Anil Kumar Singh vs The State Of Bihar & Ors on 28 July, 2010

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Patna High Court - Orders

Anil Kumar Singh vs The State Of Bihar & Ors on 28 July, 2010

Present is an application filed under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) seeking cancellation of bail granted to the O.P. nos. 2 and 3 (hereinafter referred to as the accuseds) by a bench of this Court under order dated 7.3.2008.

A perusal of the aforesaid order indicates that the submission of the petitioners (accused herein) that they were not sent up for trial by the police after conclusion of investigation although cognizance was taken differing with the police report weighed with the court. Accordingly, O.P. nos. 2 and 3 were directed to be released on bail.

Learned counsel for the informant-petitioner submits that the accuseds were facing charge of having committed triple murder. As per the F.I.R., they were the assailants. The post- mortem report supports the F.I.R. version. During investigation, some of the witnesses did support the accusations as levelled 2 against them in the F.I.R. The order granting bail is cryptic. Learned Bench of this Court did not take into consideration the seriousness of the allegation(s). Referring to the statement made in paragraph 3 of the supplementary affidavit, it is submitted that O.P. no. 2 herein had threatened the informant to kill him and his father, brother and other family members if the present application seeking cancellation of bail is not withdrawn. An informatory petition dated 17.7.2008 (Annexure-9) has been lodged. He relies on judgment rendered by Hon'ble Supreme Court in the case of State of Maharastra versus Mohd. Sajid Husain Mohd. S. Husain reported in 2008(2) P.L.J.R. (S.C.) 27 and 2004 CRI. L.J. 4243 in the case of Chaman Lal versus State of U.P. Learned counsel while pressing this application thus emphasized the parameters to be adopted while considering bail applications/anticipatory bail applications. On these submissions, it is contended that the present application needs to be allowed.

Learned counsel representing O.P. nos. 2 and 3, on the other hand submits that the impugned order dated 7.3.2008 was passed in presence of the informant. The opening lines of the order impugned reads as under:

"Heard learned counsel for the petitioner and the State."

It is next contended that the fact that the accusations against the opposite parties herein were not found substantiated and thereby not sent up for trial, weighed with the Court which has been taken note of. According to him, this is a reason for granting 3 anticipatory bail to the opposite party nos. 2 and 3. It is next contended that a court while considering an application seeking cancellation of bail has to consider the same on altogether different parameters. Referring to the judgment of a Bench of this Court rendered in the case of Dinesh Parwat versus State of Bihar reported in 2007 (4) P.L.J.R., it is submitted that it has been held therein relying on the judgment of the Hon'ble Supreme Court in the case of Mehboob Dawood Sheikh vs. State of Maharashtra reported in 2004(2) SCC 362 and in the case of Gurucharan Singh vs. State (Delhi Administration) reported in A.I.R. 1978 S.C. 179 that such application has to be considered keeping in focus four aspects of the matter:

(i) whether the accused(s) have jumped bail?

(ii) Whether they are utilizing privilege of bail by interfering or influencing the witnesses?

(iii) Whether they are interfering with the investigation or prosecution?

(iv) Whether by their acts, they are obstructing the judicial process or misusing or abusing the bail?

This is what this court observed in paragraph 16:-

"16. Cancellation of an order of bail could be a matter to be dealt with by the court u/s 437(5), Cr.P.C. which has released the accused on bail or by the Court of Sessions or the High Court by virtue of their powers under Section 439, Cr.P.C., but that could not be done as and when the courts are approached with such a prayer. As was noted by the Apex Court in 2004(2) SCC 362 Mehboob Dawood Sheikh vs. State of Maharashtra and in many order decisions that rejection of bail stands on one footing but cancellation of bail is a harsh order because it 4 takes away the liberty of an individual granted and is not lightly to be resorted to. For cancelling the bail of an accused there must be grounds shown to the court has to be satisfied about them that they existed on the basis of materials acceptable to it. These grounds are well recognized as may appear from the above noted decision of the Apex Court as also from the earlier decision of the Apex Court as also from the earlier decision of the Apex Court rendered in Gurucharan Singh vs. State (Delhi Administration) reported in A.I.R. 1978 SC 179. While dealing with the provision and the law of grant/cancellation of bail it was noted that if there was a chance of (i) jumping of bail, (ii) of interfering or influencing the witnesses,

(iii) of interfering with the investigation or prosecution, or (iv) of obstructing the judicial process, or (v) of misusing or abusing the bail, the order of bail could be cancelled and the accused could be committed to custody. To the above criteria I could add, if I am permitted to do so, that if the accused after being released on bail has committed graver offence or if he appears a threat to peace and tranquility of the society or if there is danger to his own life, then under these circumstances as well the accused could be committed to custody after cancelling bail. The other category of case requiring interference by the court of sessions or by the High Court could be the utterly wrong application of the discretionary jurisdiction and directing release of accused on bail. Such category of cases could not be exhaustive but, to illustrate, if the accused, who is an assailant of the deceased in a case and about whose complicity there is sufficient acceptable material is released on bail by the Magistrate or the Sessions Court, the High Court or the Supreme Court may interfere in such case of improper application of the discretionary power of granting bail and by directing the committal of the accused to custody."

Learned counsel further submits that after filing of the present application, the informant-petitioner lodged an informatory petition and brought on record the same by way of supplementary affidavit. Submission of counsel for the petitioner based on such material cannot be a ground for cancellation of bail.

I have considered the submissions advanced on behalf of the parties and perused the materials on record. It appears that learned Judge of this court in the impugned order considered one aspect of the matter and i.e. that the accusations made against the opposite parties herein were not found to have been substantiated during investigation insomuch so they were not even sent up for trial This aspect of the matter finds mention in the impugned order. This is a reason which weighed with the court while granting anticipatory bail. The submissions of learned counsel for the petitioner do not impress this Court as what has been highlighted is that what should be the criteria while making an order for release of an accused on bail in a case which is of serious nature. This Court presently is considering whether the bail granted to the petitioner requires to be interfered with and cancelled. As held by the Hon'ble Supreme Court, the considerations are altogether different.

I am, therefore, not satisfied that a case for cancellation of bail is made out. The application is dismissed.

At this stage, both the parties state that since the case has already been committed to the Court, the trial court may be directed to take up the trial and dispose of the same as early as possible. This Court would only observe that the trial court shall take up this matter and conclude the same expeditiously. If it is found that the trial is being delayed on account of non- cooperation on the part of the accuseds including the O.P. nos. 2 6 and 3 herein, the court below shall have liberty to take all legal recourse as available to it under the law.

( Kishore K. Mandal, J. ) pkj

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Patna High Court - Orders