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2006 DIGILAW 523 (PAT)

State Of Bihar v. Rajiv Kumar @ Rajiv Mahto

2006-06-26

NAVIN SINHA

body2006
Judgment Navin Sinha, J. 1. Let the order at serial No. 2 be corrected by deleting "No. 2" after the words "opposite party". 2. Learned Counsel for opposite party regrets the inadvertance by him on the previous date and submits that the trial of opposite party has not been concluded as yet. 3. Heard learned Counsel for the petitioner and the opposite party. 4. The present application has been preferred by the State for cancellation of the bail granted to opposite party by the 1st Additional Sessions Judge, Nalanda at Biharsharif in Asthama P.S. Case No. 75 of 2002 u/s. 392 of the Penal Code on 10.11.2003. 5. Learned Counsel for the petitioner submits that the antecedent of a person is a relevant consideration for grant of bail to enable the Court to consider the possibility of commission of offence if released on bail. In the present case paragraph-83 of the case diary noticed five more orosecutions against the opposite party under various cognizable and non-bailable sections including 302, 307, 386, 392 and other provisions of the Indian Penal Code, 1860 . Notwithstanding the availability of the aforesaid materials, bail was granted to opposite party without taking the same into consideration and that it finds no reference in the order. On this basis, it is submitted that the order granting bail to opposite party has been passed without properly considering the necessary materials and virtually ignoring the same. 6. The result has been that after his release on 10.11.2003 the opposite party misused the privilege of bail leading to his being a named accused in Asthama P.S. Case No. 224 of 2004 under Secs. 307 and other provisions of the Penal Code wherein chargesheet has been submitted against him on 28.10.2005. The petitioner was also, during investigation, chargesheeted in Giriyak (Katrisarai) P.S. Case No. 72 of 2005 u/s. 364A, 302 read with 34 of the Indian Penal Code and sec. 27 of the Arms Act on 7.9.2005. Thus it is submitted that it is a clear case of misuse of privilege of bail. 7. Learned Counsel for opposite party opposing the application submits that the petitioner is presently in custody since 4.8.2005 in Giriyak (Katrisarai) P.S. Case No. 72 of 2005 and hence the question of cancellation of his bail is irrelevant. 8. Thus it is submitted that it is a clear case of misuse of privilege of bail. 7. Learned Counsel for opposite party opposing the application submits that the petitioner is presently in custody since 4.8.2005 in Giriyak (Katrisarai) P.S. Case No. 72 of 2005 and hence the question of cancellation of his bail is irrelevant. 8. It is further submitted that opposite party has been enlarged on anticipatory bail in Asthama P.S. Case No. 224 of 2004 in which the allegations are of misuse of privilege of bail. Learned Counsel for opposite party is however, not in a position to give any further details of the bail order, the date and the court which passed the bail order. He next submitted that of the antecedents the opposite party has been acquitted in Asthama P.S. Case No. 171 of 2002 and 131 of 2002 on the ground of prosecution witnesses having turned hotile. 9. In the entirety of the facts and circumstances of the case, this Court is satisfied that the bail was granted to opposite party in Asthama P.S. Case No. 75 of 2002 without proper consideration of the materials on record. The antecedednt report of a person is one of the relevant considerations for grant of bail, to enable the court to consider the likelihood of the person committing fresh crime, if released on bail, given his past dispensation. The grant of bail to opposite party was thus clearly contrary to record. Further more this Court finds that opposite party has been made an accused in two more cases of a serious nature after being enlarged on bail. This is clearly a case of misuse of privilege of bail, the opposite party having committed crimes while on bail. The misuse of privilege of bail is one of the grounds for cancellation of bail. The fact that the opposite party may have been enlarged on anticipartoy bail in one of the subsequent prosecution would not detract from the allegation of misuse of privilege of bail. 10. Considering the matter both from the aspect of grant of bail without proper consideration of the materials on record and misuse of the privilege of bail, this Court is satisfied that the bail granted to opposite party by 1st Additional Sessions Judge, Nalanda in Asthama P.S. Case No. 75 of 2002 by order dated 10.11.2003 deserves to be cancelled. 10. Considering the matter both from the aspect of grant of bail without proper consideration of the materials on record and misuse of the privilege of bail, this Court is satisfied that the bail granted to opposite party by 1st Additional Sessions Judge, Nalanda in Asthama P.S. Case No. 75 of 2002 by order dated 10.11.2003 deserves to be cancelled. The fact that opposite party may have remained in custody for about 14 months in the present matter before being enlarged on bail, does not persuade this Court to reject the present application on the said ground simplicitor. 11. The bail bonds of opposite party are hereby cancelled. He is directed to be taken into custody forthwith in the present case also. 12. This application is allowed.