Gujarat High Court
Baneshwar Laxman Jana vs Ramapada Murlimohan Manna on 31 January, 2024
NEUTRAL CITATION
R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
4027 of 2022
In R/CRIMINAL MISC.APPLICATION NO. 1577 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BANESHWAR LAXMAN JANA
Versus
RAMAPADA MURLIMOHAN MANNA
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Appearance:
MR DIPEN DESAI(2481) for the Applicant(s) No. 1
FOUZAN N SONIWALA(8442) for the Respondent(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/01/2024
CAV JUDGMENT
1. By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner has prayed to Page 1 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined quash and set aside the order dated 04.02.2022 passed by this Court in Criminal Misc. Application No.1577 of 2022, whereby this Court has granted anticipatory bail to the respondent - original accused.
2. Heard learned advocate Mr.Dipen Desai for the petitioner, learned APP for the State and learned advocate Mr.Fouzan Soniwala for respondent no.1.
3. Learned advocate Mr.Dipen Desai for the petitioner submits that respondent accused has obtained order of bail passed in Criminal Misc. Application No.1577 of 2022 by playing fraud upon the Court. Referring to para 7 of the order passed in Criminal Misc. Application No.1577 of 2022, he would submit that the respondent accused has suppressed material fact. Charge-sheet was filed against him and in the charge-sheet he was shown was absconding accused. He would further submit that it is suppressed before the Court that warrant under section 70 of Cr.P.C. was issued against the respondent accused. It is submitted that suppression of material fact vitiates all reliefs. This fact which was within the knowledge of the respondent accused could be revealed at the time of seeking discretionary relief from this Court.
3.1. Learned advocate Mr.Desai would submit that order of bail was passed on 04.02.2022, but charge-sheet was filed on 18.01.2022 showing name of the petitioner in column no.2. This fact was not revealed while hearing bail application. Thus, it indicates that bail order was obtained by playing fraud and Page 2 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined suppressing material fact. It is submitted that learned Special Designated Judge (GPID) issued warrant under section 70 of Cr.P.C. on 15.01.2022 against the respondent accused. It is submitted that even before hearing of bail application took place, warrant under section 70 was issued. This fact was not disclosed to the Co-ordinate Bench instead of that it was submitted that respondent accused is ready to co-operate in investigation. Therefore, there is clear suppression before this Court. It is submitted that suppression of material fact can be one of the ground and reason to cancel bail. He referred and relied upon judgment of Orissa High Court in the case of Sanjida Bibi v/s. State of Orissa [CRLMA No.104 of 2018], more particularly following unnumbered paras :-
"On perusal of the file of BLAPL No.3687 of 2017, it appears that it is mentioned therein that the matter out of which the bail application arose was never before this Court in any form whatsoever. This is obviously suppression of material fact relating to the earlier rejection of the bail order by this Court. Since the earlier application was rejected in BLAPL No.1568 of 2017 by another Bench, had it been pointed out to the Vacation Judge, it would have been directed to be listed before the Hon'ble Judge who rejected the earlier bail application in view of the standing order of the Hon'ble Chief Justice as well as decisions of the Hon'ble Supreme Court in case of 4 Shahzad Hasan Khan -Vrs.- Ishtiaq Hasan Khan reported in (1987) 2 SCC 684 and in case of Harjeet Singh @ Seeta - Vrs.- State of Punjab reported in A.I.R. 2002 SC 3040.
Law is well settled as held in the case of Moti Lal Songara - Vrs.- Prem Prakash @ Pappu and another reported in (2013) 55 Orissa Criminal Reports (SC) 881 that anyone who takes recourse to method of suppression in a Court of law, is, in actuality, playing fraud with the Court, and the maxim suppresio veri, expression falsi i.e. suppression of the truth is equivalent to the expression of falsehood, gets Page 3 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined attracted. It has been further held that as the order has been obtained by practicing fraud and suppressing material fact before a Court of law to gain advantage, the said order cannot be allowed to stand. In case of K.D. Sharma -Vrs.-. Steel Authority of India Limited and Ors.
reported in (2008) 12 Supreme Court Cases 481, it is held that the party who invokes the extraordinary jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all the material facts without any reservation, even if those are against him. Suppression or concealment of material facts is not an advocacy. In case of A. V. Papayya Sastry and others - Vrs- Government of A.P. and others 5 reported in (2007) 4 Supreme Court Cases 221, it is held that judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non-est in the eye of the law. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceeding.
