Rajasthan High Court - Jaipur
Mayank Kumar Sharma vs State Of Rajasthan And Anr on 6 July, 2017
1 CRLMB 8468/2015
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S. B. Criminal Miscellaneous Bail Cancellation Application No.
8468 / 2015
Mayank Kumar Sharma S/o Shri Bhagwan Sharma, age about 33
years, R/o House No. 82, Shivram Colony, Jagatpura, P.S. Jawahar
Circle, Jaipur.
----Petitioner/ Informant/ Victim
Versus
1. State of Rajasthan through Public Prosecutor
----Respondent
2. Virendra Swami S/o Rameshwar Das Swami, by caste Swami, age about 40 years, R/o House No. 81, Shivram Colony, Jagatpura, Police Station Jawahar Circle, Jaipur.
----Accused- Respondent _____________________________________________________ For Petitioner(s) : Mr. Madhav Mitra and Mr. Manish Kumar Sharma For Respondent(s) : Mr. Suresh Sahni, Mr. Ravi Shankar Sharma, Mr. Vijay Kumar Sharma and Mr. Satyavrat Sharma Public Prosecutor : Mr. S.K. Saini _____________________________________________________ HON'BLE MR. JUSTICE BANWARI LAL SHARMA Order 06/07/2017 Petitioner- complainant Mayank Kumar Sharma preferred this application for cancellation of bail under Section 439 (2) Cr.P.C. which was granted to respondent No. 2- accused Virendra Swami by the Police under Section 436 Cr.P.C. in FIR No. 48/2015 registered at Police Station Jawahar Circle, Jaipur City Jaipur for offences punishable under Sections 341, 323 and 504 2 CRLMB 8468/2015 IPC against the impugned order dated 15.07.2015 passed by learned Additional Sessions Judge No. 6, Jaipur Metro in Criminal Misc. Cancellation of Bail Application No. 206/2015 whereby learned Additional Sessions Judge No. 6, Jaipur Metro dismissed the application for cancellation of bail submitted by State of Rajasthan.
The brief facts of the case are that petitioner- complainant submitted a report before SHO, Police Station Jawahar Circle, Jaipur on 15.01.2015 stating therein that :-
" fuosnu gS fd esjs iMkslh fojsUnz Lokeh us ,d ns'kh dqRrk iky j[kk gS ftls og [kqyk NksM+ nsrk gS og dbZ ckj esjs cPpksa dks dkV pqdk gS o ?kj esa ?kql dj iksVh is'kkc dh xUnxh dj tkrk gS ohjsUnz dks dbZ ckj le>k;k ijUrq og ugha ekukA vkt Hkh og ?kj esa iksVh is'kkc dj x;k ftlds ckjs esa ohjsUnz ls dgk rks og eknjpksn cgupksn dh xkfy;k nsus yxk o okm.Mªh dwndj esjs ?kj esa ?kql vk;k o tku ls ekjus dh uh;r ls yksgs ds uqdhys lfj;s ls esjs lj ij ekjk ftlls esjs lj ds ck;h rjQ pksV vk;h o [kwu fudyus yxk mldh iRuh vk'kk Hkh ?kj esa ?kql vk;h mlus esjs lj ij ekcZy dh iV~Vh ls ekjk rks eSa cpko djrk gqvk uhps dh rjQ Hkkxk rc Hkh ;s yksx lhf<;ks o ikspZ esa esjs lkFk lfj;k ekcZy iV~Vh ls ekjihV djrs jgs esjh iRuh o esjs HkkbZ o vU; yksxksa us eq>s cpk;k ugha rks ;s eq>s tku ls ekj nsrs dkWyksuh ds yksx Hkh bdV~Bk gks x;s rks ohjsUnz o vk'kk esjs ?kj ls fudy dj vius ?kj esa ?kql x;s] tkrs&tkrs tku ls ekjus dh /kefd;k¡ nsrs x;s fd rq>s Hkh dqRrs dh rjg cuk nsaxs esa rqEgsa iRuh ds uke ls >wBs dslksa esa Qalk dj cckZn dj nwaxkA ?kVuk fnukad 15@1@15 djhc 10 cts dh gSA --i;k mfpr dk;Zokgh djus dh --ik djs] esjs ?kj dh lhfM;ksa o ikspZ esa [kwu gh [kwu fc[kjk gqvk gSA "
On the aforesaid report, FIR No. 48/2015 was registered at Police Station Jawahar Circle, Jaipur (East) for offences punishable under Sections 452, 323, 504, 341 and 307 IPC and investigation commenced. During investigation Investigating Officer Ms. Shalini Raj, ACP reached on the conclusion that only offence under Sections 323 and 341 IPC is 3 CRLMB 8468/2015 made out, treating the offence as bailable one respondent No. 2- accused was released on bail under Section 436 Cr.P.C. and bail bonds were attested on 31.01.2015. Thereafter, investigation was