Akhilanand Upadhyay v. State Of Bihar — 1995 DIGILAW 443 (PAT)

Judgment I. P. Singh, J. 1. It appears that one akhilanand Upadhyay filed a petition for anticipatory bail under section 438 of the Code of Criminal Procedure (in short the code) on 12.12.1994. The matter was placed before the Bench presided over by me on 13.12.1994 and after hearing the parties I allowed the prayer for anticipatory bail of the petitioner, and ordered that in the event of his arrest or surrender he shall be released on bail on his furnishing bail bound of Rs.10,000/- with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, dumka in connection with Dumka town ps Case No.125/94, subject to the conditions laid down under section 438 (3)of the Code. 2. It, however, appears that the chief Judicial Magistrate, Dumka vide his letter dated 3.2.1995 (placed at Flag d) addressed to the Registrar-General of this Court informed that earlier the prayer for bail of Akhilanand Upadhyay was rejected on 1.12.1994 in Cr. Misc. No.16354/1994 but again on 13.12.1994 his anticipatory bail petition was allowed in Cri. Misc. No.18182 of 1994 by a different Bench (meaning thereby the bench presided over by me and in pursuance of the order the petitioner surrendered in this court and he was enlarged on bail. In this letter the learned Chief Judicial Magistrate has observed as follows: "i have gone through the grounds and find that rejection of the earlier bail petition was concealed in the subsequent petition. " 3. This letter of the learned Chief judicial Magistrate at Flag D, was, however, placed before another Bench presided over by Dharampal Sinha, J who passed an order in the matter on 16.2.1995. From this order it appears that the learned Single Judge (Dharampal Sinha, J) after going through the contents of this letter observed that by making wrong averment in the bail petition in Cr. Misc. No.18182 of 1994 that this court had not been moved earlier in the matter and suppressing the fact of earlier rejection the petitioner was able to obtain the anticipatory bail by the order dated 13.12.1994. He ordered the matter to be placed before the Bench by which the order dated 13.12.1994 was passed. He further directed the Chief judicial Magistrate, in the meantime not to act on the subsequent order of the Bench dated 13.12.1994 (emphasis supplied ). He ordered the matter to be placed before the Bench by which the order dated 13.12.1994 was passed. He further directed the Chief judicial Magistrate, in the meantime not to act on the subsequent order of the Bench dated 13.12.1994 (emphasis supplied ). Accordingly the matter was placed before me and by order dated 22.2.1995 I asked the petitioner to show cause why the bail granted to him by me by the order dated 13.12.1994 be not cancelled. 4. Before proceeding to take up for consideration the show cause filed on behalf of the petitioner I would like to briefly state the sequence of the two bail petitions filed on behalf of the petitioner. 5. The petitioner had earlier filed cr. Misc. No.16354 of 1994 before this court praying for anticipatory bail. By the order dated 1.12.1994 the prayer for anticipatory bail of the petitioner was rejected by a Bench presided over by choudhary S. N. Mishra, J. Sub-sequently the petitioner again moved this Court in Cr. Misc. No.18182 of 1994 in whose paragraph No.2 the petitioner stated as follows:- "2 That the petitioner has not moved earlier before this Hon ble Court in this matter. " 6. It appears that when the matter was placed before me I heard both the parties and granted anticipatory bail to the petitioner by my order dated 13.12.1994 as indicated above. Subsequently the letter of the learned Chief judicial Magistrate at Flag D was received by this Court drawing the attention to the fact that the petitioner had cancelled in the subsequent anticipatory bail petition in Cr. Misc. No.18182 of 1994 the fact that earlier on 1.12.1994 the prayer for his anticipatory bail was rejected by this Court in Cr. Misc. No.16354 of 1994. Learned Chief judicial Magistrate has gone to the extent of saying in his letter that he had gone through the grounds of the subsequent bail petition and he found that the rejection of earlier bail petition was concealed in the subsequent petition. It is under the aforesaid circumstances that the show cause to the petitioner was issued by me for the cancellation of his bail. 7. It is under the aforesaid circumstances that the show cause to the petitioner was issued by me for the cancellation of his bail. 7. In his show cause the petitioner has contended that the First Information Report against him was lodged on 29-9-1994 and the case was registered as dumka Town P. S. Case No.125/94 in which the processes under Sections 82 and 83 of the Code were issued against him. Under the circumstances the petitioner was apprehending his arrest and so he had signed several vakalat-nama and had handed them over to his wife for filing of bail petition on his behalf and in the meantime he had left the village out of fear. Under the circumstances the petitioner had no knowledge as to who was entrusted with the pairvi of the case and on the receipt of the show-cause notice when the petitioner verified he could learn that the order dated 1-12-1994 passed in Cr. Misc. No.16354 of 1994 was never communicated to the family members of the petitioner. In the meantime, the petitioner was under going treatment in new Delhi and was residing at different places. The subsequent bail application (Cr. Misc. No.18182 of 1994) was filed through some Pairvikar and the averments made in paragraph 2 of the said petition was not intentional as the Pairvikar concerned