JUDGMENT 1. - The complainant-petitioner has filed this application under Section 439 (2) Cr.P.C. with a prayer to cancel anticipatory bail granted to the accused-respondents by the Sessions Judge, Jaipur Metropolitan vide order dated 20.05.2011 passed under Section 438 Cr.P.C. in Criminal Misc. Bail Application No.2514/2011 in respect of FIR No.170/2010 registered at Police Station Shyam Nagar, Jaipur City (South) for the offences under Sections 420, 467, 468, 471 read with Section 120B IPC. 2. Brief relevant facts for the disposal of this application may be stated as below:- (1) The petitioner filed a written report for the aforesaid offences before Police Station Shyam Nagar, Jaipur on 21.05.2010 with the averment that in the year 1987 he purchased Plots No.18 and 19 in Patel Nagar, Ajmer Road, Jaipur from the Anand Bhawan Housing Cooperative Society Limited, Jaipur through respondent Shri Hanuman Sahay Bagda and a receipt alongwith the allotment letter (Patta) was issued to him and on 08.08.2009 when he visited the site where the aforesaid plots are situated he found some another person in occupation of the same. It was further avered that in the presence of persons named in the report he personally contacted the respondent Shri Hanuman Sahay. he assured him that in lieu of the aforesaid plots he will be allotted plots bearing Nos.99 and 100 on the condition that original Patta and the receipt of the aforesaid plots may be handed over to him and believing the assurance given by the respondent he handed over the original Patta and receipt to the respondent but neither new plots were allotted nor original documents returned to him. It was averred that the respondent Shri Hanuman Sahay dishonestly and by making fraudulent representation induced the petitioner to deliver the original documents of the aforesaid plots and thereby cheated him. On the basis of this written statement, FIR No.170/2010 was registered at Police Station Shyam Nagar, Jaipur for the aforesaid offences and investigation commenced. (2) During the course of investigation apprehending their arrest the respondents filed Criminal Misc. Bail Application No.2541/2011 under Section 438 Cr.P.C. for grant of anticipatory bail before the Sessions Judge, Jaipur Metropolitan, Jaipur and the same was allowed by the learned Court vide impugned order dated 20.05.2011. (2) During the course of investigation apprehending their arrest the respondents filed Criminal Misc. Bail Application No.2541/2011 under Section 438 Cr.P.C. for grant of anticipatory bail before the Sessions Judge, Jaipur Metropolitan, Jaipur and the same was allowed by the learned Court vide impugned order dated 20.05.2011. (3) Feeling aggrieved with the order of anticipatory bail granted to the respondents, the complainant-petitioner has filed this application for cancellation of bail under Section 439 (2) Cr.P.C. on 03.08.2011. It is to be noted that the State Government also filed Application for Cancellation of Ball bearing No.4401/2011 against the aforesaid order before the learned Sessions Judge, but the same was dismissed vide order dated 17.08.2012 without going into the merit only by the reason that the petitioner has already filed the present application for cancellation of the same order and the same is still pending. In that application apart from other grounds. It was stated that the respondents have not complied the conditions imposed by the Court and they have not filed the requisite bail bonds. It was also stated that despite issuance of several notices, the respondents have failed to appear before the investigating officer and they are not cooperating with the investigation. (4) During the course of investigation, necessary evidence was collected by the investigating agency and It was found that apart from respondents one Shri Gajendra Sharma @ Rajendra and Ramesh Kumar @ Kumar @ Ranu are also involved in the incident and all of them are guilty of the charges leveled against them. During investigation accused-Shri Ramesh Kumar @ Ranu was arrested and after investigation charge-sheet No.403/2910 for the offences under Sections 420, 406, 467, 468, 471 read with Section 120B IPC was filed against him in the competent Court while investigation against responde -its and one Shri Gajendra was kept pending under Section 173 (8) Cr.P.C. The reason for investigation to be kept pending is that the respondents are absconding and they are not cooperating with the investigation and due to their absence investigation could not be made from them. (5) Co-accused-Shri Ramesh Kumar @ Ranu filed an application under Section 437 Cr.P.C. for grant of bail but the same was dismissed by the Additional Chief Judicial Magistrate No.4 Jaipur Metropolitan vide order dated 29.09.2010. The Criminal Misc. (5) Co-accused-Shri Ramesh Kumar @ Ranu filed an application under Section 437 Cr.P.C. for grant of bail but the same was dismissed by the Additional Chief Judicial Magistrate