Subodh Kumar @ Subhodh Kumar vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This  criminal  miscellaneous  petition has been filed  invoking the jurisdiction of this Court under Section 482 CrPC with the prayer for  quashing  and  setting  aside  the  order  dated  09.05.2022  passed by  learned CJM, Jamshedpur whereby and whereunder, the bail of the petitioner was cancelled consequent upon his not appearing before the trial court on four consecutive dates nor his lawyer taking any step on his behalf and issued the non-bailable warrant against him in connection with Mahila P.S. case no. 06 of 2017 corresponding  to  G.R.  case  no.  581  of  2017  and  also  to  quash  the order dated 25.01.2023 passed by learned Sessions Judge, East Singhbhum at Jamshedpur in Cr. Rev. 288 of 2022 which was dismissed by learned Sessions Judge, Jamshedpur.

The brief fact of the case is that the petitioner was admitted to bail by learned Judicial Magistrate in terms of the order dated 18.12.2018  passed  by  the  co-ordinate  Bench  of  this  Court  in  ABA No. 957 of 2018. After being granted bail, the petitioner submitted bail bond in the court of learned JMFC with sureties and in the bail bond, he undertook to appear before the trial  court  on each and every date to which, the case will be next fixed. On 09.05.2022, the witness of the prosecution was present but to frustrate the same, the petitioner neither appeared himself nor his lawyer took any step for his exemption from his personal appearance  and  keeping  in  view  the  conduct  of  the  petitioner  in not  co-operating in  hearing  of  the  case  by  which  the  witness  was returned unexamined, his bail was cancelled and non-bailable warrant of arrest was issued.

It  is submitted  by learned  counsel  for the  petitioner  relying  upon the order of the Hon’ble Supreme Court of India in the case of Dolat Ram and Ors. Vs. State of Haryana reported in (1994) 0 Supreme (SC) 1178, that therein the Hon’ble Supreme Court of India has mentioned that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted but that was not a case, where the petitioner did not appear before the trial court after being granted bail on the date fixed nor any step was filed on behalf of the accused person of that case by his lawyer.

Learned  counsel  for  the  petitioner  next  relying  upon  the  order  of the Hon’ble Supreme Court of India in the case of Krishna Sharma @  Krishna  Kumar  Sharma vs.  State of West Bengal and Anr. reported in 2024 Supreme (SC) 881, submits that therein the Hon’ble  Supreme  Court  of  India  has  opined  that  the  bail  already granted may be cancelled, if it is found that person who has been granted the benefit of bail, has violated any of the conditions or misused the liberty by influencing the witnesses or tampering with the evidence.

Learned  counsel  for  the  petitioner  next  relying  upon  the  order  of the  Hon’ble  Supreme  Court  of India  in  the  case  of  Bhuri  Bai  vs. The  State  of  Madhya  Pradesh  reported in  2022  0  Supreme  (SC) 1161, submits that therein it was observed by the Hon’ble Supreme Court of India that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any  supervening  event  is  made  out,  an  order  granting  bail  is  not to be lightly interfered with under Section 439 (2) CrPC.

Learned  counsel  for  the  petitioner  next  relying  upon  the  order  of this Court in the case of Anil Kumar Agarwal Vs. The State of Jharkhand and Another dated 01.03.2024 passed in Cr. M.P. 3217  of  2022  and  submits that  therein,  this Court  has  mentioned the  ground  illustratively  though  not  exhaustively,  where  the  bail granted to the accused can be cancelled.

It  is  next  submitted  by  learned  counsel  for  the  petitioner  that  the petitioner has not committed any acts or  omission for which, bail once granted, can be cancelled and hence, it is submitted that learned Magistrate has committed grave illegality by cancelling the bail granted to the petitioner. It is further submitted that since the very genesis of the present case so far as it relates to the petitioner is bad in law, therefore the order dated 25.01.2023 passed by learned Sessions Judge, East Singhbhum, at Jamshedpur be also quashed and set aside and the prayer as made in this criminal miscellaneous petition be allowed.

Learned Addl. PP and learned counsel for the Opp. Party no. 2, on the other hand, vehemently oppose the prayer of the petitioner and submit that there is absolutely no illegality in the order passed by learned JMFC. It is next submitted that it is a settled principle of law that the bail granted to the accused do not confer unfettered  right to the  accused to not to appear  before the court any further rather in the bail bond itself the petitioner and the sureties  have  undertaken  that  the  petitioner  shall  remain  present in court on each date to which the case would be fixed by the court.  It is then  submitted that  when  the  court directs an  accused to remain physically present in the court on a specific day; the accused of the case do not have any choice of not to appear before learned trial  court. It  is further submitted that  during  a criminal trial involving non-bailable offences, the accused of the case is kept in  judicial  custody and only  when the accused  person  prays and satisfy the court that he will remain present in the court in future dates to which the case would be fixed and co-operate with the trial; the  court allows the accused to  remain on  bail.  It is  next submitted that therefore, the bail entails with it the liability of the accused to remain  present in  court on each of the dates, to  which the case is fixed. Hence, an accused in bail cannot take the liberty not to remain present in on the date fixed, without the permission of  the  court  and  if  the  accused  is  unable  to  remain  present  in  the court on the date fixed by his own arrangement, he has the choice of remaining in jail in judicial custody. Then it  will be upon the court to ensure his presence before it as and when desired  by the court. It is also submitted that here, in this case, the petitioner wants to have cake and eat it too. He wants to remain on bail but wants the liberty of not to appear before the court as per his sweet will on the date fixed  by the court, ignoring  the direction of the court to remain physically present in court; when the witnesses appear, so that the witnesses cannot be examined and the trial will go on endlessly, which is not permissible in law. It is then submitted that as though the witnesses were present in the court, they had to be returned because of the misconduct of the petitioner in not himself remaining present nor his Advocate took any  step  to  represent  him  by  exempting  his  personal  appearance and hence, the trial could not proceed with the trial of the case and the witnesses were unnecessarily been harassed by the petitioner, deliberately and intentionally, so that they can be influenced upon and the evidence can be tampered with, even though the petitioner undertook to remain present in the court on each date in the bail bond submitted by him and with this misconduct of the petitioner, the petitioner has violated the terms and conditions of the bail bond furnished by him without any plausible  reason, which is  unpardonable. Hence, it is  submitted that no illegality has been committed by learned Judicial Magistrate in cancelling the bail when the petitioner was admittedly not appearing before the trial court for last many days nor his lawyer was taking any step. Hence, it is submitted that this  Criminal  Miscellaneous  Petition  being  without  any  merit,  be dismissed.

Having heard the submissions made at the Bar and after going through materials available in the record, it is pertinent to mention  here  that  an  accused  of  a criminal  case,  who  is  released on bail, has no choice for not appearing before the court, which grants him bail as per his sweet will, without the permission of the court  and when the trial is going  on and more so, when the witnesses are present in the trial court. When an accused is produced before the court in a criminal case involving non- bailable offences, the accused is first remanded to judicial custody by  the  court. After  such  remand  to judicial custody, the  accused may pray for being released on bail and if the court which is remands the accused to judicial custody; or any other court empowered under Section 437 or 439 of the Code of Criminal Procedure  is  satisfied  that  the  accused  will  remain  present  in  the court, in which the case is pending and other attending circumstances;  on  the  prayer  of  the  accused,  releases  the  accused on  bail.  After  an  accused  is  granted  bail  as  such;  by  the  order  of the court,  the  accused  furnishes a bail bond and  in  the bail bond, the accused undertakes that he will appear before the court on each  of  the  dates  to  which  the  case  would  be  fixed  in  future.  So, ordinarily the accused is expected  to  remain present  in court  on each of the dates to which the case is fixed. Of course, there is provision inter alia in Section 317 of the Cr.P.C. where the court can dispense with the personal attendance of the accused and proceed with such enquiry or trial in absence of the accused, if he is  represented  by  his  pleader. If  the  accused  is  unable  to  present himself  before  the  court by  his  own  personal  arrangement;  when the date of the case is fixed; he has the choice to remain in judicial custody  and to  face the  trial  while  being in judicial  custody and when the accused is in judicial custody; then to ensure his production  before  the  trial  court,  will  be  the  responsibility  of  the court concerned by passing appropriate orders and giving necessary direction to the agencies concerned.

