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Rajasthan High Court · body

2011 DIGILAW 2615 (RAJ)

Ashok Sachdeva v. State

2011-11-29

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—The present application for cancellation of bail has been filed on behalf of the petitioner who is the injured-complainant in the present case. The respondent No. 2 was arrested in connection with FIR No. 266/09 registered at the Police Station Sadar, District Sri Ganganager for the offence under Sections 307, 325, 323, 341/34 IPC for having caused sharp weapon injuries to the petitioner. 2. The respondent No. 2 subsequent to his arrest approached this Court for being released on bail under Section 439 Cr.P.C. and the bail application filed by the respondent No. 2 Satpal Singh came to be registered as S.B. Criminal Misc. Bail Application No. 4990/2009. This Court has rejected the bail application filed by the respondent on 8.12.2009, after making the following observations- "The accusations against the petitioner are of having caused the injury on the head of the injured Ashok. Though it has been suggested that such injury was caused with a dagger, however, the learned counsel for the petitioner argues with reference to the injury report that the report had not been specific on the nature of the weapon used and rather, in relation to the weapon, `not known' is the comment made; and then, according to the learned counsel, the injury, being in the length of about 10 cm, is not likely to have been caused on the head by a dagger. The submission made before the Court do not make out a case for grant of bail to the accused at this stage particularly when it is noticed that there had been at least two injuries on the head of the injured with fracture of left temporooccipital bone; and the petitioner is alleged to the author of such injuries." 3. Thereafter, just after a laps of 14 days i.e. on 22.12.2009, another bail application was moved by the respondent before the learned Sessions Judge, Sri Ganganagar. At the foot note of the bail application as well as in the body of the bail application, it was mentioned that it is a second bail application on behalf of the respondent and that his earlier bail application had been rejected by the Hon'ble High Court. The bail application came to be heard by the link Officer who was officiating as the Sessions Judge, Sri Ganganagar in the winter break. The bail application came to be heard by the link Officer who was officiating as the Sessions Judge, Sri Ganganagar in the winter break. The bail application thus filed by the respondent was allowed by the order dated 31.12.2009 and in the para 4 of the order, the learned Judge while granting bail to the respondent No. 2 observed that none of the injuries of the injured was dangerous to life and that the wife of the accused was undergoing treatment and as such, the respondent No. 2 was directed to be released on bail in the matter. 4. The complainant has now approached this Court by way of the present application for cancellation of bail granted to the respondent accused by the order impugned. Notice was issued to the respondent No. 2 and Dr. Sachin Acharya has put in appearance on his behalf and has also filed an affidavit in reply to the application seeking cancellation of bail. 5. Mr. Rakesh Matoria appearing on behalf of the petitioner-complainant has submitted that in this case, the bail application filed by the respondent No. 2 was rejected by this Court by a detailed order wherein this Court has found that it was not a fit case for grant bail to the accused respondent No. 2 at that stage. It is submitted that no change in stage had been achieved after the rejection of the bail application of the respondent No. 2 on 8.12.2009. He further submits that looking to the fact that, this Court whilst rejecting the bail has noticed the seriousness of the injuries received by the petitioner and thus, the learned Presiding Officer of the Court below who was just officiating as the link Sessions Judge in the Winter Break was not at all justified in granting bail to the respondent No. 2 and that too by commenting that the injuries of the respondent No. 2 were not dangerous to life. He submits that the order impugned granting bail to the respondent No. 2 just three weeks after the like bail application of the respondent No. 2 had been rejected by this Court was not at all justified. It was thus submitted that the bail having been granted to the respondent No. 2 for extraneous considerations should be cancelled. He submits that the order impugned granting bail to the respondent No. 2 just three weeks after the like bail application of the respondent No. 2 had been rejected by this Court was not at all justified. It was thus submitted that the bail having been granted to the respondent No. 2 for extraneous considerations should be cancelled. It was also submitted that the order granting bail to the respondent accused whilst by passing this Courts order dated 8.12.2009 also amounts to contempt of Court. 