No.4 Jaipur Metropolitan vide order dated 29.09.2010. The Criminal Misc. Bail Application No.910/2010 filed under Section 439 Cr.P.C. was dismissed by the Additional Sessions Judge No.1, Jaipur Metropolitan vide order dated 06.10.2010 mainly on the ground that some other criminal cases are also pending against the co-accused. (6) Co-accused-Shri Ramesh Kumar @ Ranu filed S.B.Criminal Misc.Bail Application No.1037/2010 under Section 439 Cr.P.C. before this Court, but the same was dismissed as withdrawn by the Co-ordinate Bench vide order dated 22.1 1.2010. The Second application filed by Shri Ramesh Kumar @ Ranu registered as S.B.Criminal Misc.Second Bail Application No.2255/2011 was allowed by the Co-ordinate Bench vide order, dated 10.03.2011. It is to be noted that alongwith the bail applications Shri Ramesh Kumar filed a document also to support his prayer for grant of bail. (7) Alleging that co-accused-Shri Ramesh Kumar has filed a forged document alongwith his bail applications in respect of FIR No.170/2010, the petitioner lodged FIR No.45/2012 at Police Station Sadar, Jaipur for the offence under Sections 420, 467, 468, 471 read with Section 120B IPC against respondents, Shri Ramesh Kumar and some other persons and presently this FIR is pending investigation. (8) Shri Gajendra Sharma (co-accused in the present case) was arrested in respect of FIR No.45/2012 lodged by the petitioner and ultimately he filed S.B.Criminal Misc.Bail Application No.11002/2012 before this Court and the same was allowed by the Co- ordinate Bench vide order dated 12.12.2012. (9) The petitioner has filed S.B. Criminal Misc. (Cancellation of Bail) Application No.12162/2012 for cancellation of bail granted to the co-accused-Shri Ramesh Kumar by the Co-ordinate Bench vide order dated 16.03.2011 and the same is presently pending for disposal. (10) One Shri Madan Singh also lodged FIR No.292/2007 at Police Station Shyam Nagar, Jaipur against respondents-Shri Hanuman Sahay and Shri Babu Lal for the offences under Sections 420, 406, 467, 468, 471 read with Section 120B IPC. Apprehending their arrest they filed an application under Section 438 Cr.P.C. for grant of anticipatory bail which was registered as Criminal Misc. Bail Application No.2558/2008 and the same was allowed by the learned Sessions Judge, Jaipur City vide order dated 30.07.2008. Apprehending their arrest they filed an application under Section 438 Cr.P.C. for grant of anticipatory bail which was registered as Criminal Misc. Bail Application No.2558/2008 and the same was allowed by the learned Sessions Judge, Jaipur City vide order dated 30.07.2008. Feeling aggrieved by this order, Shri Madan Singh filed S.B.Criminal Misc.(Cancellation of Bail) Application No.5973/2008 before this court and the same was allowed by the Co-ordinate Bench vide order dated 17.12.2008. When even after cancellation of anticipatory bail order, respondents Shri Hanuman Sahay and Shri Babu Lal could not be arrested in respect of FIR No.292/2007. Shri Madan Singh moved S.B.Criminal Misc.Petition No.31/ 2010 under Section 482 Cr.P.C. with a prayer to issue directions for their arrest and the Co-ordinate Bench vide order dated 25.04.2010 issued necessary directions to the police and in compliance thereof a list of pending criminal cases was furnished showing six criminal cases were pending against the respondents. In the aforesaid case vide order dated 10.02.2011 further directions were also made and in compliance thereof affidavit of a Senior Police Officer alongwith list of FIRs registered against the respondents and a detailed report regarding steps taken by the police to arrest the respondents was filed. In this case respondents-Shri Hanuman Prasad and Shri Babu Lal filed S.B.Criminal Misc.Petition No.206/2011 under Section 482 Cr.P.C. and the Co-ordinate Bench by way of clarification passed an order on 26.09.2011. (11) In the meanwhile the order dated 17.12.2006 passed in S.B.Criminal Misc.(Cancellation of Bail) Application No.5973/2008 whereby the order of grant of anticipatory bail to the respondents-Shri Hanuman Sahay and Shri Babu Lal in respect of FIR No.292/2007 was cancelled by the Coordinate Bench, was challenged by the respondent Shri Hanuman Sahay before the Hon'ble Supreme Court in Criminal Misc. Petition No.1 1179/2010 and vide order dated 14.05.2010 it was ordered by the Hon'ble Court that the respondent shall not be arrested in respect of FIR No.292/2007. 