Sherbaz Khan vs State of U.P.

Naheed Ara Moonis, J.—By means of application under z the applicant has prayed for quashing the order dated 7.5.2011 passed by the Additional Sessions Judge Court No. 9 Bijnor in Criminal Case No. 41 of 2008 whereby the order granting bail to the applicant on 7.4.2008 in Case Crime No. 45 of 2008 under Sections 420/467/468/471 Indian Penal Code Police Station Chandpur District Bijnor has been cancelled.

The genesis of the case in a nutshell is that the first information report was lodged against the applicant by Satya Pal on 23.1.2008 that the applicant had obtained forged degree of High School, Intermediate, B.A and LL. B allegedly obtained from Gurukul University Vrandawan. In this regard, Sub-Divisional Magistrate had enquired from Gurukul University Vrandawan and was informed by the Office Superintendent of the University vide letter dated 11.1.2008 that the certificates and mark sheets of the year 1998 and 2009 were not issued from the Institution hence it cannot be verified. On the basis of the report of the Office Superintendent of the University, first information report was lodged on 23.1.2008 as Case Crime No. 45 of 2008 u/s 420/467/468/471 Indian Penal Code at Police Station Chandpur District Bijnor. The applicant filed bail application which was allowed granting him bail vide order dated 7.4.2008 by the Sessions Judge Bijnor on the ground that the letter dated 21.2.2008 submitted by the applicant shows that the documents which were issued by Gurukul University Vrandawan were not verified by the investigation officer that these documents were not used by the applicant for any gain and that the investigation has yet not concluded. On the above ground the bail application was allowed by the court below. Thereafter an application was filed by the prosecution on 27.5.2011 for the cancellation of the bail granted by the court below. It was specifically contended that the letter dated 21.2.2008 filed by the applicant at the time of moving the bail application itself was forged document as no such letter was issued by Shyam Bihari Shastri, the Vice Chancellor,Gurukul University Vrandawan. In this connection, he had informed through letter dated 27.2.2008 that no such letter in question dated 21.2.2008 was issued. The applicant in the High School certificate has shown his date of birth as 8.3.1975 whereas according to the record of M.M. Inter College Chandpur, his date of birth is 15.7.76. thus he has committed fraud and manipulated forged mark sheets and certificates and succeeded in getting admission in L.L.B course. While granting the bail, the enquiry officer was directed to verify the document and during the course of enquiry it was found that the applicant has obtained bail by committing misrepresentation and fraud upon the court therefore, the bail application is liable to be rejected.

The court below after taking into consideration the entire facts and material on record found that the letter dated 21.2.2008 filed by the applicant while moving the bail application was neither signed nor issued by the Vice Chancellor. The letter of the Vice Chancellor dated 27.4.2008 has specifically endorsed that no such letter was issued from his office. In this regard, statement of the Vice Chancellor Shyam Behari was recorded by the investigating officer u/s 161 Cr.P.C. The certificates which the applicant had obtained were forced and only to prove that the certificates are genuine, the applicant had used the forged letter of the Vice Chancellor, therefore, the applicant had obtained the bail by committing fraud as well as concealment. After obtaining the bail, the applicant has not cooperated in the proceedings and the trial remained withheld for long period of three years besides, the applicant was earlier involved in as many as 18 cases in which five cases are of fraud and cheating. Thus the applicant has misused the bail and there is every likelihood that he would indulge in similar activities therefore, the court below allowed the application moved by the prosecution for cancellation of bail and rejected the bail of the applicant.

