Patna High Court - Orders
Ram Ekbal Rai vs The State Of Bihar & Anr on 22 November, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.4443 of 2011
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Ram Ekbal Rai S/O Late Hansraj Rai Resident Of Village- Parsurampur,
P.S- Raghunathpur, District- Siwan (Bihar)
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Praduman Rai S/O Late Janki Rai Resident Of Village- Parsurampur,
P.S- Raghunathpur, District- Siwan (Bihar)
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Akhileshwar Prasad Singh, Sr.Adv.
Mr. Sanjay Pandey, Advocate.
For the State/s : Mr. Madan Kumar, Addl. P.P. Incharge.
For the O.P.No.2 : Mr. Y.V.Giri, Sr. Advocate.
Mr. Umesh Kumar Mishra, Advocate.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR
TRIVEDI
C.A.V ORDER
7 22-11-2013Instant petition has been filed by the complainant/petitioner in terms of Section 439(2) of the Cr.P.C. praying therein to cancel the order of granting bail as well as bail bond in pursuance of dated 06.12.2010 passed by Additional Sessions Judge, Ist, Siwan in Sessions Trial No.527 of 2010 arising out of Complaint Case No.82 of 2006 to the Opposite Party No.2 Praduman Rai.
2. Before coming to the main issue, the brief facts of the case is to be taken note of for proper appreciation of merits of the case. Petitioner/informant/complainant Ram Ekbal Rai had given his fardbeyan on 15.11.1999 at about 1.45 P.M. disclosing therein that during course of gossip along with Janardan Rai, Ramjee Rai, Jaimangal Rai at his Darwaja, Sudama Singh, 2 Praduman Rai armed with country made gun, Pramod Rai, armed with country made gun, Manan Rai came and enquired about Brajbhushan @ Munna(deceased)who, till then was inside the house. He came out and seeing whom, Sudama and Manan ordered over which Praduman had repeatedly shot at causing instantaneous death.
3. Raghunathpur P.S.Case No.71 of 1999 was registered, and during midst of investigation, the case was taken up by the CID and on the plea of alibi, Opposite Party No.2 Praduman Rai along with Sudama Rai was not sent up for trial while chargesheet was submitted against the remaining two. However, a protest petition was there. Other intervening circumstances are not required to be detailed save and except, the Hon'ble Apex Court in S.L.P.(Crl.)No.1660 of 2005 (Annexure-
8)had directed to proceed with the protest petition and on account thereof treating the protest as complaint an enquiry under Section 202 of the Cr.P.C., commenced whereupon Opposite Party No.2 along with co-accused were summoned to face trial. It is also evident from Annexure-12 as well as Annexure-13, prayer for anticipatory bail made on behalf of the petitioner found rejected by this Court as well as by the Hon'ble Apex Court. Subsequently thereof, after expiry of so many years, petitioner surrendered and was under custody only for few days when by the order impugned, he has been granted bail and on account thereof, the order 3 impugned has been brought up under challenge.
4. It has been submitted on behalf of the petitioner that order itself suggests that it is suffering from arbitrariness portion as well as collusiveness. It has further been submitted that Praduman Rai, Opposite Party No.2 is sole person against whom there happens to be specific allegation that he made successive firing causing death of deceased Brajbhushan @ Munna. It has also been submitted that the postmortem report clearly speaks with regard to presence of gun shot injury over the dead body of deceased which happens to be ante-mortem in nature and was sufficient to cause death. In spite of that, the learned Lower Court had not mentioned the allegation and to justify the granting of bail, picked up and pasted in his order the last concluding portion of the fardbeyan having no concern with the allegation which had already been detailed against each of the accused at relevant place in the fardbeyan which they had played at the time of commission of the occurrence. The conduct of the P.O. concerned at the relevant moment speaks that the learned Presiding Officer was found influenced one way or the other and under such hidden theme, the learned P.O. intentionally left out to mention the fact that petitioner caused the main allegation being author of the fatal injuries.
