Chattisgarh High Court
Chandra Kumar Jain vs State Of Chhattisgarh on 25 June, 2021
Author: Rajani Dubey
Bench: Rajani Dubey
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on : 25.02.2021
Order Passed on : 25.06.2021
CRMP No. 1686 of 2019
Chandra Kumar Jain S/o Nathmal Jain Aged About 58
Years R/o Durga Chowk, Killa Para, Rajnandgaon,
Chhattisgarh., District : Rajnandgaon, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through Police Station-Basantpur,
District- Rajnandgaon, Chhattisgarh., District :
Rajnandgaon, Chhattisgarh
2. Sunil Baradia S/o Dulichand Baradia, aged 58 years, R/o
Sadar Bazaar, Rajnandgaon, Chhattisgarh., District :
Rajnandgaon, Chhattisgarh
---- Respondents
CRMP No. 1685 of 2019 Chandra Kumar Jain S/o Nathmal Jain Aged About 58 Years R/o Durga Chowk, Killa Para, Rajnandgaon, Chhattisgarh.............(Complaint), District : Rajnandgaon, Chhattisgarh
---- Petitioner Versus
1. State Of Chhattisgarh Through Police Station Basantpur, District- Rajnandgaon, Chhattisgarh., District :
Rajnandgaon, Chhattisgarh
2. Pankaj Parakh S/o Prakash Chand Parakh Aged About 45 Years R/o Chaukhadiya Para, Rajnandgaon, Tehsil And District- Rajnandgaon, Chhattisgarh...........(Accused), District : Rajnandgaon, Chhattisgarh
---- Respondents CRMP No. 2223 of 2019 State Of Chhattisgarh Through Police Station Basantpur District Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
---- Petitioner 2 Versus Sunil Baradia S/o Dulichand Baradia Aged About 59 Years R/o Sadar Bazar, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
---- Respondent CRMP No. 2224 of 2019 State Of Chhattisgarh Through Police Station Basantpur, District Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
---- Petitioner Versus Pankaj Parakh S/o Prakash Chand Parakh, Aged About 45 Years R/o Choukhadiya Para, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
---- Respondent For Petitioner : Shri Abhishek Sinha, Advocate along with Mr. Anumeh Shrivastava, Advocates in CRMP Nos.1686/2019 and 1685/2019.
For Respondent/State : Shri H.S. Ahaluwalia, Dy. A.G. with Rakesh Sahu, Dy. G.A. for the State.
For Respondents/accused : Shri Kishore Bhaduri, Advocate along with Shri Sabyasanchi Bhaduri in CRMP No.16862019, 1685/2019, 2223/2019 and 2224/2019.
Hon'ble Smt. Justice Rajani Dubey CAV Order 25/06/2021
1. Since the aforesaid Criminal Miscellaneous Petitions arise out of the same order, they are being disposed of by this common order.3
2. The petitioners have filed these petitions under Section 439(2) of the CrPC praying for cancellation of anticipatory bail granted to respondent/accused namely Sunil Baradia and Pankaj Parak by an order dated 18.06.2019 passed by the learned Sessions Judge, Rajnandgaon (C.G.), in Bail Petition No.258/2019.
3. Briefly stated facts of the case are that an FIR under Sections 306 and 201/34 IPC was registered at Police Station Basantpur, District Rajnandgaon under Crime No.151/2019 against the accused/respondents namely Sunil Baradia and Pankaj Parakh, respondent No.2 in CRMP No.1686/2019, CRMP No.1685/2019 and respondent in CRMP Nos.2223/2019 and 2224/2019 respectively. As the accused/respondents were apprehending their arrest in crime number, they had moved an anticipatory bail application under Section 438 of Cr.P.C. before the learned Sessions Judge, Rajnandgaon, which was registered as Bail Petition No.258/2019. The petitioners in CRMP Nos.1686/2019, 1685/2019, 2223/2019 and 2224/2019 filed their respective objection but the learned Sessions Judge allowed the anticipatory bail application of respondents/accused on 18.06.2019. Hence, these petitions by the complainant and the State.
