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2016 DIGILAW 1856 (ALL)

SUMITRA v. STATE OF U. P.

2016-05-13

ABHAI KUMAR

body2016
JUDGMENT : Hon'ble Abhai Kumar,J. Heard learned counsel for the parities and perused the record. This Criminal Misc. Bail Cancellation has been moved by Smt. Sumitra against Ajay Kumar, who was granted bail by I/c Chief Judicial Magistrate, Court No. 17, Deoria, vide order dated 01.10.2013, passed in Case Crime No. 1775 C/A of 2012, under Section 419, 420, 467, 468, 471 IPC, Police Station Kotwali, District Deoria. Opposite party no.3 was wanted in above case and he surrendered before the Magistrate Court and was taken into custody and after hearing of the bail application he was released on bail, on two grounds, first on merit and secondly under Section 437(2) Cr.P.C. on the ground that opposite party no.3 was severely ill at the time of hearing of the bail application. He also got fits in the court room itself. He was constantly vomiting and was in a dire state. Learned counsel for the applicant argued that accused-opposite party no.3 was not ill at all and he was granted bail on the ground of false pretext that he was ill, and it is also contended by him that bail upon merit was not granted. Whereas learned counsel for the opposite party no.3 has vehemently argued that no ground for bail cancellation has been made out. It is also argued by him that there is an alternative remedy, which can be availed by the applicant before the Magistrate concerned itself or before Sessions Judge. After hearing at length I find that bail application allowed by the learned Magistrate was on both counts, firstly upon merits, and it is categorically stated by the Magistrate that there are cross-cases. First information report against the applicant was also lodged by him. It is also observed by the learned Magistrate that it is a matter of investigation. So I think that cogent reasons have been given by the learned Magistrate, and I don't find any reason to interfere on the ground of merits, in the bail order of the learned Magistrate. So far bail granted on the ground of illness it can very will be said that learned Magistrate observed in so many words about the general condition of the accused-opposite party no.3 at that time, and by mere saying by the applicant that the accused-opposite party no.3 was not ill at that time, is cannot be accepted. So far bail granted on the ground of illness it can very will be said that learned Magistrate observed in so many words about the general condition of the accused-opposite party no.3 at that time, and by mere saying by the applicant that the accused-opposite party no.3 was not ill at that time, is cannot be accepted. Some concrete evidence should have been provided by him. So there is no ground to interfere in the impugned bail order. Moreover, bail cancellation is a matter of curtailment of liberty of any person who was earlier granted bail. So strict norms are needed to cancel the bail. From the facts it is clear that nothing has been concealed by the opposite party no.3 from the court concerned. Hon'ble Apex Court in the case of 'Abdul Basit alias Raju and others Vs. Mohd. Abdul Kadir Chaudhary and another, (2014) 10 SCC 754 ' has clearly held that granted bail cannot be cancel as in view of express bar contained in Section 362 Cr.P.C. Hon'ble Apex Court has also observed that a distinction between review/recall of the order granting bail from cancellation of bail order and has held that the Court granting bail cannot review its order on the ground of it being illegal, unjustified or perverse. So the contention of the opposite party that application should have moved bail cancellation application under Section 437 (2) Cr.P.C. is not tenable certainly. The power granted to the High Court and Sessions Court are to be invoked in such matters, hence Section 439 (2) is relevant in case under which application for cancellation of bail is being moved. Be that as it may be, it is settled by catena of decisions that the parameter for grant of bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the Cr.P.C. 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. It is also well settled that even if two views are possible, once the bail has been granted, it should not be cancelled (Jayendra Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13 and Nityanand Rai v. State of Bihar, (2005) 4 SCC 178 ). The Constitution Bench of the Supreme Court has considered the scope of power of the High Court under Section 439(2) of the Cr.P.C. in Gurcharan Singh v. State (Delhi Administration) and other, (1978) 1 SCC 118 and catalogued the principles governing the powers of the Courts granting and cancelling bail in paragraph 16 of the report which reads as under:- "16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498, Cr. P.C. of the old Code. That is to say, even if a Magistrate refuses to grant to bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498 (2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub ?section (1) to be arrested and may commit him to custody. In other words, under Section 498 (2) of the old Code, a person who has been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, in lifted in the new Code under Section 439(2). Under Section 439 (2) of the new Code High Court may commit a person released on bail under Chapter XXXIII by an Court including the Court of Section to custody, if it thinks appropriate to do so. Under Section 439 (2) of the new Code High Court may commit a person released on bail under Chapter XXXIII by an Court including the Court of Section to custody, if it thinks appropriate to do so. It must however be made clear that a Court of session cannot cancel a bail which has already been granted by the High Court unless new circumstances arises during the progress of the trial after an accused person has been admitted to bail by the High