6. Per contra, Dr.Sachin Acharya appearing on behalf of the respondent submitted that the learned Sessions Court whilst granting bail to the respondent had passed the order of bail on 31.12.2009 after being conscious of the fact that the bail application filed by the respondent No. 2 stood rejected by this Court. He thus submits that it is the discretion under Section 439 Cr.P.C. which has been exercised by the lower Court whilst granting bail to the respondent which should not be interfered with. Placing reliance on the decision of the Hon'ble Apex Court in the case of Central Bureau of Investigation, Hyderabad vs. Subramani Gopalakrishnan & Anr. (2011) 5 Supreme Court Cases 296, it has been submitted that the considerations for grant of bail and for cancellation of bail are entirely different and that the bail once granted cannot be cancelled simply because it was granted for erroneous considerations. It has been submitted that there is no allegation in the application seeking cancellation of bail that the respondent had misused the bail granted to him and therefore the powers under Section 439(2) Cr.P.C. should not be exercised for cancelling the bail granted to the accused. 7. It has also been submitted that the respondent's wife was seriously ill and was suffering from Cancer and thus, the learned Trial Court also took into account the fact of the illness with which the respondent's wife was suffering and this was also a valid consideration for grant of bail to the respondent as per the counsel for the respondent. 8. Thus, it is submitted that the application for cancellation of bail be rejected. 9. I have given my thoughtful consideration to the arguments advanced at the bar, the order impugned and the reply filed by the respondent to the application seeking cancellation of bail. 8. Thus, it is submitted that the application for cancellation of bail be rejected. 9. I have given my thoughtful consideration to the arguments advanced at the bar, the order impugned and the reply filed by the respondent to the application seeking cancellation of bail. In the opinion of this Court, it is normally true that the consideration for grant of bail and the cancellation of bail once granted are different but it is not so in every circumstance. The Hon'ble Apex Court in the case of Prakash Kadam & Ors. vs. Ramprasad Vishwanath Gupta & Anr. (2011) 6 Supreme Court Cases 189 = 2011(2) RLW 1833 (SC) has held as below:- "It was contended by the learned counsel for the appellants before us, and it was also contended before the High Court, that the considerations for cancellation of bail are different from the consideration of grant of bail vide Bhagirathsinh vs. State of Gujarat, Dolat Ram vs. State of Haryana and Ramcharan vs. State of M.P. However, we are of the opinion that is not an absolute rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail. 10. Thus, in the opinion of this Court, the argument regarding the con-sideration for cancellation of bail being different from a consideration for grant of bail does not help the respondent accused in the facts and circumstance of the present case. There are several other factors also which may be seen while deciding to cancel the bail. 10. Thus, in the opinion of this Court, the argument regarding the con-sideration for cancellation of bail being different from a consideration for grant of bail does not help the respondent accused in the facts and circumstance of the present case. It is question of propriety in this case as to whether, once this Court whilst exercising powers under Section 439 Cr.P.C. had rejected the bail application filed by the respondent just on 8.12.2009 then it is a question to be examined by this Court as to what was the change in circumstances just within a period of 23 days thereafter, which persuaded the learned Presiding Officer who was officiating as a link Sessions Judge during the winter break to grant bail to the respondent and that too whilst making comments on the nature of the injuries received by the petitioner-complainant. 11. As has already been observed above, this Court whilst considering the bail application filed by the petitioner had made a detailed consideration of the nature of injuries suffered by the petitioner and had considered the fact that the injuries were serious injuries located on the head of the injured. The size of the injury was noted by this Court as being in the length of about 10 cm. This Court also noted there was a repetition of the injuries on the head of the injured with fracture of left temporo occipital bone. Thus, in the opinion of this Court, there was no occasion for the learned link Sessions Judge to make a comment or to even consider the nature of the injuries for granting bail to the accused respondent. The learned link Sessions Judge while passing the impugned order has totally bypassed the order of this Court dated 8.12.2009 dealing in detail with the injuries found on the person of the injured & thus the order of the learned lower Court granting bail to the respondent accused cannot be appreciated. 12. That apart, the record of the case reveals that the charge sheet in this case already stood filed on 3.12.2009 therefore, there was no question of any circumstance to have changed during the period between 8.12.2009 till 31.12.2009. 12. That apart, the record of the case reveals that the charge sheet in this case already stood filed on 3.12.2009 therefore, there was no question of any circumstance to have changed during the period between 8.12.2009 till 31.12.2009. When this Court was considering the bail application of the accused, the charge sheet had already been filed and this Court was well apprised of the circumstances appearing in evidence against the petitioner and after consideration of all these circumstances, this Court rejected the application filed by the respondent accused. 