It is apparent from the order dated 24.05.2017 passed in BLAPL No.3687 of 2017 that not only the period of detention of the petitioner has been stated wrongly but also there was suppression of rejection of earlier bail order in BLAPL No.1568 of 2017. Therefore, the bail order has been obtained by playing fraud on the Court, by suppression of material fact and by misrepresentation of fact. Even though very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted as held by the Hon'ble Supreme Court in the case of Daulat Ram -Vrs.- State of Haryana reported in (1995)1 Supreme Court Cases 349, but in view of the fraud committed and misrepresentation of fact, I am inclined to accept the prayer made by the petitioners in this application. Accordingly, the bail order passed in favour of the opp. party no.2 Sk. Moji @ Miajan in BLAPL No.3687 of 2017 as per the order dated 24.05.2017 stands cancelled."
3.2. Learned advocate Mr.Desai also relied upon judgment of High Court Bombay at Aurangabad in the case of Sanjay S/o Jagdishprasad Ladda v/s. State of Maharashtra [Criminal Page 4 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined Application No.841 of 2012], more particularly para 11 and 12 thereto which is as under :-
"11.I have carefully considered the matter. There is substance in the contention raised by the learned counsel for the applicant to the effect that the Investigating Agency ought to have approached the Court of Sessions itself, on the ground that bail was erroneously granted by the learned Magistrate. However, it cannot be said that the Magistrate was precluded from considering the matter afresh while exercising the powers under Section 437 (5) of the Code. It is because the orders granting or refusing bail do not attain finality; and if further and fresh materials - or even new grounds - are putforth before the same Court, the matter can be considered afresh by the same Court. The facts of this case leading to grant of bail are rather peculiar. It appears that the applicant who was not available to the Investigating Agency for quite some time, suddenly surrendered himself before the trial Court without giving notice to the Investigating Officer. The bail came to be granted only on the basis that 'the chargesheet has been filed', which would signify completion of the investigation. Actually, the investigation had not been completed because a major part of the investigation viz: the recovery of the misappropriated amount had not been done. In fact, it was rather unnecessary on the part of the Investigating Agency to have filed the chargesheet in the Court by referring to the provisions of Section 299 of the Code. The matter could have very well kept by them as pending investigation.
12. Any way, I have considered the matter on merits, independently. It is apparent, that the applicant is absconding and has been adopting various tactics to avoid facing the Investigating Agency. He had also suppressed the fact of his previously seeking anticipatory bail from the Sessions Court and rejection of his application, while surrendering before the Magistrate and seeking bail from him. Bail came to be granted by the Magistrate without appreciating the facts of the case and in the absence of the Investigating Page 5 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined Officer. There is, therefore, nothing wrong, if the learned Magistrate corrected the error, that had occurred in releasing the applicant on bail and cancelled the same."
3.3. It is submitted that if suppression of material is established then it is equivalent to the expression of falsehood. Thus, accused cannot take benefit of that to secure bail. Above submissions are made to cancel the bail granted to respondent - accused.
4. On the other hand, learned advocate Mr.Soniwala for the respondent - accused placed on record written synopsis. Firstly, he argued about maintainability of the petition by referring to section 362 of Cr.P.C. and submitted that this Court cannot review its own order to alter or review the bail order or judgment except to correct an clerical or arithmetical error. It is submitted that bar under section 362 of Cr.P.C. is squarely applicable in the present case. It is submitted that suppression of material fact made during argument is not ground to cancel bail as it amounts to reviewing / recalling earlier bail order. He referred to the judgment of High Court of Chhattisgarh, Bilaspur in Cr.M.P.No.469 of 2015 (Savita Khade v/s. State of Chattisgarh) and more particularly, para 11 which reads as under :-
