Andhra Pradesh High Court - Amravati
Gutti Srinivasa Rao vs Sriram Srinivasa Rao on 13 July, 2022
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CRIMINAL PETITION No.5799 OF 2021
ORDER:
This criminal petition is filed under Section 439 (2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") by the defacto complainant to cancel the bail granted in Criminal Petition No.4787 of 2021 dated 05.10.2021.
2. The petitioner herein being defacto complainant lodged a complainant against the 1st respondent herein and the same was registered as Crime No.167 of 2021 of Vetapalem Police Station, Prakasam District, for the offences punishable under Section 420, 409 r/w 34 of the Indian Penal Code, 1860 (for short "IPC"), Section 5 of the Andhra Pradesh Protection of Depositors and Financial Establishment Act, 1999 and Section 22 r/w 4 of the Banning of Unregulated Deposit Scheme Act, 2019.
3. The case of the prosecution is that accused being Secretary along with President, Vice President and Board of Directors of "The Vetapalem Cooperative Credit Society Limited", committed criminal breach of trust, cheated gullible public with a common intention and failed to return the amounts deposited by the customers and committed fraudulent default in the repayment on maturity.
4. Criminal Petition No.4787 of 2021 was allowed on 05.10.2021. It was recorded in the order that accused was arrested on 29.07.2021 and remanded to judicial custody on 2 30.07.2021 and he was languishing in jail for the last 96 days, as such he is entitled for statutory bail. This Court while granting bail also relied on the judgments of the Apex Court in Uday Mohanlal Acharya Vs. State of Maharastra1 and S.Kasi Vs. State2 and eventually observed in Paragraph-9 of the order that "in view of the foregoing reasons as the charge sheet is not filed within the statutory period, the petitioner is entitled for statutory bail, which is an indefeasible right of the accused as laid down by the Hon'ble Apex Court in catena of cases".
5. After this Court granted bail to accused, learned Assistant Public Prosecutor filed a petition in I.A.No.1 of 2021 on 07.10.2021 seeking to list Crl.P.No.4787 of 2021 under the caption of "For Being Mentioned". It is brought to the notice of the Court that A-1 was arrested on 29.07.2021 and he was sent to judicial remand on 30.07.2021 and he is in jail for a period of 68 days only till 05.10.2021. However, the same was dismissed by this Court by order dated 08.10.2021 observing that since bail has already been granted, the petition cannot be entertained, as it amounts to reviewing the orders.
6. The defacto complainant filed the present criminal petition on 20.10.2021 mainly contending that accused is not entitled to default bail under Section 167 (2) of Cr.P.C. Misrepresentation of facts and misleading the Court, resulted in granting bail and thus, prayed for cancellation of bail.
1 (2001) 5 SCC 453 2 2020 SCC OnLine SC 529 3
7. Notice was ordered to 1st respondent. After service of notice, 1st respondent filed counter affidavit, wherein it was pleaded that neither he misrepresented the facts nor played fraud on the Court and thus, prayed to dismiss the petition.
8. Heard, Smt Marella Radha learned counsel appearing for the petitioner and Sri G.Ramachandra Reddy learned counsel appearing for 1st respondent and Sri S.V.Sainath learned Special Assistant Public Prosecutor.
9. Learned counsel for petitioner relied upon the decision of the Hon'ble Apex Court in Venkatesan Balasubramaniyan and Ors. Vs. The Intelligence Officer, D.R.I. Bangalore3.
10. Learned counsel for 1st respondent Sri G.Ramachandra Reddy, relied on the decision of the Hon'ble Apex Court in Abdul Basit alias Raju and others Vs. Mohd. Abdul Kadir Chaudhary and another4.
11. I have given my anxious consideration to the submission of both the counsel and material on record.
12. Admittedly, this court allowed Criminal Petition No.4787 of 2021 on 05.10.2021. While granting this court recorded that accused is in judicial remand since 96 days and hence granted bail invoking Section 167(2) Cr.P.C. Immediately, learned Assistant Public Prosecutor filed I.A.No.1 of 2021 contending that accused is in remand for a period of 68 days only, but not 96 3 AIR 2021 SC 335 4 (2014) 10 SCC 754 4 days, however this Court dismissed the petition observing that if any order passed it amounts reviewing of its own order. After that defacto complainant filed the present petition under Section 439(2) Cr.P.C.
