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2009 DIGILAW 1306 (PNJ)

Mohinder Singh v. State of Punjab

2009-08-03

GEORGE MASIH

body2009
JUDGMENT George Masih, J 1. Crl. Misc. No. 32536 of 2009 in Crl. Appeal No. 472 S.B. of 2001 filed under section 389(1), Proviso II of Cr. P.C. is treated as application under section 482 Cr. P.C. 2. The present application has been preferred by the applicant-complainant, praying therein cancellation of bail granted to appellant No. 2 Jagjit Singh s/o Tirath Singh s/o Achhar Singh, granted by this Court, vide order dated 25.07.2001, while suspending sentence of imprisonment and fine during the pendency of the appeal. 3. Counsel for the applicant-complainant submits that the present application has been filed by the complainant on the ground that appellant No. 2 Jagjit Singh s/o Tirath Singh, after getting bail from this Court, submitted his bail bonds to the satisfaction of Chief Judicial Magistrate, Jalandhar. Without disclosing the fact of pendency of appeal and granting of bail subject to furnishing of bail bonds to the satisfaction of Chief Judicial Magistrate, Jalandhar, he secretly got passport and visa to U.S.A. and has gone abroad. He submits what to say of going abroad, he has also obtained United States Green Card and is at present living in United States of America. It has further been submitted by him that the said Jagjit Singh-appellant No. 2 had returned to India in 2004 and got married on November 17, 2004 and he has now sponsored his wife Sukhjinder Kaur, who is resident of Village Sunrah, District Kapurthala, Punjab, and sponsorship is still pending with the U.S. Embassy, New Delhi. He, therefore, contends that Jagjit Singh-appellant No. 2 has violated the terms and conditions of bail bonds and, therefore, the bail granted to him, deserves to be cancelled. He submits that since the accused has gone out of the country without obtaining permission of the Court and has, therefore, deliberately put him beyond the reach of sureties, leading to evading the course of justice, the Court should exercise its powers under Section 482 Cr.P.C. and cancel the bail granted by this Court to him. 4. Counsel for the applicant-complainant relies upon the judgment of Hon'ble the Supreme Court in the case of Sunil Ful Chand Shah Versus Union of India 2000 (3) S.C.C. 409, wherein Hon'ble the Supreme Court has defined the word bail. 4. Counsel for the applicant-complainant relies upon the judgment of Hon'ble the Supreme Court in the case of Sunil Ful Chand Shah Versus Union of India 2000 (3) S.C.C. 409, wherein Hon'ble the Supreme Court has defined the word bail. Further reliance has been made upon another judgment of Hon'ble the Supreme Court in the case of Raghubir Singh Versus State of Bihar, 1986 (4) S.C.C. 481, wherein the grounds for cancellation of bail have been broadly spelt out and thereafter, judgment of Hon'ble the Supreme Court in the case of Pampapathy Versus State of Mysore, A.I.R. 1967 S.C. 286, with regard to inherent powers of the High Court to cancel order of suspension of sentence and grant of bail. 5. I have heard counsel for the applicant-complainant and with his able assistance have gone through the provisions and judgments relied upon by him. 6. There can be no dispute with regard to inherent powers of this Court, which have been conferred under Section 482 Cr.P.C., which could be exercised to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any Court as also otherwise to secure the ends of justice. The suspension of sentence, pending appeal and release of the appellant No. 2Jagjit Singh on bail is provided for and governed by provisions of Section 389 Cr.P.C. It has been held by Hon'ble the Supreme Court in various judgments that where there is a specific provision providing for exercise of powers for remedy, the Court should not exercise its inherent powers under Section 482 Cr.P.C. According to proviso II of Section 389(1) Cr.P.C., an application for cancellation of bail granted under Section 389(1) Cr.P.C. is open to be filed by the Public Prosecution. In this view of the matter, the present application would not be maintainable as such under Section 482 Cr.P.C. 7. The judgment, which has been relied upon by counsel for the applicant-complainant i.e. Pampapathy (supra) was a judgment under the Code of Criminal Procedure, 1898, where Section 426(1) did not provide for any provision of cancellation of bail in case of violation of any of the conditions imposed therein or where there