Meer Khan and Another vs State of U.P. and Others

Surendra Singh, J.—The applicant by filing present application u/s 482, Cr.P.C, has sought to quash impugned order dated 9-4-2009 passed in connection with the Criminal Misc. Case No. 7 of 2008 (State v. Meer Khan and Anr.) in ST. No. 1064 of 2008 arising out of Case Crime No. 4 of 2007 under Sections 302, 404 and 411, I.P.C of Police Station Kadarchowk, District Budaun.

The background facts in a nutshell are as follow;

Respondent No. 2, Wajih Ullah Khan, brother of the deceased (Hasib Dulhey Khan) lodged the F.I.R. u/s 304, I.P.C. at Police Station Kadarchowk, District Budaun vide Case Crime No. 4 of 2007 on 9-10-2007 at about 7.15 p.m. regarding the incident alleged to have taken place on 8-1-2007 at unknown time. The applicants were not named in the F.I.R. and their names had surfaced as participants in the crime during the course of the investigation. The Investigating Officer of the case after completion of the investigation had submitted charge sheet against them and two others under Sections 302, 404 and 411. I.P.C.

The applicant No. 1 was admitted to bail by another Bench of this Court vide order dated 11-1-2008. The order granting bail to him is being reproduced hereinbelow:

Hon''ble Ravindra Singh, J.

Heard learned Counsel for the applicant, learned A.G.A. and Sri. M.A. Abbasi, learned Counsel for the complainant. It is submitted by learned Counsel for the applicant that in the present case the applicant is not named in the F.I.R. The name of the applicant has been disclosed after ten months of the alleged incident. It is said that the applicant Was seen in the company of the other co-accused coming towards the place of occurrence by the applicant but the naming of the applicant is after thought. There is no direct eye witness account and nothing incriminating has been recovered from the possession of the applicant or at his pointing out. The co-accused Zumma alias Ahsan Mohd. whose case is based on the similar footing with the case of the applicant has been released on bail by another Bench of this Court on 13-12-2007 in Criminal Misc. Bail Application No. 28384 of 2007.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the complainant that applicant is having criminal antecedent, in case he is released on bail, he shall tamper with the evidence.

In view of the facts and circumstances of the case and submissions made by learned Counsel for the applicant and learned AGA and without expressing any opinion on the merits of the case, the applicant is entitled to be released on bail.

Let the applicant Meer Khan involved in Case Crime No. 4 of 2007 under Sections 302, 404, 411 I.P.C., Police Station Kadar Chowk, District Budaun be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions;

That the applicant will report to the police station concerned once in every month at a time and date to be fixed by office in charge of the Police Station concerned.

That the applicant will not tamper with the prosecution witnesses and will not abscond.

That the applicant will co-operate with the trial and will not seek any unnecessary and uncalled for adjournment.

That the applicant will not leave the District Budaun without prior permission of the concerned court and prior intimation of his Police Station concerned.

The applicant No. 2 was also granted bail by Incharge Sessions Judge, Budaun vide order dated 23-1-2008 (Annexure-1) subject to almost similar conditions imposed against the applicant No. 1, thus both the applicants were admitted to bail subject to the conditions imposed therein. After being released on bail both the applicants made murderous assault with firearm upon one of the main prosecution witnesses namely, Azam Khan on 24-2-2008 in the broad-day light at about 1.00 p.m. Resultantly Azam Khan sustained firearm injuries and was medically examined on the same day. Subsequently F.I.R. was lodged by the victim Azam Khan at Police Station Kadarchowk, District Budaun on the same day at about 2.30 p.m. under Sections 341, 307, 506/34 I.P.C. bearing Case Crime No. 82 of 2008. On, completion of investigation charge-sheet was submitted against the applicants and one another on 25-6-2008 under Sections 324 of 504 I.P.C.

In consequence thereof an application for cancellation of bail granted to the applicants was moved by opposite party No. 2 before the Sessions Judge, Budaun which was transferred to the court of Additional Sessions Judge, Fast Track Court No. 1, Budaun who is the seisin with the trial, mainly on the ground that the applicants have apparently misused the privilege of the bail while tampering the main prosecution witness Azam Khan and thereby they have contravened the terms and conditions of the order granting bail by this Court as well as the Sessions Judge, Budaun. The trial court after inviting objections from the applicants and affording proper opportunity of hearing to both the parties and having perused the material available on the record cancelled the bail granted to the applicants by the impugned order dated 9-4-2009, hence legality, correctness and propriety in the order dated 9-4-2009 is under challenge before this Court by way of instant application.

