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2014 DIGILAW 255 (RAJ)

Uganti v. State

2014-01-22

KANWALJIT SINGH AHLUWALIA

body2014
Hon'ble AHLUWALIA, J.—Instant application has been filed under Section 439 (2) Cr.P.C. praying interalia that the bail granted by the Court of Additional District & Sessions Judge, Gangapur City to the accused-respondent Nos. 2 to 4, namely Bharat Lal Gopal and Hargyan, vide its impugned order dated 19.8.2013 may be cancelled, as the Additional District & Sessions Judge, Gangapur City had committed a grave error by granting bail to the accused-respondent Nos. 2 to 4. 2. Mr. Rajneesh Gupta, the learned counsel appearing for the petitioner, has submitted that twice bail application of Gopal, accused-respondent No. 3, herein was rejected by the High Court. 3. Counsel appearing for the petitioner has further submitted that accused-Gopal had earlier approached this Court, along with one Bharat Lal, vide S.B. Criminal Miscellaneous Bail Application No. 1874/2013 and a Single Bench of this Court on 20.2.2013 had declined his bail. 4. Thereafter, Gopal had approached this Court by filing S.B. Criminal Miscellaneous Bail Application No. 6474/2013 and the same was rejected vide order dated 11.7.2013. 5. It is further submitted by the learned counsel that Hargyan, vide S.B. Criminal Miscellaneous Bail Application No. 4744/2013 Hargyan had approached this Court and his application was also rejected, along with the case of Gopal, accused-respondent No. 3. 6. Counsel appearing for the petitioner has submitted that once the High Court had rejected the bail of accused-respondent Nos. 2 to 4, the Court of Additional District & Sessions Judge, Gangapur City could not grant the bail to the accused-respondent Nos. 2 to 4. 7. In support of his contention, learned counsel appearing for the petitioner, has placed reliance upon the case of Ashok Sachdeva vs. State and Another, reported in 2012(3) WLC (Raj.) 85 = 2012(2) RLW 1617. 8. A perusal of judgment rendered in the case of Ashok Sachdeva (supra) by a Single Bench of this Court, clearly reveals that in that case after bail was rejected by this Court, then twenty-days after, bail was granted by the Court below. 9. A further reliance has been placed upon the case of Akhilesh Kumar Singh vs. State of U.P. Through DGC (CRI) & Anr., reported in 2008(2) WLC 229 = 2008(4) RLW 3379 (SC) to contend that the Additional District & Sessions Judge, Gangapur City could not grant bail to the respondent Nos.2 to 4. 10. 9. A further reliance has been placed upon the case of Akhilesh Kumar Singh vs. State of U.P. Through DGC (CRI) & Anr., reported in 2008(2) WLC 229 = 2008(4) RLW 3379 (SC) to contend that the Additional District & Sessions Judge, Gangapur City could not grant bail to the respondent Nos.2 to 4. 10. A perusal of above judgment clearly reveals that the second bail was entertained by the Magistrate, after nineteen days of its earlier rejection. 11. Counsel appearing for the petitioner has not disputed that the grounds for grant of bail and grounds for cancellation are entirely different. 12. In the case of Aslam Bablal Desai vs. State of Maharashtra, reported in AIR 1993 SC 1 , where bail was granted under Section 167(2) Cr.P.C., the Apex Court has held that only on the following grounds bail can be cancelled. "Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh's case ( AIR 1987 SC 149 ) the grounds for cancellation under Sections 437 (5) and 439(2) are identical, namely, bail granted under Sections 437(1) or (2) or 439 (1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir & Raghubir (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant's case our endeavour is to clear the same and set the controversy at rest." 13. Similar view was earlier stated by the Hon'ble Apex Court in the case of Raghubir Singh vs. State of Bihar, reported in AIR 1987 149. 14. Counsel appearing for the petitioner while praying for cancellation of bail to the accused-respondent Nos. 2 to 4, has lost sight of the one vital aspect that grant of bail on merit and grant bail because of breach of Article 21 of the Constitution of India are entirely in different realm. 15. It has been held by the Apex Court on numerous occasion that right speedy trial vests in the accused, therefore, where the Court is not able to conclude the trial at the earliest, accused cannot be kept behind the bars for a indefinite period. The criminal jurisprudence of this country recognize maxim "bail is a rule, jail is an exception." 16. In the present case, after the respondent Nos. 2 to 4 have undergone sufficient period, they filed an application before the Court of Magistrate to grant bail to them under Section 437 (6) Cr.P.C after sixty days of the examination of first witness. Accused respondent Nos. 2 to 4 had pressed their right of bail, after bill was rejected by the Magistrate under Section 437 (6) Cr.P.C., by filing an application under Section 439 Cr.P.C. before the Court of Additional District & Sessions Judge, Gangapur City. 17. The Additional District & Sessions Judge, Gangapur City has granted bail to the accused respondent Nos. 2 to 4 primarily on the ground that they are in custody in a case of magisterial trial from last 7/8 months, and prose-cution having cited twenty-five witnesses had only examined one witness. 18. Delay in conclusion of the trial by the Magistrate in a magisterial trial vests right in the accused to seek bail. Legislature in its wisdom has enacted Section 437(6) Cr.P.C. for grant of bail to the accused in case of delay in conclusion of the trial. 18. Delay in conclusion of the trial by the Magistrate in a magisterial trial vests right in the accused to seek bail. Legislature in its wisdom has enacted Section 437(6) Cr.P.C. for grant of bail to the accused in case of delay in conclusion of the trial. In ordinary circumstances, the trial Court is bound to follow the mandate of Section 437(6) Cr.P.C. it can only deviate from the above provision in exceptional circumstances. 19. Section 437(6) Cr.P.C. has been enacted to grant bail, where there is a delay in conclusion of the trial. It recognizes the right of speedy trial. 20. Article 21 of the Constitution of India grants personal liberty to the citizen. Furthermore, Magistrate of 1st Class can only award three-years sentence, therefore, accused cannot be kept behind the bars for an indefinite period as later-on, if accused is acquitted, nobody will be able to compensate the loss caused to the accused. 21. Furthermore, there are cases where the sentences are awarded are less than one-year or one and half year and there are also cases where the accused may be released on probation. Thus, where the accused has undergone 7/8 months and out of twenty-five witness cited, one one-witness has been examined, the Court below was very well justified to grant bail to the respondent Nos. 2 to 4. 22. It is to be appreciated that the Court below has not granted bail on merit, therefore, has not observed anything contrary to the order passed by the High Court. 23. The Court below had only taken into consideration the period of custody already undergone by the accused and slow lengthy and tardy conduct of the trial, therefore, this Court find no reason to cause interference to cancel the bail granted to the accused-respondent Nos. 2 to 4. 24. With the aforesaid observations, the present application, being devoid of merit, is, hereby, dismissed. 25. Since, this Court has appreciated grant of bail by the Additional District & Sessions Judge, Gangapur City, copy of this order be sent to Mrs. Archana Aggarwal, RHJS, who at relevant time was posted as Additional District & Sessions Judge, Gangapur City.