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2009 DIGILAW 1875 (RAJ)

Hemant Parwani v. State of Rajasthan

2009-08-25

MAHESH BHAGWATI

body2009
JUDGMENT 1. - This order governs the disposal of application filed under Section 439(2) of Cr.RC. by the petitioner Hemant Parwani seeking cancellation of bail of the respondent No. 2 Prakash @ Gainda Pamnani who has been granted bail vide order dated 4th May, 2009 rendered by Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer. 2. Heard learned counsel for the petitioner, learned counsel for the respondent No. 2 as also learned Public Prosecutor appearing for the State and carefully scanned the relevant material available on record. 3. Learned counsel for the petitioner has craved the cancellation of bail on the following grounds- (1) This Court vide order dated 30.04.2009 passed in S.B. Criminal Misc. Application No. 2828/2009 directed the respondent No. 2 to surrender and move a fresh bail application before the concerned Court and the concerned court in turn was directed to hear and decide the bail petition on the same day. (2) Pursuant to the directions given by this Court, the respondent No. 2 should have surrendered before the Magistrate having jurisdiction but the respondent No. 2 instead of appearing before the Judicial Magistrate having jurisdiction, surrendered before the court of Sessions, who in turn, transferred the case for adjudication to the Special Judge, SC/ST Cases. (3) The concerned court in the instant case is not the court of Session but the court of a Magistrate having jurisdiction as neither on 4.5.2009 any trial was pending before the court of Session nor the case had been committed by the Judicial Magistrate having jurisdiction to the Sessions Court. (4) The Station House Officer police station Ganj, Ajmer submitted an application before the Special Judge, SC/ST Cases, Ajmer praying that the case was pending investigation and the respondent No. 2 Prakash @ Gainda Pamnani was required for the purpose of investigation, as such, he should be handed over to him but the learned Special Judge, neither rejected the prayer of the SHO police station Ganj nor accepted it, nor made any mention of this fact in the impugned order dated 4.5.2009. (5) The Special Judge, SC/ST Cases had no jurisdiction to adjudicate the bail petition filed by the respondent No. 2, as such, the bail granted to the non-petitioner was totally arbitrary, illegal and sans jurisdiction. (5) The Special Judge, SC/ST Cases had no jurisdiction to adjudicate the bail petition filed by the respondent No. 2, as such, the bail granted to the non-petitioner was totally arbitrary, illegal and sans jurisdiction. (6) Learned Sessions Judge, Ajmer categorically observed in his order dated 15.4.2009 that eight more criminal cases were pending against the respondent No. 2 in different courts. In spite of that, the Special Judge, SC/ST Cases did not take note of these pending cases and arbitrarily granted bail to him. 4. In view of these circumstances, the bail granted by Special Judge, SC/ST Cases, Ajmer to the respondent No. 2 deserves to be cancelled and the learned counsel for the petitioner has cited 2000 Cr.L.R. (Raj) 665 and (2001) 6 SCC 338 , cases in support thereof. 5. Learned counsel for the respondent No. 2, in contra, has canvassed that the court of Sessions is the concerned court for all purposes and the Special Judge, SC/ST Cases rightly exercised its jurisdiction under Section 439 of Cr.P.C. The Legislature has conferred special powers to the High Courts and the court of Sessions under Section 439 of Cr.P.C. as regards bail. If any person appears or is brought before the court of Session, the court of Session is required to adjudicate the petition filed by the accused. The Hon'ble High Court vide order dated 30.4.2009 did not specifically direct the respondent No. 2 to appear before any particular court. In the event of direction given to the respondent No. 2 to surrender before the concerned court, it was for the respondent No. 2 to decide or opt as to whether he had to surrender before the Court of Session or before the court of Magistrate having jurisdiction. The provisions of Section 439 of Cr.RC. do not bar the 1 court of session to exercise its powers while granting bail to the respondent No. 2. Neither the Special Judge, SC/ST Cases, has made any illegality or any irregularity in granting bail to the respondent No. 2 and the bail order dated 4.5.2009 rendered by the Special Judge, SC/ST Cases is perfectly just, legal and in accordance with the provisions of law. Neither the Special Judge, SC/ST Cases, has made any illegality or any irregularity in granting bail to the respondent No. 2 and the bail order dated 4.5.2009 rendered by the Special Judge, SC/ST Cases is perfectly just, legal and in accordance with the provisions of law. Learned counsel for the ' respondent No. 2 has further contended that the rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence, it must not be lightly resorted to. 6. The Hon'ble Apex Court in the case of Aslam Babalal Desai v. State of Maharasthra has held as under- "The grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439 (1) can be cancelled where-(i) 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 are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 7. Now, adverting to the facts of the instant case, it is noticed that the contention of the learned counsel for the petitioner with regard to analysis of expression "concerned court" seems to be bereft of merits. A bare perusal of the order dated 30.4.2009 rendered by this Court candidly reveals that the respondent No. 2 was directed to surrender and move a fresh bail application before the "concerned court". This Court did not give any specific direction to the respondent No. 2 to surrender and move a fresh bail petition before a particular court. Hence, he could surrender either before the court of Judicial Magistrate or before the court of Sessions. This Court did not give any specific direction to the respondent No. 2 to surrender and move a fresh