"11. Applying the statement of law rendered by their Lordships of the Supreme Court in the aforesaid cases particularly Abdul Basit (supra), it is limpid that the petitioners herein have sought cancellation of order granting bail on the ground that bail order was granted to the respondent No.2 by suppression and misrepresentation of facts as well that the order considering bail reflects consideration of irrelevant material of a substantial nature and additionally new adverse facts have surfaced, thereby Page 6 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined claiming that the order of bail is absolutely unjustified, illegal and perverse. It is not the case of the petitioners herein that the respondent has misconducted himself after grant of bail by this Court warranting cancellation of bail order, therefore, order granting bail deserves to be cancelled. The facts and grounds pleaded in an application for cancellation of bail under Section 439(2) Cr.P.C. and submissions made therein, in light of the law laid down by their Lordships of the Supreme Court in the above mentioned judgment is not the scope and jurisdiction of this Court, as such alleged illegality, perversity cannot be determined by this Court in this application for cancellation of bail filed under Section 439(2) of Cr.P.C. as it would amount to review/recall of bail order, which impermissible, in the light of express bar contained in Section 362 of the Cr.P.C. which bars the jurisdiction of this Court to alter or review the bail order or judgment except to correct an clerical or arithmetical error. "
4.1. It is further submitted that order passed by the High Court of Chhattisgarh has been confirmed by the Hon'ble Apex Court in Special Leave to Appeal (Cri.) No.2502 of 2016. He would further submit that respondent accused has not suppressed any fats. It is finding of the Co-ordinate Bench that respondent accused co-operated in investigation. The finding is correct on the ground that prior to registration of FIR, application was tendered and during investigation of that application in West Bengal, Investigating Officer has called the respondent - accused and respondent - accused did remain present and he was interrogated on that day and in that way, the respondent - accused co-operated in investigation and that was recorded by the Co-ordinate Bench while enlarging the respondent on bail. Learned advocate for the respondent - accused referring to order passed in Criminal Misc. Application No.1577 of 2022 (Annexure F) submitted that issuance of warrant under section 70 of Page 7 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined Cr.P.C. was withing knowledge of Co-ordinate Bench, yet Co- ordinate Bench has exercised discretion to grant bail. In these circumstances, it cannot be said that respondent - accused has suppressed material facts. Learned advocate for the respondent
- accused referring to order of Co-ordinate Bench of this Court in Criminal Misc. Application No.25080 of 2017 (Rajubhai Kamabhai Desai v/s. State of Gujarat) would submit that parameters to cancel bail is different than parameters refusing bail. He would refer to para 13 of the said order to submit that accused has not misused liberty nor violated any condition and since there is long lapse of time passed seeking cancellation of bail, such application should not be entertained. Para 13 of the said order reads as under :-
13. Further, a different stand appears to have been taken in the Habeas Corpus petition, which came to be disposed of on 11.8.2017 in paragraph 3 and thereby victim was allowed to go with her parents. But, these are the circumstances to be examined during the course of trial, which trial has already begun and therefore, to cancel anticipatory bail which has been granted prior to 5 years, same is not possible to be digested, especially when no attempt is made by the applicant to seriously proceed with the present application. It appears that anticipatory bail has been granted on 25.9.2017, against which, on 6.10.2017, present application is filed and first order came to be passed on 26.12.2017 and in between, during passage of time, it is culled out that no attempt is made by the applicant to get the matter disposed of at the earliest nor has taken any serious steps to see that said order may be set aside and therefore, after waiting for a period of 5 years and now to take a stand that seriousness of offence has not been considered by the Court below, especially when trial has already begun, the Court is not inclined to encourage such stand of the applicant, more particularly when undisputedly, present respondent accused has not misused his liberty nor violated any condition and there is Page 8 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined long lapse of time passed on. As such, in this peculiar background of facts, the Court is unable to exercise discretion. At this stage, Hon'ble Apex Court in the case of X. v State of Telangana & Anr., reported in (2018) 16 SCC 511, has propounded the principle on cancellation of bail which the Court deems fit to refer hereunder:-
"14. 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 Haryana4 observed that:
"4. 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. Generally speaking, the grounds for cancellation of the bail, already granted, broadly (illustrative and not exhaustive) are: interference or attempt 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.
15. These principles have been reiterated by another two Judge Bench decision in Central Bureau of Investigation, Hyderabad v Subramani Gopalakrishnan and more recently in Dataram Singh v State of Uttar Pradesh:
"23. It is also relevant to note that there is difference Page 9 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined 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.
18. For the above reasons, we hold that the order of the High Court allowing the application for bail cannot be faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no cogent material to indicate that the accused has been guilty of conduct which would warrant his being deprived of his liberty."
