Madhya Pradesh High Court
Vikash Raghuvanshi vs The State Of Madhya Pradesh on 12 January, 2016
1 Mcrc.8271.2015
Vikash Raghuvanshi Vs. State of M.P. and other
12.01.2016
Shri Shivendra Singh Raghuvanshi, counsel for the
petitioner.
Shri Girdhari Singh Chouhan, Panel Lawyer, for respondent
No.1/State.
Shri Rajmani Bansal, counsel for respondent No.2. Present petition under Section 439 (2) of the Code of Criminal Procedure has been preferred for cancellation of bail granted to respondent No.2 vide order dated 06.08.2013 in shape of Mcrc. No.5849/2013 after rejection of first two i.e. Mcrc. No.7316/2013 and Mcrc No.1505/2015 on 25.10.2013 & 17.4.2015 respectively with liberty to file properly constituted petition under Section 439(2) of Cr.P.C. and after the charges are framed in the subsequent offence. Thus, the present application has been filed after framing of the charge for cancelling bail granted to respondent No.2.
Learned counsel for the rival parties are heard. Learned counsel for the petitioner seeking cancellation bail has brought on record the subsequent event of filing of an FIR bearing Crime No.13/2014 dated 09.01.2014 where the offence alleged is of house trespass and criminal intimidation against respondent No.2 by one Randheer Singh Raghuvanshi [one of the witnesses in Crime No.663/2012]. This subsequent offence is 2 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other alleged against respondent No.2. It is further submitted by learned counsel for the petitioner that charges have been framed against respondent No.2 in the said subsequent offence on 22.06.2015 under Section 447 and 506II of IPC and therefore in this factual background cancellation of bail which was granted to respondent No.2 by order dated 06.08.2013 in shape of Mcrc No.5849/2013 is sought on the ground that respondent No.2 has involved in another offence intimidating one of the prosecution witnesses in Crime No.663/2012 in which he was granted bail.
Learned counsel for respondent No.2 contends that the cause of filing of an FIR bearing Crime No.13/2014 dated 09.01.2014 alleging offence punishable under Sections 447 and 506 of IPC against respondent No.2 by one Randheer Singh [a witness in the criminal prosecution bearing Crime No.663/2012] does not give a legitimate cause to the petitioner to seek cancellation of bail of respondent No.2. It is submitted by placing reliance on the decision of the Hon'ble Apex Court in the case of Abdul Basit alias Raju and others Vs. Mohd. Abdul Kadir Chaudhary and another reported in (2014) 10 SCC 754. (Para 11, 19 and 20 of the said judgment) that bail once granted cannot be cancelled by the same court as that would amount to review of the order of grant of bail and since the concept of review/recalling of bail once granted is foreign to the scheme of 3 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other the Code of Criminal Procedure, hence, no case for cancellation of bail is made out. For ready reference and convenience, paragraphs 11, 19 and 20 relied upon by learned counsel for respondent No.2 of the decision rendered by the Hon'ble Court in the matter of Abdul Basit (supra) are reproduced below:
"11. The short question that falls for our consideration and decision is whether the exercise of jurisdiction by the High Court under Section 439(2) of the Code is justified in the instant case?
19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.
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 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 it 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
4 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other 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."
At the very outset, this Court may refer to the decision of the Rajasthan High Court in the matter of State of Rajasthan Vs. Mubin reported in 2011 Cr.LJ 3850 in which it has been laid down that the cause for seeking cancellation of bail on the ground of commission of a subsequent offence matures after the subsequent offence fructifies into framing of charge. Relevant para of the said judgment is reproduced below:
"9. The primary question which is to be considered by us in this case is as to whether the accused applicants had committed any offence, during the pendency of the appeal, on account of lodging of some first information reports. In other words, can it be said that a person has committed an offence when a first information report is lodged against him. In our considered opinion, merely lodging of a first information report, does not amount to commission of an offence and it is only accusation/allegation which can be said to be levelled against the accused person at that stage. As a matter of fact, the question as to whether an offence has been prima facie committed or not is considered when an opinion is formed by the Court after applying mind on the material before it. That stage would come only at the time of framing of charge. It would be relevant to mention here that the legislature, in its wisdom, has clearly laid down the distinction in the provisions under Section 228, Cr.P.C. and the terminology used at the
5 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other stages prior to it. The relevant provision of the Code of Criminal Procedure is a under:-
"228.- Framing of charge. - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in accordance with the procedure for the triable of warrant cases instituted on a police report.
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused."
In other words, an accused can be said to have committed an offence only when a Court, after considering the material before it and hearing the parties, forms an opinion to that effect, at the time of framing of charge. It is only after judicious consideration by a Court and an opinion is formed by it for presuming the commission of an offence that an accused can be said to have committed an offence. Therefore, an offence can be said to have been committed only at the stage of framing of charge when the concerning court forms an opinion for presuming that the accused has committed the offence and not at any earlier point of time. The word 'commit' as per Johnson Dictionary 6 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other means "to be guilty of a crime."
