. A great

Crl.M.C 338/2017 339/2017 Page 124 of 132
ignominy, humiliation and disgrace is attached to
arrest. Arrest leads to many serious consequences
not only for the accused but for the entire family
and at times for the entire community. Most
people do not make any distinction between arrest
at a pre-conviction stage or post-conviction stage.

25.4 There is no justification for reading
into Section 438 CrPC the limitations mentioned
in Section 437 CrPC. The plentitude of Section
438 must be given its full play. There is no
requirement that the accused must make out a
“special case” for the exercise of the power to
grant anticipatory bail. This virtually, reduces the
salutary power conferred by Section 438 CrPC to
a dead letter. A person seeking anticipatory bail is
still a free man entitled to the presumption of
innocence. He is willing to submit to restraints
and conditions on his freedom, by the acceptance
of conditions which the court may deem fit to
impose, in consideration of the assurance that if
arrested, he shall be enlarged on bail.

25.5 The proper course of action on an
application for anticipatory bail ought to be that
after evaluating the averments and accusations
available on the record if the court is inclined to
grant anticipatory bail then an interim bail be
granted and notice be issued to the Public
Prosecutor. After hearing the Public Prosecutor
the court may either reject the anticipatory bail
application or confirm the initial order of
granting bail. The court would certainly be
entitled to impose conditions for the grant of
anticipatory bail. The Public Prosecutor or the
complainant would be at liberty to move the same
court for cancellation or modifying the conditions
of anticipatory bail at any time if liberty granted

Crl.M.C 338/2017 339/2017 Page 125 of 132
by the court is misused. The anticipatory bail
granted by the court should ordinarily be
continued till the trial of the case.

25.6 It is a settled legal position that the court
which grants the bail also has the power to cancel
it. The discretion of grant or cancellation of bail
can be exercised either at the instance of the
accused, the Public Prosecutor or the
complainant, on finding new material or
circumstances at any point of time.

25.7……………………………………………………
…………………………………………………………
………………………………………………………….

25.8 Discretion vested in the court in all matters
should be exercised with care and circumspection
depending upon the facts and circumstances
justifying its exercise. Similarly, the discretion
vested with the court under Section 438 CrPC
should also be exercised with caution and
prudence. It is unnecessary to travel beyond it and
subject the wide power and discretion conferred
by the legislature to a rigorous code of self-
imposed limitations.”

CONCLUSION

135. The available records indicate that pursuant to the impugned
orders the respondent has made himself available for investigation and
it has been submitted on his behalf that he shall continue to do so.

136. On a consideration of the totality of the circumstances put forth
it is held that presently, there are no grounds made out by the
petitioner for cancellation of anticipatory bail granted vide orders

Crl.M.C 338/2017 339/2017 Page 126 of 132
dated 21.12.2016 in Bail Appln. 14072/2016 in relation to FIR 227/92
Police Station Janakpuri and Bail Appln. 14073/2016 in relation to
FIR No.262/92 Police Station Vikaspuri granted by the ASJ-01,
Dwarka Courts, New Delhi. The prayer made by the petitioner to that
extent is disallowed.

137. However, the respondent shall not ask for a questionnaire from
the SIT to answer to its queries during investigation, subject to
protections enshrined under Article 20(3) of the Constitution of India.
Furthermore, the respondent shall comply with all conditions imposed
on him vide the impugned orders dated 21.12.2016 at the time of the
grant of the anticipatory bail in FIR No.227/1992 Police Station
Janakpuri and FIR No.264/1992 Police Station Vikaspuri.

138. A prayer is made by the petitioner seeking expunction of
observations made in para 24 and 26 of the impugned orders dated
21.12.2016 which paragraphs are identical in both the impugned
which paragraphs 24 and 26 read to the effect:

“24. The submission of the ld.Counsel for
the applicant that the case has been re-opened
for political consideration just to falsely
implicate the applicant also cannot be ignored
and makes out a ground for anticipatory bail to
the applicant.

25. ……….

26. There can be no dispute with regard to ratio laid
down by the Hon’ble Supreme Court of India in the matter
of Jai Prakash Singh’s case (Supra) regarding the
principles for grant of anticipatory bail relied upon by the
ld.cousnel for SIT. In the present case also, exceptional

Crl.M.C 338/2017 339/2017 Page 127 of 132
circumstances have been made out for grant of
anticipatory bail as there is prima facie material to show
that the applicant has been falsely enroped in the crime in
question after 32 years of the incident and his chance of
mis-using the liberty is also non-existent,

139. That the High Court can in the exercise of its inherent
jurisdiction may expunge remarks made by it or by the Court over
which it exercises supervisory, appellate and revisional jurisdiction, if
it be necessary to do so to prevent abuse of the process of the Court or
otherwise to secure the ends of justice is laid down by the Hon‟ble
Supreme Court in its verdict dated 15.3.1963 in the The State of Uttar
Pradesh v. Mohammad Naim;, AIR 1964 SC 703 which also lays
down that this jurisdiction is of an exceptional nature and has to be
exercised in exceptional cases only. It has also been observed by the
Apex Court in its verdict that :

“if there is one principle of cardinal importance in the
administration of justice, it is this: the proper freedom and
independence of judges and Magistrates must be maintained and
they must be allowed to perform their functions freely and fearlessly
and without undue interference by anybody, even by this court. At
the same time it is equally necessary that in expressing their
opinions judges and Magistrates must be guided by considerations
of justice, fair play and restraint. It is not infrequent that sweeping
generalizations defeat the very purpose for which they are made.

