Ram Naresh Singh vs State of Madhya Pradesh

Shankar, J.—This revision petition has been preferred against the order dated 4-10-1993, passed by Additional Sessions Judge, Gohad, whereby he granted bail to the non-applicants No. 1 to 5.

Facts leading to the present petition are : that an offence u/s 307/34, I.P.C. was registered at Crime No. 71/93 at P.S. Mou. It was alleged that the accused persons caused injuries to complainant''s brothers Satyendra and Arvind by fire-arm. The non-applicants moved an application for bail, which was rejected but the second application was allowed. Feeling aggrieved thereby, the present petition has been preferred.

Learned counsel for the non-applicants contended that the revision petition is not maintainable, as the order of bail granted in their favour is an interlocutory order. Learned counsel for the applicant contended that if it is held that the revision petition does not lie, the application may be treated as a petition u/s 439(2) of the Code of Criminal Procedure, for cancellation of bail. On merits, learned counsel for the applicant argued that a perusal of the injury report shows that the injuries were serious in nature and the learned trial Court committed an irregularity and illegality in granting the bail. No bail should have been granted. The first application was rejected and there were no new grounds for granting the bail.

The learned counsel for the applicant in support of his contention that the application may be treated as an application u/s 439(2), Cr. P. C, relied upon the case of Gurcharan Singh and Others Vs. State (Delhi Administration), Learned counsel for the non-applicants, on the other hand, contended that the revision petition is not maintainable as the impugned order is an interlocutory order. Learned counsel further contended that it too cannot be treated as an application u/s 482, Cr. P. C. and in support of his contention, he relied upon the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, . Replying the argument it is urged by counsel for the applicant that the petition be treated as one u/s 439(2), Cr. P. C. The learned counsel for the non-applicants contended that there are no grounds for cancellation of bail.

I have considered the contentions raised before me. At the out set, I may mention that it cannot be disputed that the order granting bail is an interlocutory order and no revision lies against such an order in view of the provisions of Section 397(2), Cr. P. C. This proposition was also laid down by Hon''ble the Supreme Court in case of Amarnath v. State of Haryana 1977 CAR 273. Thus, now it is beyond doubt that an order granting bail is an interlocutory order and no revision lies, against such an order.

Now coming to thre question as to whether application can be treated as one u/s 439(2) Cr. P. C. or u/s 482, Cr. P. C, learned counsel for the non-applicants contended that it cannot be so treated. As regards the point relating to the consideration of the application u/s 482, Cr. P. C., it may be mentioned that the authority of Delhi Municipality (supra) relied upon by the learned-counsel for the non-applicants clearly shows that it cannot be so treated. Thus, this point also is not open.

Coming now to the argument as to whether the application can be treated or not as an application u/s 439(2) Cr. P. C, it may be mentioned that in view of provisions of Section 439(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 committed to custody. In Gurucharan Singh''s case (supra), Hon''ble the Supreme Court considered this matter and observed that:

"If, however, a Court of Session had admitted art accused 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 which 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 bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."

In this view of the apex Court, I agree with the learned counsel for the applicant that the State Government has two courses open against an order granting bail. Thus, the State can move an application for cancellation of bail before this Court, provided that there are no new circumstances that have cropped up except those which already existed. Thus, the application can be moved to this Court where no new grounds are there in view of the law laid down by the Hon''ble Supreme Court for cancellation of bail.

Here, in the present case, the State has not come forward but the complainant has approached this Court. But as the complainant could be said to be an aggrieved person, to my mind, he can approach this Court also. In this view of the matter the application can be treated as an application u/s 439(2), Cr. P. C.

Now there remains the question as to whether the bail granted to the non-applicants can be can celled or not. In this regard, it must be mentioned that it is settled position that the liberty once granted to an accused cannot be curtailed by cancellation of bail, unless certain conditions are fulfilled. The Hon''ble Supreme Court in Aslam Babalal Desai Vs. State of Maharashtra, has ruled that bail granted under Sections 437(1) or (2) can be cancelled u/s 437(5) and 439(2) where :

(1) the accused misused his liberty by indulging in similar criminal activity;

(2) interferes with the course of investigation,

(3) attempts to tamper with evidence or witnesses,

(4) threatens witnesses or indulges in similar activities which would tamper smooth investigation,

(6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency;

(7) attempts to place himself beyond the reach of his surety.

The Hon''ble Supreme Court has further observed that these are the grounds which are only illustrative and non exhaustive. It has further been observed that cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. I may mention here that the applicant has not raised a little finger about these grounds. Simple argument advanced by the learned counsel for the applicant is that the bail should not have been granted as the offence was serious. To my mind, it cannot be said to be a sufficient ground to cancel the bail.

Thus, even if the present application is taken to be an application u/s 439(2), Cr. P. C, for cancellation of bail, in that case too, there are no grounds for cancellation of bail. The petition, therefore, deserves to be dismissed.

Accordingly, the petition is dismissed.