Karnataka High Court
Sri Vivek Shetty vs State Of Karnataka on 5 March, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1839 OF 2022
BETWEEN:
1. SRI VIVEK SHETTY
S/O LT BALAKRISHNA SHETTY
AGED ABOUT 63 YEARS
COFFEE PLANTER
R/AT MALLIGE KHAN ESTATE KERE
KHAN ESTATE, HUNASEHALLI VILLAGE
CHIKKAMAGALURU TALUK - 577 101.
2. SRI BHARATHKUMAR KATEEL
S/O LATE BALAKRISHNA SHETTY
AGED ABOUT 62 YEARS
COFFEE PLANTER
R/AT NO.5A, KAMBLA HEIGHTS
KADRI, KAMBALA ROAD, KADRI
BALAJI POST,
MANGALURU - 574 142
D.K.DISTRICT.
... PETITIONERS
(BY SRI PRAKASH M.H., ADVOCATE)
AND:
STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT
2
THROUGH BALEHONNUR POLICE
CHIKKAMANGALURU TALUK
CHIKKAMANGALURU DISTRICT - 577 101.
... RESPONDENT
(BY SRI SHANKAR H.S., HCGP.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.,PRAYING TO A. SET ASIDE THE ORDER DATED 21.02.2022
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMANGALURU IN CRL.MISC.NO.580/2021 VIDE ANNEXURE
- A AND ETC.,
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question order dated 21.02.2022 passed in Crl.Misc.No.580/2021 by the Principal District and Sessions Judge at Chikkamagaluru, whereby the anticipatory bail that was granted to the petitioners in Crl.Misc.No.391/2021 dated 23.06.2021, was cancelled.
2. Heard Sri Prakash M.H., learned counsel for the petitioners and Sri Shankar H.S., learned High Court Government Pleader appearing for the respondent - State.
3. Facts germane for consideration of the present lis are as follows:
3
One late Ramakrishna Shetty, maternal uncle of the petitioners claims to have owned various movable and immovable properties in Chikkamagaluru and Mangaluru Districts. A registered Will dated 05.12.2020, becomes the subject matter of certain proceedings after the death of the said Ramakrishna Shetty. The claimants of the properties belonging to the aforesaid uncle are the members of the family which include the petitioners also. A complaint came to be registered by one Sri Roopkumar Kateel on 11.06.2021 against the petitioners herein. On registration of the complaint in Crime No.46 of 2021 for the offences punishable under Sections 504, 448, 451, 307, 323, 109, 506 of IPC and Section 34 of IPC and Section 25 (1B)(a) of the Indian Arms Act, 1959, the petitioners apprehending arrest moved an application for grant of anticipatory bail under Section 438 of Cr.P.C. in Crl.Misc.
No.391/2021, before the learned Sessions Judge, Chikkamagaluru. The learned Sessions Judge considering 4 Crl.Misc.No.391/2021 granted anticipatory bail imposing certain conditions.
4. When the petitioners had been granted such anticipatory bail another crime came to be registered on the complaint made by other family members with regard to taking away of vehicles. The said complaint became a FIR in Crime No.65 of 2021 for offences punishable under Sections 427, 447, 506 read with Section 149 of the IPC. The moment the second crime was registered, the petitioners approached this Court in Crl.P.No.7840/2021. This came to be disposed of by an order of this Court on 26.11.2021, declining to interfere with the said registration of crime.
5. The State moved an application for cancellation of bail that was granted on the score that another crime in Crime No.65/2021 is registered and, therefore, anticipatory bail that was granted in Crl.Misc.No.391/2021 be recalled/cancelled. This application was filed in Crl.Misc.No.580 of 2021. The learned Sessions Judge hearing the criminal miscellaneous 5 petition filed under Section 439(2) of the Cr.P.C. directed cancellation of bail on the ground that the petitioners were involved in another crime in Crime No.65 of 2021 after grant of anticipatory bail as they have violated conditions of bail and therefore, the bail that is granted is ordered to be cancelled. It is this order that is called in question by the petitioners in the subject petition filed under Section 482 of the Cr.P.C.