was misuse of liberty granted by the Appellate Court. Hon'ble the Supreme Court, therefore, in that case in para-8 has held as follows :- “8. Hon'ble the Supreme Court, therefore, in that case in para-8 has held as follows :- “8. The inherent power of the High Court mentioned in S. 561-A, Criminal Procedure Code can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that S. 561-A can come into operation. No legislative enactment dealing with procedure can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in S. 561-A which does not confer any new powers on the High Court but merely recognizes and preserves the inherent powers previously possessed by it. We are, therefore, of the opinion that in a proper case the High Court has inherent power under S. 561-A, Criminal Procedure Code to cancel the order of suspension of sentence and grant of bail to the appellant made under S. 426, Criminal Procedure Code and to order that the appellant be re-arrested and committed to jail-custody.” 8. Under the new Code of Criminal Procedure, 1973, there being specific provision dealing with cancellation of bail and that too at the instance of Public Prosecutor, the present application under Section 482 Cr.P.C. is not maintainable by the complainant. 9. Even otherwise, in the present case the contention of counsel for the applicant-complainant is that appellant No. 2-Jagjit Singh has violated the terms of bail bonds, submitted by him to the satisfaction of Chief Judicial Magistrate, Jalandhar. When the case came up for hearing on 10.07.2009, on a specific question being put by this Court with regard to maintainability of application under Section 389 Cr.P.C., the counsel had sought time to assist the Court and apart from that he had sought time to place on record the conditions of bond, which specifically have been violated by the appellant No. 2-Jagjit Singh in question. When the case again came up for hearing, counsel for the applicant-complainant has not been able to place on record either the conditions of the bail bonds nor has he been able to specify any of the conditions, which have been violated by appellant No. 2-Jagjit Singh, which were part of bail bond. 10. For cancellation of bail and especially when the ground for such cancellation is based on an assertion that the conditions of bail bond, which were furnished by appellant No. 2-Jagjit Singh at the time of release on bail has been violated, the same need to be specifically pleaded and violation thereof proved to the satisfaction of the Court, so that the Court can exercise its jurisdiction for cancellation of bail. Having failed to do so, counsel for the applicant-complainant has taken refuge of judgment of Hon'ble the Supreme Court in the case of Sushil Ful Chand Shah (supra), where bail has been defined as follows :- “Bail is well understood in Criminal Jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties.” 11. Further, for cancellation of bail, while referring to Section 437 (5) and Section 439 (2) Cr.P.C., he has relied upon the judgment of Hon'ble the Supreme Court in the case of Raghubir Singh (supra), the relevant portion whereof is as follows : “ Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence, etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts.” 12. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts.” 12. There can be no dispute with regard to above position as has been stated by Hon'ble the Supreme Court, but in the light of absence of violation of any of the conditions, which have been provided for in the bail bonds as submitted by appellant No. 2-Jagjit Singh before the Chief Judicial Magistrate to its satisfaction, the application for cancellation of bail cannot be entertained. Nothing has been placed on record by the applicant-complainant, which would fulfil any of the conditions provided for in the bail bond. It has not even been pleaded by applicant-complainant in his application for cancellation of bail that appellant No. 2Jagjit Singh was restrained from leaving the country or prior permission for going abroad was the requirement of Court. In the absence of these pleadings, the Court cannot presume that appellant No. 2-Jagjit Singh has violated any of the conditions of bail bond, submitted by him for grant of bail or evade or admitted to evade the course of justice by leaving the country or that he had placed himself beyond the reach of sureties. 13. In view of the above, finding no merit in the present application, the same stands dismissed. Appeal dismissed.