Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 89 (PAT)

Ajay Kumar Singh v. State of Bihar

2012-01-16

AHSANUDDIN AMANULLAH

body2012
ORDER Heard Mr. Abhay Kumar Singh, learned counsel for the petitioner, learned counsel for the informant who has appeared suo motu and has prayed to this Court for granting permission to assist and Mrs. Indu Bala Pandey, learned A.P.P. for the State. 2. This application is directed against the order dated 30.10.2009 passed by the 1st Additional Sessions Judge, Katihar in Cr. Misc. No. 68 of 2009 by which the bail granted to the to the petitioner in connection with Katihar (T) P.S. Case No. 91 of 2009 by the I/C Chief Judicial Magistrate, Katihar on 26.5.2009 has been cancelled. Earlier by order dated 24.12.2009 the case diary had been called for and the same has since been received and is on record. 3. Learned counsel for the petitioner submits that though the petitioner is an accused in the case registered under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act, but he is innocent and has been falsely implicated which is clear from the fact that except from the F.I.R. and the restatement of the informant before the police, none of the other witnesses including the mother and brother of the informant has stated that the petitioner had fired upon the informant, who is also the victim and has been injured. 4. Learned counsel submits that the petitioner was unaware of the incident till the time the police came and arrested him which also goes to prove his innocence. He submits that the order impugned amounted to cancellation of his bail earlier granted, which could not have been done except under the circumstances which has been enumerated under the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) by which the person concerned has disentitled himself to remain on bail for having misused his privilege. In support of his contention learned counsel submits that the Courts have categorically and specifically held that only under limited circumstances the bail granted to the accused should be cancelled which has been enumerated in various decisions. 5. Learned counsel for the petitioner has relied upon the decisions rendered by the Courts in the following cases. (i) Aslam Babalal Desai Vs. State of Maharashtra reported in AIR 1993 SC. 1 , the relevant being paragraphs no. 11 and 40. (ii) Manzoor Alam Vs. 5. Learned counsel for the petitioner has relied upon the decisions rendered by the Courts in the following cases. (i) Aslam Babalal Desai Vs. State of Maharashtra reported in AIR 1993 SC. 1 , the relevant being paragraphs no. 11 and 40. (ii) Manzoor Alam Vs. The State of Bihar reported in 2005 (4) PLJR 24 , the relevant being paragraph no. 4. (iii) Manjit Prakash & Ors. Vs. Shobha Devi & Anr. reported in 2008 (4) PLJR SC 58. (iv) State of Kerala Vs. Raneef reported in 2011 (2) PLJR SC 49. 6. Learned counsel submits that in view of the law laid down by the Courts the bail once granted can be cancelled only for the reasons enumerated therein especially the reasons mentioned in the case of Aslam Babalal Desai (supra) which has been followed and relied in the subsequent judgments. 7. Learned counsel appearing for the informant on the other hand has submitted that the case should not be considered as cancellation of bail in the general sense since the earlier bail granted by the In-charge C.J.M. was based on erroneous grounds and not justified in the facts and circumstances of the case and thus rightly such bail was cancelled. 8. Learned counsel submits that from bare perusal of the order granting bail to the petitioner dated 26.5.2009 by the In-charge C.J.M., Katihar it would be apparent that the only ground on which the petitioner was granted bail was that the informant of the case has not levelled any specific allegation against him under Section 307 of the Indian Penal Code and Section 27 of the Arms Act. Learned counsel submits that both from the F.I.R. as well as the restatement of the informant to the police, as would be apparent from the case diary, it is clear that specific act of firing has been attributed to the petitioner and thus the very ground and basis for grant of bail being nonest, the order itself is not fit to be sustained. Learned counsel for the petitioner has also relied on the decision rendered in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. reported in (2004) 7 SCC 528 especially paragraph no.11 of the same which is quoted hereinbelow. “The law in regard to grant or refusal of bail is very well settled. Learned counsel for the petitioner has also relied on the decision rendered in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. reported in (2004) 7 SCC 528 especially paragraph no.11 of the same which is quoted hereinbelow. “The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Through at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. Such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate Court has every right to know the basis for granting the bail. Therefore, there can be no agreement with the argument that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the accused was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the accused or his supporters to witnesses in the case. In such circumstances, the Court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the accused has vitiated the conclusions arrived at by the High Court while granting bail to the accused.” He has also relied on the decisions rendred in the case of :– (i) Puran Vs. Rambilas & Anr. reported in (2001) 6 SCC 338 . Rambilas & Anr. reported in (2001) 6 SCC 338 . (ii) Ram Govind Upadhyay Vs. Sudarshan Singh & Ors. reported in 2002 (3) SCC 598 . 9. Upon consideration of the entire facts and circumstances of this case and also the fact that after passing of the impugned order on 30.10.2009 in which the petitioner was heard, having moved this Court and by order dated 24.12.2009 this Court had called for the case diary but not given any interim protection to the petitioner and the petitioner not having surrendered even after that in compliance to the order impugned, this Court is of the opinion that the petitioner did not deserve the indulgence of being granted bail rightway. This Court is also of the opinion that this is not a case where the parameters laid down for cancellation of bail has to be considered for the reason that the bail has not been cancelled on such ground but rather it has been cancelled on the simple ground that the basis for grant of bail by the In-charge Chief Judicial Magistrate, Katihar was erroneous and in fact contrary to the facts and records of the case. The informant, who is the victim of a gun shot injury, has specifically stated in the F.I.R., as well as in his restatement to the police, that the petitioner alongwith another person had fired upon him. 10. In that view of the matter, the Court while granting bail has to consider this aspect, but it appears from the records that the Court has granted bail on an erroneous presumption that the informant has not levelled any specific allegation against the accused petitioner under Section 307 of the Indian Penal Code and Section 27 of the Arms Act. This Court is also inclined to accept the contention of learned counsel for the informant that the principle laid down in the case of Kalyan Chandra Sarkar (supra) by the Hon’ble Apex Court while cancelling the bail granted to the accused in that case is applicable to the facts and circumstances of this case. 11. This Court is also conscious of the fact that the petitioner, without having any interim protection or order otherwise has not complied with the order dated 30.10.2009 which required him to surrender before the Court below. 11. This Court is also conscious of the fact that the petitioner, without having any interim protection or order otherwise has not complied with the order dated 30.10.2009 which required him to surrender before the Court below. He has not done the same for over two years and thus, according to this Court, it is sufficient ground not to interfere in the matter since it is obligatory on the part of any person to give due respect to and comply with the order passed by any Court of competent jurisdiction. The petitioner not having done so has also lost the sympathy of this Court. 12. As far as merit is concerned, this Court, in view of the conduct of the petitioner would not like to go into the same since this is not the stage where the Court is going into the merits as an appellate Court. 13. Considering the matter in totality, this Court does not find any infirmity with the order impugned and accordingly this petition stands dismissed.