6. Learned counsel for the petitioners would vehemently contend that personal liberty that is once granted cannot be taken away without any cogent reasons that is, on the strength of cancelling the bail and taking away such liberty. Reliance in this regard is placed on the following judgments:
a. PURAN SINGH VS. RAMBILAS AND ANOTHER reported in AIR 2001 SC 2023;
b. MS. X VS. THE STATE OF TELANGANA AND ANOTHER reported in AIR 2018 SC 2466;
c. MAHANTESH VS. STATE OF KARNATAKA reported in 2019 0 Supreme (Kar) 779; and d ASLAM BABALAL DESAI VS. STATE OF MAHARASHTRA reported in AIR 1993 SC 1.
6The learned counsel would further emphasize that the petitioners have not violated any bail conditions that were imposed while granting bail inasmuch as the vehicles that were taken away did belong to them in terms of a transfer made by a competent authority and would seek restoration of anticipatory bail that was granted in Crl.Misc.No.391/ 2021.
7. The learned High Court Government Pleader would vehemently refute the submissions and contends that a petition under Section 482 would not be maintainable against an order of cancellation of bail under Section 439(2) of the Cr.P.C. The petitioners will have to file a petition under Section 438 of Cr.P.C. again, before this Court if they seek to challenge the order of cancellation of bail. He further submits that the petitioners could not have got themselves involved in any of the offences including the offences alleged in the present complaint and he would submit that admittedly, the petitioners did get involved in the subsequent crime in Crime No.65 of 2021. It is for that reason the learned High Court Government Pleader 7 would submit that misuse of bail condition has led to passing of the impugned order, which may not be interfered with in this petition.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the issues that fall for my consideration are -
(i) Whether a petition under Section 482 of the Cr.P.C.
would be maintainable against an order of the Sessions Judge cancelling bail under Section 439(2) of the Cr.P.C.?
(ii) Whether the order cancelling anticipatory bail that was granted earlier is sustainable in law? Re. Issue No.1: Whether a petition under Section 482 of the Cr.P.C. would be maintainable against an order of the Sessions Judge cancelling bail under Section 439(2) of the Cr.P.C.?
9. It is trite law that this Court while exercising its inherent jurisdiction under Section 482 of the Cr.P.C. is not precluded from considering a petition challenging an order of cancellation of bail under Section 439(2) of the Cr.P.C. In other words, the statute does not put any fetter on the exercise of 8 jurisdiction under Section 482 of the Cr.P.C. even on an order challenging cancellation of bail. The Apex Court in the case of PURAN SINGH (supra) has held as follows:
"17. We see no substance in this submission. In the hierarchy of Courts, the High Court is the Superior Court. A restrictive interpretation which would have effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of Orders passed by the Court of Sessions. Of course cancellation of bail has to be on principles set out hereinabove and only in appropriate cases.
18. Further, even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self- imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified."
(Emphasis supplied) In the light of the judgment rendered by the Apex Court, it is the discretion of this Court while exercising its jurisdiction under 9 Section 482 of the Cr.P.C., which is self-imposed and cannot be denied that for securing ends of justice this Court could interfere with the order which causes miscarriage of justice or which is palpably illegal. The judgment in the case of PURAN SINGH (supra) is also followed subsequently by the Apex Court in GULAB RAO BABURAO DEOKAR v. STATE OF MAHARASHTRA reported in (2013) 16 SCC 190, wherein the Apex Court has held as follows:
"29. We must note one more objection raised on behalf of the appellant, namely, that Respondents 2 to 4 had no locus to file an application seeking cancellation of bail. It is contended that Respondents 3 and 4 had not even filed any application before the trial court. They later on joined Respondent 2 to move the High Court by filing SLP (Crl.) application to quash and set aside the order granting bail. Mr Marlapalle, learned Senior Counsel and Ms Kamini Jaiswal learned counsel appearing for these respondents pointed out in reply that the criminal application filed in the High Court was moved under Section 439(2) read with Section 482 CrPC. Para 2 of the said criminal application stated as follows:
"2. The applicants submit that they are residents of Jalgaon. They are citizens of India. They are taxpayers. They are beneficiaries of various policies and 10 amenities provided by the Municipal Corporation to the citizens of Jalgaon. The applicants are victims of the offence committed by Respondent 2 along with other accused. The applicants have locus standi to seek the cancellation of the bail granted to Respondent 2 and the other accused persons."