4.2. Upon above submission, it is submitted to dismiss the petition.
5. Learned APP submitted to pass necessary order.
6. Having heard learned advocates for both the sides, let refer argument of learned advocate for the respondent recorded in Criminal Misc. Application No.1577 of 2022, which reads as under :-
Page 10 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined "3.Learned advocate for the applicant submits that the accused named in the FIR is paternal uncle of the applicant and when police went to West Bengal to arrest the accused, they had recorded his detailed statement, wherein the applicant explained everything and further stated that he has nothing to do with the activities undertaken by his uncle; that bare reading of the FIR does not disclose any ingredient whatsoever to link the applicant with the offence in question; that the applicant is government servant working as Postman under Midnapure Division, West Bengal, never came in contact with the complainant; that on account of failure on the part of his uncle to deposit the gold as directed by this court, the complainant in connivance with the police misused the process by arresting the applicant."
7. Finding of Co-ordinate Bench in Criminal Misc. Application No.1577 of 2022 enlarging accused on bail is in para 5,6 and 7 which reads as under :-
"5. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, it appears that main accused Tapas Mandal @ Tapas Govind Mandal had earlier filed anticipatory bail before this Court, which came to be allowed vide order dated 09.06.2021, wherein, a coordinate Bench of this court has observed thus:
"[5] Learned advocate for the applicant submits that applicant and the complainant with other 26 members are the Gold Manufacture and Retail Shop owners in the Ahmedabad City and they have jointly formed a group for running gold deposit business, which is known as V. C. in short. The object of such V. C. is to deposit 1200 grams fold for 28 months and on rotation basis, each of the members intent do keep the said gold monthly. He further submits that, as per the complaint, during the charge of the said V. C., the applicant has misappropriated the gold deposited by the complainant, however, the applicant Page 11 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined has not misappropriated the gold and the same is laying in the safe custody of his shop and due to pandemic situation he is residing at his native place at West Bengal and his shop as well as his house is closed."
6. The main accused Tapas Mandal granted anticipatory bail on condition to deposit 1000 grams gold within 30 days from the date of the bail order. However, he failed to comply with the said condition, as a result of which, anticipatory bail has been cancelled.
7. In the aforesaid background, this Court is of considerd view that the applicant is working as Postman and there is no allegation against him that in any manner, he was benefited by the alleged act of his parental uncle. He has cooperated with the investigation. He does not flee from justice. He has no any past antecedent of like nature. In this background, custodial interrogation of the applicant is not found to be essential for the purpose of investigating."
8. What appears from the argument recorded which is re- produced herein above, the respondent - accused has not suppressed the fact that warrant under section 70 was issued against respondent. In fact, he has submitted that when police went to arrest accused, detail statement has been recorded whereby respondent explained everything. It is in this context, Co-ordinate Bench has recorded that respondent accused has co-operated in investigation.
9. To be noted that disputed time was Corona time period. Warrant was issued on 15.01.2022. The application for bail was filed on the very same day. The affidavit was made on 15.01.2022. The application was tendered for hearing on 19.01.2022. It is obvious that the respondent accused may not have knowledge of issuance of warrant under section 70 of Page 12 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined Cr.P.C. Charge-sheet is filed on 18.01.2022. To be recorded that it was Corona time period. Physical movement was least or non in this time period. Proceedings were conducted online. So again, it can be inferred that respondent - accused may not be knowing filing of charge-sheet. Investigating Officer has not brought said aspect on record by filing affidavit.
10. In above circumstances, it cannot be said that there is suppression of material facts in obtaining discretionary relief. It is not denied that respondent accused has extended co-operation during inquiry at earlier point of time, when other accused was to be arrested. It is not the case of the petitioner that respondent accused has misused his liberty or has violated any conditions of bail. Bail was granted to the respondent accused way back on 04.02.2022, since then the accused is enjoying personal liberty. No other and special circumstances are placed before this Court to set aside bail order.
11. By long line of precedent, it can be inferred that there is distinction in rejection of bail in non bailable case at initial stage and cancellation of bail after it has been granted. In the case of Bhagirathsinh Jadeja v/s. State Of Gujarat [1984 (1) SCC 284], the Hon'ble Apex Court in para 6 has held as under :-
"6. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should Page 13 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024 NEUTRAL CITATION R/CR.MA/4027/2022 CAV JUDGMENT DATED: 31/01/2024 undefined be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court."
12. For the reasons stated herein-above, no case is made out to say that respondent has suppressed material facts to obtain discretionary relief. The petition is therefore, dismissed.
(J. C. DOSHI,J) SATISH Page 14 of 14 Downloaded on : Wed Jan 31 20:49:27 IST 2024