4. Learned counsel for the petitioner in CRMP 4 Nos.1686/2019 and 1685/2019 submits that the impugned order is totally contrary to the settled principles of law and equity and is based upon perverse finding which has resulted in grave injustice to the petitioner. The order passed by the learned Sessions Judge suffers from serious infirmity of law and facts and is patently illegal and contrary to the law. He further submits that before Sessions Court, accused/respondents namely Sunil Baradia and Pankaj Parakh had filed anticipatory bail application, which was registered as Bail Application No.237/2019, but for no plausible reason the same was got dismissed as withdrawn on 15.05.2019. The accused/respondents Sunil Baradia and Pankaj Parakh, after a passage of some time, on 03.06.2019, preferred a second anticipatory Bail Application on the very same ground. The petitioner had filed objection before the learned Sessions Judge and had also preferred an application for transfer of the bail petition to some other Court on the ground that accused/respondents No.2-Sunil Baradia is senior and active member of Lions Club and the learned Sessions Judge had been a part of the functions organized by them. As there were very thick chances for accused to have interacted or to have access to Sessions Judge, it would be in the interest of justice, equity and good conscience, that the matter may be 5 heard by some other Judge.
5. He also submits that vide order dated 12.06.2019, the learned Sessions Judge allowed the application of transfer of bail petition mentioning that as there accrued suspicion in the mind of objector, thus, this second bail application is transferred to the Court of Additional Sessions Judge (FTC), Rajnandgaon. But the learned Additional Sessions Judge (FTC), vide order dated 17.06.2019, returned the file to the learned Sessions Judge for further order with a note that due to some unavoidable reason the disposal of the Bail Application is not possible by him. On 17.06.2019, the next date of hearing, the learned Sessions Judge instead of transferring the matter to any of the available two other Additional Judges, decided to proceed ahead with the case and call upon the petitioner to satisfy on point of his right to directly object the bail petition, but also wrote that if the objector's counsel does not remain present at 11.30 am on 18.06.2019, then it will be presumed that they do not wish to argue on point of review and, thereafter, hearing the petitioner's counsel on bail application the orders may be passed.
6. He also submits that on 18.06.2019, the learned Sessions Judge went ahead with the proceedings. The learned Court below mentioned a baseless reason to 6 come to an inference that the bail application cannot be transferred to remaining two Courts of Additional Sessions Judges as they are juniors to the said Presiding Officer of the FTC Court and the learned Sessions Judge rejected the objections of the petitioner and allowed the bail applications of accused/respondents. The flow events categorically points towards the inclination of the accused persons to get the matter listed before the learned Sessions Judge only as there was no reason for them to have withdrawn the first application on 15.05.2019, when the learned Sessions Judge was going on vacation and preferred second bail application on 03.06.2019 only when the learned Judge resumed office. Learned counsel next submits that the petitioner in the light of the material available with him showing a chance of personal and mellow relationship between respondents No.2-Sunil Baradia and the learned judge through the functions of the Lion's Club, was justified in his own right to have bonafidely preferred the transfer application, which even the learned Sessions Judge appreciating on the first round had allowed it, perhaps keeping the larger interest of justice in mind under the principle that justice should not only be done but also appear to be done. Hence, taking a contrary view, with no changed circumstances, on the second round of litigation was highly unjustified.
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7. Learned counsel also submits that the learned Sessions Judge also failed to appreciate that there were two other additional Judges with equal judicial powers and jurisdiction to entertain the bail petition, to whom the bail application can be transferred, but the learned Sessions Judge refrained himself from transferring the bail application to any of those two Additional Sessions Judges by a baseless and unacceptable ground that those two Additional Sessions Judges are junior to the presiding officer of the said FTC Court.
8. It is next submitted that the wife of petitioner hanged herself and committed suicide and the petitioner filed report against accused/respondent Sunil Baradia and Pankaj Parakh because the very same day, the deceased went to accused/respondent's office and immediately after returning from his office, she hanged herself, but the learned Sessions Judge has failed to appreciate that present case was a clear case of abetment of suicide in the light of immediate provocation by mental and physical harassment/cruelty at the hands of the accused persons, in their office. Hence, it would be arbitrary to say that, a gap of 2 to 3 hours was sufficient delay to put the accused out of the ambit of the alleged offence. It is also submitted that the learned Sessions Judge has wrongly taking the time 18:15 hours as time of 8 committing suicide, whereas it is infact the time when the family came to know about it. This possibility cannot be ruled out that the suicide was committed immediately after the petitioner went to sleep at about 16:00-16:15 hrs. The learned Sessions Judge ought to have appreciated the rampant cases of suicide and other related offences arising out of the illegal business of money lending, in which the accused persons were involved in. This allowing of the bail application would send a motivating message to all such offenders who never lose any opportunity to defraud unsuspecting victims like that of the deceased.