Heard learned Counsel for the applicants and learned A.G.A. and perused the material placed on record.

The contention of learned Counsel for the applicants is as far as applicant No. 1 is concerned, he was granted bail by this Court, therefore, the bail cancellation application ought to have been filed before this Court itself and the learned Sessions Judge has no jurisdiction to entertain or pass any order on any such application. It is next contended that mere assumption of alleged threat to the witness could not have been the ground for cancellation of ball of the applicants either by Additional District Judge/Fast Track Court or by this Court. Rather the bail cannot be cancelled other than the grounds mentioned u/s 439 Cr.P.C, therefore, the learned-Sessions Judge, has committed gross illegality and flagrant miscarriage of Justice and the impugned orders deserve to be set at rest.

On the other hand, learned A.G.A. and Sri P.C. Srivastava, learned Counsel appearing on behalf of respondent Nos. 2 and 3 have vehemently contended that this Court as well as Sessions Judge while admitting the applicants on bail have imposed certain conditions which are evident from the perusal of the order quoted above. They have further contended that it is evident from the material placed on the record that the applicants have made murderous assault upon opposite party No. 3 who is the eye-witness of the murder case and this was very cogent and overwhelming circumstance for the order directing the cancellation of bail already granted as it amounts to interference with the due course of administration of justice or attempt to evade the due course of justice and clear abuse of the concession granted to the applicants in any manner. Learned Counsel, relied upon the decision of Hon''ble Apex Court in the case of Panchanan Mishra v. Digambar Mishra and Ors. 2005 1 Scc 660 : AIR 2005 SC 1299, State of U.P. through C.B.I. v. Mohd. Khan 2005 2 SCC 1960, Daulat Ram v. State of Haryana 1995 Scc 237 : (2007) 4 Crimes 62 : 2007 (6) ALJ 157 Sudha Verma v. State of U.P. The impugned order cancelling the bail, therefore, cannot held to be passed in a mechanical manner and there appears no illegality or flagrant miscarriage of justice in the order passed by the learned Sessions Judge. They have next urged that lerned Sessions Judge in view of Section 439(2) of new Code is fully conferred with specific power to direct any person who has been released on ball to be arrested and committed to custody. They have placed reliance upon the decision of the Hon''ble Supreme Court in Gurucharan Singh v. State, Delhi Administration AIR 1978 Sc 179.

Indisputably, very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted by a competent court. Generally, the grounds for cancellation of bail 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 process of abuse of the privilege granted to the accused in any manner or there is reasonable apprehension of the accused of absconding. Therefore, for cancellation the conduct of the accused sub-sequent to release on bail and supervening circumstance alone are relevant. Hon''ble Apex Court in specific terms has held in the case of Panchanan Mishra (supra) in paragraph 13 as follows:

We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of the bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.

It has also been settled by the Hon''ble Apex Court that bail once granted should not be cancelled in a mechanical manner without considering whether there is any supervening circumstances have rather rendered it no longer conducive to fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Now so far as exercise of the power conferred upon Sessions Judge to commit the applicants specially applicant No. 1 who was admitted to bail by this Court is concerned, the Hon''ble Apex Court in the case of Gurucharan Singh v. State Delhi Administration AIR 1978 Sc 179 has made certain observations regarding the point in issue in para 16 of the judgment which is quoted hereinbelow:

Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position u/s 498, Cr.P.C. of the old Code. That is to say, even if a Magistrate refused to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly u/s 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody. In other words, u/s 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code u/s 439(2). u/s 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. 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 u/s 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 existed, 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 Session vis-a-vis the High Court.

The only conclusion fathomable from the above discussion is that the Court of Sessions cannot cancel the bail which has already been granted by the High Court, in an ordinary course unless new circumstances arise during the pendency of the trial.

Thus looking into the conduct of the applicants, apprehension of the tampering with the evidence and threats given to life of prosecution witnesses by them, I am of the considered opinion that learned Additional District Judge, Budaun took into proper account the tampering of the prosecution evidence as well as contravening the terms and conditions of the order granting ball by the accused-applicants.

The impugned order dated 9-4-2009 passed by Additional Sessions Judge, Fast Track Court No. 1, Budaun does not suffer from any illegality or flagrant miscarriage of justice and does warrant any interference. The present application is bereft of any merit and is hereby dismissed with the direction that the trial court shall endeavour to conclude the trial expeditiously without unreasonable delay.