3. The respondents appeared through their respective counsel and sought time to file reply to the application and vide order dated 08.03.2013 one more opportunity was granted for the same but on that counsel for the parties did not appear due to strike. On 29.03.2013 none was present on behalf of the respondents and it was also found that reply has also not been filed on their behalf and, therefore, opportunity to file reply was closed. On 29.03.2013 none was present on behalf of the respondents and it was also found that reply has also not been filed on their behalf and, therefore, opportunity to file reply was closed. On 10.04.2013, the date on which arguments on behalf of the parties were heard, it was brought to the knowledge of the court that the respondents have already filed their respective reply on 11.03.2013 but the same was not placed with the file. On inquiry being made it was found the reply has been filed and thereof looking to the fact that it was filed within the time granted by the Court vide order dated 08.03.2013, the same has been taken on record. 4. It was submitted by the learned counsel for the petitioner that the respondents by concealment of material facts and misrepresenting the Court obtained the order of anticipatory bail from the Court of learned Sessions Judge Jaipur and if all relevant fact including the fact that several other criminal cases are pending against them would have brought to the knowledge of the learned Sessions Judge benefit of anticipatory bail could not have been accorded to them as it is well settled that benefit of anticipatory bail can be granted to an accused only in exceptional circumstances and for grant or refusal of bail criminal antecedents of the accused is a relevant factor. According to the learned counsel for the petitioner existence of supervening circumstances is not the requirement in each and every case for cancellation of bail which has already been granted to an accused and even if the order is found to be illegal and has been obtained by fraud, concealment of material facts and misrepresentation the same can be cancelled by the Court. It was contended by the learned counsel for the petitioner that the material available on record it is manifest that the respondents are habitual offenders and they have cheated many persons from time to time and even after obtaining huge amount of sale consideration and issuance of Pattas to them they allotted the same plots to other persons and obtained sale consideration from them also. It was further submitted that after getting benefit of anticipatory bail the respondents submitted that after getting benefit of anticipatory bail the respondents neither themselves nor despite issuing of notices from time to time failed to appear before the investigating officer and also failed to furnish bail bonds as directed by the learned Sessions Judge and thus utterly failed to comply the conditions imposed by the Court and did not cooperate with the investigating agency and by that reason charge-sheet could not be filed against them although it was filed against co-accused Shri Ramesh Kumar. According to learned counsel it is thus clear that the respondents have misused the liberty granted to them by the learned Sessions Judge by way of grant of anticipatory bail and by that reason also the order is liable to be cancelled. It was further submitted that one of the reason recorded by the learned Sessions Judge for grant of anticipatory bail is that civil suit appears to be pending between the petitioner and the respondents whereas true fact is that no civil suit was ever pending between the parties and on the basis of misleading and false facts order of anticipatory bail has been obtained by the respondents. 5. In support of his submissions learned counsel for the petitioner relied upon the cases of Brij Nandan Jaiswal v. Munna @ Munna jaiswal, reported in 2010 (l) Criminal Court Cases 382 (SC) : 2009 (1) SCC 678 ; Puran v. Ram Bilas, reported in 2001 (1) Apex Court Journal 507 (SC) : 2001 (6) SCC 338 ; Dinesh M.N.(S.R) v. State of Gujarat, reported in 2008 (5) SCC 66 ; Jai Prakash Singh v. State of Bihar & Anr., reported in 2012 (2) Apex Court Judgments 220 (SC) : 2012 (2) Criminal Court Cases 640 (SC) : 2012 Cr.LR. (SC) 350 and Ash Mohammad v. Shiv Raj Singh @ Lalla, Babu reported in 2012 Cr.LR. (SC) 1055 . 6. (SC) 350 and Ash Mohammad v. Shiv Raj Singh @ Lalla, Babu reported in 2012 Cr.LR. (SC) 1055 . 6. On the other hand it was submitted by the learned counsel for the respondents that from the material available on record it is clear that in most of the cases which are said to be registered against the respondents after investigation negative final reports have already been submitted and therefore it cannot be said that the respondents have criminal antecedents and the same should have been taken into consideration by the learned Sessions Judge while granting benefit of anticipatory bail to them, it was further submitted that while granting benefit of bail under Section 438 Cr.P.C. Learned Sessions took into consideration all relevant facts including the fact that co-accused Gajendra Sharma has already been granted benefit of anticipatory bail and it should be presumed that this fact was also considered by the Court that other criminal cases are pending against the respondents. It was also contended that the order of cancellation of bail passed by the Co-ordinate Bench in respect of FIR No.292/2007 has