9. It is also submitted that the defence of accused/respondents - Sunil Baradia and Pankaj Parakh, as reflected in the impugned order, that respondent No.2 Sunil Baradia had no financial dealing with the deceased is baseless and completely false. Accused/Respondent No.2 has given a receipt of Rs.2,36,50,000/- on 17.01.2019 in the name of daughter of the deceased which was seized by police after the sad demise of deceased. Learned counsel for the petitioner also submits that the deceased has led a very happy and successful married life for more than 34 years and the relationship between the deceased and her husband have been very harmonious. They have a son and a 9 daughter. Son is a Class-I Officer in Indian Railway and daughter is a known presenter and show anchor presently working in Qatar. The deceased was also blessed with a two grandsons and a recently born grand daughter. She had all the reasons of satisfaction and happiness from the family front. There were no issues from family side of the deceased, as opposed to the pleadings made by the accused persons, and she had all the reasons to look forward to her life but for the continuous harassment and fraud by the accused persons, but the learned Sessions Judge did not appreciate these aspects of the matter and written a bail order like a judgment and appreciated the defence of accused persons and granted anticipatory bail.
10. In support of his argument, learned counsel for the petitioner placed reliance on the decisions of Hon'ble Apex Court in the matter of Bhima Bhai Bharwad Vs. State of Gujrat reported in AIR Online 2019 SC 734, Kanwar Singh Meena V. State of Rajasthan reported in AIR 2013 SC 296, Anil Kumar Yadav Vs. State of NCT Delhi reported in AIR 2017 SC 5398, C.B.I. Vs. Vijay Sai Reddy reported in 1993 CriLJ 2274, Ku. Anju Khatri Vs. Gyanchand and Ors reported in 1994 CriLJ 2274, Gurcharan Singh & Ors Vs. State (Delhi Administration) reported in 1978 AIR 179, 10 Satish Jaggi Vs. State of Chhattisgarh reported in (2007) 11 SCC 195, The State of Orissa Vs. Mahimananda Mishra reported in AIR 2019 SC 302, decisions of High Court of Madhya Pradesh in the matter of Imratlal Vishwakarma and Ors. Vs. State of Madhya Pradesh reported in 1996(0) MPLJ 662 and decisions of this Court in the matter of Gyanchand Agarwal @ Gyani Vs. State of CG passed in MCRC No.2528/2006, Dharmendra @ Golu Vs. State of C.G. passed in MCRC No.6053/2017.
11. Learned counsel for the State/petitioner in CRMP Nos.
2223/2019 and 2224/2019 submits that the whole incident took place in the office of accused/respondents Sunil Baradia and Pankaj Parakh, which is at first floor of the building, and further the office of the respondents is under surveillance of CCTV camera. Hence, to collect more evidence regarding the incident, a notice was issued under Section 91 of Cr.P.C to the respondent/accused vide notice dated 21.06.2019. In reply to the notice, the respondent/accused had clearly admitted that the footage of CCTV camera has been burned and further denied to provide the register maintained in their office regarding transaction occurred between the respondents and deceased. This very fact shows that the accused/respondents had tempered with 11 the evidence of crime after granting anticipatory bail by the trial Court. Hence, considering these facts and circumstances of the case, the anticipatory bail granted by the trial Court may be cancelled.
