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2001 DIGILAW 379 (JHR)

Kaushal Kishore Singh v. State Of Jharkhand

2001-06-15

VINOD KUMAR GUPTA

body2001
ORDER V.K. Gupta, C.J. 1. On 13.2.2001, learned 3rd Addl. Sessions Judge. Singhbhum East at Jamshedpur, had passed an order granting bail to the petitioner on the basis of certain observations that he had made in that order. Apparently, feeling aggrieved, the informant moved a petition under Sub-section (2) of Section 439. Cr PC for cancellation of bail subsequent to the passing of the aforesaid bail order and vide order, dated 1.5.2001, learned 3rd Addl. Sessions Judge cancelled the bail (as had been earlier granted vide aforesaid order, dated 13.2.2001). It is against the subsequent order, dated 1.5.2001 that the petitioner-accused has filed the present petition under Section 482, Cr PC in this Court. 2. I have perused both the orders passed on 13.2.2001 and 1.5.2001. Undoubtedly, it appears that when the application under Section 439(2), Cr PC was filed for cancellation of bail, the Presiding Officer of the learned Court below, who had passed the order on 13.2.2001 had, on transfer, been replaced and it is the new Presiding Officer, who has passed the second order, dated 1.5.2001, which is under challenge in this petition. 3. After hearing the learned counsel for the parties at great length, I am clearly of opinion that in the exercise of the power under Sub-section (2) of Section 439, Cr PC in the facts and circumstances of this case, it was not legally permissible for the learned Court, below to have cancelled the bail earlier granted by the Court, vide order, dated 13.2.2001. The exercise of power under Subsection (2) of Section 439 is dependable on certain developments and circumstances which take place after grant of bail, or occurrence of certain facts which give rise to some cause or apprehension in the mind of the prosecution, the informant or de facto complaint that the bail as granted earlier should be cancelled. For instance, if the accused enjoying the privilege of bail is alleged to be indulging in acts which amount to misuse of this privilege, or is trying to influence the witnesses or the out-come of the investigation or the trial and so on and so forth. This power, however, cannot be exercised by way of reviewing an order passed by the Court earlier. Sub- section (2) of Section 439 does not give to the Court the power to recall or review its own order. This power, however, cannot be exercised by way of reviewing an order passed by the Court earlier. Sub- section (2) of Section 439 does not give to the Court the power to recall or review its own order. A perusal of the detailed and comprehensive order passed on 1.5.2001, even while supported by various facts and circumstances as stated therein, clearly suggests that the learned Court below was apparently exercising, in the guise of the power under Sub-section (2) of Section 439, the power actually of reviewing the earlier order, dated 13.2.2001. No new facts were brought to the notice of the Court. It was not the case of the informant that any fresh development had taken place or that the accused- petitioner was misusing the privilege of bail. The exercise of such jurisdiction, therefore, while passing the order, dated 1.5.2001 was wholly impermissible in law. 4. Even while I am disapproving the passing of the impugned order, dated 1.5.2001, I cannot help taking notice of the facts of this case as have been highlighted in both the orders, dated 13.2.2001 and 1.5.2001. In the facts and circumstances of this case, but without offering any further comments lest these comments tend to cause prejudice to the outcome of the trial. I am of the opinion that the learned Court below passed a patently illegal and erroneous order on 13.2.2001 by granting bail to the petitioner-accused. While; therefore, deciding to assume my suo motu criminal revisional jurisdiction in terms of Section 397. Cr PC. I have heard Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioner, Mr. B.M. Tripathy, learned counsel appearing for the informant and Mr. I.N. Gupta, learned counsel appear- ing for the State. I actually indicated to Mr. Sinha that I propose to exercise and assume this suo motu jurisdiction and accordingly Mr. Sinha made submissions with regard to that aspect of the case and he also referred to two judgments of the Supreme Court in the cases of Subhendu Mishra v. Subrat Kumar Miah-ra and Anr. 1999 Cri LJ 4063 and Dolat Ram and Ors. v. State of Haryana. 1995 SCC (Cri) 237. According to Mr. Sinha made submissions with regard to that aspect of the case and he also referred to two judgments of the Supreme Court in the cases of Subhendu Mishra v. Subrat Kumar Miah-ra and Anr. 1999 Cri LJ 4063 and Dolat Ram and Ors. v. State of Haryana. 1995 SCC (Cri) 237. According to Mr. Sinha, the facts and circumstances of this case do not warrant my exercising revisional jurisdiction and upsetting the order, dated 13.2.2001 because the learned Court below was justified in granting bail to the petitioner and that circumstances did not exist which called for setting-aside the aforesaid order. 5. I must first of all observe that the aforesaid two judgments of the Supreme Court cited by Mr. Sinha have no application to the facts and circumstances of this case. In both these judgments, their Lordships of the Supreme Court were dealing with the conditions which are relevant for cancelling the bail in terms of Section 439(2), Cr PC. In Dolat Ram and others v. State of Haryana, (supra), it has been clearly observed as under :-- "Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the can- cetlation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of Justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court, it appears to us overlooked the distinction of the factors relevant for rejection bail in a non-bailable case in the first instance and the cancellation of bail already granted." Clearly, therefore, it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on different basis. The case before us surely is not one of cancellation of bail, but of rejection of a bail application, in the sense, that presently I am not exercising any power or jurisdiction under Section 439(2), Cr PC. I am exercising the power under Section 397, Cr PC and thereby proposing to reject the bail application of the petitioner by upsetting the order passed on 13.2.2001 by the Court below. Subhendu Mishra v. Subrat Kumar Mishra and another, (supra), actually did not lay down any law except to reiterate the principles as were formulated in Polat Ram, (supra). 6. Having gone through the material and finding the sufficiency of evidence with regard to the implication or the involvement of the petitioner, but without going deeper into the matter, I feel that the learned Court below misdirected itself by releasing the accused on bail in passing the order, dated 13.2.2001, specially because it was not case where the complicity or the implication or involvement of the petitioner-accused could be said to have been ruled out or that it could be said that he was not present in the scene of the occurrence. On the contrary, indications were provided in support of the prosecution allegation that he was very much there and that he actually may have participated in some act. 7. On a totality of circumstances and after having assumed suo motu jurisdiction under Section 397, Cr PC, I hereby set-aside the order, dated 13.2.2001 and consequentially the bail granted to the accused-petitioner is cancelled. The petitioner-accused is directed to surrender in the Court below immediately and forthwith and in any case within one week from today. If, he does not do so, the learned Court below (trial Court) is directed to issue non- bailable warrant of arrest against him and ensure that the warrant of arrest is executed, without any delay. 8. The petitioner-accused is directed to surrender in the Court below immediately and forthwith and in any case within one week from today. If, he does not do so, the learned Court below (trial Court) is directed to issue non- bailable warrant of arrest against him and ensure that the warrant of arrest is executed, without any delay. 8. Order accordingly.