30. It was submitted by these learned counsel that Respondent 2 had appeared before the Sessions Judge to assist the prosecution, which is recorded in the order passed granting bail. As far as filing of the aforesaid criminal application before the High Court by Respondents 2 to 4 is concerned, the same has not been specifically objected to in the High Court, and therefore, there was no occasion for the High Court to look into any such objection. Now, this objection is being raised in this Court.
The learned counsel submitted that Respondents 2 to 4 had invoked the inherent jurisdiction of the High Court under Section 482 CrPC, and the power of the High Court to entertain such an application has been upheld by this Court in para 17 of Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] . In that matter bail had been granted by the Sessions Court, and the bail order was cancelled by the High Court, not on any petition by the State, but on one filed by the complainant invoking Sections 439(2) and 482 CrPC.
31. In our view the objection raised by the appellant cannot be sustained in view of what is 11 observed by this Court in para 17 in Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] which reads as follows : (SCC p. 347) "17. Further, even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified (Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 :
1978 SCC (Cri) 10] and Krishnan v.
Krishnaveni [(1997) 4 SCC 241 :
1997 SCC (Cri) 544] )."
(Emphasis supplied) Therefore, the submissions of the learned High Court Government Pleader that a petition under Section 482 of the Cr.P.C. would not be maintainable to consider challenge to an order passed under Section 439(2) of Cr.P.C. is untenable and therefore, the issue is answered in favour of the petitioners.12
Re. Issue No.2: Whether the order cancelling anticipatory bail that was granted earlier is sustainable in law?
10. The afore-narrated facts, dates and events not being in dispute, are not reiterated. The dispute is with regard to both movable and immovable properties which became the subject matter of civil proceedings. The civil proceedings are pending adjudication before the competent civil Court. A criminal case is registered against the petitioners in crime No.46/2021 for the offences as afore-quoted. The moment the crime is registered, the petitioners filed an application under Section 438 of Cr.P.C.
for grant of anticipatory bail. The Session Judge granted anticipatory bail imposing the following conditions:
"(1) They shall surrender before the respondent police, within 15 days from the date of this order, failing which this order automatically stand cancelled.
(2) They shall not tamper with prosecution witnesses and evidence.
(3) They shall co-operate with the Investigating Officer during investigation.13
(4) They shall not involve in any offences including the offences alleged in the present complaint.
(5) They shall attend the court on all the dates of hearing.
(6) They shall appear before the jurisdictional police to mark their attendance once in two months, commencing from 3rd Sunday, of July 2021 between 10.00 a.m. to 5.00 p.m. till charge sheet is filed."