was not informed about the previous order passed in the first bail petition since the lawyer for the petitioner in Cr. Misc. No.16354 of 1994 (previous bail petition) did not inform the family members of the petitioner about the result of the said bail application. Under the aforesaid circumstances the petitioner did not commit any intentional or deliberate misconduct by suppressing any fact about the rejection of the earlier bail petition on 1-12-1994. The petitioner himself is a chronic patient of hypertention. He did not commit any misconduct intentionally and deliberately. The petitioner is a Government servant and is being harassed by the informant since the petitioner was exonerated in the departmental proceedings. The petitioner has got highest respect and faith in judiciary and judicial system and tenders unqualified apology before this court. It has accordingly been prayed that the show cause be accepted and the bail granted to the petitioner be not cancelled. 8. The parties have been heard at length. However, there are some peculiar circumstances in this case which warrant notice and comment. It has accordingly been prayed that the show cause be accepted and the bail granted to the petitioner be not cancelled. 8. The parties have been heard at length. However, there are some peculiar circumstances in this case which warrant notice and comment. I will firstly take up the bail petition of the petitioner filed in Cr. Misc. No 18182 of 1994. No doubt in this bail petition in its paragraph No.2 the petitioner has clearly stated that he has not moved this Court earlier in the matter. In view of the production of the record of Cr. Misc. No.16354 of 1994 it is clear that this statement made in paragraph No.2 of this petition does not appear to be correct. The petitioner has tried to explain this statement made in paragraph No.2 of his bail petition in his show-cause petition which I will take up for consideration subsequently. The fact remains that by order dated 13-12-1994 I granted anticipatory bail to the petitioner in terms of my order of this date passed in Cr. Misc. No.18181/94. 9. I will next take up for consideration the communication received from the learned Chief Judicial Magistrate, dumka (Flag D) through his letter No.1/nayalaya dated 3.2.1995. It is clear from this letter that no report from the chief Judicial Magistrate was called for with respect to the rejection of the prayer for anticipatory bail on 1-12-1994 in Cr. Misc. No.16354 of 1994. It is not clear under what circumstance and for what reason the learned Chief judicial Magistrate has addressed this letter to the Registrar-General of this court stating therein that the prayer for bail of this petitioner was allowed in Cr. Misc. No.18182 of 1994 on 13-12-1994 by a different Bench while earlier in Cr. Misc. No.16354 of 1994 his prayer for anticipatory bail was rejected by another bench on 1-12-1994. This report submitted by the learned Chief Judicial magistrate appears to be uncalled for. However, he has not stopped there. He has gone to the extent of saying that he had gone through the grounds of the bail petition filed before this Court in cr. Misc. No.18182 of 1994 from which he could find that the rejection of earlier bail petition was concealed in the subsequent petition. It is not clear why the learned Chief Judicial Magistrate made this observation in this letter. Misc. No.18182 of 1994 from which he could find that the rejection of earlier bail petition was concealed in the subsequent petition. It is not clear why the learned Chief Judicial Magistrate made this observation in this letter. Did he think that a matter so obvious could escape the notice of the Bench of this court? This observation made by him is not in good spirit and he should not have tried to overstep his limits. This observation made by him in his letter appears to be uncalled for and it is difficult for me to find the reasons which prompted him to make this observation. 10. It is important to mention in this connection that in the office note dated 10-2-1995 regarding the order dated 13-12-1994 it has been stated that a letter from the Chief Judicial magistrate, Dumka has been received and kept at Flag D which may be placed for orders before Hon ble I. P. Singh, J. From another office note dated 15-2-1995 also it has been stated that the matter may be placed before me. It is, therefore, surprising to note how and under what circumstance this letter of the Chief Judicial Magistrate Dumka placed at Rag DW as placed before another Bench presided over by dharampal Sinha, J. 11. On this point, however, the law appears to be quite clear. The matter had come up for consideration before the Hon ble Supreme Court in the case of Shahzad Hassan Khan V/s. Ishtiaq Hassan Khan and another, AIR 1987 SC 1613 , in which the Hon ble Supreme court had laid down the general rule that when the earlier bail petitions of any accused were disposed of by a particular Judge his subsequent petition should also be placed before the same judge who had disposed of the earlier applications. In the present case though there was not a subsequent bail petition but a matter (letter of the C. J. M. placed at Bag D) which had a direct hearing on the order dated 13-12-1994 passed by me. Extending the above-mentioned principle of law in this regard as laid down by the Hon ble Supreme Court in the above-mentioned case, I have got no alternative but to hold that in terms of this decision of the Hon ble Supreme court this letter at Flag D should have been placed before the Bench presided by me. 12. Extending the above-mentioned principle of law in this regard as laid down by the Hon