been challenged by the respondent Shri Hanuman Sahay before the Supreme Court and an order not to arrest the respondent has already been passed by the Hon'ble Court. It was further submitted that principles of cancellation of bail already granted to an accused are entirely different from the principles provided for refusal of a bail to an accused in non-bailable cases and unless some material supervening circumstances appear, the bail already granted cannot be cancelled. It was also brought to the knowledge of the Court that In some of the FIRs, the respondents have already surrendered. It was also submitted that for the incident allegedly taken place in the year 1987, FIR has been lodged in the year 2010 with a delay of twenty three years without any explanation. From the material available on record it is clear that allotment made to the petitioner was cancelled as he failed to pay the due amount and in such circumstances further allotments were made. 7. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law. 8. 7. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law. 8. From the material available on record following facts relevant for the disposal of the present application clearly emerge: (1) The respondents failed to appear before the investigating agency for investigation and even did not furnish requisite bail bonds as directed by the learned Sessions Judge while enlarging them on bail under Section 438 Cr.P.C. and thus, violated the condition imposed by him. The respondents failed to appear despite the fact that notices for their appearance were issued by the investigating officer on 15.06.2011, 06.07.2011, 08.07.2011 and 12.07.2011. It was found that the respondents are continuously absent from their respective residences and other possible places of their presence. (2) They absconded and could not be arrested in the present case as well as in several other cases which are pending against them and ultimately they were declared absconders and standing warrants were issued for their arrest. Even prise was also announced to be awarded if some person facilitates the arrest of respondents. (3) The investigation in the present case is almost complete except that interrogation of the respondents could not be made due to their absence and as a result thereof investigation had been kept pending against them although charge-sheet against co-accused-Shri Ramesh Kumar has already been filed in the Court concerned. (4) As many as 30 FIRs were registered against the Anand Bhawan Housing Society Limited and its officials at various police stations of Jaipur from time to time and in some of which after investigation either charge-sheets or negative final reports were submitted whereas some are still under investigation mainly by the reason that respondents are not cooperating with the investigation. (5) Respondent Shri Hanuman Sahay has been declared absconder in as many as six cases including the present one. Special teams of competent police officers were constituted to arrest the respondents in the cases which are pending investigation, but they could not be arrested despite best efforts made by them. (6) No civil suit is pending or was ever pending between the parties in respect of the plots in dispute and it was wrongly stated before the learned Sessions Judge that such suit is pending between the parties. 9. (6) No civil suit is pending or was ever pending between the parties in respect of the plots in dispute and it was wrongly stated before the learned Sessions Judge that such suit is pending between the parties. 9. In the case of Daulat Ram & Anr. v. State of Haryana, reported in 1995 (1) SCC 349 , it has been held by Hon'ble Supreme Court that: "Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already 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 bait broadly (illustrative and non 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. 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." 10. In the case of Narendra K. Amin (Dr.) v. State of Gujarat & Anr., reported in 2008 (2) Criminal Court Cases 977 (SC) : 2008 (13) SCC 584 , it has been held by the Hon'bie Supreme Court that "once it is found that bail was granted on untenable grounds, same can be cancelled. The stand that there was no supervening circumstances has no relevance in such a case." 11. In the case of Dinesh M.N. (S.P) v. State of Gujarat, reported in 2008 Cr.LJ 3008 , a Bench of three Hon'ble Judges of the Supreme Court has held that "Although the parameters for grant of bail and cancellation of bail are different but where the bail has been granted to an accused taking into consideration irrelevant materials which is of substantial nature, the bail so granted can be cancelled by the Court." 