As per condition No.4 afore-extracted, the petitioners ought not to get involved in any of the offences including the offences alleged therein. The intervening incident that happened is that, the petitioners who had applied for change of transfer of ownership of the vehicles, immovable properties of their maternal uncle on the strength of the Will, which is subject matter of civil proceedings, made an attempt to take away the vehicles. This resulted in other members of the family who are also staking claim of the properties of the deceased and are also parties in the civil suit, registration of criminal case in Crime No.65/2021 alleging afore-quoted offences. On registration of the said crime, the State moved the Sessions Court by filing 14 Crl.Misc.No.580 of 2021 seeking cancellation of anticipatory bail. The application moved by the State seeking cancellation of bail if perused, would indicate that the only reason given is, registration of a subsequent crime. The reason as found in the application is quoted hereunder for the purpose of quick reference:
"eÁ«ÄãÀÄ gÀzÀÝwUÉ PÁgÀtUÀ¼ÀÄ
1. ¸ÀzÀj ªÉÆ.£ÀA.46/21 gÀ°è ¥ÀæPÀgÀtzÀ°è DgÉÆæUÀ½UÉ WÀ£À £ÁåAiÀiÁ®AiÀĪÀÅ eÁ«ÄãÀÄ ¤ÃqÀĪÁUÀ, AiÀiÁªÀÅzÉà PÀÈvÀåzÀ°è ¨sÁVAiÀiÁUÀzÀAvÉ ¸ÁQëzÁgÀjUÉ ¨ÉzÀj¸ÀzÀAvÉ, ºÁUÀÆ wAUÀ½UÉ MAzÀÄ ¨ÁjAiÀÄAvÉ 2 wAUÀ¼À PÁ® CAzÀgÉ CAwªÀÄ ªÀgÀ¢AiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¸ÀĪÀªÀgÉUÉ oÁuÉUÉ ºÁdgÁUÀĪÀAvÉ DzÉñÀ«zÀÝgÀÆ ¸ÀºÀ ¸ÀzÀj DgÉÆæUÀ¼ÀÄ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß G®èAWÀ£É ªÀÄr oÁuÉUÀÆ ºÁdgÁUÀzÉà EgÀĪÀÅzÀÄ ºÁUÀÆ ¢£ÁAPÀ 05-08- 2021gÀAzÀÄ ¨É½UÉÎ 9-00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è G¯ÉèÃR-1 gÀ ¥ÀæPÀgÀtzÀ°è£À ¦gÁå¢ gÀÆ¥ÀPÀĪÀiÁgï PÀnïï gÀªÀgÀÄ M§âgÉ ªÀÄ£ÉAiÀÄ°ègÀĪÁUÀ ¸ÀzÀj DgÉÆæUÀ¼ÀÄ ªÁºÀ£ÀUÀ¼À°è vÀ£Àß ¸ÀºÀZÀgÀgÀÄUÀ¼À£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ KPÁKQ PÀÈvÀå £ÀqÉzÀ ¸ÀܼÀªÁzÀ ªÀÄ°èUÉSÁ£ï J¸ÉÖÃmï §½ ºÉÆÃV ªÀÄ°èUÉ SÁ£ï J¸ÉÖÃmï£À UÉÃmï ©ÃUÀ MqÉzÀÄ M¼À ¥ÀæªÉñÀ ªÀiÁr J¸ÉÖÃmï £À ªÁºÀ£ÀzÀ ±Éqï ©ÃUÀ MqÉzÀÄ ªÁºÀ£ÀzÀ ±Éqï£À°èzÀÝ 1.¥sÉUÀÄðµÀ£ï mÁæPÀÖgï £ÀA§gï PÉJ18/n-1661-PÉJ 18/n-181. 2.¨ÉAeï PÁgÀÄ £ÀA§gï PÉJ 18/¦-9799 ªÀÄvÀÄÛ 3. fÃ¥ï £ÀA§gï PÉJ-18-JA 5678 £ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛgÉ F §UÉÎ ¤ÃrzÀ ¦gÁå¢ gÀÆ¥ÀPÀĪÀiÁgï PÀnïï gÀªÀgÀÄ oÁuÉUÉ ºÁdgÁV ¤ÃrzÀ zÀÆj£À ªÉÄÃgÉUÉ «ªÉÃPÀ ±ÉnÖ ªÀÄvÀÄÛ ¨sÀgÀvï PÀĪÀiÁgï PÀnÃ¯ï ºÁUÀÆ CªÀgÀ ¸ÀºÀZÀgÀgÀÄUÀ¼À ªÉÄÃ¯É ¢£ÁAPÀ: 04-08-2021 gÀAzÀÄ PÀÈvÀå J¸ÀVzÀÄÝ, F §UÉÎ ¢£ÁAPÀ:05-08-2021 gÀAzÀÄ ¨Á¼ÉºÉÆ£ÀÆßgÀÄ ¥Éưøï oÁuÁ PÉæöÊA.£ÀA.65/21 gÀ PÀ®A:472, 447, 506 gÉ/« 149 L¦¹ gÀr ¥ÀÄ£À: CzÉà ¦gÁå¢AiÀÄ ªÉÄÃ¯É C¥ÀgÁzsÀ J¸ÀVzÀÄÝ, PÉæöÊA.£ÀA.46/21 gÀ eÁ«ÄãÀÄ DzÉñÀ G®èAWÀ£É DVgÀÄvÀÛzÉ.