bail petition before a particular court. Hence, he could surrender either before the court of Judicial Magistrate or before the court of Sessions. For the purpose of surrendering and moving a fresh bail application, both the courts of the Judicial Magistrate as also the court of Sessions are "concerned court". Had the respondent No.2 surrendered and moved a bail petition before the court of Judicial Magistrate having jurisdiction, that Magistrate would have decided the bail petition under Section 437 of Cr.RC. and had he opted to surrender before the court of Sessions, in that case, the court of Sessions was also equally competent to consider and adjudicate the bail petition under Section 439 of Cr.RC. 8. The Division Bench of this Court in the case of District & Sessions Judge, Bharatpur v. Ram Lal, reported in 2000 Cr.L.R. (Raj.) 665 , has rightly observed that: "In the first situation, where the accused surrenders before the Special Judge for an offence under the Act and files an application for bail u/s. 439 Cr.RC. and the Judge does not have the record of the case before him and the same cannot be procured on that day and the Public Prosecutor also is not in a position to say anything in the matter, the only proper course to be adopted by the Special Judge is to refuse to accept the surrender and ask the person to surrender himself before the Magistrate having jurisdiction in the matter. On the other hand, if there is material before the Special Judge on which the matter of surrender as also the bail application filed by the person may be considered, he may take the person in custody and decide the bail application. In the event of rejecting the bail application, the only proper order that can be passed by the Special Judge is to direct him to be produced before the Judicial Magistrate having jurisdiction in the matter." 9. This observation of the Division Bench of this Court does not assist the learned counsel for the petitioner, rather it goes against him. In the event of rejecting the bail application, the only proper order that can be passed by the Special Judge is to direct him to be produced before the Judicial Magistrate having jurisdiction in the matter." 9. This observation of the Division Bench of this Court does not assist the learned counsel for the petitioner, rather it goes against him. The Division Bench has candidly held that if a person surrenders before the Sessions court and there is material before the Sessions court to look into, then the Session court shall take the person in custody and decide his bail application. This is what the learned Special Judge has done by rendering order dated 04.05.2009 on the basis of material made available to him by police. The respondent No. 2 opted to surrender before the Sessions court, Ajmer who transferred the matter to Special Judge and the Special Judge granted bail to him. Thus, to my firm view, the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer, is not found to have committed any illegality or irregularity in passing the bail order dated 4.5.2009. He has committed no jurisdictional error in passing the said order. The argument advanced in this direction by the learned counsel for the petitioner is found to be untenable and enigmatic. 10. Argument with regard to irrelevant consideration also does not contain any substance. Learned Special Judge has passed the order in detail analyzing all the aspects. It is true, that the prayer of police to take the accused for investigation has not been considered by the learned Special Judge but from the reading of the impugned order, it seems that the learned Special Judge did not think it proper to hand over the respondent No. 2 to police for the purpose of investigation as nothing was to be recovered from his possession. During arguments, it emerged that the police after completion of investigation has filed the charge-sheet. Learned Judicial Magistrate is found to have committed the case to the court of Sessions where the case is pending trial. Hence, this Court, does not deem it just and proper to appreciate this fact as to whether the respondent No. 2 is a main conspirator or not. 11. It is a settled proposition of law that the parameters of accepting the bail are altogether distinct from the parameters of cancelling the bail already granted. Hence, this Court, does not deem it just and proper to appreciate this fact as to whether the respondent No. 2 is a main conspirator or not. 11. It is a settled proposition of law that the parameters of accepting the bail are altogether distinct from the parameters of cancelling the bail already granted. The respondent has not abused the liberty of his bail. The petitioner has not quoted any instance to prove that the respondent tampered with or endeavoured to tamper with any witness, posed any threat to the petitioner, tried to hide himself or hampered the investigation or the trial of the case. 12. Hon'ble Supreme Court in the case of State (Delhi Admn.) v. Sanjay Gandhi, AIR 1978 Supreme Court 961 has held that: "rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." (Emphasis supplied) 13. Hon'ble Supreme Court has also held in the case of Dolatram and others v. State of Haryana, (1995) (1) SCC 349 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. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation 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. 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." (Emphasis supplied) 14. Hon'ble Rajasthan High Court has held in the case of Smt. Rajbala v. State of Rajasthan, 2005 (1) R.C.C. 289 as under- "It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so." (Emphasis supplied) 15. In view of above discussion, it is not found that the learned Special Judge committed any jurisdictional error in deciding the bail petition of the respondent No. 2 and granting bail to him vide order dated 4.5.2009. 16. For these reasons, the petition filed under Section 439(2) of Cr.RC. seeking cancellation of bail being bereft of merits and devoid of substance stands dismissed.Petition dismissed. *******