Court. It, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Session Judge it certain new circumstances have arisen which were not earlier known to the State, and necessarily, therefore to that Court. The State may as well approach the High Court being the superior Court under Section 439 (2) to commit the accused to custody. When however, the State is aggrieved by the order of the Session Judge grating bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Session Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis--vis the High Court.? Similarly in the matter of Puran vs. Rambilas and another, (2001) 6 SCC 338 the Supreme Court has held that the concept of setting aside, unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that accused has misconducted himself or because of some supervening circumstances warranting such cancellation. All the seven points elaborated above are in connection to the circumstances that can developed after granting of bail, and bail can be cancelled on the above grounds. The case in hand is different, in this case, it is contended that the order itself is not maintainable on merits and is perverse. Hon'ble Apex Court? in so many words has clearly stated that if the bail order is not fit enough on merits then it can be cancelled. The High Court of Jharkhand in the case of 'Jharkhand High Court on its own Motion through Tuku Banerjee Vs. Hon'ble Apex Court? in so many words has clearly stated that if the bail order is not fit enough on merits then it can be cancelled. The High Court of Jharkhand in the case of 'Jharkhand High Court on its own Motion through Tuku Banerjee Vs. State of Jharkhand and others, reported in 11 (2005) DMC545, [2005(3) JCR41(Jhr)]' has discussed the law regarding bail cancellation, on the ground of merits. The para 8 of the judgement is relevant, which is reproduced herein below:- "8. In the case reported in (2001) 6 SCC 338 it has been held that an order granting bail passed by ignoring the material and evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. Such ground for cancellation is different from the ground that the accused misconducted himself of some new facts call for cancellation. It has further been held in the said decision that an application for cancellation of bail can be filed either by the State or any aggrieved party and the High Court is a superior Court in hierarchy of Courts and it cannot exercise the jurisdiction under Section 439(2) of the Cr PC for cancellation of bail in relation to the bail orders passed by the Court of Sessions or by any Magistrate. The law laid down by the Supreme Court in para 10 of the judgement of the aforesaid case are as under :- "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 concession granted to the accused in any manner. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected." Hon'ble Apex Court in that case held that discretion being used for granting bail should not be used in due course as and when the matter is of serious nature and discretion should be used with due diligence and there should be reasons for that:- Hon'ble Apex Court further observed that order granting bail to an accused must indicate the application of mind and there is a need to indicate in the order, reasons for prima facie concluding while bail was being granted particularly where an accused was charged of having committed a serious offence. The Jharkhand High Court in the above matter in para 11 held as follows:- "11. In the case of Ram Govind Upadhyay v, Sudarshan Singh and Ors. reported in (2002) 3 SCC 598 it was held that the grant of ball though is a discretion order, but, however, calls for materials of such a discretion in a judicious manner and not as a matter of course. The order for ball bereft of an cogent reason cannot be sustained. The nature of the offence is one of the basic considerations for grant of the bail. More heinous is the crime, the greater is the chance of rejection of the bail." The matter was further discussed by Hon'ble Apex Court in the case of Brij Nandan Jaiswal Vs. Munna @ Munna Jaiswal and Anr, reported in Manu/SC/8441/2008, and in para 7 and 8 has held as follows:- "7. 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. In our opinion, therefore, the complainant could question the merits of the order granting bail. 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. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary. 8. Therefore, without expressing anything on the merits of the bail application, we would chose to set aside the order granting bail and direct the High Court to decide the application again. The accused shall immediately surrender within one week from today. If he does not surrender, a non-bailable warrant shall be issued against him. After his surrender, the bail application shall be considered by the High Court again." From the law laid down by the Hon'ble Apex Court it cannot be said that for cancellation of bail it is necessary that ground taken on that must arises after the bail was granted and in the present case the applicant has miserably failed on two counts that any material fact has been suppressed or trial court has granted bail without going into the merits of the case. As already observed earlier that the bail of the opposite party was granted on two counts, firstly on merits and the findings and reasons given by the court concerned was reasonable and justified, and the bail granted secondly on the ground under Section 437 (2) is also properly discussed, and correctly observed and no interfere is required by this Court. The facts and grounds which has been taken in the present application for cancellation of bail under Section 439(2) of the Act, do not disclosed any ground for interference by this Court. The bail cancellation application is misconceived and is hereby dismissed. However, the court below is directed to expedite the trial of the case at the earliest.