transferred to Additional DCP, Ramjivan Gupta who further investigated the matter and found that offence under Section 308 IPC is made out and for that, arrest of accused is necessary, therefore, State of Rajasthan filed an application under Section 439 (2) Cr.P.C. before learned Additional Sessions Judge, Jaipur Metro, which was assigned to learned Additional Sessions Judge No. 6, Jaipur Metro, where it was registered as Criminal Misc. Bail Cancellation Application No. 206/2015 and the same was rejected vide impugned order dated 15.07.2015, against which petitioner-
complainant preferred this bail cancellation application under Section 439 (2) Cr.P.C. before this Court.
Co-ordinate Bench of this Court vide order dated 30.10.2015 framed following questions for consideration :-
" (i) whether a person arrested for a bailable offence and released on bail by the police under Sec.436 Cr.P.C., can be re-arrested after being added new offence by the police without an order passed by Sessions Court or High Court under Sec.439 (2) of the Code and where investigation disclosed commission of a non-bailable offence? Or;
(ii) whether the court will consider the other grounds in addition to the grounds which are mentioned in Sec.437 (1) (2) & (3) Cr.P.C.? Or;
(iii) whether the Sessions Court will cancel the bail order which has been passed under Sec.436 Cr.P.C? "
and general notice was issued to the learned Members of the Bar.
Mr. Madhav Mitra learned counsel appearing on behalf of petitioner- complainant submits that when an accused is 4 CRLMB 8468/2015 released on bail in bailable offence and thereafter any non-bailable offence is added then Police has no power to cancel the bail and arrest the accused but under Section 439 (2) Cr.P.C., Court can cancel the bail granted to accused under Section 436 Cr.P.C. He submits that in the present case also the previous Investigating Officer Ms. Shalini Raj, ACP released the accused in bailable offence and attested the bail bonds, thereafter Investigating Officer Mr. Ramjivan Gupta, Additional DCP found that offence under Section 308 IPC is also made out which is non-bailable, therefore, arrest of accused is required. As such, State of Rajasthan has filed application for cancellation of bail under Section 439 (2) Cr.P.C., which was wrongly rejected by the learned Additional Sessions Judge No. 6, Jaipur Metro without appreciation of the settled legal position, therefore, the impugned order may be quashed and set aside and the present application seeking cancellation of bail may be allowed.
Learned counsel relied on Suresh Chand & Ors. vs. State of Rajasthan reported in 2001 (4) WLC (Raj.) 684, Mool Chand alias Murli & Anr. vs. Station House Officer, Police Station Renewal, Jaipur & Ors. reported in 2009 Cri.L.J. 3158, Prahlad Singh Bhati vs. N.C.T. Delhi And Anr. reported in AIR 2001 S.C. 1444, Abdul Gafoor vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 1290/2012) decided on 14.06.2012 by the co-ordinate Bench of this Court at Principal seat Jodhpur and Mohammed Shaakir and Ors. vs. State of Rajasthan decided by this Court on 01.05.2017 in (S. B. Criminal Misc. Petition No. 5373/2016). 5 CRLMB 8468/2015
Mr. Suresh Sahni learned counsel also assisted the Court and submitted that this issue has already been considered and decided by Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi And Anr. (Supra) wherein it has been clearly decided that Police cannot re-arrest without seeking cancellation of bail order, therefore, this Court has ample power under Section 439 (2) Cr.P.C. to cancel the bail which was granted by the Investigating Officer under Section 436 Cr.P.C.
