Md. Raju vs Md. Salim

This application has been filed by the de facto complainant u/s 439(2) of the Code of Criminal Procedure, for cancellation of the bail granted to the opposite parties, accused inter alia u/s 302 of the Indian Penal Code, for murder of one Md. Arju, younger brother of the de facto complainant on 5th February, 2013. Mr. Pradip Kumar Roy, appearing on behalf of the accused opposite parties prayed for directions to file affidavits. However, we did not deem it necessary to call for affidavits, as the case diary is before us. The prayer of Mr. Roy for affidavits was considered and refused.

Pursuant to a complaint in writing lodged by the de facto complainant, Police Station Case No. 86 of 2013 was initiated against the accused/opposite parties under sections 147/148/149/302/506/34 of the Indian Penal Code on the same day i.e. 5th February, 2013.

The accused/opposite parties filed an application u/s 438 for anticipatory bail before the District Sections Judge, Howrah being Criminal Miscellaneous Case No. 306 of 2013.

By an Order dated 5th March, 2013, the learned District Sessions Judge, Howrah, allowed the prayer of the accused/opposite parties for anticipatory bail u/s 438 of the Code of Criminal Procedure. The said Order reveals that the learned Public Prosecutor who appeared before the learned District Sessions Judge, Howrah did not oppose the prayer of the accused/opposite parties for anticipatory bail.

The learned Judge inter alia held "Having heard the Ld. Advocates for the respective parties and on going through the materials in the case diary, it emerges that deceased Md. Arju was staying outside along with other brothers for a long time as they were never allowed to come in the area because whenever they came in the area they created problems. It further reveals that all the brothers were involved in criminal activities and in this regard a mass petition was given on behalf of the people of the locality to the Police Commissioner of Howrah Commissionerate prior to the date of occurrence. The acts facts and circumstances indicate that the incident of murder had taken place due to outrage of the people of the people of the locality. It does not appear to me that custodial detention of the petitioners would be required for the purpose of investigation."

Mr. Sekhar Basu, appearing on behalf of the petitioner submitted that the grounds for allowing the prayer of the accused/opposite parties u/s 438 of the Code of Criminal Procedure wore wholly misconceived and perverse. The fact that the deceased or his brothers may have been involved in Criminal activities for which there might have been anguish against them, is no defence to a charge of murder and certainly no ground for anticipatory bail to those accused of murder. Mr. Basu submitted that in view of the nature of the allegations against the accused/opposite parties in the FIR lodged by the de facto complainant, who claimed to have witnessed the incident with his own eyes, and in view of materials which suggested that there were other eyewitnesses in whose presence the de facto complainant''s brother had been attacked, the prayer of the accused opposite parties for anticipatory bail at such early stage of investigation, should have been refused.

Mr. Basu submitted that the Order dated 5th March, 2013 of the learned District Sessions Judge being wholly unsustainable in law as well as facts, this Court was duty bound to cancel the bail of the accused/opposite parties. In support of his argument Mr. Basu cited Pokar Ram Vs. State of Rajasthan and Others, wherein the Supreme Court held that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress.

In Pokar Ram (supra) an incident had occurred on 23rd August, 1983 in which one Bhanwaria, son of the appellant Pokar Ram, had received fatal injuries which led to his death. Bhanwaria was alive at the time when the FIR was lodged but later succumbed to his injuries after which offence u/s 302 was added.

The learned Sessions Judge, Jodhpur allowed the prayer of one of the accused for anticipatory bail, whereupon the appellant, Pokar Ram approached the High Court of Rajasthan with an application for cancellation of the anticipatory bail, which was rejected. The Rajasthan High Court, relying on various precedents, found that while dealing with an application for cancellation of bail, warranting inference with a discretionary Order passed by the learned Sessions Judge granting bail, the considerations which should weigh with the Court were, whether the accused was likely to abuse the discretion granted in his favour threatening or dissuading or influencing or the evidence tampering with prosecution witnesses or whether the accused would be readily available during the trial. The High Court concluded that such grounds on which bail could be cancelled did not exist.