12. Learned counsel for accused/respondents namely Sunil Baradia and Pankaj Parakh in all cases supported the impugned order of granting anticipatory bail. Learned counsel for accused/respondents Sunil Baradia and Pankaj Parakh submits that 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 differently under Section 439 (2) of Cr.P.C. Very cogent and overwhelming circumstances are necessary for passing an order directing the cancellation of the bail, already granted. The Hon'ble Apex Court has time and again reiterated that broadly 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 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. Learned counsel for accused/respondents has pointed out principles for the 12 cancellation of bail laid down by the Hon'ble Supreme Court, which reads thus:-
i. The accused misuses his liberty by indulging in similar criminal activity.
ii. Interferes with the course of investigation. iii. Attempts to tamper with evidence or witnesses.
iv. Threatens any witness or indulges in similar activities which would hamper smooth investigation.
v. There is likelihood of his fleeing to another country.
vi. Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.
vii. Attempts to place himself beyond the reach of his surety etc. viii. It is also well settled that even if two views are possible, once the bail has been granted, it should not be cancelled.
13. Learned counsel for accused/respondents further submits that 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 but unless the petitioner has not pleaded any supervening circumstances that have occurred after the grant of bail vide the impugned order. The petitioner has submitted incorrect and misleading facts before the Court, which was denied by the accused/respondents.
14. Learned counsel also submits that accused/respondent 13 Sunil Baradia runs a Financial Company styled as 'Dhanesh Finance' situated at Sadar Bazar, Rajnandgaon, where accused/respondent Pankaj Parakh also works as an Accountant. The deceased had not invested/deposited any money with the 'Dhanesh Finance'. Thus, there was no financial relationship between the deceased and the finance company of accused/respondent. In-fact, it is the daughter and son- in-law of deceased who had deposited money with this company but the accused/respondents had returned the amount of Rs.37,00,000/- to her in the month of March- April 2019 itself. The daughter of deceased, in her statement under Section 161 CrPC, herself has accepted that she and her husband Rahul Jain had deposited/invested an amount of Rs.30,00,000/- each and she has received the deposited amount along with interest from the respondents. Prior to this complaint, respondents had filed written complaint against the deceased on 25.03.2019 that she had been forcibly entering the house and office of accused/respondents and was quarreling and constantly harassing the accused/respondents Sunil Baradia and Pankaj Parakh to return the money by sitting in the office for hours and disturbing the staff of office. With intent to falsely make out a case against the accused/respondents, the son of complainant handed over a typed letter on the next day 14 of the incident i.e. on 03.05.2019 to the Investigating Officer, from the examination of which it seems that the same has been drafted as an afterthought, after taking legal advice from someone since deceased was a house wife, and it is doubtful that the letter could have been drafter/written by her.
15. Learned counsel for accused/respondents also submits that on the basis of FIR, the criminal proceedings were initiated and during the course of investigation, the Investigating officer did not find any suicide note/dying declaration of the deceased where-from it could be held the accused persons accountable for her death. The criminal proceedings were initiated against the accused persons only on the basis of written complaint filed by husband of the deceased. Further, the allegation of tempering of CCTV footage or hard disk are baseless and there is no evidence to show that the same has been done by the accused/respondents. Moreover, the seizure report shows that CCTV set up box was seized by the police. The order passed by the learned Sessions Judge is proper. The FIR has been solely registered in accordance with the written complaint of the husband of deceased and it is pertinent to mention that the same has not been corroborated by any dying declaration. The learned Sessions Judge has categorically recorded in its 15 order dated 18.06.2019 that on the objection raised by the petitioner, the anticipatory bail application filed by accused/respondent was transferred to Fast Track Court but the Presiding Officer of the Court did not hear and, thereafter, the bail application was sent to the original Court. The learned Sessions Judge, after taking into consideration the objection raised by the petitioner, has observed that since the Presiding Officer of the FTC, who was a senior judicial officer, did not hear the anticipatory bail application of the accused/respondents and that is why the other two Additional Sessions Judges, who are junior to the learned Judge of the FTC, cannot hear the said bail application and the said application was heard by the learned Sessions Judge only.
