Jharkhand High Court
Akhileshwar Prasad vs The State Of Jharkhand & Anr. ... ... on 3 July, 2020
Equivalent citations: AIRONLINE 2020 JHA 388
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 3851 of 2019
Akhileshwar Prasad ... Petitioner
Versus
The State of Jharkhand & Anr. ... Opposite Parties
Coram: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Petitioner : Mr. Aman Kumar, Adv.
For the State : Ms. Nehala Sharmin, Addl. P.P.
For the opposite party no. 2 : Mr. Nandan Prasad, Adv.
07 / 03.07.2020Heard the parties through Video Conferencing.
This criminal miscellaneous petition has been filed under section 439(2) Cr.P.C by the petitioner with a prayer to cancel the bail granted to the opposite party no. 2 of this case vide order dated 17.06.2019 passed in ABA no. 3482 of 2019.
It is submitted by Mr. Aman Kumar the learned counsel for the petitioner that the opposite party no. 2 of this case by misleading and cheating the court has obtained the privilege of anticipatory bail. It is further submitted that the opposite party no. 2 of this case pressed before the court the false and incomplete facts and concealed the material facts. It is next submitted by learned counsel for the petitioner that opposite party no. 2 of this case has mentioned in his petition that the alleged injury of the victim is simple in nature but perusal of the case diary reveals that injury in injury report of the son of the informant has been categorized as grievous in nature. It is next submitted by learned counsel for the petitioner that though the opposite party no. 2 submitted in his petition that he is not having any criminal antecedent but the same is false. The opposite party no. 2 of this case is also involved in Pandwa P.S. case no. 86 of 2015 in which, he is on bail. It is next submitted that the contention of the opposite party no. 2 of this case that he is labourer and working outside the station is false as the opposite party no. 2 of this case is a son of politician and a liquor vendor. It is next submitted by learned counsel for the petitioner that several independent witnesses have supported the case of the prosecution though the opposite party no. 2 contended that no independent witness has supported the case of the prosecution. In support of his contention, learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court of India in the case of CBI vs. Vijay Sai Reddy in Cr. Appeal no. 729 of 2013 disposed of on 9th May, 2013 wherein in paragraph 9, Hon'ble supreme court of India held as under:-
"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 v. Amarmani Tripathi [(2005) 8 SCC 21 para 31, Dinesh M.N. (S.P.) v. State of Gujarat [(2008) 5 SCC 66, para 27, Narendra K. Amin (Dr.) v. State of Gujarat and Anr. [(2008) 13 SCC 584, para 27, State of Maharashtra and Others v. Dhanendra Shriram Bhurle and Others [(2009) 11 SCC 541, para 8, CBI Hyderabad v. Subramani Gopalakrishnan and Anr. [(2011) 5 SCC 296, para 25."
Learned counsel for the petitioner further relied upon the judgment of Hon'ble Madhya Pradesh High Court in the case of Ramesh Kateha and Anr. vs. State of Madhya Pradesh And Ors. reported in 1999 CriLJ 4243 wherein paragraph 6 of which, reads as under:
"6. It is well settled in law that while considering an application for cancellation of bail the Court ordinarily looks for some supervening circumstances which would reflect that the liberty granted to the accused has been misused. Bail once granted to an accused should not be cancelled in a mechanical manner. It is to be borne in mind that the rejection of bail when applied for stands on a different footing than the cancellation of bail which has been granted earlier. It needs no special emphasis to state that if a bail has been granted illegally or improperly by erroneous and arbitrary exercise of discretion the same is liable to be cancelled even if there is absence of supervening circumstances. If the High Court comes to the conclusion that the lower Court has exercised judicial discretion wrongly it can exercise the power under Section 439(2) of the Code. Impropriety in its ambit and sweep would engulf many an aspect. If in a given case the lower Court has granted bail without calling for the case diary or has exercised the discretion in a second bail petition in absence of any changed circumstances whatsoever, the superior Court would be justified to cancel the order of bail granted in favour of the accused. All these relate to exercise of jurisdiction as far as exercise of discretion by a lower Court is concerned. It is well settled in law that the bail granted by a Bench cannot be cancelled by another Bench as that is inconsistent with the judicial discipline. These are the aspects which relate to the function of the Courts. But in the case at hand the question that arises for consideration