13. Whether petition to cancel the bail is maintainable before this Court qua misrepresentation of facts?
14. At this juncture, it is apt to refer to Section 362 of Cr.P.C, which reads thus:
362. Court not to after judgment. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
15. Going by the language employed in the section referred to above after final order, court becomes functus officio and the Court cannot review its order except to correct clerical or arithmetical error.
16. It is pertinent to mention here that after passing of the order, immediately I.A.No.1 of 2021 was filed by learned Assistant Public Prosecutor, however, in view of Section 362 of Cr.P.C the said I.A. was dismissed.
17. Learned counsel for petitioner would submit that in view of misrepresentation of facts, this Court allowed criminal petition (bail application) and hence, the same is liable to be cancelled. On the other hand, learned counsel for 1st respondent would submit that there was no misrepresentation of facts. 5
18. In Abdul Basit's case (supra), the Hon'ble Apex Court after considering Puran Vs. Rambilas [(2001) 6 SCC 338] and Ranjit Singh Vs. State of M.P. [(2013) 16 SCC 797], held as follows:
"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."
19. In Abdul Basit's case (supra), after bail was granted, petition was filed seeking cancellation of bail on the ground that petitioner therein obtained bail by gross misrepresentation of facts, misleading the Court and indulging in fraud. High Court entertained the petition and cancelled the bail. The matter was carried to the Hon'ble Apex Court. Hon'ble Apex Court sets aside the order of High Court and held that High Court is not justified in reviewing its earlier order in view of bar under Section 362 of Cr.P.C.
20. In the instant case also, the present petition came to be filed on the ground that 1st respondent obtained bail by misrepresentation of facts and misleading the Court. As observed supra, when a matter has been finally disposed of by competent Court, the Court which passes the order, in the absence of a direct statutory provision, becomes functus officio. It cannot entertain a fresh prayer for relief in the matter unless and 6 until the previous order of final disposal has been set aside or modified to that extent. Thus, the judgment or order granting bail cannot be reviewed by the Court in absence of any express provision in the Code except when the accused misconducted, or new facts surfaces or arithmetical and clerical errors.
21. In Puran's case (supra), the Hon'ble Apex Court held that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation.
22. In Narendra K. Amin Vs. State of Gujarat5, three-Judge Bench of the Apex Court while reiterating the principle in Puran's case (supra) further drawn the distinction between the relief available in review or appeal. In Narendra K Amin's case, High Court had cancelled the bail granted to the Appellant in exercise of power Under Section 439(2) of the Code. In appeal, it was contended before Hon'ble Apex Court that the High Court had erred in not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case (supra) has observed that when irrelevant materials have been taken into consideration by the Court granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate Court and that no review would lie Under Section 362 of the Code. In essence, the Hon'ble Apex Court opined that if the 5 (2008) 13 SCC 584 7 order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same Court.
23. In Venkatesan Balasubramaniyan's case (supra), when the bail was granted by learned VI Additional CMM, Hyderabad under Section 167 (2) of Cr.P.C, on an application filed by prosecution High Court of Judicature at Hyderabad cancelled the bail and the same was confirmed by the Apex Court.
24. Thus, a conspectus of the above expressions of Hon'ble Apex Court, in view of bar under Section 362 of Cr.P.C., this Court cannot review its own order and cancel the bail granted earlier, unless learned counsel for the petitioner satisfies the Court regarding misconduct of accused or any other new material surface after bail was granted. In the case on hand, the ground on which cancellation of bail sought is that by misrepresentation of facts and misleading the Court accused got the benefit of bail. If such is the case, petitioner ought to have filed petition before the appropriate Court. Thus, this Court is of the view that the petition filed by the petitioner deserves to be dismissed.
25. Accordingly, the Criminal Petition is dismissed.
Miscellaneous applications, pending if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI 13th July, 2022 PVD