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Supreme Court of India
Sumedh Singh Saini vs The State Of Punjab on 3 December, 2020Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.827 OF 2020
(Arising from SLP(Criminal) No.4336/2020)

Sumedh Singh Saini …Appellant

Versus

State of Punjab and another …Respondents

JUDGMENT

M.R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 08.09.2020 passed by the High Court

of Punjab and Haryana at Chandigarh in CRM­M No. 26304 of

2020, by which the application submitted by the appellant herein

for anticipatory bail in connection with FIR No. 77 dated
Signature Not Verified

06.05.2020 for the offence punishable under Section 302 IPC,
Digitally signed by
ARJUN BISHT
Date: 2020.12.03
17:03:00 IST
Reason:

lodged with Police Station City Mataur, District S.A.S. Nagar,

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Mohali has been dismissed, the original petitioner – accused has

preferred the present appeal.

3. That one Palwinder Singh Multani, brother of one Balwant

Singh Multani (deceased) has lodged an FIR against the appellant

at Police Station City Mataur initially for the offences punishable

under Sections 364, 201, 344, 219 and 120­B of the IPC, and

subsequently the offence punishable under Section 302 IPC has

been added.

3.1 It is alleged that in the year 1991 one Balwant Singh

Multani – brother of the informant was illegally abducted from

his residence at Mohali by a team of officials operating under the

instructions of the appellant; that he was severely and

inhumanly tortured while in custody, by and at the behest of the

appellant. It is further alleged that a false and fabricated FIR No.

112 of 1991 might have been registered at the instance of the

appellant to suggest that the victim was brought to the police

station Qadian from where the victim was alleged to have

escaped.

3.2 That apprehending his arrest in connection with FIR No. 77

dated 06.05.2020, the appellant filed anticipatory bail application

before the learned Additional Sessions Judge, Mohali. At this

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stage, it is required to be noted that when the appellant applied

for anticipatory bail, the allegations in the FIR against the

appellant were only for the offences punishable under Sections

364, 201, 344, 330, 219 and 120­B of the IPC. That by order

dated 11.05.2020, the learned Additional Sessions Judge, Mohali

granted anticipatory bail in favour of the appellant. That

thereafter as the appellant was apprehending that the offence

under Section 302 IPC may be added, he approached the learned

Additional Sessions Judge, Mohali for anticipatory bail for the

offence punishable under Section 302 also. By order dated

10.07.2020, the learned Additional Sessions Judge granted

protection by way of three days’ advance notice in case of

addition of offence under Section 302 IPC. It appears that

thereafter three co­accused in FIR No. 77 dated 06.05.2020

wanted to become approver and they submitted the applications

before the learned Chief Judicial Magistrate, Mohali for grant of

pardon and declaring them as approver under Section 306

Cr.P.C. However, all the three applications came to be dismissed

by the learned Chief Judicial Magistrate, Mohali, vide order dated

7.8.2020. However, thereafter the applications submitted by the

other co­accused – Jagir Singh and Kuldip Singh to grant them

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pardon and permit them to become approver came to be allowed

by the learned Chief Judicial Magistrate, Mohali, vide order dated

18.08.2020. That thereafter the statements of Jagir Singh and

Kuldip Singh were recorded by the learned Judicial Magistrate

(First Class), Mohali, which were against the appellant. On the

basis of the statements of the aforesaid two co­accused who

subsequently turned approver – Jagir Singh and Kuldip Singh,

an application was submitted before the learned Judicial

Magistrate, First Class (Duty Magistrate) seeking addition of

Section 302 IPC in FIR No. 77 dated 06.05.2020. That by order

dated 21.08.2020, the learned Judicial Magistrate, First Class

(Duty Magistrate) allowed the said application and thus section

302 IPC came to be added.

3.3 That thereafter the appellant applied for anticipatory bail for

the offence under Section 302 IPC before the learned Additional

Sessions Judge, Mohali by way of bail application no. 1527 of

2020. That the learned Additional Sessions Judge vide order

dated 01.09.2020 dismissed the said application. That thereafter

the appellant approached the High Court of Punjab and Haryana

at Chandigarh with an application for grant of anticipatory bail

being CRM­M No. 26304 of 2020. By the impugned judgment

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and order, the High Court has dismissed the said anticipatory

bail application. Hence, the appellant has preferred the present

appeal.

4. Shri Mukul Rohatgi, learned Senior Advocate has appeared

for the appellant – accused, Shri Sidharth Luthra, learned Senior

Advocate has appeared for the State of Punjab and Shri K.V.

Vishwanathan, learned Senior Advocate has appeared on behalf

of the original informant.

4.1 Number of submissions have been made by Shri Rohatgi,

learned Senior Advocate appearing on behalf of the appellant –

accused in support of his prayer to grant anticipatory bail.

