Arundhati Mohanty vs Biju alias Sithila Kumar Panda and Another

A.K. Parichha, J.—In the present application u/s 439, Sub-section (2) of the Code of Criminal Procedure, in short, ''code of Criminal Procedure.'' the Petitioner has prayed for cancellation of bail granted to opposite party No. 1 in CRLMC No. 1304 of 2003. The Petitioner is the informant and opposite party No. 1 is the accused in Lingaraj P.S. Case No. 52 of 2003 corresponding to G.R. Case No. 1111 of 2003 pending before the learned S.D.J.M., Bhubaneswar. Opposite party No. 1 filed CRLMC No. 1304 of 2003 praying for quashing of the above noted criminal proceeding or in the alternative to direct the learned S.D.J.M., Bhubaneswar to release him on bail on his surrender in that Court. This Court hearing the parties, while refusing to quash the criminal proceeding in G.R. Case No. 1111 of 2003, allowed the prayer for bail with a direction to the learned S.D.J.M., Bhubaneswar that on surrender the accused-opposite party No. 1 would be released on bail on furnishing cash security of Rs. 10,000/- alongwith one local surety of Rs. 10,000/- to the satisfaction of the learned S.D.J.M., Bhubaneswar with the further conditions that he shall not cause any threat, intimidation or coercion to the prosecution witnesses and shall co-operate with the investigation till the conclusion of the case and shall not indulge in similar type of offence in future. In the present petition, the Petitioner alleges that the accused-opp. party No. 1 obtained the said order of bail by practising fraud on this Court and so, the bail granted is liable to be recalled. The Petitioner has also alleged that opposite party No. 1 has been abusing and threatening her and her family members and insisting that the case filed against him should be withdrawn, although there is a condition in the bail order passed by this Court that he shall not cause any threat, intimidation or coercion to the prosecution witnesses. She claims that on this ground also the order of bail needs to be recalled.

In the counter affidavit, opposite party No. 1 has denied that the bail order in CRLMC No. 1304 of 2003 was obtained by practising any fraud or by suppressing any fact or materials. He also specifically denied the allegations that he abused or threatened the Petitioner and her family members. His specific plea is that he never violated the conditions of bail entailing cancellation of his bail u/s 439(2), Code of Criminal Procedure.

Section 439(2), Code of Criminal Procedure gives power to the High Court or the Court of Session to cancel bail of an accused and remand him to custody in appropriate circumstances. What are appropriate circumstances have been discussed in various judicial pronouncements of the Apex Court and different High Courts. In State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors.(2003) 26 OCR (SC) 802, the broad principle regarding cancellation of bail was discussed. Their Lordships observed that in the matter of cancellation of bail, merit of the order of granting bail is not generally to be examined, but the aspects like attempt of the accused to tamper with the evidence or threatening of the witnesses or commission of any other offence while on bail or adopting dilatory tactics by accused for delaying the trial or misuse of liberty are the main considerations. In Thogarani alias K. Damayanti v. State of Orissa 2003 (Supp.) OLR (NOC) 926, this Court observed that bail granted can be cancelled u/s 439(2), Code of Criminal Procedure when it is found that the order of bail was obtained by commission of fraud on the Court. In Sipra Mohanty Vs. Pradipta Mohapatra and Others, , this Court observed that bail of an accused is to be cancelled if he obtained that bail by suppressing the real facts and by filing false and fabricated certificates. So, generally bail already granted to an accused can be cancelled if the accused had obtained that bail order by practising fraud on the Court or if he violates the terms and conditions of the bail after being released on bail. In the present case, the allegation of the Petitioner is that opposite party No. 1 had filed two successive petitions u/s 438 Code of Criminal Procedure for anticipatory bail vide BLAPL Nos. 2226 of 2003 and 2571 of 2003 and although those applications for anticipatory bail were rejected, he suppressed the fact of rejection while making the application u/s 482, Code of Criminal Procedure (CRLMC No. 1304 of 2003) and obtained the bail order from this Court. According to her, such conduct of opposite party No. 1 amounts to fraud on the Court and so, the bail should be cancelled.

Mr. D. Nayak, learned Counsel for the Petitioner submits that the element of fraud is apparent from the certificate given by opposite party No. 1 in the petition, i.e. CRLMC No. 1304 of 2003, where he has indicated that the matter was never before this Court earlier.

Mr. S.S. Ray, learned Counsel appearing for opposite party No. 1, on the other hand, submits that the certificate given in CRLMC No. 1304 of 2003 was never to the effect that the matter of bail was never there before this Court, but the certificate was simply to the effect that the matter in the present form was never before this Court earlier. According to him, the applications where bail was refused were u/s 438, Code of Criminal Procedure ., whereas the petition in CRLMC No. 1304 of 2003 was u/s 482, Code of Criminal Procedure.

The certificate in CRLMC No. 1304 of 2003 reads as follows:

The matter out of which this criminal Misc. case arises was never before this Hon''ble Court in present form whatsoever as per instruction received from the Petitioner.

The certificate, therefore, was to the effect that the matter was never before this Court in the present form, i.e., u/s 482, Code of Criminal Procedure Learned Counsel for the Petitioner makes allegation that the word ''any'' in the certificate was subsequently scored through and the word ''present'' was inserted. I am afraid, this allegation cannot be entertained at this stage as there is no material to show such manipulation.

Now, question is whether non-mention about the previous applications u/s 438, Code of Criminal Procedure in the petition filed u/s 482, Code of Criminal Procedure would amount to fraud and suppression of material facts. Section 482, Code of Criminal Procedure relates to matters like quashing of the criminal proceeding whereas Section 438, Code of Criminal Procedure is regarding grant of anticipatory bail to the accused. The application u/s 438, Code of Criminal Procedure., therefore, cannot be taken as the same form as that of the application u/s 482, Code of Criminal Procedure Thus, the certificate given by opp. party No. 1 on the Petitioner of CRLMC No. 1304 of 2003 did not amount to any fraud.

The other allegation is that opposite party No. 1 is threatening the Petitioner and her family members and coercing them to withdraw the criminal case. According to the Petitioner, she had lodged reports about such abuse and threat of opposite party No. 1 in Mahila Police Station, Bhubaneswar and in Kharavelanagar Police Station on 21.2.2003 and 5.5.2003. The bail granted can be cancelled/recalled u/s 439(2), Code of Criminal Procedure if the accused violates the terms and conditions of bail and terrorises the prosecution witnesses. It is seen that both the applications dated 21.2.2003 and 5.5.2003 were made before grant of bail to opposite party No. 1 in CRLMC No. 1304 of 2003. There is no allegation or report that after grant of bail, the opp. party No. 1, in violation of the conditions of bail, has threatened the Petitioner or her witnesses. So, there is no material to indicate violation of the conditions of bail granted in CRLMC No. 1304 of 2003. As has been said in Banchhanidhi Samal v. Arjuna Rout and Ors. (2000) 18 OCR 283 liberty of a person should not be curtailed unless it is necessary in the interest of justice and that bail should be cancelled and liberty can be curtailed if the person abuses or misuses the order of bail.

As has already been indicated, opposite party No. 1 never practised fraud while perusing CRLMC No. 1304 of 2003. Nor did he violate the terms of bail granted in that case. In such event, liberty granted to him cannot be curtailed.

In view of the foregoing discussion, I find no merit in this application, which is accordingly dismissed.