Gaya Singh v. Kedar Singh — 1972 DIGILAW 206 (PAT)

Judgment 1. Opposite Party No. 1 Kedar Singh (hereinafter referred to as the "opposite party") has been committed to the Court of Session for offences under Sec.307 and some other sections of the Indian Penal Code. He applied for bail before the Sessions Judge, Patna, which was rejected. Before this Court, he prayed for bail in Criminal Misc. No. 789 of 1972. After stating the material facts, the miscellaneous application stated in paragraph 13 that "the petitioner was on provisional bail from 12-12-1970 to 18-1-1971 and never abused the privilege granted to him". In paragraph 19 it was recited that he had not filed any application for bail in this Court after commitment. This Court granted bail to Kedar Singh on the 5th May, 1972. 2. On the 29th August, 1972, Gaya Singh, the informant of the case, filed this Criminal Miscellaneous Case No. 1659 of 1972 for cancellation of the bail granted to Kedar Singh. This prayer is founded on the ground that order of bail was obtained from this Court by suppressing material facts and making misstatement of certain facts. 3. Mr. Uday Sinha, learned Standing Counsel No. 3, has been heard on behalf of the State and he has strongly supported the contentions for cancellation of the bail. He has urged that it is not merely a technical matter, but it concerns the administration of justice and, therefore, a serious view should be taken of the matter. 4. In order to appreciate the contentions raised, the following facts may be stated. After submission of chargesheet under Sections 148, 149, 337 and 307 of the Indian Penal Code and under Sec.27 of the Arms Act. a petition for bail on behalf of the opposite party was moved, but it was rejected by the Sessions Judge, Patna, on the 27th August, 1970. In Criminal Miscellaneous No. 1634 of 1970, R. J. Bahadur, J. rejected the bail application of Kedar Singh on the 3rd November, 1970. Thereafter, Kedar Singh filed an application for provisional bail before the Sub-divisional Magistrate, Biharsharif on the ground of his wifes illness. By order dated the 10th December, 1970, he was granted provisional bail for 20 days. It was later extended to the 11th January, 1971. After the expiry of this period, the opposite party did not surrender and absconded. Thereafter, Kedar Singh filed an application for provisional bail before the Sub-divisional Magistrate, Biharsharif on the ground of his wifes illness. By order dated the 10th December, 1970, he was granted provisional bail for 20 days. It was later extended to the 11th January, 1971. After the expiry of this period, the opposite party did not surrender and absconded. Ultimately, his bail was cancelled by order dated the 18th January, 1971 and non-bailable warrant of arrest and processes under Sections 87 and 88 of the Criminal Procedure Code (hereinafter referred to as "the Code") were issued against him. Without surrendering before the Magistrate. he came to this court in Criminal Revision No. 896 of 1971 and Criminal Miscellaneous No. 799 of 1971. Ultimately, the opposite party was permitted to withdraw his bail application in Criminal Miscellaneous No. 799 of 1971 on the 28th April, 1971, and B. D, Singh, J., by his order dated the 28th April, 1971, passed in Criminal Revision No. 896 of 1971, dismissed the revision application and directed him to surrender in person before the Court below. Thereafter, the opposite party surrendered before the Magistrate on the 10th June, 1971. 5. Immediately thereafter, the opposite party began applying for bail on the ground of his own illness. On the 2nd July, 1971, his bail application was rejected by the Munsif Magistrate, Biharsharif, on the ground that he had misused the privilege of provisional bail. His application for bail was also rejected by the Sessions Judge on the 29th July, 1971. An application for bail on ground of illness filed in this Court was permited to be withdrawn by order dated the 14th September, 1971 passed in Criminal Miscellaneous No. 1816 of 1971. On ground of illness, he again applied for bail in Criminal Miscellaneous No. 2374 of 1971, which was refused by Untwalia, J. (as he then was) by his order dated the 3rd December, 1971. While dismissing the application, he made the following observation : "In my opinion, the petitioner does not deserve to be enlarged on bail during the pendency of the case. Off and on, it appears, on wrong ground he is trying to obtain provisional bail. While dismissing the application, he made the following observation : "In my opinion, the petitioner does not deserve to be enlarged on bail during the pendency of the case. Off and on, it appears, on wrong ground he is trying to obtain provisional bail. The application is dismissed," As stated earlier, after he had been committed to the Court of Session, the opposite party applied for bail in Criminal Miscellaneous No. 789 of 1972 and he was granted bail by this Court on the 5th May, 1972. 6. It has been strenuously argued that the application for bail in Criminal Miscellaneous No. 789 of 1972 suffered from two serious infirmities. The first was the suppression of the kind of order that had been passed by Untwalia, J., (as he then was) and details of the previous cases when he had come to this Court and on each of which occasion his bail application had either been rejected or had been permitted to be withdrawn. In this connection, Rule 2-A (i) of Chapter XII of the High Court Rules at page 68, as corrected by correction slip No. 135, is relevant. It says :- ".........The application shall also state whether, on the same facts and/or otherwise, a previous application for bail had been filed in this Court on behalf of all or any of the applicants for bail, and if so, the number of the case, the date of disposal and the result thereof." These details were singularly lacking in the bail application in Criminal Miscellaneous No. 789 of 1972. Had these details been given, previous orders in the different criminal miscellaneous cases, including the observations of Untwalia, J. (as he then was), would have been looked into. As has been rightly argued by the learned State Counsel, omission to mention these details is not a matter of mere technicality, but is something substantial and important. Had these details been incorporated, they, along with the observations of Untwalia, J. (as he then was), would have unmistakably indicated how in the past on false or incorrect pleas he had been making unsuccessful attempts to be enlarged on bail. 7. The second infirmity was the mis-statement made that the opposite party had never misused the privilege of bail. It must be straightway said that this was wholly untrue. 