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2010 DIGILAW 1629 (ALL)

Tufail Ahmad v. State of U. P.

2010-05-17

ARVIND K.TRIPATHI

body2010
JUDGMENT (1) The present recall application dated 18.04.2010 for recall of the order dated 24.02.2010 passed by this Court, has been filed on behalf of opposite party Nos.2 and 3. By this aforesaid order, the bail allowed by the Sessions Judge was cancelled. (2) Heard learned counsel for the applicant, learned counsel for the opposite party Nos.2 and 3, learned A.G.A. and perused the record. Learned counsel for the opposite party Nos.2 and 3 submitted that the order dated 24.02.2010 cancelling the bail allowed by the learned Sessions Judge, is liable to be recalled on following grounds:- i) That according to the judgment of the Supreme Court, the bail cancellation application has to be heard by the same Judge. He relied upon para 12 of the judgment of the Apex Court reported in 2004 (1) JCC 286 (Mehboob Dawood Sahikh v. State of Maharastra), which is quoted here in below:- "The other aspect which was emphasized with some amount of vehemence was that the learned single Judge who had granted bail should have heard the application for cancellation of bail. Observations made in Harjeet Singh v. State of Punjab and Anr., (2001 (1) SCC 549) : ( AIR 2002 SC 281 ) was relied upon for that purpose. As noted above, in the said judgment there is a long standing convention and requirement of judicial discipline which has held the field for a long period that subsequent application for grant or cancellation of bail application should be placed before the same learned Judge who had passed the earlier order. This certainly is a desirable course. But at the same time the party who makes a grievance that the course has not been followed has to indicate as to in what manner he was in prejudice arises only when on the same set of facts, a different order is passed by another learned Judge cancelling the bail or granting the bail as the case may be. But where the cancellation is sought for on grounds different from those which existed at the time of granting bail, the conventional practice of placing the matter before the same learned single Judge need not be followed as if it is a statutory requirement. It does not appear from the order of the High Court that any submission was made before the learned single Judge who passed the earlier order. It does not appear from the order of the High Court that any submission was made before the learned single Judge who passed the earlier order. In any event, in the case at hand, the cancellation has been done on a ground other than those which weighed with learned single Judge for grant of bail. Though initially the application for cancellation of bail was founded on the alleged misrepresentation or suppression of facts, but what weighed with the learned single Judge who dealt with the application for cancellation of bail was the conduct of the accused in the threatening the witnesses. That being so, the judgment in Harjeet Singh's case (supra) does not in any assist the appellant. There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as if they were said Bose J. about half century back in Willie (William) Slaney v. The State of Madhya Pradesh, 1955 (2) SCR 1140 : ( AIR 1956 SC 116 ) at page 1159). A decision is available as a precedent only if decides a question of law. A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations in the light of the questions which were before this Court, (See Commissioner of Income Tax v. Sun Engineering Works (P) Ltd. ( 1992 (4) SCC 363 ) : ( AIR 1993 SC 43 ). (3) He further contended that in view of the Supreme Court Judgment, the bail cancellation should have been heard by the same Judge, who granted bail. In the present case, the bail application was allowed by the Sessions Judge. Hence, High Court has no power to cancel the bail. ii) The second argument advanced on behalf of applicant is that if two views are possible then the view which is lenient and is in favour of accused must be accepted. In the present case, the bail application was allowed by the Sessions Judge. Hence, High Court has no power to cancel the bail. ii) The second argument advanced on behalf of applicant is that if two views are possible then the view which is lenient and is in favour of accused must be accepted. He relied upon the judgment of the Apex Court reported in 2008 XII AD (SC) 536 : ( AIR 2009 SC 1357 ) Sami Ullaha v. Superintendent, Narcotic Central Bureau), and iii) The third argument advanced on behalf of applicant is that there was no allegation that the opposite party Nos.2 and 3 misused the liberty of bail and there was no material to show regarding misuse of bail. Hence, in view of the aforesaid ground, the order dated 24.2.2010 for cancellation of the bail is liable to be recalled and the bail cancellation application is liable to be rejected or the same might be remanded to the same learned Sessions Judge who has considered the bail application and allowed the same. (4) The aforesaid contention was opposed by the learned A.G.A. and learned counsel for the informant. In view of the fact of this case, as far as the first argument of the applicant is concerned that as per convention the application is required to be considered by the same Judge is misconceived. In the aforesaid judgment, the bail was granted by the High Court. Hence, the observation was that as per convention preferably the application should be placed before the same Judge. However, if the bail application is allowed by the Sessions Judge or by the High Court, the same can be cancelled by the Sessions Judge who has granted bail or by the High Court. In view of the provision of Section 439(2), Cr.P.C. If the bail application was allowed by the Sessions Judge that can be cancelled by the Sessions Judge as well as by