Punjab and Haryana High Court: Three petitions are clubbed together where the petitioners intended to withdraw their bail applications as bail was already granted by the different trial courts. The main issue before Jasgurpreet Singh Puri, J. was effect of filing bail applications and passing of bail orders by the trial courts during the pendency of bail application before High Court by the same accused without disclosing such pendency and what safeguards should be adopted by the trial courts in this regard.
Points discussed in the present petition:
- Whether bail granted to the petitioners should be cancelled/ set aside on the basis of the suppression and concealment of the material fact regarding pendency of the bail application before the Court.
- Whether pendency of application is ‘material fact’ for cancellation of bail.
- Whether bail granted to the petitioners by the trial courts should be cancelled/ annulled or not needs to be tested on the anvil of the fundamental right guaranteed under Article 21 of the Constitution of India.
- Safeguards to check such wrongful practices.
In all the three petitions the petitioners filed the bail application before the High Court as well as the trial court without disclosing the factum of pendency of the present bail applications except in one case where on the date of the decision of the bail application by the trial courts, it was orally informed that the bail application before the Court has been withdrawn although the same was never withdrawn.
It was submitted by the petitioners that they should not have filed another bail application during the pendency of the bail application before the Court and it was not proper on their part. However, they have submitted that once the trial courts have granted bail to the petitioners on their own merits and the same have not been challenged by the State in any proceedings, the petitioners may be permitted to withdraw the present petitions.
Court appointed Mr. Kanwaljit Singh and Mr. R.S. Rai, Senior Advocates as amicus curiae to assist the Court concerning the further process to be taken in such matters which are not only serious but also affects the administration of justice. In the opinion of Mr. Kanwaljit Singh, such concealment is a fraud upon the Court and must have a deterrent effect, it was submitted that bail granted by the trial courts must be cancelled. By relying upon the judgment of Supreme Court in Dalip Singh v. State of UP., (2010) 2 SCC 114 and Kishore Samrite v. State of U.P., (2013) 2 SCC 398 it was submitted that a party who approaches the court by suppressing the facts and to mislead the court is not entitled to be heard on merits and that it is a bounden duty of anyone approaching the courts to state the whole case fully and fairly and any attempt to mislead and approach with unclean hands should be dealt with severely. On the other hand, Mr. R.S. Rai, suggested that court must strike a balance between the liberty of an individual and the nature and level of misconduct on their part. It was submitted that in all the three cases, the bail applications have been decided by the respective Additional Sessions Judges on their own merits, hence the Court must not cancel or set aside the bail order rather impose a cost.
Mr. Arun Kumar Kaundal, Deputy Advocate General, Punjab submitted that since the petitioners have filed bail applications before the trial courts during the pendency of the present bail applications in all three cases, the present petitions deserve to be dismissed with costs.
Court held, “that cancellation of bail and annulment/setting aside of bail orders are two different aspects. Cancellation of bail is based upon violation of terms and conditions of the bail order and other parameters as aforesaid but setting aside/annulment of bail order by a higher Court is based upon different parameters i.e. legality or perversity in the passing of the order of bail”.
The foremost question before the Court was, whether such bail orders should be set aside or cancelled on the ground of suppression of material fact regarding the pendency of the bail application before the Court or not. It was observed that all the orders granting bail have been passed on their own merits and there was no illegality or perversity in the orders passed by the Courts.
It was observed that the Supreme Court in Arunima Baruah v. Union of India, (2007) 6 SCC 120, discussed the meaning and scope of the expression ‘material fact’ and the effect of suppression of the same. It was observed that a material fact would mean material for determination of the lis and the logical corollary whereof would be that whether the same was material for grant or denial of the relief. In the present cases although there was a suppression of material fact before the trial court, but the fact was not material determination of the lis and the orders of bail have been passed on their merit. Therefore, the suppression of a material fact of non-disclosure of pendency of bail application before this Court would be subservient to the right of liberty granted to the petitioners under Article 21 of the Constitution of India since the bail orders were decided on merits.
However, Court did not ignore the misconduct on the part of the petitioners and, therefore, in order to secure the ends of justice, cost was imposed on the petitioners.
Court discussed the various safeguards to be adopted to curb the wrongful practice, “It must be mandatorily mentioned in every application for bail (regular/anticipatory) as to whether such or similar application for bail has or has not been made before any other Court. In case the same was made, then its status must be also mentioned”.
[Kulwant Singh v. State of Punjab, CRM-M-52620-2019 (O&M), decided on 11-03-2022]
Ms. G.K. Mann, Senior Advocate and Mr. Gursewak Singh, Advocate, for the petitioner in CRM-M-52620-2019.
Mr. Karan Nanda, Advocate, for the petitioner in CRM-M-17512-2019.
Mr. Rishu Mahajan, Advocate, for the petitioner in CRM-M-2593-2021.
Mr. Kanwaljit Singh and Mr. R.S. Rai, Senior Advocates as Amicus Curiae.
Mr. Arun Kumar Kaundal, DAG, Punjab.
Mr. Shivam Joshi, Mr. Karanjit Singh and Mr. Vijay Bhaskar, Advocates in CRM-M-52620-2019.