7. The second infirmity was the mis-statement made that the opposite party had never misused the privilege of bail. It must be straightway said that this was wholly untrue. Facts set out above clearly show that after the expiry of the period of the provisional bail granted and later extended, he did not surrender and recourse had to be taken to issue non-bailable warrant of arrest and processes under Sections 87 and 88 of the Code. The matter did not rest there. Instead of surrendering before the Court below, he came to this Court and prayed for bail in Criminal Miscellaneous No. 799 of 1971 and in Criminal Revision No. 896 of 1971 for setting aside the order of the Magistrate dated the 19th April, 1971 asking him to surrender physically. On the 28th April, 1971, B. D. Singh, J. permitted the bail application to be withdrawn and dismissed the criminal revision asking the opposite party to surrender. This is the manner in which the opposite party behaved when, on compassionate grounds, provisional bail had been granted to him. 8. Mr. Maqbool Ahmad, on behalf of the opposite party Kedar Singh, has, firstly contended that this application on behalf of the private party, that is, the first informant, should not be entertained. It will be noticed that the State has also appeared and the State is very much emphatic that, regard being had to the circumstances of the case, this is eminently a fit case in which bail should be cancelled. Therefore, the observations made in the case of Thakur Ram V/s. The State of Bihar, ( AIR 1966 SC 911 ) : (1966 Cri LJ 700) that the criminal law is not to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it, are not attracted. 9. In Borhen Singh V/s. State through Dharam Pal Singh, ( AIR 1956 All 671 ) : (1956 Cri LJ 1275), the question whether bail could be cancelled on an application by a complainant was referred to a Division Bench for decision, and, relying on the language used in Sec. 497 (5) of the Code, the answer was given in the affirmative. 10. In this connection, reference may also be made to Sec. 498 (2) of the Code. 10. In this connection, reference may also be made to Sec. 498 (2) of the Code. It says - "A High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody." It will be noticed that the opposite party had been admitted to bail under Sec. 498 (1) and, therefore, this Court is fully competent to commit him to custody. In my opinion, regard being had to the language used in Sec. 498 (1), even if an application is made by a private party and which is supported by the State, the High Court, in suitable cases, can cancel bail. Therefore, the argument raised that since the prayer for cancellation of bail has been made by the private party it should not be entertained, cannot be upheld. 11 Mr. Maqbool Ahmed next contended that the opposite party has not abused the privilege of bail subsequent to the 5th May, 1972, when this Court granted him bail. I am not impressed with this argument. On the unequivocal statement that the opposite party had not abused the privilege of bail, I had admitted him to bail. Had I known that he had abused the privilege of bail and despite issue of non-bailable warrant of arrest and processes under Sections 87 and 88 of the Code he did not surrender, and it was only after a direction given by B. D. Singh, J. in Criminal Revision No. 896 of 1971 that he surrendered and that also six weeks later, I would have never enlarged him on bail. 12. By making untrue statements and raising frivolous pleas for about two years and abusing the privilege of bail and by duping this Court in the above manner, the opposite party secured bail and now he wants to make a capital out of his subsequent good conduct of three months. To say the least, the argument does not command itself to me. 13. Mr. Maqbool Ahmad next referred to the case of Harinarayan Mahto V/s. State of Bihar, (1960 BLJR 656) and submitted that bail can be cancelled only if the case falls within one of the cases enumerated therein. To say the least, the argument does not command itself to me. 13. Mr. Maqbool Ahmad next referred to the case of Harinarayan Mahto V/s. State of Bihar, (1960 BLJR 656) and submitted that bail can be cancelled only if the case falls within one of the cases enumerated therein. I find that one of the circumstances mentioned there is "If he runs away to a foreign country, or goes underground or beyond the control of sureties........." In my opinion, the case of the opposite party falls very much within this circumstance and this decision cannot avail the opposite party. 14. Regard being had to the facts of the case, I think, a serious view should be taken of the matter. After all, the opposite party cannot be allowed to make the administration of justice a mockery. As such, bail granted to him by this Court in Criminal Miscellaneous No. 789 of 1972 on the 5th May, 1972 is cancelled and he is committed to custody. He must surrender before the Trial Court, and, as prayed for by the learned counsel on his behalf, he is given fifteen days time to do so. The application is, accordingly, allowed.