Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 714 (JHR)

Prem Shankar Saha v. State of Jharkhand

2008-07-11

DILIP KUMAR SINHA

body2008
JUDGMENT D.K. Sinha, J. 1. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for the quashment of the order dated 1.4.2008 passed by the Sessions Judge, Sahebganj in Cr. Misc. No. 19 of 2007 whereby and whereunder bail granted to the petitioner Prem Shankar Saha on 18.4.2007 in B.P. No. 143 of 2007 was cancelled in Rajmahal P.S. Case No. 70 of 2007 corresponding to G.R. No. 143 of 2007 for the alleged offence under Section 307 and allied Sections of I.P.C., 27 of the Arms Act and Section 3(x) of the S.C. & S.T. (Prevention of Atrocities) Act, now pending in the Court of Additional Sessions Judge-I, Sahebganj in Sessions Case No. 26 of 2007. 2. The brief fact of the case is that the petitioner Prem Shankar Saha along with other accused persons had preferred a Bail Petition under Section 439 Cr.P.C. before the Sessions Judge, Sahebganj in B.P. No. 143 of 2007 wherein the petitioner and the co-accused were admitted to bail on executing bail bond of Rs. 10,000/- with two sureties of like amount each to the satisfaction of the court below after examining the merit of their bail petition. 3. After some time, a petition was preferred by the Public Prosecutor on behalf of the State before the Sessions Judge, Sahebganj under Section 439(2) of the Code of Criminal Procedure which was numbered as Cr. Misc. Case No. 19 of 2007 praying therein for cancellation of the bail of the petitioner Prem Shankar Saha who along with the co-accused was admitted to bail by the Sessions Judge in B.P. No. 143 of 2007 on 18.04.2007 on the allegation that he obtained bail on the false averment made in the ground 'No. V' of the Bail Petition No. 143 of 2007. It was contained in ground V of the Bail Petition that there was no allegation against him of using firearms and that no cartridge was recovered from the place of occurrence, as such there was no allegation under the Arms Act against the petitioner. 4. Having been relied upon such averment, the learned Sessions Judge by order dated 1.4.2008 recorded under Section 439(2) Code of Criminal Procedure, observed, The O.P. is enjoying the liberty of bail on the strength of his mis-statement made in the bail petition. 4. Having been relied upon such averment, the learned Sessions Judge by order dated 1.4.2008 recorded under Section 439(2) Code of Criminal Procedure, observed, The O.P. is enjoying the liberty of bail on the strength of his mis-statement made in the bail petition. For the facts and reason stated above the bail granted to the O.P. Prem Shankar Saha vide order dated 18.4.07 passed in bail petition No. 143/07 is per se void and is hereby cancelled. The learned lower court is directed to cancel the bail bond executed on behalf of the O.P. Prem Shankar Saha and commit him to custody. Accordingly the application of learned P.P. stands allowed. 5. Mr. Gautam Kumar, learned Counsel for the petitioner submitted that at the time of filing Bail Petition vide No. 143 of 2007 the petitioner had annexed all the relevant documents including the certified copy of the F.I.R., a copy of which was given to the Public Prosecutor before pressing his petition in the Court of Sessions Judge, Sahebganj and there was no occasion therefore, for concealment of any fact on behalf of the petitioner and at the time of such filing he was in judicial custody. If at all any fact was missing in the Bail Petition or any fact was erroneously placed in the Bail Petition, the duty was cast upon the prosecution to highlight before the Sessions Judge but the P.P. conspicuously kept mum when the prayer for bail was agitated before the Sessions Judge and in this manner he did not discharge his duty and only with a view to camouflage his short-comings he filed petition under Section 439(2) Cr.P.C. 6. Advancing his argument Mr. Gautam Kumar, learned Counsel submitted that ground No. V of the said Bail Petition is worth to be quoted hereunder for consideration: For that there is no allegation of using firearms against the petitioners and no cartridge has been recovered from the P.O. and as such there is no allegation under the Arms Act. 7. Such averment can be divided into three parts. The first part connotes- no allegation of using firearms against the petitioners. The second part consists of the fact that no cartridge was recovered from the place of occurrence and the concluding part reveals as such, there is no allegation under the Arms Act against the petitioners. 7. Such averment can be divided into three parts. The first part connotes- no allegation of using firearms against the petitioners. The second part consists of the fact that no cartridge was recovered from the place of occurrence and the concluding part reveals as such, there is no allegation under the Arms Act against the petitioners. The allegation of firing shot against the petitioner and co-accused was general in the written report though specific against Gopal Chandra Saha that he fired shot on the informant but it missed the target as passed through at short distance of his arm. There were several witnesses at the place of occurrence but none of them sustained gun shot injury though it was alleged that both the assailants had fired four shots. As the allegation was not specific against the petitioner so it was averred in the Bail Petition by way of inference that the allegation of firing shot was not specific against the petitioner and that no fired cartridge was recovered from the place of occurrence, as such, there was no allegation under the Arms Act against the petitioner. 8. The entire allegation, according to the learned Counsel, was misconceived and the learned Sessions Judge, ignoring the settled principle of law, cancelled the bail of the petitioner in high haste, depriving his personal liberty. It was not the allegation against the petitioner that he had ever terrorized the prosecution witnesses or tampered the evidence so as to call for the interference of the Sessions Judge in exercise of his jurisdiction under Section 439(2) of the Code of Criminal Procedure. The Apex Court of India in the case of "State through the Delhi Administration v. Sanjay Gandhi" reported in A.I.R. 1978 obs The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases, when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process. 9. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process. 9. Similarly in "Subhendu Mishra v. Subrat Kumar Mishra and Anr." reported in 1999CriLJ4063 , the Apex Court observed that the 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. 10. In other words, the learned Counsel submitted that it cannot be said that the petitioner obtained the bail order from the Court of Sessions Judge by misrepresentation or by suppression of fact. Similarly, there was no allegation of tampering the evidences or otherwise terrorizing the witnesses. The learned A.P.P. opposed the contention. 11. Having regard to the facts and circumstances of the case, appreciation of the grounds taken in the present Cr. Misc. Petition and the proposition of law, I find that the Sessions Judge, Sahebgaj was not justified in recording the cancellation of bail of the petitioner in Cr. Misc. No. 19 of 2007 on 1.4.2008. It is well settled by a catena of decisions that the cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. I find that the allegation of firing total four shots was against the petitioner and one Gopal Chandra Saha but it was specific against Gopal Chandra Saha that he fired shot upon the informant which passed through near his arm without causing injury and not against the petitioner. It is further evident that neither firearms nor fired shots or cartridge was recovered from the place of occurrence so as to substantiate the allegation prima facie, even none of the witnesses sustained injury and therefore, the learned Sessions Judge was not justified in cancelling the bail on the basis of ground No. V of the Bail Petition of the petitioner under Section 439(2) Cr.P.C. and therefore, the impugned order dated 1.4.2008 cannot sustain, accordingly it is set aside in Cr. Misc. No. 19 of 2007. The petitioner is allowed to remain on his previous bail and bonds in respect of the order passed in B.P. No. 143 of 2007 12. Accordingly, this petition is allowed. Misc. No. 19 of 2007. The petitioner is allowed to remain on his previous bail and bonds in respect of the order passed in B.P. No. 143 of 2007 12. Accordingly, this petition is allowed. Petition allowed.