5. It has also been submitted that though mode of consideration of prayer having under Section 438 as well as 439 of 4 the Cr.P.C. are clearly distinct and different but the fact remains that the prayer of anticipatory bail on behalf of the petitioner found rejected from the court of the Apex Court which had again purposely been left out to be incorporated in the order impugned. To explain such situation, it has been submitted on behalf of the petitioner that it has purposely been left out. Because of the fact that plea of ailment was neither taken before the High Court nor before the Apex Court as is evident from the relevant orders itself. However taken a ground while granting bail. And the second point that even after rejection, the Opposite Party No.2 evaded his presence from the court for years together and for that there happens to be no cogent and legal explanation.
6. It has further been submitted that the delay during continuance of litigation is found relieved finally on account of direction by the Hon'ble Apex Court to the Lower Court to proceed independently on the basis of the protest/complaint petition while considering the prayer of the Opposite Party No.2 and after conduction of an enquiry under Section 202 of the Cr.P.C, Opposite Party No.2 along with co-accused was summoned to face trial for an offence punishable under Section 302 of the IPC and 27 of the Arms Act and on account thereof, the learned Lower Court should have considered the background of litigation, refusal of prayer of anticipatory bail, nature of allegation, authenticity of the medical report which the order 5 impugned lacks. Therefore, the finding of the learned Lower Court on that very score happens to be contrary to the fact and circumstances of the case
7. Now coming to the propriety of the medical report submitted by the Opposite Party No.2, and taken as major ground for grant of bail, it has been submitted that some of it happens to be before the date of rejection of prayer for anticipatory bail by the successive Superior Courts while rest, as found happens to be in its continuity and on account thereof, those documents should not have been considered by the learned Trial Court as from the successive orders, no such reference is found. In the aforesaid background it has been submitted that all the documents happens to be forged and collusive one. Also relied upon 2010(14) SCC 496, 2012(12) SCC 150, 2013(3) PLJR 180(SC).
8. The learned Additional P.P. endorsed the view and submitted that the order impugned did not justify its continuance because of the fact that it gives perception of preen.
9. Learned counsel for the Opposite Party No.2 has submitted that since after release vide order dated 06.12.2012, no allegation of any sort has been alleged against the Opposite Party No.2 and on account thereof, his being on bail cannot be said to be prejudicial to the interest of prosecution.
10. It has further been submitted that after submission of charge sheet, the case was virtually bifurcated in two parts. The 6 first one proceeded on the basis of police case as a result of which Sessions Trial No.257 of 2009 is running on while on the basis of the complaint petition, Sessions Trial No.527 of 2010, the present one stands. It has also been submitted that in Sessions Trial No.257 of 2009 all the witnesses have already been examined save and except informant and I/O and during course thereof, none of the witnesses have had supported the case of the prosecution. Therefore, in the changed factual scenario, there happens to be no justification in entertaining the prayer of the petitioner confining to the extent of cancellation of bail.
11. Moreover, further elaborating the argument on this very score, it has been submitted that for the purpose of cancellation of bail, the criterias have already been fixed by the Hon'ble Apex Court and the prayer so made on behalf of the petitioner with regard to cancellation of bail of Opposite Party No.2 did not come within the purview of any of the ingredients. As such, the prayer for cancellation of bail so made on behalf of the petitioner cannot survive furthermore.
12. It has also been submitted that in the changed circumstances whereunder the prosecution witnesses are not at all inclined to support the case of the prosecution and further having availing the privilege for such long period without having any sort of complaint from any corner also did not justify the cancellation of bail.
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13. It has also been submitted that from the documents itself which the petitioner himself annexed, it is apparent that petitioner, though was named as sole assailant, was not sent up for trial by the CID. Since thereafter much water had flown and then on the basis of the protest/complaint petition followed with an enquiry under Section 202 of the Cr.P.C., petitioner along with other were summoned and in the aforesaid background, there happens to be a prima-facie material in his favour on account of not being sent up during course of police investigation and as such, the version of the prosecution to that extent arraying the petitioner to be sole assailant have been doubted. In the aforesaid background granting of bail to the petitioner was not at all suffering from any sort of infirmity. Therefore, the order impugned did not justify any sort of interference. Also relied upon decisions reported in 1984 AIR SC 372, 1993 AIR SC 1.