ble Supreme Court in the above-mentioned case, I have got no alternative but to hold that in terms of this decision of the Hon ble Supreme court this letter at Flag D should have been placed before the Bench presided by me. 12. In his show-cause petition the petitioner has contended that apprehending his arrest he signed several vakalatnamas and handed them over to his wife and has moved out and gone to delhi. The order dated 1-12-1994 passed in Cr. Misc. No.16354/94 rejecting his bail petition was not communicated to his family members by the lawyer concerned as a result of which in the present bail petition it could be stated in paragraph 2 that the petitioner has not moved earlier before this Hon ble Court in the matter. Since the anticipatory bail has already been granted to the petitioner by my order dated 13-12-1994 the next question that will arise now for consideration would be whether this anticipatory bail granted to him should be cancelled or I not. 13. This takes to the law of the cancellation of bail as laid down in different decisions by the Hon ble Supreme court. In the case of Gurucharan Singh and others V/s. Delhi Administration, AIR 1978 SC 179 , it has been held that cancellation of bail under Sec.439 (2)of the Code is certainly different from admission to bail under Sec.439 (1)of the Code. In another case, namely, mohan Singh V/s. Union Territory, Chandigarh, AIR 1978 (sic) S. C.1095, the high Court cancelled the bail granted by the Sessions Court on the ground that the accused had simultaneously made applications for bail before him and also before the High Court and this fact was not disclosed to the Sessions court. The Hon ble Supreme Court in this decision restored the bail granted to the petitioner since there was no allegation against the petitioner of interference with the course of justice. In this very decision the Hon ble Supreme court further held that the refusal of bail is not an indirect process of punishing an accused person before he is convicted and that this is a confusion regarding the rationale of bail. In this very decision the Hon ble Supreme court further held that the refusal of bail is not an indirect process of punishing an accused person before he is convicted and that this is a confusion regarding the rationale of bail. This matter also came up for consideration before the Hon ble Supreme Court in the case of Delhi Administration V/s. Sanjay Gandhi, AIR 1978 SC 961 in which it has been held that the rejection of bail when the bail is applied for is one thing, cancellation of bail already granted is quite another. Cancellation of bail necessarily involves the review of a decision already made. Furthermore it has been held in this decision that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection, it is only when it is shown that the accused is tampering with witnesses, that this power can be exercised. In the present case there is no such allegation against the petitioner that he is tampering with the witnesses. 14. In another case Bhagirath Sinha judeja V/s. The State of Gujrat372, AIR 1984 sc 372 , the question of cancellation of bail under Sec.439 (2) of the Code was under consideration. It has been held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decision of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. Further it has been held that even when there is a prima facie case, the approach of the Court in the matter of bail is not that the accused should be detailed by way of punishment but whether the presence of the accused persons would be readily available for trial for whether he is likely to tamper with the evidence. Following these two decisions in a very outstanding judgment. S. N. Jha, J. of this Court in the case of Vishwanath Tiwary V/s. The State of Bihar, (1987) PLJR 306 : 1986 BLJ 743, has held that the power to grant bail is not be exercised as if the punishment before trial is being imposed. It has further been held that the cancellation of bail necessarily involves a review of decision already taken. It has further been held that the cancellation of bail necessarily involves a review of decision already taken. The grounds for cancellation would be the abuse or the liberty granted to the petitioner or his interfering with the course of justice. 15. These decisions clearly lay down the parameters of the power of this Court and judicial discretion to be exercised in the matter of cancellation of bail once granted. It may be stated here that in the present case there is no allegation against the petitioner of any misuse of privilege of bail or tampering with evidence. The only allegation against him appears that he concealed the fact in his subsequent petition that earlier his prayer for bail was rejected by this Court on 1-12-94. However, in his show-cause petition the petitioner has properly explained the reason for not stating this fact in the subsequent bail petition and on hearing him I am inclined to accept his show cause in this regard. Even in the case of Mohan Singh (supra) the fact that the accused has simultaneously filed applications for bail before the High Court as well as before the Sessions Court was concealed and on this ground the High court had cancelled the bail granted to the petitioner by the Sessions Court. The Hon ble Supreme Court, however, restored the bail granted to him since there was no allegation of interference with the course of justice. 16. Under the aforesaid circumstance, I accept the show cause filed by the petitioner. The rule issue against him is discharged. The anticipatory bail granted to the petitioner by my order dated 13-12-1994 is hereby confirmed. Order accordingly.