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2016 DIGILAW 846 (CAL)

In Re: Anowar Hossain Fakir alias Boto v. .

2016-11-02

JOYMALYA BAGCHI

body2016
JUDGMENT : 1. Order dated 10.08.2016 passed by the learned Additional District and Session Judge, Diamond Harbour, South 24-Parganas in ST Case No.03(3) of 2016 cancelling bail of the petitioner on the ground of suppression of the material fact has been assailed. 2. Learned Counsel appearing for the petitioner submits that the bail was granted to his client on 16.05.2016 as other accused persons had been released on bail. The grant of bail to the other accused persons was a change of circumstance since the rejection of his prayer of bail by this Court on 20.01.2016 and, therefore, non-disclosure of such rejection of bail ought not to be a ground for cancellation. It is further argued that cancellation of grant bail for suppression of material fact could not to have been agitated before the same Court itself in view of law declared in (2015)1 SCC (Criminal) 257 = (2014)10 SCC 754 (Abdul Basit alias Raju & Ors. vs. Mohd. Abdul Kadir Chaudhary & Anr.). 3. On the other hand, learned Counsel appearing for the opposite party no. 2 submits that suppression of rejection of an earlier order of bail by this Court rendered the order for granting bail to the petitioner void ab initio as it was procured by fraud and suppression of material fact. He further submits that the issue canvassed as change of circumstance did not render the earlier rejection of bail by the superior Court redundant. He accordingly prayed for dismissal of the application. 4. Prayer for bail of the petitioner was turned down by this Court on 20.01.2016. Without disclosing such fact, the petitioner approached the learned Sessions Court who granted bail to him on 16.05.2016. Such bail came to be cancelled by the learned Sessions Judge on the ground of suppression of material fact on 10.8.2016, which is under challenge in this application. 5. It has been strenuously argued that as other accused persons had been subsequently enlarged on bail since the rejection of bail of the petitioner on 20.1.2016, non-disclosure of such rejection of bail did not tantamount to suppression of material fact justifying cancellation of bail. 6. I have considered the materials on record. I find that the reason for grant of bail to the petitioner was that other co-accused persons are on bail. 6. I have considered the materials on record. I find that the reason for grant of bail to the petitioner was that other co-accused persons are on bail. However, there is no reflection of mind on the part of the Sessions Judge as to whether the said co-accused persons were standing on the same footing as the petitioner. Rejection of bail of the petitioner by the High Court is an assessment in personam of his complicity in the alleged crime and, therefore, the disclosure of such rejection was of utmost importance for the exercise of judicial discretion in a subsequent application of bail irrespective of the fact that whether co-accused persons had been enlarged on bail in the interregnum or not. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2005) SCC (Cri) 489 (para-19 & 20) a three-Judge Bench of the Apex Court held that rejection of bail by a superior Court is a matter of serious consideration while considering a subsequent prayer for bail. Hence, I am unable to accept the contention of the learned Counsel for the petitioner that non-disclosure of an earlier rejection of bail by the High Court was rendered irrelevant by the subsequent grant of bail to other co-accused persons, more particularly, when there is no reflection of mind in the order granting bail to the petitioner with regard to the standing of the petitioner and the said co-accused persons. 7. It is trite law that an order vitiated by fraud is rendered void and is a nullity in law. In United India Insurance Co. Ltd. Vs. Rajendra Singh and Ors. 2000 SCC (Cri) 726, the Apex Court reiterated as follows:- “13. In S.P. Chengalvaraya Naidu v. Jagannath the two-Judge Bench of this Court held: (SCC p. 2, para 1) “‘Fraud avoids all judicial acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” 14. Such a judgment/decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” 14. In Indian Bank v. Satyam Fibres (India) (P) Ltd. another two-Judge Bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus: (SCC p. 563, para 23) “23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.” ” 8. Hence, I am of the opinion that the cancellation of bail procured on the basis of fraud by suppressing of material facts is a mere declaration of voidness or nullity of such order of bail which is vitiated by fraud. 9. However, reliance has been placed on 2015(1) SCC (Criminal) 257 (supra) to argue that the Sessions Judge could not have cancelled the bail which was challenged on the ground of fraud. In the said report the Court, inter alia, had observed as follows:- “20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law. 21. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law. 21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgement and order granting bail cannot be reviewed by the court passing such judgement and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.” 10. It is true that in the instant case bail was not cancelled due to misuse of liberty but on account of fraud and suppression vitiating such order of granting bail to the petitioner. It is trite law that the jurisdiction of the Court is wide enough to cancel orders of bail which were procured by fraud and misrepresentation. (See Puran etc. etc. vs. Rambilas & Anr. etc. etc. reported in 2001(6) SCC 338 ). In Harjeet Singh @ Seeta Vs. State of Punjab and Anr. JT 2001 (10) SC 336, the Apex Court held that the prayer for cancellation of bail on ground of misrepresentation may be agitated before higher forum or the same Judge. The Court held as follows:- “. . .If the accused had obtained bail order by misrepresentation or by suppression of facts, it was for the state government or the aggrieved party to approach the appropriate higher forum. In any case, for cancellation of the bail on the ground of mis-representation or mis-statement, the matter ought to have been placed before the same judge.” 11. Such view was commented upon as a desirable practice when cancellation of bail is sought on self-same facts in Mehboob Dawood Shaikh Vs. State of Maharashtra (2004) 2 SCC 362 . In any case, for cancellation of the bail on the ground of mis-representation or mis-statement, the matter ought to have been placed before the same judge.” 11. Such view was commented upon as a desirable practice when cancellation of bail is sought on self-same facts in Mehboob Dawood Shaikh Vs. State of Maharashtra (2004) 2 SCC 362 . From ratios in Harjeet (supra) and Mehboob (supra) it appears that an application for cancellation of bail on self-same facts or on the score of suppression or misrepresentation of facts may also be heard by the same Court, in fact, by the same Judge apart from being agitated before a superior Court. Moreover, power under section 439(2) Cr.P.C. is a special provision in the Code which overrides section 362 Cr.P.C. and empowers the Sessions Judge to cancel his own order of bail in a justifiable case. 12. Hence, the Sessions Judge, in my opinion, did commit any gross jurisdictional error in cancelling the bail which was procured by fraud and suppression of material facts so as to necessitate interference in exercise of inherent jurisdiction. 13. Inherent jurisdiction of the Court under section 482 Cr.P.C. is to be exercised “ex debito justitiae”. Such powers ought not to be invoked so as to revive an order of bail which is void ab initio being vitiated by fraud and suppression. 14. For the aforesaid reasons, I affirm the order of the Sessions Judge cancelling bail of the petitioner and the instant application is dismissed. 15. I, however, observe that it would be open to the petitioner to seek bail in accordance with law before the appropriate forum, if so advised, and if such application is filed the same may be considered on its own merit and in accordance with law. 16. Learned Counsel for the petitioner is given liberty to take back the certified copy by replacing the same with a photocopy thereof.