is whether the conduct of the accused-seeking concession of bail, being fully aware that he had moved the Court for the second time to be admitted to bail but the same had not met with success, is justified in making an attempt on the self-same ground without mentioning about the previous bail application. In the bail petition it was conveniently set forth that the petitioner was moving for the second occasion. In fact, there is reference only to the rejection order passed in M.Cr.C. No. 6495/96. Because of this exposition of fact situation the Registry was misled and ultimately the matter was directed to be listed before this Bench. It is the duty of the litigant to approach the Courts with clean hands. It is obligatory on the part of the every litigant as well as every officer of the Court to preserve the dignity of the Court and respect the majesty of law. In all circumstances the supremacy of law has to prevail. Law is a great leveller. It cannot be countenanced that due to deprivation of liberty someone can make a false statement in a Court of law and obtain the benefit. This is nothing but a fraud on the Court. "
Hence, it is submitted that the bail granted to the opposite party no. 2 of this case vide order dated 17.06.2019 passed in ABA no. 3482 of 2019 be cancelled.
Mr. Nandan Prasad the learned counsel for the opposite party no. 2 and Mrs. Nehala Sharmin the learned Additional Public Prosecutor, on the other hand, drawing attention of the court to the counter affidavit filed by the opposite party no. 2 submits that the averments made by the petitioner of this case is false as the opposite party no. 2 of this case has not misled the court nor concealed any material fact. It is then submitted that the averments made in the anticipatory bail application regarding the injury of the informant being simple in nature is correct and the injuries of the son of the informant is grievous in nature was also placed before this court, while the petitioner was granted the anticipatory bail. It is next submitted by learned counsel for the opposite party no. 2 that besides Pandwa P.S. case no. 86 of 2015, more cases was lodged against the opposite party no. 2 and complaint case no. 521 of 2010 also filed by the informant of this case against the opposite party no.2 has been compromised with the opposite party no.2 by the petitioner herein. It is next submitted by learned counsel for the opposite party no. 2 of this case that the petitioner with ill-intention has been lodging several cases against the opposite party no.2 as also against the innocent villagers to harass them. Drawing attention of this court to the final forms submitted in three cases, being Pandwa P.S. case no. 9 of 2018, Pandwa P.S. case no. 29 of 2017 and Pandwa P.S. case no. 87 of 2017, it is submitted that in all these three cases, the petitioner is the informant and in all these three cases the police after investigation found the allegations to be false. It is next submitted that there is no allegation against the opposite party no. 2 of misusing the privilege of bail or committing any misconduct after being admitted to bail, hence, the bail granted to the opposite party no. 2 ought not be cancelled.
It is pertinent to mention here that bail can be cancelled where
(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 witnesses 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. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to, as has been held by the Hon'ble Supreme Court of India in the case of Raghubir Singh and others v. State of Bihar, (1986) 4 SCC
481. 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 as has been held by the Hon'ble Supreme Court of India in the case of Dolat Ram and others v. State of Haryana, (1995) 1 SCC 349.
After carefully going through the materials in records, it is crystal clear that there is no allegation against the petitioner of any misconduct after he has been granted the privilege of anticipatory bail. So far as the citations relied upon by the petitioner are concerned, those are principles of law for cancellation of the bail by the superior court and not the same court as is the instant case.
There is no supervening circumstance on the part of the opposite party no. 2 after being granted bail, to come to a conclusion that 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. Considering the facts of this case and the law discussed above this court is of the considered view that this is not a fit case where the bail granted to the opposite party no. 2 of this case, consequent upon the order dated vide order dated 17.06.2019 passed in ABA no. 3482 of 2019 is to be cancelled. Accordingly, this petition being without any merit is dismissed.
This criminal miscellaneous petition is disposed of accordingly.
(ANIL KUMAR CHOUDHARY, J.) AFR- Smita/-