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2001 DIGILAW 190 (RAJ)

Girraj v. State of Rajasthan

2001-02-06

MOHD.YAMIN

body2001
JUDGMENT 1. - This Misc. Petition under Section 482 Criminal Procedure Code has been filed on behalf of Girraj and Smt. Chhimma against the order passed by the learned Sessions Judge, Alwar on 15.12.2000 by which the bail of the petitioners has been cancelled. 2. I have heard Mr. Jagdeep Dhankar on behalf of petitioners, Mr. S.S. Sunda on behalf of complainant Mahada as well as learned Public Prosecutor for the State. 3. Briefly stated, the facts are that Mahada lodged a report on 25.4.1999 at Police Station, Bansoor stating that his younger brother Hanuman was residing separately. The first wife of Hanuman died issue-less and thereafter he remarried with Chhimma. Due to heavy work in the fields, Hanuman engaged Girraj accused as labourer who developed illicit relations with Chhimma. When Hanuman came to know about this affair, he tried to stop but Chhimma and Girraj started ill-treating Hanuman and ultimately then succeeded in causing murder of Hanuman. A case under Section 302 read with Section 120B Indian Penal Code was registered and after complete investigation, police submitted challan against both the petitioners. Accused petitioners moved bail application before this Court as well as before the learned Additional Sessions Judge who was trying the case. S.B. Cr. Misc. Bail Application No. 3618/1999 filed by Smt. Chhimma was dismissed on 11.8.1999. Her third bail application No. 981 was dismissed on 12.5.2000. The bail application of Girraj was dismissed on 24.2.2000 and again on 12.5.2000. By 12.5.2000, 12 material witnesses were examined by the trial court but on 17.5.2000, bail application of Smt. Chhimma was allowed by the trial court on 23.5.2000 while bail application of accused Girraj was allowed on 6.7.2000. Mahada moved an application before this Court to cancel the bail granted to the petitioners which was sent to the learned Sessions Judge, Alwar who by impugned order dated 15.12.2000 allowed it and cancelled the bail of both the petitioners. It is against this order that this petition has been preferred. 4. Learned Counsel for the petitioners Mr. Dhankar submitted that the High Court could not have forwarded the petition to the learned Sessions Judge instead it should have itself decided it. So the impugned order is illegal. The second argument is that the application for cancellation of bail could not have been filed by Mahada and it is only the State which could have done so. Dhankar submitted that the High Court could not have forwarded the petition to the learned Sessions Judge instead it should have itself decided it. So the impugned order is illegal. The second argument is that the application for cancellation of bail could not have been filed by Mahada and it is only the State which could have done so. The third argument is that the order by which bail was granted to the accused petitioners has not been challenged and fourthly there are no circumstances under which bail could have been cancelled by the learned Sessions Judge. He agreed that of course the High Court had dismissed the bail applications of both the accused persons but during the period in between 17.5.2000 and the date on which bail applications of the petitioners were granted by the learned Additional Sessions Judge, circumstances had changed as some witnesses had been examined. Therefore, he has submitted that this Court in exercise of powers under Section 482 Criminal Procedure Code should set aside the order of the learned Sessions Judge, Alwar dated 15.12.2000. 5. On the other hand, learned Public Prosecutor and learned Counsel for the complainant have supported the order of the learned Sessions Judge. They submitted that the learned Additional Sessions Judge gave such reasons while granting bail to the effect that there was nobody to look after the children of the accused petitioners Chhimma. While this Court after considering the statements of 12 witnesses had rejected the last bail applications of the petitioners and thereafter only three witnesses have been examined by the prosecution who are PW. 13, PW. 14 & PW.15 and no circumstances were changed. It has been submitted that in case the petitioners felt that any change in the circumstances had taken place they should have moved fresh bail applications to the High Court which had earlier rejected bail applications. A number of authorities have been cited on behalf of both the parties. 6. So far as first argument of Mr. Dhankar is concerned that High Court did not have power to forward the application for cancellation of bail to the learned Sessions Judge is of no force because Alwar is a Sessions Division where the learned Sessions Judge is the Principal Judge of the division. 6. So far as first argument of Mr. Dhankar is concerned that High Court did not have power to forward the application for cancellation of bail to the learned Sessions Judge is of no force because Alwar is a Sessions Division where the learned Sessions Judge is the Principal Judge of the division. High Court has ample powers if not specified in any other section than in Section 482 Criminal Procedure Code to pass such order as may be necessary to secure the ends of justice or to prevent the abuse of the process of any court. 