Under such circumstances, the misconduct of the petitioner in remaining absent from the court, when the witnesses of the prosecution were present in the court and not even instructing his advocate to represent him, resulted in the witnesses being returned, so unnecessarily the witnesses have been harassed. It is not difficult to fathom that such tactics is adopted to dissuade the witnesses  from  deposing  against  the  accused  persons,  which  is  a means of tampering with the evidence.

So far as the orders of the Hon’ble Supreme Court of India  in  the cases  of Dolat Ram and  Ors.  Vs.  State of  Haryana  (supra)  and Bhuri Bai vs. The State of Madhya Pradesh (supra) are concerned, they are not the cases where the bail of the accused persons of those cases were cancelled because of the accused persons  not  appearing  before  the  court  when  the  witnesses  were present, thereby frustrating the trial by returning the witnesses unexamined and thus lingering the trial.

So  far  as  the  order  of  the  Hon’ble  Supreme  Court  of  India  in  the case of Krishna Sharma @ Krishna Kumar Sharma vs. State of West Bengal and Anr. (supra) is concerned, therein, it has categorically been held by the Hon’ble Supreme Court of India that  if  it  is  found  that  the  accused  person,  who  has  been  granted the benefit of bail, has violated any of the conditions, then the bail can be cancelled.

Now coming to the facts of the case, the condition of the bail was that the petitioner must remain present on each and every date to which the case would be fixed by the trial court and to that effect, the petitioner has submitted a bail bond also but even then he has violated the condition of remaining present in the court and is not even taking the pain to ensure that even his advocate at least represents him and prays for dispensing with his personal appearance so that  the witnesses could be examined by the trial court.

A criminal trial cannot take place in the absence of an accused person and it is common knowledge that an accused person of the case, if he knows that his conviction is imminent because of the anticipation that the witness will support the case of the prosecution,  then  the  accused  person  resorts  to  all  kind  of  tactics to  delay  the  trial  and  to  harass  the  witnesses  by  making  them  to come to the court again and again for recording of their evidence. The Legislature in its wisdom has not put any embargo on the court to issue the non bailable warrant on the same day of cancelling  bail  consequent  upon  the  violation of  the  condition  of the  bail  by  the  accused  person.  Certainly,  by  way of  legal  fiction, such  an  embargo  cannot  be  put  upon  the  court,  not  to  cancel  the bail  immediately, if the accused  do not  come up  before  it, even  if the witnesses of the prosecution are present. If such an embargo is presumed to be there, then the same will lead to disastrous consequences; because in order to frustrate the prosecution, the accused person will deliberately avoid appearing  in the court  as and when the prosecution witnesses turn up, in order to harass them by coming to court again and again and in absence of the accused or his pleader in the case of the personal appearance of the accused is dispensed with, as the examination of the witnesses cannot  take  place  and  the  trial  of  the  case  will  be  a never  ending one and will result in paralyzing the criminal justice system.

Accordingly, there being no justifiable reason to accede to the prayer made in this Criminal Miscellaneous Petition for exercise of its power under section 482 of CrPC, this court is of the considered view that this is not fit case where the prayer as made in this Criminal Miscellaneous Petition by the petitioner to be acceded in exercise of its power under Section 482 of CrPC.

Accordingly,  this  Criminal  Miscellaneous  Petition  being  without any merit is dismissed.