the High Court. If bail was granted by the High Court that can be cancelled by the High Court preferably by the same Judge. Hence, this contention of the applicant is misconceived. The above noted judgment does not support the argument of the counsel for the applicant, rather reply of his argument is in the same paragraph. If bail was granted by the High Court that can be cancelled by the High Court preferably by the same Judge. Hence, this contention of the applicant is misconceived. The above noted judgment does not support the argument of the counsel for the applicant, rather reply of his argument is in the same paragraph. A judgment should be understood in the light of the facts of that case and no more should be read into it than it actually says. It will not be proper to pick out a word or a sentence from the judgment and deviate from the context of the question considered and replied. Hence, the judgment has to be read as a whole. (5) As far as the second argument is concerned, that if two views are possible, the lenient view will be taken in favour of the applicant. (6) In the present case, the bail application was allowed by the Sessions Judge on the ground that no statement of any witnesses was recorded from the side of prosecution. It was recorded to the effect that he or they saw the applicants carried away the victims Salma Khatoon. Relevant paragraph of the order dated 21.03.2009 passed by the Sessions Judge, Siddharth Nagar is quoted here in below.- "Bail has been sought on grounds that the applicants are innocent and have been falsely implicated in this case, F.I.R. is delayed and no plausible explanation has been given regarding delay. Complainant is not an eyewitness. No one saw the victim being abducted or kidnapped by the accused persons and no such statement of any witness was recorded by the investigation officer. Learned counsel for the applicant submitted that as per prosecution story and the statement of the complainant-victim Salama Khatoon was kidnapped/abducted by the - accused persons and accused persons were seen carry away the victim in a vehicle by the villagers Dheeraj Yadav, Rahamtullah and Radheshyam but statement of Rahamtullah shows that he did not witness the occurrence of kidnapping/abduction alleged. Moreover, there is no any other statement or eye-witness account on record relating to the fact of kidnapping or abduction being committed by the applicants. Moreover, there is no any other statement or eye-witness account on record relating to the fact of kidnapping or abduction being committed by the applicants. He further submitted that the prosecution filed paper No. 14-kha, progress report of the victim which is allegedly one for the academic sessions 2004-2005 for Class U.K.G. Whereas, the alleged transfer certificate filed by the prosecution paper No. 9-kha prima facie shows the fact that the transfer certificate was allegedly issued for K.G. Class for academic sessions 25.6.04 to 20.5.2005. It is virtually impossible that a student who was admitted for Class U.K.G. for academic session 2004-205 was issued transfer certificate for the Class K.G. for the academic session 2004-2005. Learned counsel further submitted that family register record of the victim mentions correct year of the birth of the victim and the same is certified copy and the same mentions year of birth of each family member of the victim. Learned D.G.C. (Cr1) submitted that the Principal who issued this transfer certificate has been examined by the court and he has submitted that he issued this certificate and he never issued certificate to the accused as alleged by the accused. Considered submissions of both the sides and perused the record. Perusal of record shows that no statement of any eye-witness from prosecution side has been recorded to the effect that he or they saw the applicants carry away victim Salama Khatoon in any vehicle whereas complainant specifically mentioned that they (witnesses) saw the victim being carried away in a vehicle. Perusal of records regarding academic sessions 2004-05 filed by the prosecution side allegedly contradict each other in the sense that the victim alleged passed U.K.G. in 2004-05 whereas transfer certificate shows fact, that she passed Class K.G. in the academic sessions 2004-05. In view of the above and without expressing any opinion on the merit of the case, I find it fit case for bail." However, in the present case, the statement of eye-witnesses was recorded under Section 161, Cr.P.C. and they have also filed affidavit which was placed before the court. However, incorrect fact was mentioned in the order granting bail by the Sessions Judge. Hence, on this ground, the bail was liable to be cancelled and there was no two views possible. However, incorrect fact was mentioned in the order granting bail by the Sessions Judge. Hence, on this ground, the bail was liable to be cancelled and there was no two views possible. If the bail was granted on the basis of concealment of fact or on the basis of any fact which is against the record then same can be cancelled on this ground itself. (7) The third contention was that there was no misuse of the liberty of bail by the applicant. As mentioned above, bail was granted mentioning the incorrect facts. On that ground, the bail can be cancelled. Hence, it is not acceptable that bail can be cancelled] only if there was misuse of bail. (8) In view of the aforesaid facts and circumstances, I am not inclined to recall the order dated 24.2.2010 by which the bail granted by the Sessions Judge was cancelled. However, if fresh bail application is moved before the trial court/Sessions Court that may be considered afresh without being influenced, by any observation in earlier order cancelling bail or in this order. Accordingly, the present recall application is hereby rejected. Application rejected.