Mr. Ravi Shankar Sharma learned counsel also assisted the Court and submitted that Police has no power to cancel the bail which was granted under Section 436 Cr.P.C. but learned Sessions Court and High Court can cancel the bail under Section 439 (2) Cr.P.C. He further submits that if Sessions Judge has dismissed the bail cancellation application then this Court can quash and set aside the order of learned Sessions Court.
Learned Public Prosecutor Mr. S.K. Saini also supported the aforesaid legal position and submitted that State of Rajasthan has also filed revision petition against the impugned order of learned Additional Sessions Judge No. 6, Jaipur Metro.
Per contra Mr. Satyavrat Sharma and Mr. Vijay Kumar Sharma learned counsels appearing on behalf of respondent No. 2- accused submitted that first of all application seeking cancellation of bail under Section 439 (2) Cr.P.C., which was submitted by State of Rajasthan before learned Additional Sessions Judge No. 6, Jaipur Metro was rejected, cannot be challenged under Section 439 (2) Cr.P.C. before this Court. They submit that the only remedy available to petitioner- complainant is 6 CRLMB 8468/2015 revision under Section 401 Cr.P.C. They submit that when Investigating Officer found that only bailable offence is made out and on same set of evidence another Investigating Officer, if changes his opinion, as added in this Case from 323 IPC to 308 IPC, then the bail bonds cannot be cancelled while exercising powers under Section 439 (2) Cr.P.C., rather at the time of filing charge-sheet, Trial Court may ask to accused for filing fresh bail bonds. They further submit that there is no ground for cancellation of bail, therefore, this cancellation of bail application may be dismissed.
Learned counsels relied on Chandra Pal Singh Choudhary vs. Vijit Singh & Anr. reported in 2009 Cri.L.J. 3516, Vijendra vs. State of Rajasthan reported in 1988 RCC 431, Ugrasen Singh vs. State of U.P. (1993) 30 All Criminal Case 531 which was considered in the matter of Banajeet Singh vs. State of U.P. reported in 2000 Cri.L.J. 3854.
I have considered the submissions made at Bar. It is not disputed that when the respondent No. 2- accused was released on bail, the Investigating Officer was of the view that only offence punishable under Sections 323 and 341 IPC is made out which are bailable one, therefore, while exercising powers vested under Section 436 Cr.P.C., Investigating Officer released the accused on bail and attested the bail bonds. It is also not disputed that after that, subsequent Investigating Officer found that offence under Section 308 IPC is also made out and arrest of accused is required, therefore, State of Rajasthan has filed application seeking cancellation of bail, granted under Section 7 CRLMB 8468/2015 436 Cr.P.C. by the Investigating Officer to the accused and the same was rejected by the learned Additional Sessions Judge No. 6, Jaipur, against which the present application is preferred by the petitioner- complainant. State of Rajasthan also filed revision petition against the aforesaid impugned order.
In the matter of Banajeet Singh vs. State of U.P. reported in 2000 Cri.L.J. 3854, initially Investigating Officer found that offence under Section 304-A IPC is made out, thereafter it was found that offence under Section 304 IPC is made out instead of 304-A IPC, therefore, Investigating Officer was of the view that arrest of accused is required, in such situation petitioner- accused Banajeet Singh preferred petition under Section 482 Cr.P.C. before Hon'ble Allahabad High Court and prayed that he may be continue to remain on bail and may be permitted to file fresh bail bonds. In such situation learned Single Bench of Hon'ble Allahabad High Court observed that :-
" the applicant was granted bail for offence under Section 304-A, I.P.C in which the applicant is entitled to the bail as of right under Section 436, Cr. P.C Therefore, where the offence alleged by the prosecution is under Section 304-A, I.P.C, the accused is entitled to the bail without consideration of the facts. Therefore, it can be presumed that while granting bail under Section 304-A, I.P.C. to the applicant, the facts were not considered and he was granted the facility of the bail as he was entitled to same as of right. The bail which was granted without consideration of the facts cannot be extended for offence under Section 302, I.P.C. which is henious offence. Before granting the bail under Section 302, I.P.C., therefore, the consideration of the facts is necessary and the applicant cannot be permitted to file fresh bail bonds. "
In the matter of Ugrasen Singh vs. State of U.P. (1993) 8 CRLMB 8468/2015 30 All Cri. Case 531 decided by Devision Bench of Hon'ble Allahabad High Court, the bail was granted considering the offence punishable under Sections 336, 504, 506, 323 and 427 IPC. Thereafter the case was converted under Section 308 IPC, the accused was permitted to file fresh bail bonds under Section 308 IPC by the Court and it was observed that :-
" distinction between Section 323 and 308 IPC can depend upon the allegations, the correctness, which naturally could not be altered and are not on the basis of the alteration vide the report of the police. It was further observed that when a person is once granted bail in respect of particular crime the subsequent change in the matter of reference to the section under the offences though it may be made by the police will remain subject of consideration by the Court."