2. ¸ÀzÀj DgÉÆæUÀ¼ÀÄ DyðPÀªÁV ªÀÄvÀÄÛ gÁdQÃAiÀĪÁV §¯ÁqsÀågÁVzÀÄÝ, £ÁåAiÀiÁ®AiÀĪÀÅ µÀgÀvÀÄÛ §zÀÝ eÁ«ÄãÀ£ÀÄß DgÉÆæUÀ½UÉ ¤ÃrzÀÝgÀÆ ¸ÀºÀ WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß G®èAWÀ£É ªÀiÁrgÀĪÀÅzÀÄ ºÁUÀÆ PÁ£ÀƤUÉ 15 UËgÀªÀ PÉÆqÀzÉ, DgÉÆæUÀ¼ÀÄ ¥ÀÄ£À: PÀÈvÀåªÉ¸ÀV, ¦gÁå¢UÉ ¨sÀAiÀĪÀ£ÀßAlÄ ªÀiÁrgÀĪÀÅzÀjAzÀ ºÁUÀÆ DgÉÆæUÀ¼ÀÄ ªÀÄÄA¢£À ¢£ÀUÀ¼À°èAiÀÄÆ ¸ÀºÀ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß wgÀ¸ÀÌj¹, ¥ÀzÉà ¥ÀzÉà PÀÈvÀåªÉ¸ÀV PÁ£ÀÆ£ÀÄ ¸ÀĪÀåªÀ¸ÉÜUÉ zsÀPÉÌ GAlÄ ªÀiÁqÀĪÀ ¸ÁzsÀåvÉ EgÀĪÀÅzÀjAzÀ, ªÉÄîÌAqÀ DgÉÆæUÀ½UÉ WÀ£À £ÁåAiÀiÁ®AiÀĪÀÅ ªÀÄAdÆgÀÄ ªÀiÁrgÀĪÀ µÀgÀvÀÄÛ §zÀÞ eÁ«ÄãÀ£ÀÄß gÀzÀÄÝ ªÀiÁqÀ®Ä ºÁUÀÆ ªÀÄÄA¢£À DzÉñÀPÁÌV PÉÆÃj ªÀgÀ¢AiÀÄ£ÀÄß WÀ£À £ÁåAiÀiÁ®AiÀÄPÉÌ ¤ªÉâ¹PÉÆArzÀÄÝ, WÀ£À £ÁåAiÀiÁ®AiÀĪÀÅ ªÀgÀ¢AiÀÄ£ÀÄß ¥ÀgÁA¨sÀj¸À®Ä PÉÆÃjzÉ.
3. EzÀgÉÆA¢UÉ ªÉÄîÌAqÀ DgÉÆæUÀ½UÉ ªÀÄAdÆgÀÄ DVgÀĪÀ Q«Ä¸ï.£ÀA.391/21 ¢£ÁAPÀ: 26-3-2021 gÀ 1. ªÀiÁ£Àå ¥ÀæzsÁ£À f¯Áè ªÀÄvÀÄÛ ¸ÀvÀæ £ÁåAiÀiÁ®AiÀÄzÀ eÁ«ÄãÀÄ DzÉñÀzÀ ¥Àæw £ÀPÀ®Ä, 2) ªÉÆ.£ÀA.46/21 ¥Àæ.ªÀªÀgÀ¢ ºÁUÀÆ zÀÆj£À £ÀPÀ®Ä ¥Àæw. 3. ªÉÆ.£ÀA. 65/21 gÀ ¥Àæ.ªÀªÀgÀ¢ ºÁUÀÆ zÀÆj£À £ÀPÀ®Ä ¥ÀæwAiÀÄ£ÀÄß ®UÀwÛ¹zÀÄÝ EgÀÄvÀÛzÉ.
