Jharkhand High Court
Damru Mahto vs The State Of Jharkhand on 9 May, 2014
Author: D.N.Upadhyay
Bench: D.N.Upadhyay
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr) No. 207 of 2013
Damru Mahto .... Petitioner(s)
Versus
State of Jharkhand ... Respondent
Coram : HON'BLE MR. JUSTICE D.N.UPADHYAY
For the petitioner (s): Mr. Mohan Kumar Dubey
For the opposite party : Addl.P.P.
09.05.2014This writ application has been filed for quashing the order dated 24.01.2008 passed by the learned Sessions Judge, Bokaro, in connection with Criminal Revision No. 130 of 2007 whereby order dated 17.9.2007 by which learned CJM, Bokaro, has cancelled the bail granted to the petitioner in connection with Deoghar (Town) P.S. case No. 279 of 2007 ( G.R. No. 735 of 2007 ), has been upheld.
2 Facts of the case, in brief is that Tulsi Mahato (deceased) had given his fard beyan on 14.7.2007 disclosing therein that he was assaulted by petitioner by means of brick and he sustained injuries on his head. Second blow was hurled which caused injuries on his mouth and his teeth got broken. On the basis of the fard beyan of Tulsi Mahto, Bokaro P.S. Case NO. 279 of 2007 (T) dated 14.7.2007 under sections 337/338/325 was registered.
3 The petitioner appeared before the CJM on 19.7.2007 with prayer to grant bail and the payer was allowed, because the offences alleged were bailable on that date. On the very same day, the informant Tulsi Mahato succumbed to his injuries and therefore petition was filed by the investigating officer to add section 302 IPC and further prayer was made to cancel the bail granted to the petitioner on the ground that the circumstance has now changed due to death of the informant. Thereafter, the petitioner was served with a show cause notice and, accordingly, he appeared and filed show cause raising objection that bail once granted under section 436 Cr.P.C. cannot be cancelled due to change in the situation. He has further raised objection that the Chief Judicial Magistrate has no right to cancel the bail.
4 The Chief Judicial Magistrate after hearing the prosecution as well as the petitioner, passed order on 17.9.2007 by which bail granted to the petitioner was cancelled. The petitioner thereafter preferred Cr. Revision before the Sessions Judge, Bokaro, vide Cr.
2Revision No. 130 of 2007 challenging the said order dated 17.9.2007 passed by the learned CJM, but the prayer was refused and bail was dismissed and hence this Criminal Writ Petition.
5 It is contended on behalf of the petitioner that once bail has been granted under section 436 Cr.P.C. the CJM has no power or jurisdiction to cancel the same even after change in the circumstances. In this context, he has relied on an order passed in ABA No. 3772 of 2010 dated 06.10.2010 reported in ( 2011 (1) JLJR 445), and submitted that once bail has been grated under section 436 Cr. P. C, it cannot be cancelled because of submission of the charge-sheet for non bailable sections.
Reliance has also been placed on the order dated 17.1.2003 passed by the Patna High Court in Cr. Misc. No. 34121 of 2002 reported in 2003(1) BCCR 363 (para 3). It is contended that at the time the petitioner was granted bail, case was registered under bailable sections and charge sheet was also submitted for bailable sections, but after submission of supplementary charge sheet under section 307/506/379/34 IPC, the CJM issued show cause notice and after hearing the parties, cancelled the bail. The order of the CJM was challenged which was quashed by the Patna High Court .
Further, reliance has been placed in the case reported in AIR 1967 SC 1639 and it is submitted that once bail is granted by the CJM, it cannot be cancelled by the same court and jurisdiction to cancel bail lies with the High Court. By referring to the aforesaid judgments and the facts and circumstances, learned counsel has prayed for quashing the impugned orders and to allow the petitioner to remain on the bail already granted.
6 On the other hand, learned counsel for the respondents has opposed the prayer and submitted that on the date on which the petitioner appeared before the learned CJM, the case was registered under sections 337/338/325 of the Indian Penal Code; since the offences alleged were bailable, the court had no option, but to grant bail. But on the very same day ( 19.7.2007) itself, the informant succumbed to his injuries and very promptly, on the next day, the investigating officer filed petition for cancellation of bail and a separate petition to add section 302 of the Indian Penal Code. The CJM has rightly directed the petitioner to file show cause and after granting hearing to the parties, bail granted 3 to the petitioner was cancelled due to change in the circumstances. There is no illegality in the impugned orders and the judgments referred to above by the learned counsel for the petitioner are not relevant to the facts and circumstances appearing in the case at hand; rather, the facts of the present case are fully covered by the judgment rendered in the case of Hamida Vs. Rashid (2008 (1) SCC 474) (Supra ). The judgment in the case of Prahlad Singh Bhati Vs. NCT. Delhi reported in 2001(4) SCC 280 has also been relied upon.