It is vehemently submitted that the present FIR is filed with

a malafide intention to harass the appellant and at the instance

of the present party in power in the State. It is submitted that

even otherwise the present FIR is not maintainable as being a

second FIR on the same set of facts and has been registered after

delay of 29 years of the alleged incident. It is submitted that

earlier attempt to falsely implicate the appellant failed and a

similar FIR for the very incident in question and with somewhat

similar allegations came to be quashed by this Court in the case

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of State of Punjab v. Davinder Pal Singh Bhullar, reported in (2011)

14 SCC 770.

4.2 It is further submitted that the informant heavily placed

reliance upon the liberty reserved in favour of the father of

Balwant Singh Multani to file fresh proceedings. It is submitted

that however during his life time the father of Balwant Singh

Multani did not initiate any fresh proceedings and after a period

of six years and after the death of the father of Balwant Singh

Multani, the present FIR has been filed after 9 years of the

judgment of this Court in the case of Davinder Pal Singh Bhullar

(supra) and after 29 years of the incident and that too by the

brother of Balwant Singh Multani with the political support of the

current State Government. It is submitted that, as such, when

initially the present FIR was lodged, it was lodged on 6.5.2020

only for the offences under Sections 364, 201, 344, 330, 219 and

120­B of the IPC. It is submitted that thereafter the investigating

agency with a malafide intention pressurised two co­accused and

made them approver and obtained the statements against the

appellant and on the basis of the statements of the two co­

accused who subsequently turned as approver, the offence

punishable under Section 302 IPC has been added.
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4.3 It is further submitted that even the present FIR also suffers

from a serious jurisdictional error, inasmuch as, the FIR is

registered in Mohali on the directions of the SSP, Mohali,

whereas, in fact, all the events even as per the complainant

occurred within the jurisdiction of P.S. Chandigarh. It is

submitted that as per Sections 177 and 178, Cr.P.C. the ordinary

place of investigation and trial is within whose local jurisdiction

the offence has occurred. It is submitted that the present FIR

No. 77 and the proceedings initiated pursuant thereto are a

blatant abuse of process, malafide and misuse of policing power.

It is submitted that as such the appellant has already moved an

application for quashing FIR No. 77 dated 6.5.2020, which came

to be dismissed by the High Court against which a special leave

petition is pending before this Court.

4.4 It is further submitted that even otherwise while adding the

charge under Section 302 IPC in FIR No. 77 dated 6.5.2020, the

procedure as required to be followed as per the decisions of this

Court in the cases of Pradeep Ram v. State of Jharkhand,

reported in 2019 (9) SCALE 120 and Sushila Aggarwal v. State

(NCT of Delhi), reported in (2020) 5 SCC 1, has not been followed.

It is submitted that even the procedure adopted by the learned

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Magistrate, who allowed the prosecution to add the offence

punishable under Section 302 IPC is unknown to the procedure

required to be followed under the provisions of the Cr.P.C.

4.5 It is further submitted by Shri Rohatgi, learned Senior

Advocate appearing on behalf of the appellant that the appellant

is ready and willing to co­operate with the investigation, however,

without prejudice to his rights and contentions in the pending

proceedings before this Court for quashing the FIR. It is

submitted that the appellant is highly decorated officer with a

distinguished service record. Shri Rohatgi has also made

submissions on malafide, political vendetta and the harassment

by the police.

4.6 Making the above submissions and relying upon the

aforesaid decisions of this Court, it is prayed to allow the present

application and grant anticipatory bail to the appellant.

5. The present application is vehemently opposed by Shri

Sidharth Luthra, learned Senior Advocate appearing on behalf of

the respondent­State and Shri K.V. Vishwanathan, learned

Senior Advocate appearing on behalf of the original informant.

Relying upon the statements of Jagir Singh and Kuldip Singh

which were recorded during the course of investigation, it is

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vehemently submitted that a case has been made out against the

appellant­accused for the offence under Section 302 IPC. It is

submitted that the offence punishable under Section 302 IPC has

been added after obtaining the permission from the learned

Magistrate. It is submitted that considering the material

available on record, the learned Magistrate allowed the

application submitted by the prosecution/investigating agency to

add the offence punishable under Section 302 IPC. It is

submitted that therefore a prima facie case is made out against

the appellant.

5.1 Now so far as the delay in lodging the FIR is concerned, it is

submitted that as per catena of decisions of this Court, mere

delay and/or political vendetta cannot be a ground to quash the

criminal proceedings, more particularly when the allegations are

very serious and the allegations against the police officers are of

misuse of power, misuse of position, kidnapping and thereafter

killing the innocent person. It is submitted that truth must come

out. It is submitted that the custodial interrogation of the

appellant is required.

5.2 It is further submitted that even the present FIR cannot be

said to be the second FIR as submitted on behalf of the appellant.

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It is submitted that the present criminal proceedings/FIR is by

the brother of the deceased who lost his brother and considering

the liberty reserved by this Court in the case of Davinder Pal

Singh Bhullar (supra).

5.3 It is vehemently submitted by Shri Sidharth Luthra, learned

Senior Advocate appearing on behalf of the State and Shri K.V.

