Krishna Bera vs Buddhadeb Mudli and Others

R.K. Bag, J.—The petitioner has prayed for cancellation of bail of the Opposite Party Sri Buddhadeb Mudli under Section 439(2) of the Code of Criminal Procedure, 1973 in connection with G.R. No. 559 of 2013 arising out of Daspur Police Station Case No. 192 of 2013 dated 18.08.2013 under Section 354 of the Indian Penal Code. The backdrop of the present case in brief is as follows:--

On August 18, 2013 the petitioner lodged written complaint before the Officer-in-Charge of Daspur Police Station making an allegation of attempt to commit rape by the opposite party. The written complaint was treated as Daspur Police Station Case No. 192 of 2013 dated 18.08.2013 under Section 354 of the Indian Penal Code. On February 12, 2014 the opposite party was arrested and produced before the court of learned Additional Chief Judicial Magistrate, Ghatal who granted him bail. On July 24, 2014 the petitioner filed an application before the court of learned Additional Chief Judicial Magistrate, Ghatal for cancellation of bail of the opposite party and the said application for cancellation of bail of the petitioner was rejected by learned Additional Chief Judicial Magistrate. The petitioner has prayed for cancellation of bail of the opposite party before this court under Section 439(2) of the Code of Criminal Procedure.

It is pertinent to point out that opposite party controverted the allegation by filing affidavit-in-opposition and the petitioner also filed affidavit-in-reply before the court.

Mr. Sanyal, learned counsel appearing on behalf of the petitioner contends that very serious allegation of outraging of modesty of the petitioner was raised by the petitioner in the First Information Report. The opposite party is a teacher and he outraged the modesty of the petitioner when the opposite party went to the house of the petitioner as a private tutor of the child of the petitioner. By referring to the impugned order dated February 12, 2014 passed by learned Additional Chief Judicial Magistrate, Ghatal, Mr. Sanyal submits that learned Magistrate misdirected himself by not considering the allegation made in the First Information Report in proper perspective. Mr. Sanyal has pointed out that while the contents of First Information Report indicate specific serious allegation against the opposite party, learned Magistrate has observed in the order that the allegations made in the First Information Report are not very specific in nature. According to Mr. Sanyal, the order of granting bail by learned Magistrate on February 12, 2014 is perverse and as such the bail granted in favour of the opposite party is liable to be cancelled. It is relevant to point out that Mr. Sanyal has not pointed out any post-bail conduct of the opposite party for the purpose of cancellation of the bail.

Mr. Ali, learned counsel for the Opposite Party/State submits that the impugned order of granting bail by learned Magistrate can be challenged by way of revision before this court, but bail cannot be cancelled because the order for granting bail is perverse.

Mr. Chattopadhyay, learned counsel appearing on behalf of the opposite party also submits that the opposite party never misused the liberty granted by the court. Mr. Chattopadhyay also submits that learned Magistrate rejected the application for cancellation of bail of the opposite party on July 24, 2014. According to Mr. Chattopadhyay, the bail of the opposite party cannot be cancelled under Section 439(2) of the Code of Criminal Procedure even if the order of granting bail is perverse.

Section 439 (2) of the Code of Criminal Procedure, 1973 reads as follows:- "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."

The grounds for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code of Criminal Procedure are enumerated by the Supreme Court in Aslam Babalal Desai Vs. State of Maharashtra, AIR 1993 SC 1 : AIR 1992 SC 1 : (1992) CriLJ 3712 : (1992) 6 JT 21 : (1992) 2 SCALE 523 : (1992) 4 SCC 272 : (1992) 1 SCR 545 Supp . Those grounds for cancellation of bail are as follows:- (i) Misuse of liberty by the accused by indulging in similar criminal activity; (ii) Interference with the course of investigation; (iii) Attempt to tamper with evidence of witnesses; (iv) Threatening witnesses or indulging in similar activities which would hamper smooth investigation; (v) Likelihood of fleeing away of the accused to another country; (vi) Attempt to make the accused scarce by going underground or becoming non-available to the investigating agency; (vii) Attempt to place himself beyond the reach of his surety etc.

It is also pertinent to point out the principles of law enunciated by the Supreme Court for cancellation of bail in non-bailable offence in the case of Dolat Ram and Others Vs. State of Haryana, (1994) 3 Crimes 1013 : (1995) 1 JT 127 : (1994) 4 SCALE 1119 : (1995) 1 SCC 349 : (1994) 6 SCR 69 Supp , which are reiterated in "Suvendu Mishra v. Subrata Kumar Mishra" [2000 SCC (Cri.) 1508] as follows: Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of the bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. The Court cannot overlook the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.

Relying on the case Puran Vs. Rambilas and Another etc. etc., AIR 2001 SC 2023 : (2001) CriLJ 2566 : (2001) 2 Crimes 283 : (2001) 2 DMC 1 : (2001) 5 JT 226 : (2001) 3 SCALE 695 : (2001) 6 SCC 338 : (2001) 3 SCR 432 : (2001) 2 UJ 875 : (2001) AIRSCW 1935 : (2001) 3 Supreme 685 the Supreme Court has laid down in paragraph 17 of Abdul Basit Vs. Abdul Kadir Choudhary, (2015) 1 CCR 173 : (2014) 4 Crimes 561 : (2014) 4 JCC 2810 : (2014) 4 RCR(Criminal) 716 "that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation."

With the above proposition of law laid down by the Supreme Court I would like to deal with the rival contentions made from the Bar. On perusal of the impugned order dated February 12, 2014 passed by learned Additional Chief Judicial Magistrate, Ghatal, I find that learned Magistrate has not considered the specific allegation made against the opposite party by the petitioner in the written complaint treated as First Information Report. Learned Magistrate also should have considered in proper perspective the allegation made by the petitioner against a teacher who came to the house of the victim as a private tutor. Even if the said order of granting bail to the opposite party by learned Magistrate is considered as perverse, learned Magistrate cannot review the said order by cancellation of bail of the opposite party. The perverse order of granting bail by learned Additional Chief Judicial Magistrate can be challenged before the higher court by way of revision. Admittedly, the petitioner has not filed any revisional application before this court challenging the order dated February 12, 2014, by which bail was granted to the opposite party in the instant case. The petitioner has not made any allegation that the opposite party misused the liberty granted to him by the court or that the fair trial cannot be conducted if the petitioner remains on bail. In the absence of any allegation against the petitioner with regard to his post-bail conduct, I cannot persuade myself to invoke my power under Section 439(2) of the Code of Criminal Procedure for cancellation of bail of the opposite party.

In view of my above findings, the application for cancellation of bail is dismissed.

Criminal Section is directed to supply urgent Photostat certified copies of this order to the parties, if applied for, after compliance with all necessary formalities.