Rajasthan High Court - Jaipur
Smt Mankaur Singh vs State Of Rajasthan And Anr on 24 October, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
ORDER
S.B.Criminal Misc.(Cancellation of Bail) Application No.7/2015
Smt.Mankaur Singh Wife of Shri Mahendra Singh, aged 52 years, by
caste Jat, Resident of Dhani Khairwan, Tan Jhadli, Police Station
Thoi, District Sikar, at present R/o Om Bhawan Ward No.6, Court road,
Shri Madhopur, District Sikar (Raj.)
....Complainant-Petitioner
Versus
1. State of Rajasthan through P.P.
...Respondent
2. Mahendra Singh Son of Shri Bhagirath Singh Khairwa, aged 58
years, by caste Jat, Resident of Dhani Khairwan Tan Jhadli,
Police Station Thoi, Tehsil Shrimadhopur, District Sikar (Raj.)
...Accused-Respondent
Date of Order ::::: 24.10.2016
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr.Vidhut Gupta, for the complainant-petitioner.
Mr.Anil Yadav,Public Prosecutor for State.
Mr.Anoop Dhand, for the accused-respondent.
The complainant-petitioner has filed this application under Section 439 (2) with a prayer to cancel and set aside the order dated 30.06.2012 passed by the Additional Sessions Judge (Fast Track) No.2, Sikar (Headquarter Shrimadhopur) in Criminal Misc.Bail Application No.137/2012 whereby learned Court below allowed the application filed by the respondent-accused under Section 438 Cr.P.C. and granted him benefit of anticipatory bail in respect of FIR No.192/2011 registered at Police Station Thoi (District Sikar) for offences under Sections 498-A, 379, 420, 467, 468, 471 and 120-B IPC. The main ground on which the present application has been filed is that after getting benefit of 2 anticipatory bail accused-respondent threatened prosecution witness- Shri Narendra Khairwa for which FIR No.179/2012 came to be registered against the respondent on 6.7.2012 for offence under Section 195-A IPC at Police Station Ajitgarh (District Sikar) and after investigation charge-sheet has been filed against him for the aforesaid offence in the Court concerned.
Brief relevant facts for the disposal of this application are that FIR No.192/2011 came to be registered against accused- respondent-Shri Mahendra Singh, who is husband of complainant- petitioner-Smt.Mankaur Singh and one Smt.Anita Singh alias Sushila at Police Station Thoi (District Sikar), who apprehending their arrest jointly filed an application for grant of anticipatory bail under Section 438 Cr.P.C. before Additional Sessions Judge (Fast Track) No.2, Sikar (Headquarter Shrimadhopur) which was registered as Criminal Misc.Bail Application No.137/2012 and the same was allowed by the aforesaid Court vide impugned order dated 30.6.2012 after imposing certain conditions upon them. One of the conditions was that the respondent would not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. Shri Narendra Khairwa, who is real brother of respondent, claiming that he is also one of the material witness in FIR No.192/2011, lodged FIR No.179/2012 against respondent at Police Station Ajitgarh (District Sikar) on 6.7.2012 for offence under Section 195-A IPC with the allegation that respondent threatened him with dire consequences if 3 he does not make statement in his favour in FIR No.192/2011. After registration of FIR No.179/2012, petitioner filed an application under Section 439 (2) Cr.P.C. against respondent with a prayer to cancel the order dated 30.6.2012 whereby benefit of anticipatory bail was granted to him in respect of FIR No.192/2011 but the same was dismissed by the Additional Sessions Judge (Fast Track) No.2, Sikar (Headquarter Shrimadhopur) vide order dated 17/7/2012 on the ground that investigation in respect of FIR No.179/2012 is pending and at this stage it cannot certainly be said that respondent has misused his liberty of anticipatory bail. Thereafter, investigation in respect of FIR No.179/2012 was completed and charge-sheet for offence under Section 195-A IPC was filed against the respondent in the Court concerned. After filing of the charge-sheet, petitioner-complainant filed fresh application under Section 439 (2) Cr.P.C. with a prayer to cancel and set aside the order dated 30.6.2012 whereby benefit of anticipatory bail was granted to the respondent but the same was dismissed by the Additional Sessions Judge, Shrimadhopur (District Sikar) vide order dated 4.9.2015 mainly on the ground that petitioner is not entitled to file application under Section 439 (2) Cr.P.C. and the same has not been filed by the State of Rajasthan or SHO or I.O. Of the case. It is in these circumstances present application under Section 439 (2) Cr.P.c. has been filed by the petitioner in this Court. It is to be noted that investigation in respect of FIR No.192/2011 lodged by the petitioner is still pending even after lapse of five years. It is also to be noted that respondent is a practicing lawyer at Shrimadhopur having standing of 4 about thirty years.
