Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 124 (HP)

Bawa Pasricha v. State of Himachal Pradesh

2014-02-25

RAJIV SHARMA

body2014
JUDGMENT : - Rajiv Sharma, Judge (oral): This petition has been filed for quashing the order dated 7.1.2014 passed by the learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, H.P. in Cr.M.A. No.08/2014. 2. “Key facts” necessary for the adjudication of this petition are that the petitioner was enlarged on bail by the learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu on 27.12.2013 subject to following conditions:- i. The accused persons shall not tamper with the prosecution case directly or indirectly nor shall influence the witnesses in any manner. ii. The accused persons shall join the investigation as and when required by to do so either by the police or the Court. iii. The accused shall not leave the territory of India without prior permission. Bhuntar, moved an application before the learned Chief Judicial Magistrate for cancellation of bail on 4.1.2014. The petitioner filed detailed reply to the same on 6.1.2014. Learned Chief Judicial Magistrate cancelled the bail on 7.1.2014. It is in these circumstances, the present petition has been filed. 4 The bail application has been cancelled mainly on the ground that the petitioner has not cooperated during the course of investigation and recoveries were to be effected from him. He has not disclosed the names of other co-accused. The petitioner was enlarged on bail by a detailed order dated 27.12.2013, wherein three conditions were imposed, as quoted hereinabove. Learned Chief Judicial Magistrate has not taken into consideration the well settled principles governing the cancellation of the bail. Granting of bail and cancellation of the bail are considered on different basis. There is no material on record to suggest even remotely how the petitioner has not cooperated during the course of investigation. It has come on record that the petitioner had been visiting the Police Station. He was made to sit in the Police Station from morning to evening. The only ground that the recoveries could not be effected from the petitioner and the co-accused name has not been disclosed could not constitute a valid ground for cancellation of the bail. This plea was also raised by the police at the time the petitioner was enlarged on bail on 27.12.2013. The bail has been cancelled in a mechanical manner even without taking into consideration the submissions made by the petitioner on 7.1.2014. 5 Their Lordships of Hon’ble Supreme Court in Dolat Ram and ors. This plea was also raised by the police at the time the petitioner was enlarged on bail on 27.12.2013. The bail has been cancelled in a mechanical manner even without taking into consideration the submissions made by the petitioner on 7.1.2014. 5 Their Lordships of Hon’ble Supreme Court in Dolat Ram and ors. vs. State of Haryana (1995) 1 Supreme Court Cases 349, have held that rejection of bail in non-bailable case at 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. Their Lordships have spelt out following conditions broadly for cancellation of bail: “4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on g 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 bail, broadly (illustrative and not 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. These principles, it appears, were lost sight of by the High court when it decided to cancel the bail, already granted. The High court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted.” 6 Their Lordships of Hon’ble Supreme Court in Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2 Supreme Court Cases 362 have held that rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to. Their Lordships have held as under:- “8. It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or would ham,per smooth investigation or tirla, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to.” 7 Their Lordships of Hon’ble Supreme Court in Raj Kumar Jain and another vs. Kundan Jain and another, (2004) 10 Supreme Court Cases 612 have held that the High Court erred in cancelling the bail by merely accepting the allegation made in the application for cancellation. 8 Their Lordships of Hon’ble Supreme Court in Central Bureau of Investigation Hyderabad vs. Subramani Gopalakrishnan and another, (2011) 5 Supreme Court Cases 296 have held that there is a difference between yardsticks for cancellation of bail and appeal against order granting bail. Their Lordships have further held that very cogent and overwhelming circumstances are necessary for order directing cancellation of bail already granted. Their Lordships have held as under:- “23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail 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 concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, 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.” 9 In the instant case also, there was no overwhelming or any cogent reason assigned by the Investigating Officer for cancellation of the bail. It was not the case of the prosecution that the petitioner has interfered and attempted to interfere with due course of administration of justice. It was also not the case of the prosecution that the petitioner would not be available for facing trial. The Investigating Officer even has not filed his affidavit supporting the application for cancellation of the bail. The petitioner was enlarged on bail by passing a detailed/speaking order and that too by taking into consideration all the pleas raised by the police. It cannot be said that the learned Chief Judicial Magistrate while grating bail has taken into consideration irrelevant material on 27.12.2013. Learned Chief Judicial Magistrate has considered all relevant factors while granting the bail to the petitioner on 27.12.2013. 10 Accordingly, in view of the observations and analysis made hereinabove, the petition is allowed and the order dated 7.1.2014 passed by the learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, H.P. in Cr.M.A. No.08/2014 is quashed. Consequently, order dated 27.12.2013 passed by the learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu in Bail Application No.78-XXII/13 would revive with all the conditions imposed therein. Pending application(s), if any, also stands disposed of. No costs.