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2022 DIGILAW 1032 (RAJ)

Bhairu v. State Of Rajasthan

2022-03-31

NARENDRA SINGH DHADDHA

body2022
JUDGMENT 1. The instant criminal miscellaneous petition has been preferred against the order dated 25.11.2021 passed by learned Sessions Judge, Sawaimadhopur in FIR No.11/2021 registered at PS Bahrawanda Kalan, Distt. Sawaimadhopur whereby the learned Judge has allowed the application filed under Section 439(2) of the CrPC on behalf of State of Rajasthan and thus cancel the bail granted to the accused petitioner by virtue of adopting course of Section 436 CrPC. 2. Heard learned counsel for the petitioners and also learned Public Prosecutor appearing for the State. Perused the order impugned and the other material made available on record. 3. Briefly stated facts of the case are that an FIR No.11/2021 came to be registered at PS Bahrawanda Kalan, Distt. Sawaimad- hopur for the offence under Sections 147, 148, 149, 323, 341, 336 IPC. Since all the offences were bailable, therefore, the Investigating Officer took bail bonds of the petitioners in pur- suance of provisions contained in Section 436 CrPC. Subsequent thereto, the Investigating Officer added the offences under Section 324, 308 IPC. Since the added offences were non-bailable, there- fore, the State Government moved an application for cancellation of bail on the ground that custodial interrogation of the petitioners would be required. 4. While dealing with identical issue this court in Hanuman v. State of Rajasthan (S.B. Criminal Bail Application No.31/2021) decided on 09/11/2021 observed as under: "7..........In view of the principles of law propounded by the Apex Court in respect of cancellation of bail; reported in Aslam Babalal Desai v. State of Maharashtra (AIR 1993 SC Page 1) and Bhagirath Singh Jadeja v. State of Gu- jarat (AIR 1984 SC Page 372), the legal position regarding the factors to be considered at the time of cancellation of bail, can be spelt out as under: (i) when it is reported that after granting bail, the accused respondents have misused the liberty granted in their favour; (ii) they have breached the conditions, if any, imposed on them while granting bail; (iii) if there is material to show that after granting bail to the accused, they tried to hamper the prosecution evidence; (iv) when it appears that the accused-respondents are not readily available for the smooth and fair trial; (v) when it is apprehended that the accused will flee from justice; (vi) where the accused has again found involved in similar ac- tivities. 5. 5. It would also be worthwhile to mention here that if, how- ever, a Court of Session or the High Court finds that certain new circumstances have arisen which were not earlier known to the State it may also move an application for cancellation of bail showing only the new grounds which were not available at the time when the accused was admitted to bail. It is to be noted that rejection of bail in a non-bailable case at the initial stage and cancellation of bail already granted, have to be con- sidered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order di- recting the cancellation of bail already granted. The bail once granted should not be canceled in a mechanical manner with- out considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the ac- cused to retain freedom by enjoying concession of the bail during the trial. One another aspect of the subject is that if a superior Court finds that the court granting bail had acted on irrelevant materials, of if there was total non-application of mind or failure to take note of any statutory bar to grant bail, of if there was impropriety for example, failure to hear Public Prosecutor/complainant wherever required, order for cancella- tion of bail may be made. 6. This Court is of the considered view that only in the circumstances mentioned above, the application for cancellation of bail requires interference under Section 439(2) CrPC. Indisputably in this case, all the circumstances necessary to consider the bail were available on record. The cancellation has been sought only on the ground of adding a non-bailable offence. Neither the medical condition went aggravated nor any fresh evidence was taken on record. Simply on the basis of adding non-bailable offence, learned trial Judge has persuaded to allow the cancellation of bail. Rejection of bail in non-bailable case at admission stage and cancellation of bail already 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 bail already granted. Rejection of bail in non-bailable case at admission stage and cancellation of bail already 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 bail already granted. The bail once granted should not be canceled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive for a fair trial to allow the accused to retain freedom by enjoying concession of the bail during the trial. 7. In view of above, this court deems it appropriate to declare that the learned trial Judge has erred in allowing the application filed by State Government under Section 439(2) CrPC, therefore, same deserves to be quashed and set aside. 8. Accordingly, the instant criminal miscellaneous petition is allowed. The order impugned dated 25.11.2021 passed by learned Sessions Judge, Sawaimadhopur in S B Criminal Miscellaneous Bail Application No. 422/2021 (FIR No.11/2021 registered at PS Bahrawanda Kalan) is hereby quashed and set aside. The accused petitioners shall remain on bail granted to them under Section 436 CrPC. 9. The instant criminal miscellaneous petition as also stay petition stand disposed of.