Vishwanathan, learned Senior Advocate appearing on behalf of

the original informant that the appellant is a very influential

person and may tamper with the evidence and therefore this is

not a fit case to grant anticipatory bail to the appellant under

Section 438 Cr.P.C.

5.4 Making the above submissions, it is prayed to dismiss the

present application by submitting that when both, the learned

trial Court as well as the High Court have refused to exercise the

discretion in favour of the appellant and have refused to grant

anticipatory bail to the appellant, the same may not be interfered

with by this Court.

6. We have heard the learned counsel appearing on behalf of

the appellant­accused, learned counsel appearing on behalf of

the State and learned counsel appearing on behalf of the original

informant.

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At the outset, it is required to be noted that in the present

appeal the only question which is required to be considered is

whether the appellant is entitled to the anticipatory bail under

Section 438 Cr.P.C.?

7. Number of submissions have been made by the learned

counsel appearing on behalf of the appellant­accused on political

vendetta, malafide, delay in lodging the FIR, even the

maintainability of the impugned FIR etc. However, taking into

consideration that the quashing petition filed by the appellant­

accused is pending before this Court and the issue whether the

FIR/criminal proceedings are required to be quashed or not is at

large before this Court, we do not propose to elaborately deal with

all the submissions made by the learned counsel appearing on

behalf of the respective parties.

However, considering the fact that the impugned FIR has

been lodged/filed by the brother of the deceased after a period of

almost 29 years from the date of incident and after a period of 9

years from the date of decision of this Court in the case of

Davinder Pal Singh Bhullar (supra) and nothing is on record that

in between he had taken any steps to initiate criminal

proceedings and/or lodged an FIR, we are of the opinion that at

11
least a case is made out by the appellant for grant of anticipatory

bail under Section 438, Cr.P.C. Many a time, delay may not be

fatal to the criminal proceedings. However, it always depends

upon the facts and circumstances of each case. However, at the

same time, a long delay like 29 years as in the present case can

certainly be a valid consideration for grant of anticipatory bail.

8. Informant and the State are relying upon the observations

made by this Court in the case of Davinder Pal Singh Bhullar

(supra) and the liberty reserved in para 117 to the applicant who

earlier filed the petition under Section 482 Cr.P.C. (father of the

deceased) to take recourse to fresh proceedings, if permissible in

law. However, suffice it to say that the said liberty was as such

in favour of the father of the deceased who in the earlier round of

litigation before the High Court (from which the SLP(Criminal) No.

6503­6509/2011 were arisen) filed the petitions under Section

482 Cr.P.C.. This Court reserved the liberty in favour of the

father of the deceased to take recourse to fresh proceedings by

specifically observing that if permissible in law. It is reported

that the father of the deceased died in the year 2014. Till 2014,

the father of the deceased did not initiate any fresh proceedings.

After a period of 9 years from the date of decision of this Court in
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the case of Davinder Pal Singh Bhullar (supra), all of a sudden,

now the informant – brother of the deceased has woken up and

has initiated the present criminal proceedings. Whether the

fresh/present proceedings are permissible in law are yet to be

considered by this Court in the pending proceedings for quashing

the impugned FIR.

9. Looking to the status of the appellant and it is reported that

he has retired in the year 2018 as Director General of Police,

Punjab after 30 years of service and the alleged incident is of the

year 1991 and even in the present FIR initially there was no

allegation for the offence under Section 302 IPC and the

allegations were only for the offences under Sections 364, 201,

344, 330, 219 and 120­B of the IPC, for which there was an order

of anticipatory bail in favour of the appellant and subsequently

the offence under Section 302 IPC has been added on the basis of

the statements of Jagir Singh and Kuldip Singh – approvers only,

we are of the opinion that the appellant has made out a case for

anticipatory bail.

10. In view of the above and for the reasons stated above, the

present appeal succeeds. The impugned judgment and order

passed by the High Court, as well as, the learned Additional

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Sessions Court dismissing the anticipatory bail applications of

the appellant for the offence punishable under Section 302 IPC in

connection with FIR No. 77 dated 6.5.2020, registered at P.S.

City Mataur, District S.A.S. Nagar, Mohali are hereby quashed

and set aside. It is ordered that in case of arrest of the appellant

– Sumedh Singh Saini in connection with FIR No. 77 dated

6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar,

Mohali for the offence punishable under Section 302 IPC, he shall

be released on bail on furnishing personal bond in the sum of

Rs.1,00,000/­ (Rupees one lakh only) and two sureties of the like

amount and to surrender the passport and to cooperate with the

investigation (however without prejudice to his rights and

contentions in the pending proceedings to quash the impugned

FIR).

11. The appeal is allowed to the aforesaid extent.

………………………………………J.
[ASHOK BHUSHAN]

……………………………………..J. [R. SUBHASH REDDY]

NEW DELHI; ……………………………………..J.
DECEMBER 03, 2020 [M.R. SHAH]

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