It was submitted by the learned counsel for the petitioner that it has wrongly been held by the Court below that complainant- petitioner upon whose instance FIR No.192/2011 came to be registered against respondent is not entitled to seek cancellation of order dated 30.6.2012 whereby benefit of anticipatory bail was granted to respondent. It was submitted that in a police case also, not only the State through Public Prosecutor but also the complainant/victim or any other aggrieved person has a right to seek cancellation of bail granted to accused if he satisfies the Court that it is a fit case in which discretion conferred upon the Court under Section 439 (2) is to be exercised. It was further submitted that it is well settled legal position that bail including anticipatory bail granted to an accused can be cancelled if it is prima facie found by the Court that he has misused the liberty of bail by interfering or attempting to interfere with the due course of administration of justice or by evading or attempting to evade the due course of justice or by intimidating prosecution witnesses or tampering the prosecution evidence in any manner. It was submitted that taking undue advantage of being a practicing lawyer at Shrimadhopur respondent not only interfered in the investigation in a case in which FIR was lodged in the year 2011 and as a result thereof investigation could not be concluded even after lapse of more than five years but also he threatened one of the prosecution witnesses-Shri Narendra Kharwa with dire consequences for which FIR No.179/2012 was lodged and after investigation charge-sheet for offence under 5 Section 195-A IPC has already been filed against him. It was submitted that filing of charge-sheet for offence under Section 195-A IPC is sufficient to show that Shri Narendra Singh was threatened by respondent to give false evidence in his favour. It was also submitted that respondent has been convicted for offences under Sections 341 and 323/34 IPC by Judicial Magistrate, Neem Ka Thana (District Sikar) vide judgment and order dated 14.1.2016 passed in Criminal Case No.42/2000 although benefit of probation was given to him. It was submitted that a false plea has been taken by the respondent in the reply that as many as 18 cases have been lodged against him by petitioner and other family members to grab his property. No material has been produced in support of the plea so taken.
In support of his submissions, learned counsel for the petitioner relied upon the cases of Siddharam Satingappa Mhetre Vs. State of Maharashtra reported in AIR 2011 (SC) 312 and Sampat Ram Vs. State of Rajasthan & Anr. reported in 2008 (2) C.J.(Raj.) Cr.763.
It was also submitted by the learned counsel that petitioner has a right to move an application under Section 439 (2) Cr.P.C. even after her application filed under the same provision has been dismissed by the Court below as under this provision Sessions Judge and High Court have concurrent jurisdiction and it is not the requirement of law that order dated 4.9.2015 whereby learned Court below dismissed the application filed by the petitioner is to be challenged before High Court by way of revision petition.
