SOMRAJ@DHAMI vs STATE OF NCT OF DELHI AND ANR.

2024-04-23 Information

$~93
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.04.2024

+ CRL.M.C. 2180/2022
SOMRAJ@DHAMI ….. Petitioner
Through: Mr.L.K. Verma and Ms.Bobbyy Rani Verma, Advs. (through VC)
versus

STATE OF NCT OF DELHI AND ANR. ….. Respondents
Through: Mr.Aman Usman, APP along with SI Amar Singh, PS Kishangarh.
Mr.Vijay Aggarwal, Ms.Rythm Aggarwal, Mr.Hardik Sharma, Mr.Neeraj Tiwari, Mr.Udayan Khurana & Mr.Puneet Dhawan, Advs. for
R-2.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

1. This petition has been filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C.), praying for cancellation of the anticipatory bail granted to the respondent no.2 vide Order dated 07.03.2022 of this Court in Bail Appln. No.267/2022 titled as Bimlesh Maan v. State.

Prosecutions Case
2. It is the case of the prosecution that on 18.10.2021, the petitioner herein was travelling in his Fortuner car, being driven by his driver Shafiq @ Lucky, while returning from the court to his house. At about 12.40 PM, when he reached Negi Dhaba, Kishangarh, Delhi, 4-5 assailants fired on him. One of the fired shots struck his driver Shafiq @ Lucky, who was then rushed to the Fortis Hospital. He raised a suspicion of the said attack on Sanjay Mehlawat and Harender Mann, as he suspected that they have attacked him to take revenge as he was accused of having killed Ashok Maan, uncle of Harender Maan, in February, 2020 and was facing trial for the same along with his brothers Davender @ Dev and Dharmbir @ Kalu in FIR No.57/2020.
3. It is the case of the prosecution that four of the accused were arrested in FIR No.266/2021 registered at Police Station: Special Cell under Sections 25/54/59 of the Arms Act, 1959, and two pistols and one Desi Katta along with 50 live cartridges were recovered from them. They disclosed their involvement in the present case. Further co-accused were also arrested in the said case.
4. The prosecution further alleges that the respondent no.2, who is the wife of Late Ashok Maan, wanted to take revenge of the murder of her husband, and was involved in the conspiracy for the attack in question since the beginning. She had met the accused persons in her house and provided them rooms and shelter before the incident. Some of the accused had also stayed in her flat, that is, Room No.14 in her house at 94/9, village Kishangarh, Delhi.
5. The Status Report dated 18.04.2024 filed by the Station House Officer (SHO), Kishangarh complains that after being granted anticipatory bail vide Order dated 07.03.2022 from this Court, the respondent no.2 is not cooperating in the investigation.

Submissions of the learned APP
6. The learned APP submits that the husband of the respondent no.2, that is, Late Ashok Maan had a licenced pistol, which needs to be recovered for purposes of investigation. In spite of notices having been sent, the respondent no.2 maintains that she does not know about the whereabouts of the said pistol or the licence. He submits that the respondent no.2 is, therefore, misusing the indulgence granted by this Court and is not cooperating in the investigation.
7. He submits that one of the conditions on which the respondent no.2 had been granted anticipatory bail by this Court was that she will join in the investigation and cooperate in the same. He submits that, in fact, this Court had granted liberty to the police to file an application seeking cancellation of the anticipatory bail in case she does not cooperate. He submits that, therefore, anticipatory bail granted to the respondent no.2 be cancelled. He submits that he, therefore, fully supports this petition and also joins in the request of the complainant / petitioner for seeking cancellation of the bail granted to the respondent no.2.

Submissions of the learned counsel for the respondent no.2
8. On the other hand, the learned counsel for the respondent no.2 submits that the charge sheet already stands filed against the respondent no.2. He submits that, therefore, investigation is complete as against the respondent no.2.
9. He submits that, in fact, notices under Section 91 of the Cr.P.C., that were issued by the police to the respondent no.2, were itself illegal.
10. Placing reliance on the judgment of the Supreme Court in Santosh s/o Dwarkadas Fafat v. State of Maharashtra, (2017) 9 SCC 714, he submits that the police cannot allege that merely because the accused is not ready to give a confessional statement, he/she is not cooperating in the investigation.
11. He submits that the respondent no.2 does not know of the whereabouts of the licenced pistol of her late husband and this has been informed to the Investigating Officer (IO).

Analysis and Conclusion
12. I have considered the submissions made by the learned counsels for the parties.
13. As is evident from the above, there was a day light attack on the Complainant/Petitioner by the assailants by firing gun shots in which one person was injured. The police / prosecution needs the licenced weapon to determine if it was used in the attack.
14. It is not denied by the respondent no.2 that her husband did hold a licenced pistol. The respondent no.2 now alleges that she does not know the whereabouts of that licenced weapon. To a query from this Court, the learned counsel for the respondent no.2 admits that no complaint of the weapon being missing, has been lodged so far in spite of the police repeatedly seeking the recovery of the said weapon.
15. This Court while granting anticipatory bail to the respondent no.2 had specifically put the following conditions:
(ii) The petitioner shall cooperate with the police officials and in case of her non-cooperation, the police officials are at liberty to move an application for cancellation of the anticipatory bail granted to her.

16. In my view, the respondent no.2 is in clear breach of the said condition.
17. The judgement of the Supreme Court in Santosh s/o Dwarkadas Fafat (supra), cannot come to the aid of the respondent no.2. What the police needs from the respondent no.2 is not her confessional statement, but recovery of the weapon for which the respondent no.2s husband was holding a licence. It cannot be said to be an attempt to obtain a confessional statement or self-incriminating statement.
18. It is also settled law that custodial interrogation may sometimes prove more useful to unearth the entire gamut of conspiracy.
19. In my view, therefore, the relief which has been granted to the respondent no.2 vide Order dated 07.03.2022 of this Court in the abovementioned FIR, deserves to be withdrawn.
20. Accordingly, the anticipatory bail granted to the respondent no.2 vide Order dated 07.03.2022 in Bail Application No.267/2022 shall stand cancelled.
21. The learned counsel for the respondent no.2 submits that in case the respondent no.2 is unable to obtain any interim protection against arrest within a period of two weeks, the respondent no.2 shall surrender to the police after the said period.
22. In view of the above, it is directed that no coercive steps be taken against the respondent no.2 in relation to the above FIR and based on the present order, for the period of two weeks from today.
23. The petition is disposed of in the above terms.

NAVIN CHAWLA, J
APRIL 23, 2024/ns/ss

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CRL.M.C. 2180/2022 Page 6 of 6