7. The second argument of Mr. Dhankar that the application for cancellation of bail could be filed by the State in view of Sections 301 & 302 of the Code of Criminal Procedure does not hold water in view of the judgments in Jagram v. Ghamandi, Chander, Hari, Omprakash 1980 RCC 364 and R. Rathinam v. State by DSP, District Crime Branch Madurai District, Madurai and Anr. 2000(1) Crimes 211 (SC). In this judgment, the Hon'ble Supreme Court has held that power to cancel the bail can be exercised under Section 439(2) Criminal Procedure Code suo motu or at the instance of State or any aggrieved party. 8. It has been submitted by Mr. Dhankar that the bail could be cancelled only on certain grounds which are enumerated in AIR 1993 SC 1 (Aslam Babalal Desai v. State of Maharashtra and they are (i) if the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds according to the Supreme Court are illustrative and not exhaustive. Mr. Dhankar submitted that there is no allegation that the petitioners might have tried to hamper with the witnesses or threatened the complainant or might have misused their liberty by indulging in similar criminal activity, therefore, the bail order should be revived. 9. These grounds according to the Supreme Court are illustrative and not exhaustive. Mr. Dhankar submitted that there is no allegation that the petitioners might have tried to hamper with the witnesses or threatened the complainant or might have misused their liberty by indulging in similar criminal activity, therefore, the bail order should be revived. 9. On the other hand, learned Counsel for the complainant and learned Public Prosecutor submitted that when there was no substantial change after rejecting the bail application of the petitioners by the High Court after perusing the statements of 12 witnesses recorded by the trial court, the order granting bail by the learned Additional Sessions Judge suffer from arbitrariness and this Court has in various judgments held that when earlier bail application was dismissed by the High Court, subsequent order granting bail in subsequent application by Sessions Judge on the same material was not proper. Reliance has been placed on Padam Chand Jain v. State of Rajasthan and Anr. 1991 Cr L.J. 736; and Imamuddin v. Ayoub Khan and Ors. 1984 RCC 170 in which it has been held that if the bail is granted in a manner which smacks of arbitrariness, capriciousness or perversity, High Court has not only discretion but duty to cancel such a bail. There is plethora of judgments of this Court that if the Sessions Judge has granted bail erroneously, High Court has power to cancel bail. In this case what this Court did was it simply forwarded the application under Section 439(2) Criminal Procedure Code to the learned Sessions Judge, Alwar as the Sessions Judge has also power under Section 439(2) to cancel the bail and get an accused arrested and commit to custody. This case will not be a precedence but it appears that the learned Additional Sessions Judge while this Court had rejected various bail applications of the petitioners, wrongly exercised discretion in the facts and circumstances of this case. Of course, 'bail not jail' is the maxim but when the High Court had rejected the bail of the petitioners after seeing the statements of the witnesses recorded by the learned Trial Judge, there was almost no change in the circumstances and the learned Additional Sessions Judge should also be used the discretion of granting bail to the petitioners. 10. Of course, 'bail not jail' is the maxim but when the High Court had rejected the bail of the petitioners after seeing the statements of the witnesses recorded by the learned Trial Judge, there was almost no change in the circumstances and the learned Additional Sessions Judge should also be used the discretion of granting bail to the petitioners. 10. Learned Counsel for the petitioners cited Vikramjit Singh v. State of Madhya Pradesh AIR 1992 Supreme Court 474 in which it was observed that when bail was granted by the High Court, cancellation by co-ordinate Bench of same court on no new or additional grounds was not justified. This citation does not help the petitioners because here it was the High Court itself which had rejected the bail applications of the petitioners and the application for rejecting the bail granted by the learned Additional Sessions Judge was forwarded by the High Court itself to the learned Sessions Judge. Mr. Dhankar cited Bhagirathsingh Judeja v. State of Gujarat AIR 1984 Supreme Court 372 in which it was held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. In this case, the bail was granted to the accused. He also relied on Kashmira Singh v. Duman Singh (1996) 4 SCC 693 but it does not apply to the facts and circumstances of the present case. 11. In view of above discussion, there is no force in this petition and it is hereby dismissed. This order will not be regarded as precedent as it is being passed in peculiar circumstances of this case.Petition to set aside cancellation of bail dismissed. *******