Madras High Court
State By Inspector Of Police vs Sivakumar on 19 November, 2003
Equivalent citations: 2003(4)CTC695
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. This is an application filed by the State through the Inspector of Police, Erode Town Police Station under Section 439(2) of the Code of Criminal Procedure to cancel the bail granted to respondent - Accused No. 5 in Criminal M.P. No. 5440 of 2002 in Criminal Appeal No. 296 of 2002 dated 9.7.2002.
2. Heard, Mr. V.M.R. Rajendran, learned Additional Public Prosecutor for the petitioner and Mr. A. Padmanabhan, learned counsel for respondent -Accused No. 5.
3. In the affidavit filed in support of the above application, the Inspector of Police, Erode Town Police Station has stated that the respondent herein was convicted and sentenced to undergo imprisonment of life for an offence Under Section 302, IPC on the file of First Additional Sessions Judge cum Chief Judicial Magistrate, Erode, Against the said conviction, the respondent has filed a petition in Criminal M.P. No. 5440 of 2002, praying for suspension of sentence and also enlarge him on bail pending Criminal Appeal No. 296 of 2002. By order dated 9.7.2002, this Court, after hearing the arguments advanced by both sides, passed an order, enlarging the respondent on bail on condition that he should execute a bond, on or after 16.7.2002 for a sum of Rs. 10,000 with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate No. II, Erode and on further condition that he should report before the said Magistrate on the first working day of every month at 10.30 a.m. till the disposal of the appeal. It is further stated that after releasing the respondent on bail, he involved in two cases and those cases are pending before the concerned Court. Apart from the said two cases, the respondent has involved in three more cases, which ended in acquittal. The respondent is a history sheeted rowdy in Erode Town Police Station and his History Sheet Rowdy Number is 78/99. With these particulars, the petitioner has prayed for cancellation of the bail granted to the respondent in Crl.M.P. No. 5440 of 2002 in Criminal Appeal No. 296 of 2002.
4. There is no dispute that on 9.7.2002, the respondent herein - A5 in Sessions Case No. 193 of 1999 on the file of the First Additional Sessions Judge cum Chief Judicial Magistrate, Erode was enlarged on bail subject to certain conditions and after complying with the said conditions, he was released on bail. It is the claim of the petitioner that after release on bail, the respondent has committed the following offences.
Sl. No Cr. No. &P.S. Offence under Section Stage of the case
1. 638/2002 Erode Town P.S. 294 (b), 427, 323, 324, & 506(ii) r.p.C. Pending before JM II, Erode.
2. 53/03 of Erode Town P.S. 353, IPC Pending trial before the JM II, Erode in STC. No. 900/2003.
It is also the claim of the petitioner that besides the above said two cases, the respondent has involved in three cases. For which, the learned counsel for the respondent informs that all the said three cases ended in acquittal. The two cases referred to above are still pending before the respective Court.
5. Mr. A. Padmanabhan, learned counsel for the respondent would contend that the offences alleged to have been committed by the respondent are not serious one warranting cancellation of the bail granted earlier. By citing several decisions, he contended that for cancellation of bail, there must be cogent and overwhelming circumstances are necessity. In support of his claim, he relied on the following decisions of the Apex Court.
"(i) Bhagirathisinh Judeja v. State of Gujarat, ; (ii) Dolat Ram v. State of Haryana, ; (iii) Delhi Administration v. Sanjay Gandhi, and (iv) Subbendu Mishra v. Subrat Kumar Mishra, 2000 S.C.C. (Crl.) 1508"
6. There is no dispute that High Court or Court of Sessions has power to direct any person who has been released on bail be arrested and commit him to custody. The power of this Court to pass an order canceling the bail granted earlier with reference to the above statutory provision has been considered in the above decisions.
7. In Bhagrirathisinh Judeja v. State of Gujarat, , while considering the order of the Gujarat High Court canceling the bail granted by the learned Sessions Judge, held, " 6. ....... Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favor by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court."
8. In Dolat Ram v. State of Haryana, , while considering the power of this Court under Section 439(2) of Cr.P.C. their Lordships held, "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. ...... "
9. In Delhi Administration v. Sanjay Gandhi, their Lordships held, rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the interference that the accused has won them over. The objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the accused. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused.
10. It is also worthwhile to refer the recent pronouncement of the Supreme Court in the case of Subhendu Mishra v. Subrat Kumar Mishra, 2000 S.C.C. (Crl) 1508, wherein their Lordships while considering the cancellation of bail under Section 439(2) of Cr.P.C. approved the dictum laid down in the case of Dolat Ram v. State of Haryana, 1995 (1) S.C.C, 349.
11. From the above decisions, we summarise that bail may be cancelled on the following grounds.
"1. When the accused was found tampering with the evidence either during the investigation or during the trial,
2. When the person on bail commits similar offence of any heinous offence during the period of bail.
3. When the accused has absconded and trial of the case gets delayed on that account.
4. When the offence so committed by the accused, that had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.
5. If this (High) Court finds that,
(a) the lower Court granting bail has exercised its judicial power wrongly;
(b) the accused has misused the privilege of bail; and
(c) the life of the accused itself be in danger."
12. In the light of the above principles/grounds, let us consider the claim made by the petitioner-Inspector of Police, Erode Town Police Station, for cancellation of bail granted to the respondent-Accused No. 5 on 9.7.2002 in Crl.M.P. No. 5440 of 2002. We have already referred to the fact that though the respondent/Accused No. 5 had involved in three cases after his release on bail, admittedly, all the three cases ended in acquittal. The other two cases in which the Inspector has furnished details, such as crime number, police station, offence under Section and stage of the case, as rightly argued on the side of the respondent-accused, all those offences are not serious. Further, even according to the Investigating Officer, the respondent - accused has not committed similar offence (Under Section 302, IPC) or any heinous offence during the period of bail. Apart from this, even according to the learned Additional Public Prosecutor, as on date, the respondent - Accused No. 5 is in jail. Further, when an application is moved for bail in those cases, it is for the Prosecutor to highlight the fact that the respondent -accused, committed the offence after release on bail by this Court. In the above circumstances, we are of the view that the particulars furnished by the Inspector of Police petitioner herein, are not overwhelming circumstances, which are necessary for cancellation of bail already granted. There is no dispute that the petitioner has fulfilled the conditions and executed a bond for a sum of Rs. 10,000 with two sureties for a like sum to the satisfaction of Judicial Magistrate No. II, Erode and also complying with the other condition by reporting before the said Magistrate on the first working day of every month at 10.30 a.m. In the light of what is stated above, we do not find any valid ground for the present to cancel the bail granted to the respondent - Accused No. 5 on 9.7.2002 in Criminal M.P. No. 5440 of 2002 in Criminal Appeal No. 296 of 2002. Accordingly, this petition is dismissed.