F ªÉÄïÁÌt¹zÀ J¯Áè PÁgÀtUÀ½AzÀ ºÁUÀÆ C©üAiÉÆÃd£ÉAiÀÄÄ ªÁzÀzÀ ªÉüÉAiÀÄ°è - ¸À°è¸À§ºÀÄzÁzÀ EvÀgÉ PÁgÀtUÀ½AzÀ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è ªÀiÁ£Àå aPÀ̪ÀÄUÀ¼ÀÆj£À ªÀiÁ£Àå ¥ÀæzÁs £À f¯Áè ªÀÄvÀÄÛ ¸ÀvÀæ £ÁåAiÀiÁ®AiÀĪÀÅ Qæ.«Ä¸ï.391:2021 gÀ°è ¢£ÁAPÀ 23-06-2021 gÀAzÀÄ JzÀÄgÀÄzÁgÀ 1 ªÀÄvÀÄÛ 2£Éà DgÉÆævÀjUÉ zÀA.¥Àæ.¸ÀA. PÀ®A 438 gÀrAiÀÄ°è eÁ«ÄãÀÄ ªÀÄAdÆgÀÄ ªÀiÁr ¤ÃrzÀ DzÉñÀªÀ£ÀÄß gÀzÀÄÝUÉƽ¸À¨ÉÃPÉAzÀÄ £ÁåAiÀÄzÁ£ÀzÀ «±Á®»vÀzÀȶ֬ÄAzÀ C©üAiÉÆÃd£ÉAiÀÄÄ WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ°è «£ÀAw¸ÀÄvÀÛzÉ."
The petitioners filed a criminal petition before this Court in Crl.P.No.7840/2021 calling in question registration of Crime No.65/2021, which came to be dismissed by an order of this Court on 26.11.2021 declining to interfere with the registration of the crime at that stage. The State moved an application in Crl.Misc.No.580/2021 seeking cancellation of the anticipatory bail on the ground that the petitioners had violated bail 16 conditions and one such condition was, condition No.4 registration of crime in Crime No.65/2021 had happened. The tenability of cancellation of the bail is what requires to be considered at the hands of this Court.
11. An order of cancellation of bail is to be done on an analysis of various circumstances not only, on the violation of the conditions of the bail. The violation of condition No.4 is, registration of a subsequent crime against the petitioners for offences of mischief, trespass and intimidation under Sections 427, 447 and 506 of the IPC. Whether registration of a subsequent crime would be a reason for taking away the personal liberty that was granted by way of anticipatory bail is also answered by the Apex Court in the judgment rendered in the case of MR. X VS. STATE OF TELANGANA AND ANOTHER reported in AIR 2018 SC 2466, at paragraphs 13 to 15, which read as follows:
"13. The decision in Rajballav Prasad [State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178 : (2017) 1 SCC (Cri) 678] emphasises that while the liberty of the 17 subject is an important consideration, the public interest in the proper administration of criminal justice is equally important: (SCC p. 193, para 26) "26. ... undoubtedly the courts have to adopt a liberal approach while considering bail applications of the accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations."
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 Dolat Ram v. State of Haryana [Dolat Ram v. State of Haryana, (1995) 1 SCC 349 :
1995 SCC (Cri) 237] observed that: (SCC pp. 350-51, para 4) 18 "4. Rejection of 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 bail, broadly (illustrative and not exhaustive) 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 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 CBI v. Subramani Gopalakrishnan [CBI v. Subramani Gopalakrishnan, (2011) 5 SCC 296 : (2011) 2 SCC (Cri) 618] and more recently in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675 : (2018) 2 Scale 285] :
(Subramani case [CBI v. Subramani Gopalakrishnan, 19 (2011) 5 SCC 296 : (2011) 2 SCC (Cri) 618] , SCC pp.
303-04, para 23) "23. It is also relevant to note that there is difference 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."
(Emphasis supplied) A Co-ordinate Bench of this Court in Crl.P.No.200802/2019 has held as follows:
20
"5. On 26.01.2019 'X' filed another complaint before the respondent-Police alleging that on 16.01.2019 at 8.00 p.m., when she had gone to the outskirts of the village to attend the nature's call, the petitioner wrongfully restrained her, abused her in foul language for prosecuting him, dragged her and assaulted her.
