Delhi High Court
Shri Ram Singh Batra vs The State on 2 March, 2005
Equivalent citations: 2005CRILJ2471, 118(2005)DLT208, 2005(80)DRJ445, 2005 CRI. L. J. 2471, (2005) 31 ALLINDCAS 626 (DEL), 2006 CHANDLR(CIV&CRI) 159, (2005) 2 CRIMES 268, (2005) 2 CURCRIR 254, (2005) 118 DLT 208, (2005) 2 RECCRIR 493, (2005) 2 CHANDCRIC 127, 2005 ALLMR(CRI) 194
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973. He is aggrieved by the order of cancellation of bail passed by the Metropolitan Magistrate on 27.5.2004
2. The facts of the case leading to the filing of the present petition are as follows:-
The petitioner was arrested on 17.3.2004 in connection with FIR No. 107/2001 registered under Section 420/467/468/471/120B IPC registered at police station Connaught Place. The petitioner had moved an application for bail under Section 439 of the Code of Criminal Procedure, 1973 before this Court. This Court by a reasoned order dated 12.5.2004 rejected the application. However, the petitioner filed an application for his release under the proviso to Section 167(2) of the Cr.P.C. as the investigation in respect of him had not been completed within the mandatory period of sixty days. The Metropolitan Magistrate by an order dated 21.5.2004 admitted the petitioner to bail under the Proviso to Section 167(2) subject to certain conditions. Before passing the order, the Metropolitan Magistrate, as indicated in the order itself, had specifically inquired from the Investigating Officer, who was present in Court, as to whether the investigation was incomplete and pending. To this, the Investigating Officer responded that the investigation was pending, as mentioned in several places in the Charge Sheet. Accordingly, in view of the fact that investigation was still continuing beyond the expiry of the mandatory period prescribed under Section 167, The petitioner was directed to be released. The complainant immediately thereafter filed an application for cancellation of bail. That application was taken up and was disposed of by the impugned order dated 27.5.2004, wherein the learned Metropolitan Magistrate cancelled the bail granted by the earlier order in view of the fact that the earlier order had been obtained by concealing the fact that the regular bail application was declined by this Court on 12.5.2004 The material portion of the order whereby bail was cancelled reads as under:-
In my considered view, fact of dismissal of bail application by Higher Court by accused/applicant is a very serious matter. The grant of bail to the accused is in the nature of equitable relief and the accused must approach the court with clean hands.
The said concealment also amounts to perpetuating fraud on judiciary. Such accused persons in my considered view, do not deserve any concession from the court. It would be also pertinent to mention here that in this very court, one notice has been displayed specifically requesting the accused persons and their counsels to mention the fact of dismissal/pendency of earlier bail application in superior Courts or in this Court but despite the said notice, it appears that accused is liable to be withdrawn Since, such practice cannot be encouraged and has far reaching affect.
Accordingly, the bail granted to the accused vide order dated 21/5/04 stands cancelled. Today, the accused is not present on account of hospitalization. The accused is directed to surrender within one week from today. This time is granted since the accused is hospitalized. Upon failure of accused within one week, the bail bond shall stand forfeited and issue NBW against the accused and notice to his surety U/s. 446 of Cr.P.C.
2. The learned counsel for the petitioner argued that the rejection of bail by this Court under Section 439 of the Code would not come in the way of the petitioner for being released on bail under Section 167(2) of the Code. The learned counsel for the petitioner also denied the fact that when the order for grant of bail was passed by the learned Metropolitan Magistrate on 21.5.2004, he was unaware of the fact that this Court had already rejected the prayer for bail by an order dated 12.5.2004 The learned counsel for the petitioner supported this submission by draying my attention to page 27 of the paper book which is the copy of the application made on behalf of the complainant whereupon the said bail order was canceled. Paragraph 2 of the said application reads as under:-
The complainant was present in this Hon'ble Court but was not allowed to be heard. The I.O. also pointed out that the bail application of the applicant/accused has been dismissed by the Hon'ble High Court but he did not file any copy of the order of Hon'ble High Court.
This clearly indicates that as per the statement of the complainant itself, the Court, when it passed the order dated 21.5.2004, was made aware of the rejection of the bail application by this Court on 12.5.2004
3. The learned counsel for the petitioner also referred to various decisions. They being:
1. Aslam Babalal Desai v. State of Maharashtra:
2. Samarendra Nath Bhattacharjee v. State of West Bengal and Anr.: V (2004)SLT 345.
3. Mohan Singh v. Union Territory, Chandigarh: 1978 Crl. L. J. 844
4. State (CBI) v. Ashok Kumar Aggarwal: 87 (2000) DLT 614
5. State and Ors. v. E. Veeramani: 1995 Crl. L.J. 184 The sum and substance of the arguments made by the learned counsel for the petitioner was that the grounds for grant of bail and rejection of bail on the one hand and cancellation of bail on the other stood on entirely different footings. Bail, once ranted, could only be cancelled on serious grounds, such as the order granting bail suffering from some perversity and/or the person who has been granted bail misusing the liberty so granted. According to the learned counsel for the petitioner, none of these situations arise in the present case.
4.The learned counsel for the complainant was heard. He argued that his objections to the grant of bail were two fold. His first point was that the petitioner by not disclosing the factum of rejection of bail by this Court on 12.5.2004 played a fraud upon the Court and such an individual could not be entertained by the Court at all and, therefore, by his conduct, he disentitled himself for the grant of bail and on this ground, the bail already granted ought to be cancelled. His second argument which is noted in the impugned order but not discussed is that even under the Proviso to Section 167(2) , the petitioner was not entitled to bail inasmuch as investigation was completed insofar as the petitioner is concerned though it remained incomplete sofar as the other co-accused was concerned. The learned counsel for the complainant also submitted before this Court that even the statutory period was not 60 days but 90 days. Unfortunately, this latter argument was not discussed by the Court below. The only ground on which the cancellation of bail has been granted was on the concealment of the factum of the rejection of bail by this Court on 12.5.2004
5. Even as per the statement of the complainant in the application itself as indicated above, the does not appear to be a clear cut case where one can say with the Court while granting the bail order on 21.5.2004 was unaware of the rejection of bail granted by this Court on 12.5.2004 Be that as it may, rejection of an application for bail which has been moved under Section 439 is quite different from releasing the petitioner in terms of the statutory provisions under Section 167(2). While Section 439 empowers the High Court and the Sessions Court to grant or refuse bail, those powers are discretionary powers. Section 167(2) does not allow for any discretion. This is a mandatory provision and whether bail has been granted or rejected under Section 439, if a case is made out for releasing the petitioner under Section 167(2) , then such person has to be released irrespective of the order passed under Section 439.
6. In this view of the matter, the order passed by the learned Metropolitan Magistrate which is impugned before me would have to be set aside. Accordingly, the impugned order dated 27.5.2004 is set aside. However, in view of the fact that the complainant's argument qua applicability of Section 167(2) were not considered by the learned Metropolitan Magistrate, it would be open to the complainant to move the learned Metropolitan Magistrate in this behalf.
5. The application stands disposed of.