12. Similarly, in the case of Subodh Kumar Yadav v. State of Bihar & Anr., reported in 2009 (14) SCC 638 , it has been held by Hon'ble Supreme Court that if a superior Court finds that Court granting bail had acted on irrelevant materials, or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety e.g. failure to hear Public Prosecutor/complainant where required, order for cancellation of bail can be made: 13. Similar view has also been taken in the case of Manjit Prakash & Ors. v. Shobha Devi & Anr., reported in 2008 (4) Criminal Court Cases 154 (SC) : 2009 (13) SCC 785 . 14. Recently, in the case of Prakash Kadam & Ors. v. Ramprasad Vishwanath Gupta & Anr., reported in 2011 (7) Law digital in 466 (SC) : 2011 (6) SCC 189 . Hon'ble Court has held that it is not an absolute rule that considerations of bail are different from the consideration of grant of bail; 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 mused the bail granted to him. 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. 15. In the case of Brij Nandan Jaiswal v. Munna @ Munna Jaiswal (supra), It was held by the Hon'ble Supreme Court that "It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also." 16. In the case of Jai Prakash Singh v. State of Bihar & Anr. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also." 16. In the case of Jai Prakash Singh v. State of Bihar & Anr. , Hon'ble Supreme Court while considering the provisions of Section 438 Cr.P.C. which provides for grant of anticipatory bail in a non-bailable case has held that the anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the Court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. It was also held that anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. 17. In the case of Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr. (supra), it was held that criminal antecedents of the accused is also a relevant factor while according benefit of to an accused and if the same has been granted without properly considering his criminal antecedents, such order of bail is not legally sustainable and is liable to be cancelled under Section 439(2) Cr.P.C. 18. If in the light of prevalent legal position, the facts and circumstances of the present case are considered, the application filed by the complainant-petitioner is liable to be allowed and the order of bail dated 20.05.2011 passed by the learned Sessions Judge, Jaipur Metropolitan in respect of FIR No.170/2010 registered at Police Station Shyam Nagar, Jaipur City (South) requires to be cancelled as it is very clear that the same has been obtained by concealment of material and relevant facts and it has been passed taking into consideration irrelevant and false facts. There Is another reason for cancellation of the aforesaid order as the respondents have misused the liberty provided to them by way of grant of anticipatory bail as they failed to appear before the investigating officer at their own and also despite issuance of notice to them by the investigating officer several times rather they absconded and failed to furnish bail bonds in compliance of the order dated 20.05.2011. While allowing the application filed by the respondents under Section 438 Cr.P.C., learned Sessions Judge apart from others imposed a condition that the respondents would make them available for investigation when and where the investigating agency calls upon them. It is clear that the respondents utterly failed to comply the aforesaid condition and, therefore, misused the liberty provided to them. From the reading of impugned order dated 20.05.2011, it is revealed that this fact was also taken into consideration by the Court that civil suit regarding disputed property is pending between the parties. Learned counsel for the respondents could not dispute the statement made on behalf of the petitioner before this Court that no such suit is pending or was ever pending between the parties. This shows that a false statement regarding pendency of civil suit was made before the learned Sessions Judge to obtain the order of anticipatory bail and relying on the same the order was passed. It is well settled that if an order of bail has been granted taking into consideration some wrong and irrelevant fact the same Is liable to be cancelled. From the perusal of order it Is clear that fact of pendency of several other criminal cases of the like nature was not brought to the knowledge of the learned Judge rather it was concealed with the connivance of the prosecution and, therefore, the order was passed without considering a material fact as pendency of other criminal cases and criminal antecedent of an accused is a relevant factor while considering an application for grant of bail more particularly in an application under Section 438 Cr.P.C. for grant of anticipatory bail. 19. Consequently, the application filed under Section 439 (2) Cr.P.C. Is allowed and the impugned order dated 20.05.2011 is set aside and cancelled and the respondents are directed to surrender before the concerned I.O./SHO within a period of seven days from today failing which I.O./SHO shall have liberty to take necessary steps for their arrest.Petition allowed. *******