The Supreme Court, however, observed that the High Court had unfortunately missed the crux of the matter and held that when unquestionably no case has been made out for granting anticipatory bail, which to some extent intrudes in the sphere of investigation of crime, the Court must be cautious and circumspect in exercising such power of discretionary nature. When the discretionary power u/s 438(2) was exercised sub silentio as to reasons, or on considerations irrelevant or not germane to the determination, the Court to avoid miscarriage of justice must interfere.

Mr. Roy appearing for the accused/opposite parties on the other hand contended strongly that bail once granted could not be cancelled until or unless there was any infringement of the conditions on which bail had been granted or unless there was specific material to show that any provisions of section 438(2) of the Code of Criminal Procedure had been violated.

In support of his submissions, Mr. Roy, cited the following judgment:

(i) Bhagirathsinh Judeja Vs. State of Gujarat, and

(ii) Dolat Ram and Others Vs. State of Haryana,

In Bhagirathsinh Judeja (supra) the Supreme Court, inter alia, concluded--

In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary Order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary Order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an Order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The Order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the Order made by the High Court.

In Dolat Ram (supra) the Supreme Court held that

Rejection of bail in a non bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an Order directing the cancellation of the bail, already granted. 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 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked to distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail, already granted.

The judgments of the Supreme Court in Dolat Ram (Supra) as well as in Bhagirathsinh Judeja (supra) were rendered in the context of the particular facts of the aforesaid case where the Supreme Court disapproved the reasons for interference with the discretionary Order u/s 438(2) of the Cr.PC passed by the District Sessions Judge. There can be no doubt that bail once granted, should not be cancelled casually, in a mechanical manner, for the asking. Moreover, the judgment in Pokar Ram (supra) cited by Mr. Basu has been rendered by a larger bench of the Supreme Court comprising three judges while Dolat Ram (supra) and Bhagirathsinh Judeja (supra) have been rendered by two judge bench. The law relating to cancellation of bail has been enunciated and summarized by the Supreme Court in Puran Vs. Rambilas and Another etc. etc., where Bhagirathsinh Judeja (supra) and Dolat Ram (supra) were considered. The Supreme Court held that generally speaking, the grounds for cancellation of bail are interference or attempt to interfere with the due course of administration of justice or abuse of the concession granted to the accused. However, these instances are only illustrative and not exhaustive. A perverse Order granting bail in a heinous crime, ignoring material and evidence on record, would be a ground for cancellation of bail, for such an Order would be against principles of law. Interest of justice would require that such a perverse Order be set aside and the bail be cancelled. The Supreme Court further held that there is nothing in section 439(2) which indicates that power to cancel a bail can only be invoked by the State or by an aggrieved party. The power could also be exercised suo motu by the High Court. Any member of the public, belonging to any profession could move the High Court to remind it of the need to exercise its power suo motu. If the High Court considers that there is no need to cancel the bail, then it can dismiss the petition, but it is always open to the High Court to cancel the bail if it feels that there are sufficient reasons for doing so. Both the judgments cited by Mr. Roy i.e. Dolat Ram (Supra) and Bhagirathsinh Judeja (supra) were considered and distinguished by the Supreme Court in Puran vs. Rambilas (Supra). The Supreme Court did not consider it necessary to deal with those judgments separately observing that there were no assistance in a case where bail had been cancelled for very cogent and correct reasons.

In the instant case, the grounds on which the learned District Sessions Judge has allowed the application of the co accused/opposite parties for bail arc totally absurd, misconceived and perverse. The Order is devoid of reasons and unsupported by any cogent materials and/or evidence in favour of the accused/opposite parties. The said Order dated 5th March, 2013 is unsustainable both in law as well as facts.

The instant application is, therefore, allowed. The Order dated March 5, 2013 of the learned District & Sessions Judge, Howrah allowing anticipatory bail in Criminal Misc. Case No. 306 of 2013 and the consequential orders passed by the learned Chief Judicial Magistrate are set aside.

The accused/opposite parties shall forthwith surrender, and in any case within a week from date. Urgent photostat certified copy of this Order, if applied for, be supplied to the parties as early as possible.