6. On the basis of such complaint, the respondent-Police registered Crime No.46/2019 against the petitioner. After registration of said case, the Special Public Prosecutor moved an application before the trial Court in Special Case (POCSO) No.52/2018 under Section 439(2) Cr.P.C., for cancellation of bail on the ground of intimidation to victim child. The Special Court by the impugned order dated 27.06.2019 cancelled the bail on the ground that the fact of filing subsequent complaint in Crime No.46/2019 would show that the petitioner is threatening the victim child, abusing the bail granted to him.
7. The learned counsel for the petitioner seeks to challenge the impugned order of cancellation of bail on the following grounds:
i. There was ten days delay in filing the complaint.
ii. Though the complaint was registered on 26.01.2019, so far no charge sheet is filed.
iii. Subsequent complaint in Crime No.46/2019 was designed to create a ground for cancellation of bail and that is not the supervening circumstance to the extent of taking extreme step of cancellation of bail.21
8. Per contra, Sri Mallikarjun Sahukar, learned High Court Government Pleader and Sri Shivanand V. Pattanshetti, learned counsel representing the victim submit that already the petitioner has assaulted the victim for the second time and if the impugned order is quashed, that causes injustice to the victim and fair trial is not possible.
9. There is no dispute that though the complaint was registered on 26.01.2019 since about eight months no charge sheet is filed in Crime No.46/2019.
There was ten days delay in filing the complaint. In Ms. X Vs. The State of Telangana and another 2018(3) Crimes 24 (SC) relied upon by the learned counsel for the petitioner, the facts and circumstances were similar. In the said judgment, it was held that it is a settled principle of law that bail once granted should not be cancelled unless cogent case based on supervening event has been made out.
10. In the case on hand, the application for cancellation of bail was moved by the Special Public Prosecutor. The affidavit of the victim girl was also not filed to substantiate the allegations. She has not moved the application. There was delay in filing the complaint as well as in filing the application for cancellation of bail.
11. The very fact of respondent-Police not filing the charge sheet for about eight months in the subsequent case runs counter to the material produced by the prosecution being cogent. Under the circumstances, the trial Court was in error in holding that registration of subsequent complaint is supervening circumstance of the 22 degree attracting the cancellation of bail. Therefore, the petition is allowed.
12. The impugned order of cancellation of bail dated 27.06.2019 passed by II-Additional Sessions Judge/Special Judge, Vijayapur, in Special Case (POCSO) No.52/2018 is hereby quashed with a condition that till the trial is completed, petitioner shall not visit Nandageri village where the victim resides and Sungatana village where she studies. The said condition is in addition to the conditions which were imposed in the order granting bail to the petitioner.
13. If, at all, the petitioner violates any of the bail conditions in future, it is open to the concerned to seek appropriate relief."
(Emphasis supplied) In the light of the judgments rendered by the Apex Court and this Court in the afore-extracted cases, what would unmistakably emerge is that, once bail is granted, such grant of anticipatory bail can be cancelled, only if the non-cancellation of bail would result in interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade due course of justice and on gross abuse of the concessions granted to the accused in any manner. In other words, bail once granted should not be cancelled, in a 23 mechanical manner, unless the Courts come to conclude that the supervening circumstances would render it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concessions of bail during the trial. This is the unmistakable purport of the judgments rendered by the Apex Court and that of this Court.
12. In the case at hand, the registration of another crime for offences punishable under Sections 427, 447 and 506 of IPC, in my considered view, would not be such a supervening circumstance, as narrated hereinabove, that would entail taking away the personal liberty that was granted.
13. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petition is allowed and the order dated 21.02.2022 in Crl.Misc.No.580/2021, passed by the Principal District and Sessions Judge, Chikmagaluru, stands quashed.24
(ii) The anticipatory bail that was granted in Crl.Misc.No.391/2021 dated 23.06.2021, under Section 438 of Cr.P.C. stands restored with the conditions that were imposed earlier.
(iii) If at all the petitioners violate any of the bail conditions in future, it would be open to the concerned to seek such appropriate relief for cancellation of bail.
Sd/-
JUDGE nvj CT:MJ