16. Learned counsel also submits that apart from all these allegations there were no acts or utterances on the part of the accused/respondents that it would amount to instigation or abetment of suicide on the part of accused/respondents. In the present facts and circumstances of the case, there is absence of mens rea on the part of the accused to incite the deceased to commit suicide. It is next submitted that under Section 306 IPC, establishment and attribution of mens rea, on the part of the accused, which caused him to incite the deceased to commit suicide is of great importance. The 16 cruelty shown towards the deceased in such cases, must be of such magnitude that it would in all likelihood, drive the deceased to commit suicide. The utterances of a few harsh words on one occasion does not amount to harassment/cruelty of such intensity that it may be termed as abetment to commit suicide. As per complaint, the complainant was resting at home for entire time till the evening. Sister of deceased came to the house of deceased on or around 6.30 pm and after meeting mother-in-law of deceased started searching for her sister and found the body of deceased lying on the stairs with cloth tied around her neck. From the examination of complaint, FIR, Statements, etc, it is evident that the deceased did not commit suicide right after coming from the office of accused Sunil Baradia. The learned Single Judge is not wrong in holding that a gap of 3 to 4 hours is sufficient a delay to put the respondent out of the ambit of alleged offence. The husband of deceased was present at home the entire day from 2.30 pm in the afternoon but had no clue that his wife had committed suicide and as per his statement he came into knowledge of his wife's suicide only in the evening when the sister of deceased came home around 6.30 pm, which creates a doubt and suspicion not taken on record by the petitioner.
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17. He also submits that in the facts and circumstance of the present case, the grant of anticipatory bail to the accused/respondents Sunil Baradia and Pankaj Parakh is totally sustainable because no ingredients of offence under Section 306 IPC can be made out against the accused/respondents. Even assuming harsh words in a fit of anger against the deceased shall not earn the status of abetment. It is trite law that words uttered on the spur of the moment or in a quarrel, without something more cannot be taken to have been uttered with mens rea. The onus is on the prosecution to show the circumstances, which compelled the deceased to take an extreme step to bring an end to her life.
18. Learned counsel for the accused/respondents also added that in the present case, charge sheet has been filed on 06.07.2019, perusal of which, shows that no direct or indirect evidence can be meted out against the accused/respondents. In the facts and circumstances of the case, no offence can be made out against the accused/respondents under Section 306 IPC. Even if the allegation made out in the FIR/charge sheet are taken on its face value and accepted in entirety, the same do not prima-facie constitute any offence against the accused.
19. In support of his argument, learned State counsel placed reliance on the decisions of Hon'ble Supreme Court in 18 the matter of Ranjit Thakur V. Union of India reported in (1987) 4 SCC 611 : 1988 SCC (L&S) 1, Kanwar Singh Meena V. State of Rajasthan reported in (2012) 12 SCC 180 and Nira Radia V. Sheeraj Singh reported in (2006) 9 SCC 760 : (2006) 3 SCC (Cri) 397.
20. I have heard learned counsel for the parties and perused the material available on record.
21. The question which falls for consideration, in order to invoke the jurisdiction of this Court in entertaining the present application under Section 439(2) of the Cr.P.C., is whether the petitioner has prima-facie made out any ground for cancellation of bail under Section 439(2) of the Cr.P.C.. Section 439 Cr.P.C. confers concurrent jurisdiction on the Court of Sessions and the High Court. For facility of reference, Section 439 Cr.P.C., is reproduced herein-under :-
"439. Special powers of High Court or Court of Session regarding bail.---
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-
section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or 19 modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
1[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.] 2[(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).] (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