It has been judicially recognized that in the matter of making
disparaging remarks against persons or authorities whose conduct

Crl.M.C 338/2017 339/2017 Page 128 of 132
comes into consideration before courts of law in cases to be decided
by them, it is relevant to consider

(a) whether the party whose conduct is in question is before the
court or has an opportunity of explaining or defending himself; (b)
whether there is evidence on record bearing on that conduct
justifying the remarks; and (c) whether it is necessary for the
decision of the case, as an integral part thereof, to animadvert on
that conduct. It has also been recognised that judicial
pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderation and reserve.”

140. The ratio of these observations were referred to in
R.K.Laxmanan v. A.K. Srinivasan and Anr.; [1976] 1 S.C.R. 204 and
in the verdict of Apex Court in Niranjan Patnaik v. Shashibhusan
Kar and Anr.; AIR 1986 SC 819, wherein it was observed vide
paragraph 24 to the effect:

“It is, therefore, settled law that harsh or
disparaging remarks are not to be made against
persons and authorities whose conduct comes
into consideration before courts of law unless it
is really necessary for the decision of the case, as
an integral part thereof to animadvert on that
conduct. We hold that the adverse remarks made
against the appellant were neither justified nor
called for.”,
whilst also adverting to the observations in Panchanan Banerji v.

Upendra Nath Bhattacharji, A.I.R. 1927 Allahabad 193 Sulaiman, J.
held as follows :

Crl.M.C 338/2017 339/2017 Page 129 of 132

“The High Court, as the supreme court of
revision, must be deemed to have power to see
that Courts below do not unjustly and without
any lawful excuse take away the character of a
party or of a witness or of a counsel before it.”

141. The verdict of the Supreme Court in Abani Kami Ray v. State
of Orissa and Ors.; 1995(6) SCALE 41 also observes to the effect:

“What we have said above is nothing new and is
only a reiteration of the established norms of
judicial propriety and restraint expected from
everyone discharging judicial functions. Use of
intemperate language or making disparaging
remarks against any one unless that be the
requirement for deciding the case, is inconsistent
with judicial behaviours. Written words in
judicial orders for permanent record which
make it even more necessary to practice self-
restraint in exercise of judicial power while
making written orders. It is helpful to recall this
facet to remind ourselves and avoid pitfalls
arising even from provocation.”

142. As regards the observations in para 26 of the impugned orders,
it is essential to observe that the observations to the effect:

“In the present case also, exceptional
circumstances have been made out for grant of
anticipatory bail as there is prima facie material
to show that the applicant has been falsely
enroped in the crime in question after 32 years
of the incident and his chance of mis-using the
liberty is also non-existent.”

have essentially to be expunged as without completion of
investigation, it could not have been concluded by the learned ASJ-01,

Crl.M.C 338/2017 339/2017 Page 130 of 132
Dwarka Courts that there was prima facie material to show that the
applicant, i.e., the respondent to the present petitioner, has been
falsely enroped in the crime in question after 32 years of the incident
and his chance of misusing the liberty was also non-existent. This is
so inasmuch as the recommendations for the re-investigation in the
instant cases was on the basis of the recommendations of the Justice
G.P.Mathur Committee report whereafter vide order dated 12.2.2015
the Government of India, Ministry of Home Affairs had constituted a
Special Investigation for investigating/re-investigating the cases of the
1984 riots and to take all such measures under the Law for a thorough
investigation of the criminal cases and to file the charge sheet against
the accused in the proper Court where after investigation sufficient
evidence was found available. The SIT was constituted by the
Ministry of Home Affairs, Government of India vide No. 13018/13/-
Delhi-I (NC) dated 12.02.2015 for re-investigation of the communal
cases which were filed in the NCT of Delhi in connection with the
1984 riots and investigation in these cases was taken up thereafter by
the SIT (1984 riots) a notified police station having jurisdiction over
the whole of the NCT of Delhi by the Lt. Governor of Delhi vide
GNCT Delhi Notification – Notification No. 6/13/2015-2129 to 2131
dated 09.07.2015. In these circumstances, the observations in para 26
of the impugned orders to the effect:

“In the present case also, exceptional
circumstances have been made out for grant of
anticipatory bail as there is prima facie material
to show that the applicant has been falsely
enroped in the crime in question after 32 years

Crl.M.C 338/2017 339/2017 Page 131 of 132
of the incident and his chance of mis-using the
liberty is also non-existent.”

are expunged.

143. In para 24 of the impugned orders also, which states to the
effect i.e. the submission of the ld. Counsel for the applicant that the
case has been re-opened for political consideration just to falsely
implicate the applicant also cannot be ignored and makes out a ground
for anticipatory bail to the applicant, which accepts the contention of
the respondent herein that the cases have been re-opened for political
consideration just to falsely implicate him and that this fact cannot be
ignored and makes out a case of grant of bail, have essentially to be
expunged, and are accordingly expunged as the learned Trial Court
could not have pre-judged the issues involved.

144. The petitions CRL.M.C. 338/2017 and CRL.M.C. 339/2017 are
disposed of accordingly. The copies of the statements under Section
161 of the Code of Criminal Procedure, 1973 filed by the State during
the course of submissions made are directed to be placed in a sealed
cover as the State has requested for withholding the identities of the
witnesses examined other than the complainant. The Case Diary
submitted by the SIT on 12.12.2017 is hereby directed to be returned
to the Investigating Agency, the SIT.

ANU MALHOTRA, J
nd
FEBRUARY 22 , 2018
MK/SV

Crl.M.C 338/2017 339/2017 Page 132 of 132

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh