Samiran Khatoon vs State Of Jharkhand And Ors

This Cr.M.P. has been filed to cancel the anticipatory bail granted to the opposite party No.2 vide order dated 17.05.2019 passed in A.B.A. No.3070 of 2019.

It is submitted by the learned counsel for the petitioner that the said anticipatory bail application was filed in this Court on 02.05.2019 but prior to that the process under Section 82 Cr.P.C. was issued against the opposite party No.2 on 22.04.2019. It is next submitted that the opposite party No.2 suppressed the material fact of issuance of process under Section 82 Cr.P.C. and he had been granted the privileges of anticipatory bail. Hence, it is submitted that the anticipatory bail granted to the opposite party No.2 be cancelled.

Learned counsel for the opposite party No.2 drawing attention of this court to his counter affidavit filed in this case submits that the opposite party No.2 and his Pairvikar had no knowledge about the issuance of process under Section 82 Cr.P.C. having issued against the opposite party No.2 on 22.04.2019 which was received by the Investigating Officer of the case only on 09.05.2019 and till the date of filing of the anticipatory bail application the proclamation of the notice issued under Section 82 Cr.P.C. was not made, hence, the opposite party No.2 being unaware of the fact, cannot be an accused of suppression of fact. It is then submitted that consequent upon grant of the said anticipatory bail, the opposite party No.2 has already surrendered before the court concerned on 23.05.2019 and he has been admitted to bail and there is no allegation against him of misusing the privileges of bail either by tampering with evidence or absconding or not co-operating with the investigation of the case. It is also submitted that the law does not bar granting the privileges of anticipatory bail merely because the Magistrate passing an order for issuing the process under Section 82 Cr.P.C. Hence, it is submitted that the instant petition being without any merit be dismissed.

Having heard the parties and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that the consideration for granting anticipatory bail and cancellation of bail already granted are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like; tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on the count etc. The Hon'ble Supreme Court of India in the case of Bharatbhai Bhimabhai Bharwad Vs. State of Gujarat and Others dated 30th July, 2019, passed in Criminal Appeal Nos. 1162-1163 of 2019 (Arising out of SLP (Crl.) Nos. 3204-3205 of 2019), paragraph no.10 in this respect observed as under:-"10. It is well settled that the consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like; tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on the count etc. ........." (Emphasis Supplied)

Coming to the facts of this case there is no allegation against the opposite party No.2 of misusing the privileges of bail either by tampering with evidence or absconding or not co-operating with the investigation of the case. Issue of the proclamation under section 82 of the Cr.P.C. certainly does not bar an application under section 438 of the Cr.P.C. Of course issue of the proclamation of the notice under section 82 Cr.P.C. is a strong indicator of the fact that the accused is not co-operating with the investigation of the case and is a relevant consideration for denying the accused concerned the privilege of anticipatory bail. But when such proclamation was not known to the accused and he has been granted the anticipatory bail and there is no allegation of any of the supervening circumstances as indicated above certainly the proclamation of the notice under section 82 Cr.P.C. by itself cannot be the sole ground for cancellation of bail already granted. Hence, this Court is of the considered view that this is not a fit case where the privileges of anticipatory bail granted to the opposite party No.2 vide order dated 17.05.2019 passed in A.B.A. No.3070 of 2019 be cancelled. Accordingly, the prayer for cancellation of anticipatory bail granted to the opposite party No.2 stands rejected.

This criminal miscellaneous petition is disposed of accordingly.