22. The petitioner has filed order-sheets of anticipatory bail proceedings of the Court below, which clearly goes to show that on 03.06.2019 the accused/respondents filed bail petition before the Special Court and, on the next date of hearing i.e. on 04.06.2019, the counsel for objector raised his objection and gave copy of objection to accused/respondent's counsel. On 11.06.2019, for the reasons mentioned in the objection, a detailed order with regard to transfer of bail petition was passed by 20 Sessions Judge, Rajnandgaon, and the same was transferred to the Court of Additional Sessions Judge (F.T.C.), Rajnandgaon. Thereafter, on 12.06.2019 and 14.06.2019, the learned Additional Sessions Judge (F.T.C.), Rajnandgaon, ordered for case diary and on 17.06.2019 an order was passed, which reads thus:-
"vifjgk;Z dkj.kksa ls mDr tekur vkosnu i= dk fujkdj.k fd;k tkuk esjs }kjk laHko ugha gksus ds dkj.k ;g tekur izi= vfxze dk;Zokgh okcr ekuuh; ftyk ,oa l= U;k;k/kh'k dks lknj izfrizsf"kr fd;k tkrk gS "
23. On 17.06.2019, again the case was put-up before the Court of Sessions Judge, and again objection was raised by the objector and it was ordered, which reads thus:-
"pwafd nksuksa vkifRrdRkkZ ds vf/koDrk ds vuxZy cgl ,oa vuxZy vkjksi dks ns[krs gq;s bl eqn~ns ij fopkj fd;k tkuk gksxk fd D;k vkifRrdrkZ ds vf/koDrk o vkifRrdrkZ dks lh/ks rkSj ij is'k tekur ;kfpdk dk fojks/k djus dks vf/kdkfjrk gS vFkok ughA bl eqn~ns ij dy fnukad dks vkifRrdrkZ ds vf/koDrk Jh frokjh ,oa Jh ds- ds- flag nksuksa 11%30 cts cgl djsaxsA ;fn muds }kjk fu/kkZfjr le; ij cgl u fd;k tkrk gS rks bl n'kk esa ;g eku fy;k tkrk tk;sxk fd mDr fjO;w ij os cgl ugh djuk pkgrsA ,slh n'kk esa vkosnd dh vksj ls is'k tekur ;kfpdk ij vkosnd ds vf/koDrk dks lquk tkdj vkns'k ikfjr fd;k tk ldsxkA"
24. Thereafter, the case was fixed for argument on 18.06.2019 and the impugned order granting 21 anticipatory bail was passed. In initial paras of the impugned order, the learned Sessions Judge mentioned the objections so raised by learned counsel for the objector and gave its finding, which is reproduced herein-under:-
"bl U;k;ky; }kjk iwoZ esa lquokbZ ds nkSjku vkifRrdrkZ dh vkifRr ij vkosndx.k dh tekur ;kfpdk dks fujkdj.k gsrq ,Q- Vh-lh- U;k;ky; esa varfjr fd;k x;k FkkA fdUrq ,Q-Vh-lh- U;k;ky; ds ihBklhu vf/kdkjh }kjk vkosndx.k dh tekur ;kfpdk dh lquokbZ ugha dh tkdj vkosndx.k dh tekur ;kfpdk ewyr% bl U;k;ky; dks okil dj fn;k x;k gSA "
"pwafd ,Q-Vh-lh- U;k;ky; ds ihBklhu vf/kdkjh tks ofj"B U;kf;d vf/kdkjh gS] mUgksaus vkosndx.k dh tekur ;kfpdk ij dksbZ lquokbZ ugha fd;k gS vkSj bl U;k;ky; dks tekur ;kfpdk ewyr% okil dj fn;k gSA blfy, izFke o f}rh; vij l= U;k;ky; ds ihBklhu vf/kdkjh tks ,Q-Vh-lh- U;k;ky; ds ihBklhu vf/kdkjh ls dfu"B U;kf;d vf/kdkjh gS] muds }kjk bl tekur ;kfpdk dks ugha lquk tk ldsxkA"
25. The contention of learned counsel for the petitioner in CRMP No.1686/2019 and 1685/2019 is that once the case was transferred to the Court of Additional Sessions Judge on their objections, then the learned Sessions Judge ought not to have heard the petition and pass any order in that regard. The main objection of learned counsel for the objector before the Court below was that the learned Sessions Judge and respondents/accused 22 have some family relation. They have filed newspaper cutting of public function in which the learned Sessions Judge and members of Lions Club (accused) are clearly seen. In this regard, the petitioner has filed one more document that a departmental inquiry was also initiated against the learned Sessions Judge. Therefore, looking to the aforementioned suppression and misrepresentation of facts, order of granting bail may be cancelled in exercise of the jurisdiction conferred under Section 439(2) of the Cr.P.C.
26. The Hon'ble Supreme Court, in the matter of Abdul Basit alias Raju and others Vs. Mohd. Abdul Kadir Choudhary and another reported in (2014) 10 SCC 754, has considered all its earlier judgments on the issue and pointed out distinction between review/recall of order granting bail from cancellation of bail order and have held that the Court granting bail cannot review its order on the ground of its being illegal, unjustified or perverse in view of express bar contained in Section 362 of the Cr.P.C. and held in paragraphs 20, 21, 26 and 27 of the report, which reads thus:-
"20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by 23 the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of its being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law.
21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as 24 a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.