14. Granting of bail as well as cancellation of bail are two distinct events. Both have got independent identity as well as mode of consideration. In State through Deputy Commissioner of Police, Special Branch, Delhi v. Jaspal Singh Gill reported in (1984) 3 SCC 555, the criteria for consideration of material during consideration of prayer for bail has been enumerated under para-9 in following words:-
" ....... I have also gone through the decisions of this Court in Gurcharan Singh v. State (Delhi Administration) (1978) 2 SCR 358 and Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (1978) 2 SCR 8 371 which deal with the principles governing the grant of bail. It may be mentioned here that in the last of the above cases, the accused had been acquitted by the trial court but convicted by the High Court on appeal. On a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations."
15. In Kalyan Chandra Sarkar v. Rajesh Ranja alias Pappu Yadav and Another reported in (2004) 7 SCC 528, it has been held in para-11:-
" The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the Court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh and others (2002 (3) SCC 598) and Puran Vs. Rambilas and another (2001 (6) SCC 338)."
16. In the Kalyan Chandra Sarkar (Supra) it has also 9 been held that period of incarceration is no ground to release the petitioner on bail, it has been held in para-14:-
"We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records when the seventh application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No.745/2001 dated 25th July, 2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(1)(1) of the Code. This Court also in specific terms held that condition laid down under Section 437 (1)(1) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
17. The cancellation of bail is the extraordinary power which is found incorporated under Section 437(5) as well as under 10
Section 439(2) of the Cr.P.C. The basic ingredients, as identified by the Hon'ble Apex Court by a catena of decisions are no.(i) when the person on bail commits the very offence or other offence for which he is being tried or has been convicted, (ii) when it is found that the accused is tampering with investigation, (iii) when the accused is found tampering with evidence, (iv) when the accused is found absconding or having gone out of control of sureties, (v) when the accused is found indulged in terrorizing the witnesses as well as committing act of violence, (vi) when it is found that subsequent event make out a graver offence than that of wherein he was granted bail, (vii) when the Superior Court found that there was a wrong exercise of judicial discretion while granting bail, (viii) when the circumstances are proved exposing misuse of bail availed by the accused.
18. For the present save and except impropriety in the order impugned, nothing has been alleged. On account thereof, the decision so cited and relied upon on behalf of Opposite Party No.2 as referred is not at all found to be in its proper application because of the fact that those decisions did not deal with the issue in hand.
19. In 2012 (12) SCC 180 Kanwar Singh Meena v.
State of Rajasthan and others, the same has been dealt with in following way:- para-6, 7, 8, 9 and 10.
"6. In Gurcharan Singh and others etc. v.
State (Delhi Administration) (1978) 1 SCC 118 the 11 appellant Gurcharan, who was Superintendent of Police, was charged along with other police personnel under Section 120-B read with Section 302 of the IPC. During the preliminary enquiry six alleged eye- witnesses, who were police personnel, did not support the prosecution case. However, after the FIR was lodged during the course of investigation, seven witnesses including the said six police personnel gave statements implicating appellant Gurcharan Singh. One eye-witness A.S.I. Gopal Das made a statement under Section 164 of the Code in favour of the prosecution. Learned Sessions Judge released appellant Gurcharan Singh on bail after observing that there was little to gain by him by tampering with the witnesses who had, themselves, already tampered with their evidence by making contradictory statements. Learned Sessions Judge further observed that after reviewing the entire material he was of the opinion that there was little probability of appellant Gurcharan Singh fleeing from justice or tampering with the witnesses. He noted that having regard to the character of evidence he was inclined to grant bail. The prosecution moved the High Court under Section 439 (2) of the Code for cancellation of the said order. The High Court inter alia observed that considering the nature of the offence and the character of the evidence, the reasonable apprehension of witnesses being tampered with and all other relevant factors, it had no option but to cancel the bail. The High Court observed that learned Sessions Judge did not exercise his judicial discretion on relevant well- recognized principles. An appeal was carried from the said order to this court.