This case law also doesn't help the respondent- accused as in this case the fresh bail bonds were taken by the Court. Considering the overall facts of the case, in which Division Bench of Allahabad High Court didn't interfere while exercising power under Section 439 (2) Cr.P.C. but in the case in hand fresh bail bonds have not been accepted by the learned Trial Court yet and matter is still under investigation and State itself filed application for cancellation of bail order, therefore, Ugrasen Singh's case is also distinguishable. As such, the case law cited by learned counsels for the respondent- accused doesn't help the respondent- accused.
In the matter of Vijendra vs. State of Rajasthan (Supra) initially the case was registered under bailable offence and bail was granted by the Police under Section 436 Cr.P.C., 9 CRLMB 8468/2015 subsequently non-bailable offence was added, then, the question raised before the co-ordinate Bench of this Court that, whether in such circumstances Police can cancel and arrest the accused, and the answer was given that Police cannot cancel the bail and it was observed that the bail granted under Section 436 Cr.P.C. is under chapter 33 of Cr.P.C. and can be cancelled only by High Court and Sessions Court under Section 439 Cr.P.C.
In the matter of Chandra Pal Singh Choudhary vs. Vijit Singh & Anr. (Supra) co-ordinate Bench of this Court, considering the fact that Investigating Officer converted the offence from 304- A IPC to 304 IPC and observed that :-
" it is pertinent to record that if the existing laws have turned insufficient to cope with the challenges posed by alarmingly increasing hit and run accident caused especially by badly drunken drivers, the Government (Legislature) should amend the laws suitably and make the offence under Section 304-A of IPC non-bailable and propose punishment which may extend to ten years imprisonment and fine. Nevertheless, the police should not be permitted to abuse the powers unscrupulously and ridicule the laws of land."
Considering the above, dismissed the application for cancellation of bail.
In the matter of Prahlad Singh Bhati vs. N.C.T. Delhi And Anr. (Supra) Hon'ble Supreme Court observed that :-
" In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable 10 CRLMB 8468/2015 with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437 (5) nor Section 439 (1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498-A, 306 and 406 IPC. The Magistrate committed a irregularity by holding that "I do not agree with the submission made by the Ld. Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law". With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondent- accused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.
Despite the involvement of important questions of law, the High Court failed in its obligation to adjudicate the pleas of law raised before it and dismissed the petition of the appellant by a one sentence order. The orders of the Magistrate as also of the High Court being contrary to law are liable to be set aside. "
In the matter of Mool Chand alias Murli & Anr. vs. Station House Officer, Police Station Renewal, Jaipur And Ors. (Supra) co-ordinate Bench of this Court relied on Prahlad Singh Bhati's case.
This Court in the matter of Mohammed Shaakir and Ors. vs. State of Rajasthan (Supra) also relied on Prahlad Singh Bhati's case and allowed the bail cancellation application.
In Abdul Gafoor vs. State of Rajasthan (Supra) co- ordinate Bench of this Court at Principal seat Jodhpur also observed that :-
11 CRLMB 8468/2015
" In view of the dictum of their lordships of the Supreme Court in the case of Prahlad Singh Bhati's case (supra) there remains hardly any scope for accepting the argument based on the decisions of the Single Benches of this Court in the case of Gheesya & Ors. Vs. State of Rajasthan reported in RLR 1988(2)-307 and Chandra Pal Singh Choudhary's case referred supra.
