Bahadur Singh vs State of Rajasthan and Others

M.C. Sharma, J.

These two criminal misc. applications for cancellation of bail under Section 439(2) Cr.P.C. have been filed by the complainant applicant against the order dated 24.10.2013 passed by this court in S.B. Cr. Misc. Bail Application No. 10205 of 2013 filed by accused respondent Sahab Singh and against the order dated 18.10.2013 filed by the accused respondents Udai Bhan and Gyan Singh in FIR No. 93/2013 registered at Police Station Diholi, District Dholpur initially for offence under Section 143, 323, 341, 336, and 379 IPC during investigation the police added offence u/s. 307 IPC and Section 3/25 of the Arms Act and this court allowed the bail applications of the accused respondents in both the bail applications under Section 439 Cr.P.C. and released them on bail. As both these applications for cancellation of bail relate to FIR No. 93/2013 registered at Police Station Diholi, District Dholpur against the orders releasing the accused respondents on bail, they are being disposed by this common order. Facts as alleged in Criminal Misc. Cancellation Bail Application No. 12333 of 2013 are that on 20.9.2013 the complainant lodged a written report against the accused respondent and other accused persons at Police Station Diholi District Dholpur with regard to an incident that taken place on 19.9.2013 where the accused persons including the accused respondent have given severe beating to the complainant and his family members and caused fire arm injury to brother of the complainant gutti. On the basis of the report the police registered a criminal case bearing FIR No. 93/2013 initially for offence under Sections 143, 323, 341, 336 and 379 IPC and investigation commenced. During investigation the police found prima facie case against the accused respondent and other accused persons and added offence under Section 307 IPC and Section 3/25 of the Arms Act. After their arrest the accused respondents moved common bail application under Section 439 Cr.P.C. before the Sessions Judge, Dholpur, the Sessions Judge heard the arguments and vide order dated 11.10.2013 rejected the common bail application of the accused respondents holding that in the factual report submitted by the SHO along with case diary the offence under Sections 323, 34, 307, 34 IPC and Section 3/25 Arms Act is found prima facie proved and also held that as per the criminal record produced by the SHO three criminal cases are pending against the accused respondent Bahadur Singh.

While the above bail application of Sahab Singh was pending the accused persons Udaibhan and Gyan Singh were granted bail by the order of this court dated 18.10.2013. The order dated 18.10.2013 reads as under:

"This bail application has been filed under Section 439 Cr.P.C. Learned counsel for the petitioner has contended that the co-accused persons have been released on bail the accused petitioners have been falsely implicated in the case. According to him, the main accused is Sahib Singh who alleged to have opened fire due to which the injured sustained injury on the Ankle. No other case is pending against the petitioners. Hence, the accused petitioners should be released on bail. Looking to the facts and circumstances of the case, but without expressing any opinion on the merits and demerits of the case, I deem it just and proper to release the petitioners on bail.

Therefore, this bail application is allowed and it is directed that accused petitioners (1) Udai Bhan and (2) Gyan Singh shall be released on bail under Section 439 Cr.P.C. in connection with FIR No. 93/2013 registered at Police Station Dinoli District Dholpur provided he furnishes a personal bond in the sum of Rs. 1,00,000 (Rupees one lac) together with two sureties in the sum of Rs. 50,000 (rupees Fifty thousand) each to the satisfaction of the trial court with the stipulation that they shall appear before that court on all subsequent dates of hearing and as and when called upon to do so.

It may further be mentioned that in the Bail Application No. 10205/2013, this court on 24.10.2013 passed the following order and released the accused respondent Sahab Singh on bail:

This bail application has been filed under Section 439 Cr.P.C. Learned counsel for the petitioner has contended that the accused petitioner has been falsely implicated in the case and the accused petitioner is in judicial custody since long. The co-accused namely Udai Bhan and Gyan Singh have already been released on bail by this court on 18th October 2013 in/S.B. Cr. Misc Bail Application No. 9922/2013 and, the case of the petitioner is on better footing. The alleged offences are triable by the Judicial Magistrate, First Class and the trial will take time, hence he should be released on bail.

Learned PP appearing for the State has opposed the same. In view of the above, without expressing any opinion on the merits and demerits of the case, I deem just and proper to enlarge the petitioner on bail.