7. This court In Gurucharan Singh observed that the powers of the High Court and the Sessions Court under Section 439 (1) of the Code are much wider than those conferred on a court other than the High Court and Sessions Court in respect of bail. However, certain considerations which have to be taken into account are common to all courts. This court noted that gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardizing his own life being faced with a grim prospect of a possible conviction in the case; of tampering witnesses; the history of the case as well as its investigation and such other relevant grounds will have to be taken into account. To ascertain whether 12 there is prima facie case against the accused, character of the evidence will have to be considered. While confirming the High Court's interference with the discretion exercised by the Sessions Court, this court expressed its displeasure about the unwarranted premature comments made by the Sessions Court on the merits of the case when at that stage it was only called upon to consider whether prima facie case was made out against the accused or not. This court particularly referred to statement of ASI Gopal Das, recorded under Section 164 of the Code and observed that this witness had made no earlier contradictory statement and the taint of unreliability could not be attached to his statement at that stage as was done by the Sessions Court. This court found that the Sessions Court was not alive to legal position that there was no substantive evidence recorded against the accused until the eye-witnesses were examined in the trial. Serious note was taken of the fact that the Sessions Court had not focused its attention on relevant considerations. The approach of the Sessions Judge was viewed as suffering from serious infirmity and cancellation of bail was endorsed.
8. In Puran v. Rambilas (2001) 6 SCC 338 the appellant therein was charged under Sections 498-A and 304-B of the IPC. The Additional Sessions Judge, Nagpur released the appellant therein, on bail. The High Court cancelled the bail granted to the appellant. The said order was under challenge before this court. It was argued that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already 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 bail already granted. It was argued that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course 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.
Reliance was placed on Dolat Ram v. State of Haryana in support of this submission. This court observed that in Dolat Ram, it was clarified that the above instances are merely illustrative and not exhaustive and one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime and that too without giving any 13 reasons. This court observed that such an order would be against the principles of law and, interest of justice would require that such a perverse order be set aside and bail be cancelled. This court found that inasmuch as the Sessions Court had ignored vital materials while granting bail, the High Court had rightly cancelled the bail. It was further observed that such orders passed in heinous crimes would have serious impact on the society and an arbitrary and wrong exercise of discretion by the trial court has to be corrected.
9. In Dinesh M.N. (S.P.) v. State of Gujarat, (2008) 5 SCC 66 the appellant therein, a police officer was involved in a case of fake encounter. Learned Sessions Judge released him on bail. It was evident from the bail order that learned Sessions Judge was influenced by the fact that the deceased was a dreaded criminal, against whom as many as 25 FIRs were lodged. An application for cancellation of bail was moved before the High Court under Section 439(2) of the Code. The High Court cancelled the bail holding that learned Sessions Judge had not kept in view the seriousness of the offence in which the high ranking police officer was involved. It was observed that past conduct or antecedents of the deceased could not have been a ground for grant of bail to the accused. This court while dealing with the challenge to the said order held that though it is true that parameters for grant of bail and cancellation of bail are different, if the trial court while granting bail acts on irrelevant materials, bail can be cancelled. It was observed that perversity of a bail order can flow from the fact that irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. On the facts of the case, this court held that that the deceased had a shady reputation and criminal antecedents, was certainly not a factor which should have been taken into consideration while granting bail to the accused. It was the nature of the act committed by the accused which ought to have been taken into consideration.
The order of the High Court was confirmed on the ground that the bail was granted on untenable grounds. The argument that supervening circumstances such as attempt to tamper with the evidence and interference with the investigation were absent and, therefore, bail could not have been cancelled by reappreciating evidence, was rejected by this court.
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10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this 15 court is equally guided by the above principles in the matter of grant or cancellation of bail.
20. In 2013(3) PLJR 140(SC) Central Bureau of Investigation v. Vijay Sai Reddy, it has been explained under para-9:-
"Let us consider the contentions put-forth by learned senior counsel for the CBI. It is settled by a series of decisions that if irrelevant materials have been taken into account or relevant materials have been kept out of consideration, the order granting bail to the accused cannot be sustained. In the same way, if there is specific allegation by the prosecution that the accused in question was a party to the criminal conspiracy, neither the Special Court nor the High Court is justified in granting bail to the said person. These principles have been reiterated vide State of U.P. through CBI vs. Amarmani Tripathi, (2005)8 SCC 21, para 31, Dinesh M.N.(S.P.) vs. State of Gujarat, (2008)5 SCC 66, para 27, Narendra K. Amin (Dr.) vs. State of Gujarat and Another, (2008)13 SCC 584, para 27, State of Maharashtra and Others vs. Dhanendra Shriram Bhurie and Others, (2009) 11 SCC 541, para 8, Central Bureau of Investigation, Hyderabad vs. Subramani Gopalakrishnan and Another, (2011)5 SCC 296, para 25."