6
On other hand, learned counsel for the respondent submitted that application filed by the complainant for cancellation of bail is not maintainable as she has no locus standi to file such an application and learned Court below has rightly dismissed the application filed by the petitioner and present application is also liable to be dismissed on that account only without going into its merit. According to the learned counsel in a police case State can file such an application through Public Prosecutor. It was further submitted that no application was filed by Shri Narendra Singh who claims that he was threatened by the respondent. Similarly FIR was not lodged by the petitioner claiming that her witness-Shri Narendra Singh was threatened by the respondent and by that reason also in the present case petitioner is not entitled to file application for cancellation of bail. It was also submitted by the learned counsel for the respondent that petitioner, who is wife of respondent, his brother-Shri Narendra Singh and other family members have entered into criminal conspiracy in order to grab properties of the respondent and to malign his reputation have filed several false civil and criminal cases against him from time to time including FIR No.192/2011 and 179/2012 and no material is available on record to show that Shri Narendra Singh is a witness in FIR No.192/2011 and, therefore, there is no question of threatening him by the respondent and only false FIR was lodged with a sole object anyhow respondent is deprived of the liberty of anticipatory bail granted toi him by a competent Court by a well considered order dated 30.6.2012. It was submitted that mere assertion by Shri Narendra Singh 7 or submission of charge-sheet for offence under Section 195-A IPC is not sufficient to show that Shri Narendra Singh was actually threatened by the respondent. According to learned counsel for the respondent unless respondent is held guilty for the aforesaid offence after due trial, claim/assertion made by Shri Narendra Singh cannot be considered and respondent cannot be deprived of the benefit given to him by way of anticipatory bail. It was further submitted that once application filed by the petitioner under Section 439 (2) Cr.P.C. was dismissed by the Court below, this second application for the same relief in the High Court is not maintainable and only remedy available to petitioner was to challenge the order dated 4.9.2015 by way of revision petition.
In support of his submissions, learned counsel for the respondent relied upon the cases of Chandra Pal Singh Vs. Vijit Singh & Anr. reported in 2009 (2) CJ (Cri.) (Raj.) 465, Rajrani Yadav Vs. State of Rajasthan reported in 2013 WLC (Raj.) UC 579, Alimuddin Vs. State of Rajasthan & Ors. Reported in 2009 (5) WLC (Raj.) 276 and Sardela Damodar Vs. State of Andhra Pradesh & Ors. Reported in 1998 Cr.L.J. 277.
First of all, it is to be seen whether this application for cancellation of bail is not maintainable as application filed by the petitioner for the same relief has been dismissed by the Court below. Sub-section (2) of Section 439 Cr.P.C. provides that High Court or Court of Session may direct that any person who has been released on bail under Chapter- XXXIII be arrested and commit him to custody. This is the only provision in the Code of Criminal Procedure providing for cancellation of bail already granted to an accused. A reading of the provision reveals that a concurrent 8 and co-extensive jurisdiction has been conferred both upon High Court and Court of Session to cancel bail granted to an accused. Concurrent jurisdiction means the jurisdiction of more than one Court, both authorized to do the same act or deal with same subject-matter at the choice of the aggrieved person but that does not mean that once jurisdiction of one Court has unsuccessfully been sought, jurisdiction of the other is not open to be exercised unless it is specifically barred. Concurrent jurisdiction has been conferred upon High Court and Court of Session under Section 438 Cr.P.C. for grant of anticipatory bail to a person apprehending arrest and similarly as per sub-section (1) of Section 439 Cr.P.C. power has been conferred upon High Court and Court of Session regarding bail in certain cases. It cannot be disputed that if a person unsuccessfully seeks benefit of anticipatory bail under Section 438 Cr.P.C. from Court of Session, he can approach High Court for the same relief under this provision and High Court can not decline to hear his application merely by the reason that his application has been dismissed by Sessions Judge. Similarly, an unsuccessful accused for grant of bail under Section 439 (1) Cr.P.C. before Court of Session can approach for the same relief before High Court and his application cannot be dismissed as not maintainable merely by the reason tht he was unsuccessful before the Court of Session. In my considered view, when an accused can go to High Court for anticipatory bail under Section 438 Cr.P.C. or for regular bail under Section 439 (1) Cr.P.C. before High Court despite his application for the same relief was dismissed by the Court of Session and his application cannot be dismissed as not maintainable by High Court merely by the reason that his application for the same relief has been dismissed by the Court of Session, 9 for the same reasoning an aggrieved person can approach High Court for cancellation of bail already granted to an accused despite his application for the same relief has already been dismissed on merit by the Court of Session and the same cannot be dismissed as not maintainable. It is to be noted that concurrent revisional jurisdiction has been conferred upon Court of Session and High Court under sub-section (1) of Section 389 Cr.P.C. but there is bar under sub-section (3) of the said Section for second revision by the same party but there is no such bar under sub-section (2) of Section 439 Cr.P.C. Sub-section (3) of Section 389 Cr.P.C. provides that if an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. It is thus clear that further revision at the instance of the same party is not entertainable as there is specific bar for the same under sub-section (3) but there is no such bar under sub-section (2) of Section 439 Cr.P.C. In my opinion in absence of such a specific bar, remedy under sub-section (2) of Section 439 Cr.P.C. cannot be denied to a person by High Court merely by the reason that the same has been denied to him by a Court of Session. But if an aggrieved person directly comes to High Court by way of an application under sub-section (2) of Section 439 Cr.P.C. for cancellation of bail and remains unsuccessful, he cannot approach Court of Session to seek same relief. Under Section 439 (2) Cr.P.C. powers of the High Court are not appellate, revisional or supervising, it is a special original jurisdiction which the High Court exercises under this provision. A restrictive interpretation which would have effect of nullifying Section 439 (2) Cr.P.C. cannot be given. When Section 439 (2) Cr.P.C. grants to the High Court the power to 10 cancel bail, it necessarily follows that such power can be exercised also in a case where Court of Session having concurrent jurisdiction has declined to exercise its power.
