Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1951 (RAJ)

Sushil Gupta v. Bahadur Singh

2018-09-19

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT Sanjeev Prakash Sharma, J. - The applicant has preferred this application under Section 439(2) Cr.PC seeking cancellation of bail granted to the respondent No.1 Bahadur Singh by this Court vide order dated 29.6.2018 in FIR No.295/2018 registered at Police Station Kotwali, Sawai Madhopur for the offences under Section 147, 148, 325, 341, 307 and 120B IPC. 2. The respondent-Bahadur Singh had applied for grant of anticipatory bail which was granted on 27/06/2018. It was submitted that the incident was wrongly stated in the FIR. There were cross FIRs registered and the injuries did not reflect the case under Section 307 IPC. Injuries were not specifically assigned to the said accused and there was no previous case pending against him. The main accused was Rajesh Mali. Taking into consideration above, the bail was granted. 3. Counsel for the petitioner submits that the respondent accused has grossly misled this Court and has concealed material facts due to which the bail was granted. It is submitted that the accused was the main person who had brutally assaulted Mr. Satish Sharma along with other persons causing fracture of the right hand bone and the injured had to undergo several injuries resulting in supplanting nails and plates. It is stated that there was no cross FIR registered and on the previous day i.e. 03/06/2018 the petitioner had lodged a complaint against the accused-respondent for causing nuisance pugilism in front of his nursing home and consuming liquor in front of nursing home by parking their vehicle. It is stated that the police authorities arrested the accused-respondent under section 60 of the Police Act and also seized his vehicle. Next day, on 04/06/2018 the accused-respondent waylaid the petitioner and his compounder Satish Sharma while they were going for an evening walk and attacked them with the purpose to kill them. The petitioner ran away and saved himself, however, his compounder Satish Sharma could not save himself and was thoroughly beaten up with 'Lathies' and iron rods. Both Bahadur Singh and Rajesh Mali were involved in the incident and Bahadur Singh was the main accused. The bail application of Rajesh Mali had already been rejected by this Court and thus, there was a gross misrepresentation of facts and the bail granted to the accused-respondent, therefore, deserves to be cancelled. Both Bahadur Singh and Rajesh Mali were involved in the incident and Bahadur Singh was the main accused. The bail application of Rajesh Mali had already been rejected by this Court and thus, there was a gross misrepresentation of facts and the bail granted to the accused-respondent, therefore, deserves to be cancelled. It is also stated that the accusedrespondent is also involved in another case under Section 365, 323, 379, 34 IPC registered at Police Station, Nainwa, District Bundi. 4. Per-contra, learned counsel appearing for the accused respondent submits that with regard to the incident of 03/06/2018, the accused had also lodged an FIR which was registered on 04/06/2018 and therefore there were cross FIRs. It is further submitted that there is no overt-act alleged in the FIR against the accused-respondent. It is also stated that the petitioner himself was involved in wrong practise at his nursing home. That apart, counsel raises a preliminary objection of maintainability of the cancellation application and relies on the judgment of the Apex Court in the case of Abdul Basit Alias Raju and others v. Mohd. Abdul Kadir Chaudhary and another: (2014) 10 SCC 754 . It is submitted that the grounds for cancellation of bail are different from the grounds of bail and also relies on judgment of the Supreme Court in the case of Aslam Babalal Desai v. State of Maharashtra: AIR 1993 (SC) 1 . 5. This Court has asked for the report from the Police and the Police has also supported the case as set up by the petitioner and has submitted that the accused-respondent-Bahadur Singh was the main accused in the case and had been involved in the incident for which FIR was lodged. 6. Heard counsel for both the parties and perused the material available on record. 7. The question, however, is whether this Court would be entitled to cancel the bail granted to the accused on such grounds under Section 439(2) for cancellation of bail granted provided as under:- "439(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 8. 8. In the case of Gurucharan Singh and Others v. State (Delhi Administration) (1978) 1 SCC 118 the Apex Court had held as under:- "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., 1973 of the old Code. That is to say, even if a Magistrate refuses to grant 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 hi 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 had 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, is lifted in the new Code under Section 489(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIIL by any Court including the Court of Session 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 arise during the progress of the trial after an accused, person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily,' therefore, to that Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if 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 Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions 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-a-vis the High Court.' 9. In the case of Ranjeet Singh v. State of Madhya Pradesh and Others (2013) 16 SCC 797 it has been held by the Apex Court as under:- 'It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in M.Cr.C. No. 701 of 2013 remaining oblivious of the parameters for grant of bail under section 439 Code of Criminal Procedure, 1973. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course.' 10. Taking into consideration the law laid down above, the Apex Court in (2014) 10 SCC 754 Abdul Basit Alias Raju and Others (supra) held as under:- "19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bail and not by the same Court. 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. 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 judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as bar to any alteration or review of the cases disposed of by the Court. It is also settled law that the judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as 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." 11. Thus, from above proposition of law as laid down by the Apex Court, while this Court may have a view that there was concealment and misleading on the part of the accused respondent while granting of bail, in view of the law laid down by the Apex Court, this Court is not in a position to review its earlier order and reject the bail already granted. The only remedy available is to file an appeal against the order passed by this Court. 12. In the circumstances, the application for cancellation of bail is rejected.