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2023 DIGILAW 524 (CHH)

Tamaskar Yadav, S/o Mayaram Yadav v. Ishwari Yadav, S/o Ghanaram Yadav

2023-10-05

RAJANI DUBEY

body2023
ORDER : Since all these petitions filed under Section 439(2) of CrPC arise out of the order dated 16.12.2021 passed by this Court in MCRC Nos. 8758/2021, 8879/2021 and 8939/2021, they are being disposed of by this common order. By these petitions, the petitioner is seeking cancellation of bail granted to the respondents/accused by the said order. 2. As per prosecution case, on the date of incident, the respondents/accused along with other co-accused assaulted Dhaneshwar with club and caused injuries. This Court vide order dated 16.12.2021 passed in MCRC Nos. 8758/2021, 8879/2021 and 8939/2021, granted bail to the accused under Section 439 of CrPC. 3. Learned counsel for the petitioner submits that this Court has specifically directed vide order dated 16.12.2021 passed in 8758/2021, 8879/2021 and 8939/2021 that the accused shall not commit any offence otherwise the bail granted to them shall be liable to be cancelled. The respondent/accused gave false information before this Court that the nature of injury is simple whereas according to the charge sheet dated 16.10.2021 and as per the MLC report, the injury is grievous in nature. Thus, the accused persons have mislead the Court by playing blatant fraud with utmost dishonest intention. Copy of MLC report with discharge summary of injured persons has been filed as Annexure P/3. The bail has been granted to the accused with certain conditions but they misused the liberty granted to them and are not complying with the conditions imposed on them. They have committed several defaults and therefore, the bail granted to them is liable to be cancelled. 4. Learned counsel for the State has supported the arguments advanced on behalf of learned counsel for the petitioner. 5. On the other hand, learned counsel for the respondents/accused submits that by order dated 16.12.2021 this Court granted bail to the accused persons after considering the totality of the fact and in particular, detention period of the accused. The respondents/accused are strictly following the conditions of the said bail order. The present petitions have been filed without any substance and therefore, the same are liable to be dismissed. 6. Heard learned counsel for the parties and perused the material available on record. 7. The respondents/accused are strictly following the conditions of the said bail order. The present petitions have been filed without any substance and therefore, the same are liable to be dismissed. 6. Heard learned counsel for the parties and perused the material available on record. 7. The question which falls for consideration, in order to invoke the jurisdiction of this Court in entertaining the present application under Section 439(2) of the Cr.P.C., is whether the petitioner has prima-facie made out any ground for cancellation of bail under Section 439(2) of the Cr.P.C.. Section 439 Cr.P.C. confers concurrent jurisdiction on the Court of Sessions and the High Court. For read reference, Section 439 Cr.P.C., is reproduced herein-under :- “439. Special powers of High Court or Court of Session regarding bail.--- (1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing a person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. [Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.] [(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).] (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. The Hon'ble Supreme Court, in the matter of Abdul Basit alias Raju and others Vs. Mohd. Abdul Kadir Choudhary and another reported in (2014) 10 SCC 754 , has considered all its earlier judgments on the issue and pointed out distinction between review/recall of order granting bail from cancellation of bail order and have held that the Court granting bail cannot review its order on the ground of its being illegal, unjustified or perverse in view of express bar contained in Section 362 of the Cr.P.C. and held in paragraphs 20, 21, 26 and 27 of the report, which reads thus:- “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 its 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 judgment 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. 26. In the instant case, the order for bail in the bail application preferred by the accused-petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the Court under Section 439(2) of the Code, it does not vest the power of review in the court which granted bail. Even in the light of fact of misrepresentation by the petitioner-accused during the grant of bail, the High Court could not have entertained the respondent/informant's prayer by setting in review of its judgment by entertaining miscellaneous petition. 27. Herein, the High Court has assigned an erroneous interpretation to the well settled position of law, assumed expanded jurisdiction into itself and passed an order in contravention of Section 362 of the Code cancelling the bail granted to the petitioners herein. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order required to be set aside.” 9. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order required to be set aside.” 9. Further, on the issue with regard to rejection of bail and cancellation of bail already granted, the Hon'ble Supreme Court, in the matter of Dolat Ram and others Vs. State of Haryana reported in (1995) 1 SCC 349 , has held in para 4, which reads as under:- “4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealth with on different basis. 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 bail, broadly (illustrative and not exhaustive) 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. 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, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted. 10. The Hon'ble Supreme Court in the matter of Hazari Lal Das Vs. State of West Bengal and Another reported in (2009) 10 SCC 652 held in para 7, which reads thus:- “7. There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that the concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that the concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. The judicial discretion exercised by the Sessions Judge in granting the anticipatory bail has been interfered with by the High Court in the absence of cogent and convincing circumstances. We are, thus, satisfied that the impugned order cannot be sustained.” 11. Thus, considering the facts and circumstances of the case, keeping in view the principles of law laid down by the Hon’ble Supreme Court in the aforesaid decisions on the issue of cancellation of bail, this Court finds no such reason or supervening circumstance so as to warrant cancellation of bail granted to the accused. It is clear from the order dated 16.12.2021 that this Court granted bail to the accused persons considering the totality of the fact and in particular, their detention period. The petitioner has though contended that the accused persons are misusing the liberty granted to them and are not following the conditions imposed on them, but has not brought on record any such thing which could substantiate his aforesaid contention and make out a prima facie case for cancellation of bail. Accordingly, the present petitions being without any substance are liable to be dismissed at the admission stage itself and are dismissed as such.