In view of the decision of the Supreme Court in Prahlad Singh Bhati's case and the Single Bench decision of this Court in the case of Mool Chand's case referred supra, the argument advanced by the learned counsel for the petitioner that once the petitioner had been granted bail for lesser offences by the Investigating Officer himself, the learned Sessions Judge was not competent to cancel the bail granted to the accused does not hold water. The view expressed by the Single Bench of this Court earlier in the cases of Gheesya (supra) and Chandra Pal Singh(supra) cannot be said to be laying down the correct law. The learned Sessions Judge while accepting the application for cancellation of bail filed under Section 439 (2) Cr.P.C. on the ground that graver and non bailable offences were added to the case on a further investigation has thus committed no error, illegality or abuse of the process of Court in cancelling the bail granted to the petitioner by the police u/s. 436 Cr.P.C.. at the stage when only a bailable offence was being disclosed during the course of investigation. The order dated 8.5.2012, therefore, calls for no interference by this court in the exercise of its inherent jurisdiction. "
In the matter of Suresh Chand & Ors. vs. State of Rajasthan (Supra) co-ordinate Bench of this Court observed that :-
" That takes me to another submission of the learned Counsel for the accused petitioners in regard to locus standi of the complainant in seeking cancellation of bail under Sub-section (2) of Section 439, Cr.P.C Placing reliance on Thakur Ram v. State of Bihar, AIR 1966 SC 911, it was contended that only the State being aggrieved party could take all steps necessary and the complainant had no locus standi to file even criminal revision. Learned Counsel 12 CRLMB 8468/2015 for the complainant refuted this argument by placing reliance on Pratap v. State of U.P., (1973) 3 5CC 690, and Hari Bhagwan Bansal v. State of Rajasthan, S.B. Cr. Revision Petition No. 182/1977 decided by this Court on January 27,1998. In these cases it has held that private party can draw the attention of the High Court towards an illegal, improper and incorrect findings of the subordinate Courts.
19. I do not find any merit in the submission of learned Counsel for the petitioners in view of ratio propounded in Rathinam v. State, 2000 (1) Crimes 211 (SC), by their Lordships of the Supreme Court that power to cancel bail can be exercised under Sub-section (2) of Section 439, Cr.P.C. suo motu or at the instance of State or any aggrieved party. "
In the judgment of Prahlad Singh Bhati's case, the issue has already been decided by the Hon'ble Supreme Court that if a person arrested for bailable offence and released on bail under Section 436 Cr.P.C., same cannot be re-arrested by the Police without canceling the bail by the Court under Section 439 (2) Cr.P.C. and if the grave offence is added then Court can cancel the bail under Section 439 Cr.P.C. Similarly, if the accused is released on bail under Section 436 Cr.P.C. by the Police and thereafter non- bailable offence is added then Sessions Court and High Court can exercise its powers under Section 439 (2) Cr.P.C. for cancellation of bail.
So far, the present case is concerned, since the accused was released on bail by the Police in bailable offence without considering the facts of the case, thereafter non-bailable offence was added, but without considering the law laid down in Prahlad Singh Bhati's and Abdul Gafoor vs. State of Rajasthan's cases, 13 CRLMB 8468/2015 learned Additional Sessions Judge dismissed the application of State relying on Aslam Babalal Desai vs. State of Maharashtra reported in AIR 1993 S.C. 1, but the facts of Aslam Babalal Desai's case are altogether different from the present case, in that case accused was released on bail under Section 167 (2) Cr.P.C. by the Court and he didn't misuse the liberty of bail, therefore, Aslam Babalal Desai's case doesn't help the respondent- accused.
Learned Court below didn't consider the Prahlad Singh Bhati's case in proper respect, therefore, the impugned order is not sustainable which is hereby quashed and set aside and the application seeking cancellation of bail is allowed and bail of respondent No. 2- accused is cancelled and he is directed to surrender before the Investigating Officer forthwith.
(BANWARI LAL SHARMA)J. S. Kumawat/107