Therefore, this bail application is allowed and it is directed that accused petitioner Sahab Singh s/o. Jardaan Singh shall be released on bail under Section 439 Cr.P.C. in connection with FIR No. 93/2013 registered at the police station Diholi, District Dholpur provided he furnishes a personal bond of Rs. 1,00,000 (Rupees one lakh) with two sureties in the like amount each to the satisfaction of the trial court with the stipulation that he shall appearing before that court on all subsequent dates of hearing and as and when called upon to do so."

The counsel for the complainant has argued that the accused respondents in the bail application filed before the Sessions Judge mentioned the offence under Section 307 IPC and Section 3/25 Arms Act, but concealed this fact in the bail applications moved before this court and by concealing the material facts obtained the benefit of bail. In the bail application filed by the accused respondent, the counsel for the accused has argued before this court that the accused persons Udai Bhan and Gyan Singh have already been released on bail by this Court on 18.10.2013 and the case of the accused respondent is on better footing and the offences alleged against the accused respondent are triable by Judicial Magistrate and on that basis this court allowed the bail application of the accused Sahab Singh also vide order dated 24.10.2013. It was argued that the accused respondents in both these cases are not entitled to be released on bail and the application for cancellation of bail should be allowed and the accused respondents should be arrested. The counsel has placed reliance on Prakash Kadam and Vs. Ramprasad Vishwanath Gupta and Another, .; Dinesh M.N. (S.P.) Vs. State of Gujarat, ; Dr. Narendra K. Amin Vs. State of Gujarat and Another, and Vmrao Gurjar v. State and others (S.B. Criminal Misc. Bail Cancellation Application No. 1570/2013 decided on 3.2.2014.

Mr. Virendra Godara, Public Prosecutor and Mr. Manoj Avasthi, counsel for the accused respondents in both these applications have argued that this court after hearing the counsel for the accused respondents and the public prosecutor and considering the material available on record, allowed the bail applications filed by the accused respondents and the same cannot be cancelled under Section 439(2) Cr.P.C. The orders granting bail to the accused respondents are perfectly legal and do not call for any interference under Section 439(2) Cr.P.C.

I have heard the learned counsel for the parties and have also looked into the material available on record and the rulings cited by the counsel for the complainant.

Before proceeding further it is necessary to have a look at the provisions of Section 439(2) Cr.P.C. The same reads as under:

"(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

Jurisdiction under Section 439(2) Cr.P.C. is a concurrent jurisdiction, same can be exercised by the Sessions Judge and also by the High Court. Normally first application for bail under Section 439 Cr.P.C. is considered by the court below, thereafter this Court also entertain the same under Section 439 Cr.P.C. Mere mentioning of a wrong section will not change the character of the prayer, and this court will not be precluded to dispense justice as technicalities cannot triumph over substantial justice.

It is also necessary to have a look at the important rulings of the Apex Court and of this Court canceling bail granted to the accused persons released on bail.

In Prakash Kadam and Vs. Ramprasad Vishwanath Gupta and Another, , the Apex Court held as under:

It was contended by the learned counsel for the appellants before us, and it was also contended before us, and it was also contended before the High Court, that the considerations for cancellation of bail are different from the consideration of grant of bail vide Bhagirathsinh Judeja Vs. State of Gujarat, ; D.K. Jain and Others Vs. State of Haryana and Others, and Ramcharan Vs. State of M.P., . However, we are of the opinion that is not an absolute rule, and it well depend on the facts and circumstances of the case.

In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for canceling the bail. It well not apply when the order granting bail is appealed against before an appellate Revisional Court.

In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.

In Dinesh M.N. (S.P.) Vs. State of Gujarat, the Apex Court held as under:

Even though the re-appreciation of the evidence as done by the court granting bail is to be avoided, the court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the court for accepting the prayer for bail.

In Puran Vs. Rambilas and Another etc. etc., it was noted as follows: (SCC p. 345, para 11)

"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has mis-conducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh and Others Vs. State (Delhi Administration), . In that case the Court observed as under: (SCC p. 124, para 16)

"16 ... 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 have cropped up except those already existing, 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 Court of Sessions vis-a-vis the High Court."

The perversity as highlighted in Puran Vs. Rambilas and Another etc. etc., can also flow from the fact that as noted above, irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature. In the instant case, the trial court seems to have been swayed by the fact that Sohrabuddin had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account.

Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police. The accused was the leader of the Rajasthan team and the other officials were Abdul Rehman, Himanshu Singh, Mohan Singh, Shyam Singh and Jai Singh. The first named Abdul Rehman had lodged the FIR. It is pointed out from the general diary in respect of entry on 26.11.2005 that accused Dinesh was present. In FIR No. CR 1-5 of 2005 also the presence of Dinesh has been noted. The relevance of these factors does not appear to have been noticed by the High Court. In other words, relevant materials were kept out of consideration. Once it is concluded that bail was granted on untenable grounds, the plea of absence of supervening circumstances has no leg to stand.

We has only highlighted the above aspects to show that irrelevant materials have been taken into account and/or relevant materials have been kept out of consideration. That being so the order of granting bail to the appellant was certainly vulnerable. The order of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed. However, it is made clear that whatever observations have been made are only to decide the question of grant of bail and shall not be treated to be expression of any opinion on merits. The case relating to acceptability or otherwise of the evidence is the subject-matter for the trial court.

In Dr. Narendra K. Amin Vs. State of Gujarat and Another, the Apex Court held as under:

As is evident from the rival stands, one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial court while granting bail acts on irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope for filing an appeal against the order of grant of bail. Under the scheme of the code the application for cancellation of bail can be filed before the court granting the bail if it is a Court of Session or the High Court.

The High Court also erroneously held that there was a ban in granting bail in heinous crime.

It has been fairly accepted by learned counsel for the parties that in some judgments the expression appeal in respect of an order of grant of bail has been used in the sense that the State can move the higher court.

Though the High Court appears to have used the expression "ban": on the grant of bail in serious offences, actually it is referable to the decision of this court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, . In para 11 it was noted as follows: (SCC pp. 535-36) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complaint.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh and Others, and Puran Vs. Rambilas and Another etc. etc., )

It was also noted in the said case that the conditions laid down under Section 437(1)(i) are sine qua non for granting bail even under Section 439 of the Code.

In para 14 it was noted as follows: ( Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another,

"14. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records that when the fifth application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No. 745 of 2001 dated 25.7.2001 Union of India v. Rajesh Ranjan, (2004) 7 SCC 539. While canceling the said bail this Court specifically held that the fact that This Court also in specific terms the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(i)(i) of the Code, held that the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, j nor the fact that the trial is not likely to be concluded in the near future either by itself of coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."

Even though the re-appreciation of the evidence as done by the court granting bail is to be avoided the court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the court for accepting the prayer for bail.

Reliance on S.B. Cr. Misc. Bail Application No. 1570 of 2013 Umrao Gurjar v. State decided on 3.2.2014, has been made by the complainant relates to a matter of pre-arrest bail, hence it is not applicable to the present matter. In the instance the accused respondents were granted bail after arrest by the police and their bail application was rejected by the sessions Judge, Dholpur and thereafter they have approached this court under Section 439 Cr.P.C.

In S.B. Cr. Misc. Case, of Bail Application No. 6852/07 State v. Ram Charan decided by this court on 10.10.2007, this court issued notice to the accused Ram Charan for cancellation of bail when it has come to the notice of the court that recovery of 10 kg opium was made but recovery was shown separately in three parts, (i) 4 kg. At the instance of father of the petitioner Durga Lal who holds licence to cultivate the opium, (ii) 3 kgs. at the instance of Ram Charan, the present accused non petitioner and (iii) 3 kgs. at the instance of co-accused Ram Kalyan. This is not the case here. Here the complainant filed application for cancellation of bail granted to the accused respondents in both these cases by not mentioning the correct facts. Thus the principle enunciated in the case cited by the counsel for the complainant is not applicable to the present matter.

Without going into the merits of the case, and looking to the principles laid down by the Apex Court, and the fact that on asking the counsel for the complainant that if any lawyer commits an error while drafting the bail application and mislead to this Court, then why such matter should not be referred to the Bar Council of Rajasthan for taking action against the concerned advocate, the applications for cancellation moved by the complainant stands rejected. The learned counsel for the complainant in these circumstances requests that this matter should be referred to the Bar Council of Rajasthan for taking necessary action. For these reasons, I do not think it proper to cancel the bail granted to the accused respondents and the applications for cancellation of bail stand rejected. However the counsel for the applicant shall be free to move applications afresh as and when he deems fit before the concerned court.