It is argued by the learned Counsel for the applicant that the court below has committed manifest error in rejecting the bail application, when there was no allegations of tampering of the witnesses after grant of bail. The court below has misread the evidence collected during the course of investigation as the statement of the Shyam Bihari Vice Chancellor of the University was never recorded as he has not been shown as witness in the charge sheet. The court below has no power to review its order by cancelling the bail. It is contended that after comparing the order of granting bail as well as cancellation of bail, it is evident that on the same very ground, the bail has been cancelled on which it has been granted without taking any or fresh material. In fact the applicant is the victim of a sitting M.L.A. Mohd. Iqbal @ Thekedar. The applicant was elected as chairman of the town area Chandpur and Mohd. Iqbal @ Thekedar was the sitting M.L.A. of Chandpur. There was political rivalry. The applicant had earlier approached this Court against the sitting M.L.,A. Mohd. Iqbal @ Thekedar by whom the applicant was falsely implicated in several cases. The power exercised by the court below while cancelling the bail already granted in a mechanical manner without considering that if there is any supervening circumstances not to allow the applicant to remain on bail. There must be very cogent and overwhelming circumstances for an order seeking cancellation of bail. There is no allegation that he has abused the liberty granting in his favour by tampering the evidence. In support of his contention,the learned Counsel for the applicant has cited the judgment passed by the Apex Court where some grounds have been set up for cancellation of bail viz. Puran Versu Rambilas and Anr. 2001 S.C.C. (Cri) 1124, Dolat Ram and Ors. v. State of Haryana 1995 S.C.C. (Cri) 237 , Sami Ullaha Vs. Superintendent, Narcotic Central Bureau, In Dolat Ram and Ors. (Supra) para 4 is reproduced here to below:

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 the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted.

Per contra Sri S.G. Hasnain, learned Addl. Advocate General contended that the applicant has committed serious fraud by producing the letter dated 21/2/2008 of Vice Chancellor, Gurukul University just to get the benefit of bail. When the authenticity of the letter was enquired from the University, it was found that no such letter was issued by the University thus the applicant has committed fraud with the court by producing the document which was not in existence only just to get the benefit of bail and the document is based on fraud and the court below has granted bail on the basis of forged document and later on the disclosure of such fraud, cancellation of bail suffers from no error as the fraud vitiates every thing. The applicant has obtained bail by concealment and misrepresentation. The applicant on earlier occasion has not only played fraud before the court below but before this Court also by impersonating him as a lawyer. In this regard complaint was filed before the Joint Registrar, High Court Allahabad,therefore, the person who has played fraud before this Court should not be allowed to remain on bail.

Having considered the submission made at the bar, I find that the Sessions Judge has cancelled the bail granted earlier on the ground that the case was registered against the applicant for procuring forged mark sheets of High School and Intermediate on the basis of which he got admission in LL.B. Course and in order to obtain bail and to show that these mark sheets are genuine submitted a letter of Gurukul University Mathura dated 21.2.2008 that it had been issued by the University which was itself a forged document and it was neither issued nor signed by the Vice Chancellor of the University. After being released on bail, the trial was kept pending for about three years and was indulged in offences of similar nature after obtaining bail. A person who has obtained bail by playing fraud or have indulged in similar activities thereafter would certainly hamper the smooth trial, therefore, the bail granted must be cancelled. The grounds for cancellation of bail u/s 437(5) and 439(2) Code of Criminal Procedure are identical which are being reproduced as under:

437 (5) Any Court which has released a person on bail under Sub-section (1) or Sub-section (2) may if considers it necessary so to do,direct that such person be arrested and commit him to custody.

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 commit him to custody.

Bail granted u/s 437(1) or (2) and 439(1) Code of Criminal Procedure can be cancelled where the accused indulges in similar criminal activities by misusing his liberty granted or interferes during the course of investigation or attempts to tamper with the evidence or witnesses or there is threatening to the witnesses or indulges in similar activities which would hamper smooth investigation/ trial or there is possibility that the accused may not be available for trial or there is likelihood of further committing heinous offences.

It is also settled principle of law that while cancelling bail of a person who has already been granted bail must not be lightly resorted to as it interferes with the liberty of an individual. But in the instant case, the applicant has obtained bail by concealment and playing fraud upon the court by producing forged letter with oblique motive to take undue advantages. The Hon''ble Supreme Court has rendered in the case of A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, , the relevant paras 26 and 29 are reproduced hereto below:

Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.

The Court proceeded to state:

A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the court as well as on the opposite party.

On the basis of the aforesaid dictum in my opinion, the court below has not committed any error in cancelling the bail of the applicant. The order dated 7.5.2011 passed by the court below does not suffer from any infirmity or vulnerability. The instant application is bereft of merits and is accordingly dismissed. The court below is directed to proceed against the applicant in accordance with law. However, two weeks time from today is provided to the applicant to surrender before the court below in the aforementioned case. For a period of two weeks, no coercive action shall be taken against the applicant.