13. Another circumstance which reflects adversely on the order impugned is that the learned link Sessions Court has observed that none of the injuries of the petitioner i.e. the injured was dangerous to life. However, a perusal of the record reveals that the medical officer on the inquiry made by the Investigating Officer has given a following opinion on 10.9.2009:- "After study BHT of Ashok Kumar S/o Radu Ram BHT of Tatia Nursing Home as per operation notes at para No. 14 (Dr. Mahesh Maheshwari TP, EDH, TP, Craniotomy and evacuation) injury No. 1 in MLR of Ashok Kumar dated 7.9.2009 at 10.20 AM treated to be "dangerous to life in nature." Thus, it is the firm opinion of this Court that the learned link Sessions Court has completely overlooked this opinion of the doctor available on record for the purposes of granting bail to the respondent. 14. The learned Sessions Court has also observed in the order dated 31.12.2009 that the respondents wife was ailing but no document showing the ailment of the wife of the respondent was produced on the record nor it was be shown to the Sessions Court that the ailment came into existence after the rejection of the bail of the respondent by this Court. Thus, this fact also could not have been a valid ground for granting bail to the respondent accused in this matter. 15. The Apex Court in the case of Bimla Devi vs. State of Bihar and Others (1994) 2 Supreme Court Cases 8 dealing with the similar situation held as below:- "2. Thus, this fact also could not have been a valid ground for granting bail to the respondent accused in this matter. 15. The Apex Court in the case of Bimla Devi vs. State of Bihar and Others (1994) 2 Supreme Court Cases 8 dealing with the similar situation held as below:- "2. In view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioner's prayer for cancellation of bail but the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned Magistrate is not only contrary to settled principles of discipline and propriety but also contrary to the statutory provisions. The manner in which the learned Magistrate dealt with the case can give rise to the apprehensions which were expressed by the complainant in her complaint, which was treated by this Court as a writ petition and is being dealt with as such. In the course that we are adopting, we would not like to comment upon the manner in which the learned Magistrate dealt with the case any more at this stage. 16. Accordingly, this Court has no hesitation incoming to a finding that the learned line Sessions Court was not justified in granting bail to the respondent accused in this case on 31.12.2009 as the bail application filed by the respondent under Section 439 Cr.P.C. stood rejected by this Court on 8.12.2009 only. 17. Apparently, there was no change in circumstance on the record which could have persuaded the learned link Sessions Court for granting of bail to the respondent. The order impugned dated 31.12.2009 granting bail to the respondent accused is patently illegal & also amounts to an abuse of process of this Court. 18. Whilst disposing of this bail cancellation application, this Court is of the opinion that the learned Presiding Officer, whilst granting bail to the respondent accused has acted in a manner which cannot be appreciated. 19. 18. Whilst disposing of this bail cancellation application, this Court is of the opinion that the learned Presiding Officer, whilst granting bail to the respondent accused has acted in a manner which cannot be appreciated. 19. Though it is true that the rejection of a bail application under Section 439 Cr.P.C. is not a bar for the entertainment of an another bail application on behalf of the same accused but the law and practice prescribe that such a subsequent bail application has to be entertained and accepted only in the event of change in circumstances appearing on the record of the case. As has been observed above, there was no change in circumstance after the rejection of the bail application of the accused by this Court on 8.12.2009 and without there being any change in circumstance, the learned Presiding Officer has granted bail to the accused. Not only this, the order of this Court rejecting the bail having been passed just 23 days' prior to the order impugned, the same has been totally ignored with impunity despite this fact being mentioned in the application for bail filed before the Sessions Court. The learned link Sessions Court has also ignored the medical opinion available on record regarding the injuries on the head of the petitioner being dangerous to life & has wrongly observed the same not to be dangerous to life. 20. Thus, this Court feels that imperative in the interest of justice, the registry be directed to place a copy of this order before the Hon'ble Chief Justice for information. 21. The upshot of the above discussion is that the present application for cancellation of bail is allowed. The bail bounds of the respondents are directed to be cancelled and the learned Trial Judge is directed to take the respondent No. 2 into custody and proceed with trial of the case. 22. It is made clear that the cancellation of the bail granted to the respondent by this order shall not be construed to be a rider against the remedy available to the respondent for seeking bail in accordance with the procedure established by law.