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2012 DIGILAW 1330 (PAT)

Juli Gupta v. State of Bihar

2012-09-19

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel appearing for the petitioner, learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the opposite party no.2. 2. The petitioner has approached this Court under Section 439(2) of the Code of Criminal Procedure, 1973, (For short Cr. P. C.) seeking cancellation of bail of opposite party no.2 granted vide order dated 05.12.2007 passed by the learned A.C.J.M., Danapur in connection with Danapur P.S. Case No. 494 of 2007 dated 05.09.2007, in exercise of his powers under Section 167(2) Cr.P.C. 3. It appears that the petitioner lodged a criminal prosecution against the opposite party no.2 and one more co-accused for offence under Section 307 and some other allied offences under the Indian Penal Code. However, subsequently, by order dated 15.09.2007 offence under Section 302 of the Indian Penal Code was also added. 4. It is admitted case of the parties that opposite party no.2 was apprehended by the police in connection with aforesaid criminal prosecution and she was remanded to judicial custody on 05.09.2007. Since within the statutory period of 90 days the charge sheet was not submitted by the police, therefore, by the impugned order dated 05.12.2007 the opposite party no.2 was granted bail by the learned A.C.J.M., Danapur in exercise of his powers under Section 167(2) Cr. P. C. 5. Learned counsel for the petitioner submits that since the police was in collusion with the opposite party no.2, therefore, though the charge sheet was prepared on 04.12.2007, but it was submitted on 05.12.2007 and was placed before the learned A.C.J.M., Danapur on 05.12.2007 at 5 P.M., when the order had already been passed. It is contended that in view of serious nature of allegation, the bail granted to the opposite party no.2 is liable to be cancelled by this Court. In support of his contention, he has placed reliance on a judgment of the learned single Judge of this Court in the case of Jakir Hussain Vs. Md. Sk. Irshad & Anr. [ 2007(4) PLJR 722 ] as also on the judgment of the Hon’ble Apex Court in the case of Salim Gulab Pathan Vs. State of Maharashtra through SHO [2012(3) PLJR (SC) 133]. 6. Learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the opposite party no.2 have opposed the prayer. 7. [ 2007(4) PLJR 722 ] as also on the judgment of the Hon’ble Apex Court in the case of Salim Gulab Pathan Vs. State of Maharashtra through SHO [2012(3) PLJR (SC) 133]. 6. Learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the opposite party no.2 have opposed the prayer. 7. Learned counsel for the opposite party no.2 has informed the Court that now charge has been framed against the accused persons including the opposite party no.2. It is also pleaded that opposite party no.2 was granted bail by order dated 05.12.2007, but there is absolutely no allegation of misuse of the privilege of bail in any manner by the O.P. No. 2 during the entire period of almost five years. 8. Learned Additional Public Prosecutor has also submitted that once the bail has been granted to the accused in terms of Section 167(2) Cr. P. C. then the bail can be cancelled only on the ground if the accused is tempering with the evidence or misusing the privilege of bail. 9. Hon’ble Apex Court in the case of Aslam Babalal Desai Vs. State of Maharashtra ( AIR 1993 SC 1 ) has laid down the law that once an accused is granted bail in terms of Section 167(2) Cr. P. C. then he cannot be taken back in custody merely on filing of charge sheet subsequently. However, in that case also a petition for cancellation of bail can be entertained either under Section 437(5) Cr. P.C. or in terms of Section 439(2) Cr. P.C., but for cancellation of bail the principles have been laid down by the Hon’ble Apex Court in that judgment itself, which has been followed in the catena of judgments by the Hon’ble Apex Court. 10. This Court is of the opinion that once the bail was granted to the accused opposite party no.2 in terms of Section 167(2) Cr. P.C. then that cannot be cancelled either by re-appreciating the materials available on record and by considering the gravity of offence, or on the ground of subsequent submission of charge-sheet. However, bail of the accused O.P. No. 2 could have been cancelled if there was any allegation of either misusing the privilege of bail in any manner or tempering with the prosecution evidence. However, bail of the accused O.P. No. 2 could have been cancelled if there was any allegation of either misusing the privilege of bail in any manner or tempering with the prosecution evidence. In the present case, there is absolutely no allegation that accused opposite party no.2 is either tempering with the prosecution evidence or is misusing the privilege of bail in any manner. 11. For the reasons recorded above, and in the given facts the case, this Court is not inclined to exercise its power under Section 439(2) Cr. P.C. for cancelling the bail of accused opposite party no.2. 12. Accordingly, the petition has to fail and is, accordingly, rejected. 13. However, the learned trial court is directed to expedite of the trial of accused O.P. No. 2 and should make all endeavours to conclude the same at an early date preferably within a period of one year from the date of receipt/ production of a copy of this order. 14. Let the carbon copy of the case diary including supervision note, received pursuant to the order dated 07.09.2010 passed by a Bench of this Court, be transmitted to the learned court below, without any unnecessary delay.