Ravindra Sharma alias Ravi (in Jail) vs State

Vishnu Sahai, J.—Heard learned Counsel for the parties.

This is a second application for bail ; the first bail application having been rejected by Hon''ble A. Mateen, J., vide his order dated 14.2.2003, passed in Criminal Misc. Case No. 606 (B) of 2003.

This bail application has been preferred on the ground that subsequently on 24.6.2003, I granted bail to co-accused Vijay alias Sharif, vide my order in Criminal Misc. Case No. 1612 (B) of 2003 and since the case of the applicant is similar to that of Vijay alias Sharif, he should be granted bail. On 4.7.2003, this second bail application came up before Hon''ble A. Mateen, J., who passed the following order:

This is the second application for bail. First bail application was rejected by me on 14.2.2003.

Learned Counsel for the applicant stated that an amount of Rs. 6,25,000 was recovered from the possession of the applicant. He further stated that similar amount was also recovered from co-accused Vijay alias Sharif, who has been released on bail by Hon''ble Vishnu Sahai, J., vide his order dated 24.6.2003, passed in Criminal Misc. Case No. 1612 (B) of 2003. He has also placed the order dated 24.6.2003 before this Court.

From the order it comes out that the Court while releasing the co-accused Vijay alias Sharif has observed that the accused is in jail for the last fifteen months. The incident is of 1.11.2002.

As indicated above, in the circumstances I think it proper that this bail application of Ravindra Sharma alias Ravi be also placed along with the record of bail application of co-accused Vijay alias Sharif before Hon''ble Vishnu Sahai, J., in the next cause list.

This bail application shall not be treated as tied up to me.

Pursuant to the above, order, today, this bail application came up before me and learned Counsel for the applicant strenuously urged that since the case of the applicant is similar to that of co-accused Vijay alias Sharif, the applicant be admitted to bail.

It is pertinent to mention that I granted bail to Vijay alias Sharif vide order dated 24.6.2003, which reads thus:

Heard learned Counsel for the parties.

Considering overall circumstances and bearing in mind the facts the applicant is in jail for the last fifteen months and he has no criminal history, let applicant Vijay alias Sharif be enlarged on bail in Case Crime No. 763 of 2002 u/s 2/3, U.P. Gangsters and Anti-Social Activities (Prevention) Act of police station Hazratganj District Lucknow on his furnishing a personal bond of Rs. 5,000 and two sureties of the like amount to the satisfaction of the concerned Special Judge under U.P. Gangsters Act.

It would become manifest from my order that I was primarily prompted to grant bail to Vijay alias Sharif because he was in jail since the last fifteen months. Since learned Counsel for the applicant does not dispute that the incident took place on 1.11.2002, it is manifest that the said premise was factually incorrect because on 24.6.2002 Vijay alias Sharif had been in jail for slightly less than eight months. It pains me that I was persuaded to grant bail to Vijay alias Sharif because it was incorrectly stated before me that he was in jail for the last fifteen months.

Learned Counsel for the applicant contended that since in the bail application preferred by Vijay alias Sharif in paragraph 13 of the affidavit, it was mentioned that the applicant was in jail since 13.11.2002, it was perhaps the mistake of the Court in observing in the bail order that he had been in jail for fifteen months. I feel constrained in observing that while deciding bail applications, the Court does not read in entirety the averments in the affidavit and the accompanying documents. It takes the statement at Bar as true and acting on it, passes the orders.

In my view, since the bail order passed in favour of Vijay alias Sharif is based on a factually incorrect premise which appears to be the result of a incorrect statement made by his counsel, it would be a nullity in law and no parity can be claimed on the basis of an order, which is a nullity in law.

In the circumstances, the premise on which this second bail application has been preferred, has no legs to stand on. Consequently I reject it.

I feel considerations of equity and fairness also warrant that the bail order passed in favour of Vijay alias Sharif should be recalled forthwith and his bail be cancelled.

In the circumstances, I exercise my inherent powers u/s 482, Cr. P.C., recall my order dated 24.6.2003 passed in Criminal Misc. Case No. 1612 (B) of 2003, granting bail to Vijay alias Sharif and direct that the C.J.M., Lucknow, shall forthwith issue a non-bailable warrant of arrest against Vijay alias Sharif and take him in custody. C.J.M., Lucknow shall report compliance of the order to this Court by 31.8.2003.

Put up before me on 1.9.2003 along with the compliance report.

A copy of this order shall be sent by the office to the C.J.M., Lucknow, through special messenger by tomorrow.

I am not oblivious to the fact that ordinarily this Court does not recall a bail order passed in favour of an accused and cancel his bail without giving him a show cause notice, but this rule only applies to those cases where cancellation of bail is sought on the ground that it has been mis-used. But in cases where the record makes it manifest that bail has been granted on a factually incorrect statement made by the counsel for the applicant, as is the case here, this rule would not apply because as observed earlier such a bail order is a nullity in law and to recall it, it is not necessary to issue a notice to the party in whose favour it has been passed. It is for these reasons that I have straightaway recalled the bail order passed in favour of the Vijay alias Sharif and cancelled his bail.

A copy of this order shall be placed on the record of Cr. Misc. Case No. 1612 (B) of 2003.