26. In the instant case, the order for bail in the bail application preferred by the accused- petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the Court under Section 439(2) of the Code, it does not vest the power of review in the court which granted bail. Even in the light of fact of misrepresentation by the petitioner-accused during the grant of bail, the High Court could not have entertained the respondent/informant's prayer by setting in 25 review of its judgment by entertaining miscellaneous petition.
27. Herein, the High Court has assigned an erroneous interpretation to the well settled position of law, assumed expanded jurisdiction into itself and passed an order in contravention of Section 362 of the Code cancelling the bail granted to the petitioners herein. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order required to be set aside."
27. Further, on the issue with regard to rejection of bail and cancellation of bail already granted, the Hon'ble Supreme Court, in the matter of Dolat Ram and others Vs. State of Haryana reported in (1995) 1 SCC 349, has held in para 4, which reads as under:-
"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 dealth with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. 26
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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted. 27
28. Applying the statement of law rendered by their Lordships of the Supreme Court in the aforesaid cases, particularly Abdul Basit (supra), it is limpid that the petitioners herein have sought cancellation of order granting bail to the accused persons namely Sunil Baradia and Pankaj Parakh on the ground that there is mellow family relationship between the learned Sessions Judge and the accused persons & the accused persons have tempered with and destroyed the evidence of crime after getting anticipatory bail by the trial Court.
29. It is clear from order sheets that this case was discussed under Section 306 of IPC. It cannot be presumed only on the basis of objector's suspicion that the accused persons are interfering with the administration of justice. It is clear from the order sheet that the Objector (petitioners) threatened the Sessions Judge that if the Court hears the bail application, they will make complaint. The relevant part of the order sheet is reproduced below, which reads thus:-
"izdj.k esa vkifRrdrkZ ds vf/koDrkx.k }kjk ;g tksj nsdj cgl fd;k x;k fd bl U;k;ky; }kjk vkosndx.k dh tekur ;kfpdk dh lquokbZ ugha dh tk ldrh gS] D;ksafd bl U;k;ky; }kjk iwoZ esa tekur ;kfpdk dks ,Q-Vh-lh- U;k;ky; esa varfjr dj fn;k x;k FkkA mDr vkns'k dks ;g U;k;ky; Lo;a fjO;w ugha dj ldrh gSA blfy, nksuksa tekur ;kfpdkvksa dks izFke ;k f}rh; vfr- l= U;k;k/kh'k] jktuanxkao ds le{k varfjr fd;s tkus ij tksj fn;k 28 x;kA bl U;k;ky; }kjk tekur ;kfpdk dh lquokbZ fd;s tkus ij] mUgsa ?kksj vkifRr gS o lquokbZ fd;s tkus ij f'kdk;r gksxh"
30. The Hon'ble Supreme Court in the matter of Hazari Lal Das Vs. State of West Bengal and Another reported in (2009) 10 SCC 652 held in para 7, which reads thus:-
"7. There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that the concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. The judicial discretion exercised by the Sessions Judge in granting the anticipatory bail has been interfered with by the High Court in the absence of cogent and convincing circumstances. We are, thus, satisfied that the impugned order cannot be sustained."
31. As regards submission of learned counsel for the State that the accused would try to destroy evidence of the case and threaten the witnesses, this Court finds that at present the investigation has been completed and charge sheet has been filed. The learned Sessions Judge in his detailed order has discussed each and every 29 aspect of the case, which was available at that time in the case diary. This Court does not find gross misrepresentation of facts and in no way it appears that the Sessions Court was misled.
32. Applying the statement of law by their Lordships of Hon'ble Supreme Court in Hazari (Supra), there is no scope or jurisdiction of this Court, as such alleged illegality or perversity cannot be determined by this Court in application of bail under Section 439 (2) of Cr.P.C.
33. For the foregoing reasons, this Court finds that the order of the Sessions Court allowing the bail application cannot be faulted with. Moreover, no supervening circumstance has been made out so as to warrant interference by this Court in cancellation of the bail. There is no cogent material to indicate that the accused persons have been guilty of conduct which would warrant them being deprive of their liberty.
34. In the result, the aforesaid petitions filed under Section 439 (2) of Cr.P.C. are hereby dismissed.
Sd/-
(Rajani Dubey) JUDGE PKD