7 I have gone through the judgment cited above. Facts which are not in dispute are that (i) initially, case was registered under sections 337/338/325 of the Indian Penal Code vide Deoghar (Town) P.S. case No. 279 of 2007 on the basis of the fard beyan of the deceased Tulisi Mahato; (ii) On 19.7.2007, the petitioner appeared and was granted bail, but on the same day, the informant died. This fact was brought to the notice of the Chief Judicial Magistrate, and after hearing the petitioner and the prosecution, bail granted to him was cancelled.
8. I have gone through the judgment in the case of Hamida Vs. Rashid (2008 (1) SCC 474) (Supra ). In that case, appellant Hamida had lodged a case at P.S. Kotwali, Muzaffar Nagar at 00.10 hrs on 13.6.2005 alleging that her husband Balla was assaulted by the respondents by means of licenced and illegal firearms exhorting that they would kill him. Balla had also received grievous injuries caused by knife. On the basis of the FIR lodged by Hamida, a case being Crime No. 792 of 2005 under sections 324, 352 and 506 IPC was registered. Two of the accused/respondents were arrested and forwarded to court for their remand on that very day i.e. on 13.6.2005, but the learned CJM considering the offences bailable, ordered to release them on bail with an observation, - If the case was converted into more serious offence, the accused would not get any benefit of the bail being granted to them. Subsequently, the remaining two accused were also released on bail. Between intervening night of 16.6.2005 and 17.6.2005, the deceased succumbed to his injuries and thereafter the offence was converted under section 304 IPC. Thereafter, the accused persons preferred application under section 482 Cr.P.C. and the High Court considering the prayer, directed the CJM to allow them to remain on bail. Thereafter, the matter went to the Hon'ble Supreme Court and the apex court has held that the High Court has erred in allowing the petition under section 482 Cr.P.C.
4directing the Chief Judicial Magistrate to allow the accused persons to remain on the same bail.
The apex court held that bail was granted because the case was registered for bailable sections, but after change in circumstances due to death of the deceased, Section 304 IPC was added and after investigation, charge sheet was submitted and the trial court had framed charge under section 302 IPC. Their Lordships have held, after the offence was converted under section 304 IPC, there was change in the circumstance and the accused persons should have moved for regular bail under section 439 Cr.P.C. and for that the petition should have been preferred before the appropriate forum.
9 It appears that facts in the case at hand are almost similar to the case of Hamida Vs. Rashid (supra). In course of arguments, learned counsel for the petitioner has pointed out that in that very case, there was observation by the CJM, " It was, however,made clear in the order that if the case was converted into a more serious offence, the accused would not get any benefit of the bail granted to them," I do not think that such observation is required while granting bail under section 436 Cr.P.C.
Section 436 Cr.P.C. is very clear ; - "When any person other than a person accused of non-bailable offence is arrested or detained without warrant by an officer in charge of a Police Station, or appears or is brought before the Court, and is prepared at any time while in custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail."
Thus, it is clear that in a case registered under bailable sections, if an accused either appears or is brought before the court, he shall be released on bail and no discretion is given to the court to consider the merit of the case or allegations levelled. In the case at hand, when the accused appeared before the court, offences alleged were bailable and considering aforesaid aspects of the matter, the court had left no option, but to grant them bail. Hon'ble apex court in the case of Hamida Vs. Rashid (supra) has criticized the order which the Hon'ble High Court passed by invoking inherent power conferred under section 482 of the Code of Criminal Procedure by which the accused persons were directed to remain on previous bail without considering the merit. Since the injured succumbed to his injuries, there was change in the circumstance and the 5 offence under section 302 IPC was attracted. These developments also occurred during investigation itself and, therefore, the case could not remain for bailable offence; rather, non-bailable offence was added and, therefore, the accused persons ought to have surrendered for getting bail either under section 437 Cr.P.C.by the CJM or under section 439 Cr.P.C. from a superior court.
10 Hon'ble Supreme Court in the case of Prahlad Singh Bhati Vs. NCT. Delhi reported in 2001(4) SCC 280 (supra) was also having same view which is reproduced below :
"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 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 498A, 306 and 406 IPC. With the change of the nature of the offence, the accused becomes dis-entitled 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 on 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. (paras 9 and 10) ".
11 The judgment which the learned counsel for the petitioner has referred to above, are the orders passed by Jharkhand High Court and Patna High Court in bail and Criminal Misc. Petitions and, therefore, I do not think that after considering the judgments in the case of Hamida (supra) as well as in the case of Prahlad Singh Bhati (supra), orders passed by this Court or the Patna High Court, are having any bearing on the issue(s) involved.
Another judgment reported in AIR 1967 SC 1639 is also on a different point. There was allegation that the accused were trying to tamper with the evidence and, therefore, petition for cancellation of the 6 bail was filed. That facts is not not available in the case in hand. Since the facts of this case and the order passed by the court below are fully covered by the findings of the apex court in the case of Hamida (supra), I do not find any merit in this application which is fit to be dismissed.
This Criminal Writ Petition is, accordingly, dismissed. The petitioner is directed to surrender before the court below for seeking regular bail.
Ambastha/- ( D.N.Upadhyay,J.)