21. In the backdrop of aforesaid consistent principle laid down by the Hon'ble Apex Court, now the allegation against the Opposite Party No.2 has to be looked into. It is evident that Opposite Party No.2 is the sole assailant of deceased Brajbhushan @ Munna. The postmortem happens to be consistent on that very score. In the aforesaid background, the other circumstances that means to say non forwarding of petitioner during course of police investigation, has got no relevance because of the fact that the case having been proceeded on the basis of the protest petition in 16 light of direction of the Hon'ble Apex Court, the non-examination of all the witnesses during course of 202 of the Cr.P.C enquiry, giving up some of the witnesses and having replaced by other at that very stage happens to be of no consequence because of the fact that right from inception of the proceeding, Opposite Party No.2 has been zenith with the allegation of being the sole assailant. The evidence of witnesses who were examined with regard to Sessions Trial No.257 of 2009 has got no relevance for the present purpose because of the fact that said evidence cannot be used along with the fact that the matter in hand relates with properiety of the order impugned which has been passed much before examination of witnesses in Sessions Trial No.257 of 2009.
22. Whether accused should be granted bail solely on medical ground, that has been subject to consideration in Bibhuti Nath Jha v. State of Bihar reported in (2005)12 SCC 286 para- 3,4,5:-
"3. The appellant is undergoing trial at Begusarai in Sessions Trial No.23 of 2003 arising out of Bachawara P.S. Case No.34 of 1999. He filed an application that he be treated at a reputed mental hospital as well as for grant of provisional bail. A Medical Board constituted under the directions of the High Court in its report dated 14-9-2004 recommended that the applicant be referred to RINPAS Kankey Mental Hospital at Ranchi for providing him Inpatient Psychiatric (Intensive Observation) Care. The High Court, however, rejected the prayer by observing that "However, whatever treatment is available in the State of Bihar will be provided to the petitioner". The prayer for bail was rejected by the impugned order, aggrieved against which, the present appeal has been filed.
4. A limited notice was issued by this Court on 5-1- 2005 as to why the appellant cannot be referred to RINPAS, Kankey, Ranchi, as no hospital for specialised 17 treatment to a mentally disturbed person was available in the State of Bihar.
5. Mr. B.B.Singh, learned counsel appearing for the State of Bihar does not object to the treatment to be provided at RINPAS, Kankey, Ranchi, as suggested by the Medical Board. Counsel for the appellant does not press for bail. Prayer for bail is declined."
23. Having gone through the order impugned, it is evident that the learned Lower Court had not taken into account the aforesaid prospect. The learned Lower Court had not even cared to mention the allegation. The learned Lower Court had not cared to mention the fact that prayer of the petitioner found rejected up to the Hon'ble Apex Court, in terms of Section 438 of the Cr.P.C., the order impugned did not speak that petitioner has got any sort of legal explanation regarding his such long absence even after rejection of anticipatory bail by the Hon'ble Apex Court and the worst thing that the learned Lower Court had tried to duped the matter by incorporating the last stranga of the fardbeyan which had nothing to do with the narration of the prosecution case.
24. The learned Lower Court should have taken pain to see the availability of proper treatment for the ailment whatever been pleaded by the petitioner in stead of relying over the same for grant of bail, which did not justify its genuineness because of the fact that successive orders relating to refusal of anticipatory bail did not divulge the same. Apart from this, period of incarceration happens to be no ground for grant of bail as held by the Hon'ble Apex Court in Sarkar case(supra). 18
25. As such, the order impugned is found suffering from judicial impropriety and on account thereof is set aside. Petition is allowed. Consequent thereupon, the privilege of bail granted through the order impugned in favour of Opposite Party No.2 is cancelled. Opposite Party No.2 is directed to surrender before the learned Lower Court immediately, failing which, the learned Lower Court will be at liberty to take proper legal recourse for having the appearance of the Opposite Party No.2 at an earliest.
26. Learned P.O. was show caused and his show cause is available on the record. After going through the same, it is not found unsatisfactory, hence rejected. From show cause it is also evident that P.O. had retired. As such, office is directed to place all relevant documents before the Standing Committee for proper consideration under its administrative side.
(Aditya Kumar Trivedi, J) Patna High Court, Dated 22nd November, 2013, Brajesh Kumar/AFR