"In such view of the matter, merely on filing of first information reports against the accused applicants, it cannot be said that they had committed any offence, during the period of bail. Consequently, they did not breach the conditions so imposed by the Court while granting order of bail on 12.09.2006.
10. For the aforesaid reasons, we are of the view that the accused applicants had not committed any breach of conditions imposed on them on 12.09.2006. Moreover, the accused applicants were awarded acquittal by the learned trial court on 5.5.2006 and it is against the said judgment that the prosecution had preferred the present appeal in which they were given the benefit of bail, during the pendency of the same. The accused applicants are in custody since 12.06.2008.
There is no manner of doubt and the fact is not disputed by the learned counsel for respondent No.2 that Randheer Singh Raghuvanshi who has been subjected to criminal intimidation in the subsequent offence was a prosecution witness in Crime No.663/2012 and therefore one of the conditions i.e. condition no.3 prescribed in the order of bail granted to respondent No.2 dated 06.08.2013 in Mcrc. No.5849/2013 appears to have been prima facie breached.
Before concluding, it would be appropriate to deal with the submissions put forth by learned counsel for respondent No.2 with
7 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other regard to the decision rendered by the Hon'ble Apex Court in the matter of Abdul Basit (supra). The said decision of Abdul Basit (supra) was based upon the factual matrix that certain accused was granted default bail by the Sessions Court on 12.03.2013. Being aggrieved, the victim therein preferred the petition before the Gauhati High Court seeking cancellation of bail on the ground that the directions of the learned Sessions Judge, Kareemganj, to conduct further investigation of the case under Section 173(8) of the Code do not tantamount to re-investigation in the case and hence do not render the charge-sheet submitted by the police in the aforesaid case infructuous and therefore in this background it was contended that the accused ought not to have been extended the benefit of default bail under Section 167(2)(a)(i) on the ground of charge-sheet not having been filed within 90 days. Guwahati High Court by a judgment dated 16.07.2013 cancelled the bail and while doing so observed thus:
"4....there can be no difficulty in holding that granting of bail contrary to law or contrary to law laid down by the Apex Court can constitute a valid ground for cancellation of bail already granted; this will no (sic) fall foul of Section 362 of the Code."
On being aggrieved by the said cancellation of bail the accused approached the Apex Court which led to passing of the said judgment in the case of Abdul Basit (supra) where the Apex Court while referring to the provisions of Section 439 and 362 of 8 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other Cr.P.C. held that unless there are new circumstances a bail once granted cannot be cancelled by the same court which granted bail on circumstances and events which existed at the time of grant of bail. In other words, the Apex Court held that consideration of grant of bail is limited to the consideration of those circumstances and facts which existed during the period anterior to the grant of bail and if the said bail is sought to be cancelled on some grounds which existed prior to the order of grant of bail then the right forum to approach is the higher forum and not the same court which granted bail. The same forum which granted bail can be approached under Section 439(II) of Cr.P.C. only when there is some new circumstance which arises after the grant of bail. This proposition is fortified by the observation made by the Apex Court in the case of Gurcharan Singh Vs. State (Delhi Admn.) reported in (1978) 1 SCC 118. Relevant portion is reproduced below:
"16. Section 439 of the new Code confers special powers on High Court ,or Court of Session regarding bail. This was also the position under Sec. 498 Cr. P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439 (2) of the new Code, the High Court or the Court of Session may direct any person who has been released oil bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat
9 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other different language when it said that a High Court or Court of Session may cause any person who been admitted to bail under subsection (1) to be arrested and may commit him to custody. In other Words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session,it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. it may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the 10 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other Court of Session vis-a- vis the High Court.
This view has further been fortified in the case of Balveer Vs. State of Madhya Pradesh passed by this Court in Criminal Revision No.100/2015 vide order dated 01/04/2015.
From the above, it is evident that the Apex Court in Abdul Basit (supra) while deciding the legality and validity of the order of cancellation of bail passed by the Guwahati High Court was dealing with the fact situation that whether any new circumstance had arisen after the grant of bail and the person seeking cancellation of bail based his arguments on the facts and circumstances which existed at the time of grant of bail or not.
The case before the Apex Court in Abdul Basit (supra) was not a case of misuse of liberty as in the case herein.
The law laid down by the Apex Court in the case of Abdul Basit (supra) that the cancellation of bail on merits can be sought only before the higher forum is not applicable to the distinct facts and circumstances prevailing in the present case.
The petitioner has made out a case for cancellation of bail as respondent No.2 has misused the liberty granted to him by indulging in a subsequent crime bearing Crime No.13/2014 by intimidating one of the witnesses in Crime No.663/2012 in which private respondent was granted bail.
In view of the above, present petition stands allowed. The 11 Mcrc.8271.2015 Vikash Raghuvanshi Vs. State of M.P. and other order of granting bail to respondent no.2 dated 06.08.2013 in shape of Mcrc. No.5849/2013 is hereby cancelled.
A copy of the order passed today be sent to the trial court for necessary compliance.
(Sheel Nagu) Judge pd