It is now to be seen whether petitioner-complainant is not entitled to seek cancellation of anticipatory bail granted to respondent- accused by the Court below.
In the Case of Siddharam Satingappa Mhetre Vs. State of Maharashtra (supra), Hon'ble Supreme Court has held that the discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant on finding new material and circumstances at any point of time.
In view of the well settled legal position, the objection raised on behalf of the respondent is not legally tenable and stands rejected.
It is well settled legal position that anticipatory bail granted to an accused can be cancelled if it is shown that the person enlarged on bail is interfering with the course of justice by tampering with witnesses or abused his liberty or misused his privilege or it is found that the accused has threatened any of the prosecution witnesses.
In the present case, during the course of investigation of FIR No.192/2011, FIR No.179/2012 came to be registered against the respondent on 6.7.2012 for offence under Section 195-A IPC at Police Station Ajitgarh (District Sikar) at the instance of one Shri Narendra Kherwa, real brother of respondent, with the allegation that respondent threatened him with dire consequences if it does not make statement in his favour in FIR No.192/2011. It is an admitted fact that investigation in respect of FIR No.179/2012 was completed and charge-sheet for offence 11 under Section 195-A IPC was filed against the respondent in the Court concerned. I am of the considered view that filing of charge-sheet for the aforesaid offence after due investigation prima facie shows that the allegation made against the respondent by Shri Narendra Singh are true and it is a good ground to cancel benefit of anticipatory bail granted to the respondent but learned Court below did not consider the matter in a right perspective. Perusal of charge-sheet filed in respect of FIR No.179/2012 shows that Shri Narendra Singh is also a witness on behalf of the petitioner-complainant in respect of FIR No.192/2011 registered for offences under Sections 498-A, 379, 467, 471 and 120-B IPC and, therefore, contention made on behalf of the respondent that no material has been made available on record showing that Shri Narendra Singh is also a prosecution witness in FIR No.192/2011 is not acceptable. The present application for cancellation of bail cannot be dismissed by the reason that it has not been filed by Shri Narendra Singh who claims that he was threatened by respondent or FIR No.179/2012 was not lodged by petitioner-complainant claiming that her witness Shri Narendra Singh was threatened by the respondent. As Shri Narendra Singh was threatened by respondent, he was the best person to lodge FIR in this regard and as one of the witnesses of the petitioner-complainant in FIR No.192/2011 was threatened by respondent, complainant-petitioner is the best person to seek cancellation of anticipatory bail granted to the respondent.
In view of the aforesaid discussion, I find that it is a fit case in which discretion conferred upon this Court under Section 439 (2) Cr.P.C. is to be exercised and order dated 30.6.2012 passed by the Additional Sessions Judge (Fast Track No.2), Sikar Headquarter Shrimadhopur in 12 Criminal Misc.Bail Application No.137/2015 be cancelled and set aside.
Consequently, the application for cancellation of bail under Section 439 (2) Cr.P.C. is hereby allowed and order dated 30.6.2012 is set aside and the respondent-accused is directed to be taken into custody immediately.
(PRASHANT KUMAR AGARWAL), J teekam (Reserved order)