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2020 DIGILAW 697 (RAJ)

Balwant v. State of Rajasthan

2020-11-09

SANJEEV PRAKASH SHARMA

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ORDER 1. Learned counsel for the petitioner has placed before this court the judgment passed by the Supreme Court in the case of X Versus State of Telangana & Others reported in 2018(16) SCC 511 (2018 AIR SC 2466) to submit that once the bail bond has been granted by the court, conditions under Section 439(2) Cr.P.C. must be taken into consideration for cancellation of bail and merely because, the bail has added the non-bailable offence, the petitioner's bail could not be cancelled. Learned counsel also relies on the judgment passed by the co-ordinate Bench of this court in the cases of Chandra Pal Singh Choudhary Versus Vijit Singh & Others reported in 2009(1) RLW 693 and Gheesva &Others Versus State of Rajasthan reported in 1988(2) RLW 326. 2. Per contra, learned counsel for the complainant submits that the prosecutrix's statement was recorded earlier under Section 161 Cr.P.C. by the police without complying with the Section 26 of the POCSO Act, 2012 and the parents of the prosecutrix were not present at the time of recording of the statement. However, later on the subsequent statement under Section 164 Cr.P.C. was in the presence of her parents and she has made allegations against the accused of having committed rape and abducting her. 3. Learned Public Prosecutor submits that in view of the subsequent statement under Section 164 Cr.P.C, the case for the offence under Section(s) 363 & 376 IPC and POCSO Act is clearly made out and therefore, the leaned Special Judge, POCSO Cases 2012 has rightly cancelled bail under Section 439(2) Cr.P.C. 4. In the case of X Versus State of Telangana (supra), the Supreme Court has held as under:- "12. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in Dolatram v. State of Haryana MANU/SC/0547/1995 : (1995) 1 SCC 349 observed that: Rejection of a 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 different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. 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 the bail, already granted, broadly (illustrative and not exhaustive) are: interference orattempt to interfere with the due course of administration of justice or evasion of 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 have been reiterated by another two Judge Bench decision in Central Bureau of Investigation, Hyderabad v. Subramani Gopalakrishnan MANU/SC/0518/2011 : (2011) 5 SCC 296 and more recently in Dataram Singh v. State of Uttar Pradesh MANU/SC/0085/2018 : 2018 (2) SCALE 285 : 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. 14. The Accused had the benefit of an order granting him anticipatory bail. The grant of anticipatory bail was cancelled principally on the ground that he had not disclosed the pendency of a prosecution against him in the 2G Spectrum case. 14. The Accused had the benefit of an order granting him anticipatory bail. The grant of anticipatory bail was cancelled principally on the ground that he had not disclosed the pendency of a prosecution against him in the 2G Spectrum case. The Court has been informed during the course of the hearing that the said prosecution has ended in an acquittal. Regular bail was granted by the High Court on 17 November 2017 in thepresent case. The second FIR which was lodged on 22 November 2017 is not, in our view, a supervening circumstance of such a nature as would warrant the cancellation of the bail which was granted by the High Court. The learned Counsel appearing on behalf of the Accused has submitted that the lodging of the second FIR, four days after the order of bail is merely an attempt to bolster a case based on a supervening event and that it suffers from vagueness and a complete absence of details. We are not inclined to make any further observations and leave the matter there. Above all, the Court must bear in mind that it is a settled principle of law that bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out. We find that to be absent in the present case." 5. In the present case, this court finds that the petitioner was on bail after the statement was recorded of the prosecutrix on 18.7.2020 wherein she did not make any allegations against the accused petitioner and has stated her age to be around 17 years. After having remand with her parents for about 10 days, she had again given her statement on 27.7.2020 wherein she made allegations against the petitioner. 6. Learned counsel for the petitioner has specifically pointed out that both the petitioner and the prosecutrix are the students of Second Year and in the same college and in the same class and there was friendship between both of them. The allegations of Section(s) 363, 366 & 376 IPC are clearly false and afterthought. Learned counsel submits that after having been granted bail, the petitioner has not committed any such overt act for which the conditions under Section 439(2) Cr.P.C. can be attracted and the petitioner's bail should be cancelled. The allegations of Section(s) 363, 366 & 376 IPC are clearly false and afterthought. Learned counsel submits that after having been granted bail, the petitioner has not committed any such overt act for which the conditions under Section 439(2) Cr.P.C. can be attracted and the petitioner's bail should be cancelled. Even otherwise, he has cooperated in the investigation and he is not required to be arrested. 7. In the case of Gheesya & Others (supra), the Co-ordinate Bench of this Court has observed as under:- "18. The principle that when a person is released on bail or released on anticipatory bail, he cannot be arrested if another offence is found to have been committed by him at the time of investigation of the case, is well settled and if the court considers it proper then the bail granted can be cancelled under Section 437(5) and Section 439(2) Cr.PC. So far this principle is well established. However, it can be said that the ground for cancellation of bail should not be merely that a graver offence is found to have been committed as a result of the investigation but should be some thing different, such as that the accused is likely to abscond, is likely to tamper with the evidence or that he is mis-using his liberty etc. In this case the learned Magistrate has not taken these factors into consideration while cancelling the bail. What he has observed is that the police have not added a non-bailable offence after investigation, but it is the post mortem report in which the doctor has given the opinion that Manni died as a result of cerebral haemorrhage and the position has become different. The injury to Manni was already there when the Magistrate granted bail and if subsequently this injury has been found to be serious than what appeared to be on an earlier occasion this cannot be said to be a development during investigation and not a subsequent act of the accused persons so as to include it into the reasons on account of which bail already granted could be cancelled. The Magistrate should not cancel the bail merely because there is a power to cancel the same what is required is that there should be ground for cancelling the bail and I have no hesitation in saying that in the present case the Magistrate has, inspire of any earlier order of this court that the accused persons cannot be arrested, has ordered the arrest of the accused on the same grounds on which they could not be arrested. It is true that the words " if it considers it necessary so to do" when find place in Section 437(5) Cr.PC are not included in Section 439(2) Cr.PC but every power which the court of Sessions or High Court can exercise is to be exercised in accordance with the principles of criminal jurisprudence and the absence of these words cannot be said to confer unbridled and arbitrary power on the High Court or the court of Sessions to cancel a bail of person already released on bail." 8. From the above, I am of the view that for the purpose of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order to be passed and placing him in custody again merely because there is an another offence levelled which may be non-bailable, ipso facto bail cannot be cancelled. Broadly speaking, as Lald down in the case of Dolat Ram & others Versus State of Haryana reported in 1995 (1) SCC 349 , 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 can be some of the circumstances on which the bail may be cancelled. There is yet another reason for setting aside the impugned order that the learned Judge has not opined that the petitioner in any manner has affected the investigation or has shown rowdy behaviour of any kind after having been bailed out. 9. The aspects regarding the prosecutrix having changed her stand after 10 days is also relevant in the prospective that the prosecutrix is of 17 years of age and it cannot be said that she does not know what is correct statement to be given in the court. Influence by other circumstances cannot be ruled out. 10. 9. The aspects regarding the prosecutrix having changed her stand after 10 days is also relevant in the prospective that the prosecutrix is of 17 years of age and it cannot be said that she does not know what is correct statement to be given in the court. Influence by other circumstances cannot be ruled out. 10. Keeping in view the above, I am inclined to allow this petition and set aside the order dated 5.8.2020 whereby the bail was cancelled by the learned Special Judge, POCSO Cases, Jhunjhunu. 11. The criminal writ petition is accordingly allowed. 12. All pending applications also stand disposed of.