Thogarani ' K. Damayanti vs State of Orissa and Another

L. Mohapatra, J.—This application u/s 432(2) of the Code of Criminal Procedure has been filed by the informant for cancellation of bail granted to the opposite party No. 2 by this Court in Criminal Misc. Case No. 1172 of 2002 vide order dated 14.2.2002.

Shri Narasingh, the learned Counsel appearing for the informant-petitioner prayed for cancellation of bail solely on one ground that the order of bail has been obtained by opposite party No. 2 by committing fraud on Court. According to the learned Counsel for the Petitioner though the opposite party No. 2 is involved in the commission of offences under Sections 376, 493 of the Penal Code apart from other offences, at the time of moving the application for bail before this Court, the involvement in offences under Sections 376 and 493 had been purposefully suppressed and this Court considering the submission of the counsel for the opposite party No. 2 that the offences alleged are under Sections 498A. 506 and 34 of the Penal Code granted bail to the opposite party No. 2. In view of such suppression of fact fraud was committed on Court at the time of moving the application for bail, Shri Mohanty, the learned Counsel appearing for the opposite party No. 2 after notice contended that even though the order of bail is granted illegally, the same cannot be cancelled unless it is proved that the accused has abused the liberty granted to him and mere passing of an illegal order, granting of bail will not be a ground for cancellation of the same. On perusal of records, it is found that initially the FIR, was lodged for commission of offences under Sections 498A, 506 and 34 of the Penal Code. Subsequently, the same was modified and offences under Sections 376, 493 and 417 were added. It also appears that the opposite party No. 2 had moved the learned Addl. Sessions Judge, Parlakhemundi in C.M.C. No. 115 of 2001 for grant of bail. The order dated 29.12.2001 passed in the said Misc. Case indicates that the case had been registered for commission of offences under Sections 493, 417 and 506 of the Penal Code, but the order dated 4.1.2002 indicates that the case had been registered for commission of offences under Sections 376, 417, 506 and 34 of the Penal Code read with Section 3 of the S.C. and S.T. (P.A.) Act, 1989. It also appears that by order dated 4.1.2002 the learned Addl. Sessions Judge rejected the prayer for bail. The opposite party No. 2 again moved the learned Addl. Sessions Judge for grant of bail in Cr.M.C. No. 10 of 2002. The order dated 18.1.2002 passed in the said Criminal Misc. Case indicates that the offences alleged against the opposite party No. 2 are under Sections 498A, 493, 417, 506, 376 of the Penal Code as well as Section 3 of the S.C. and S.T. (P.A.) Act. The said Criminal Misc. Case No. 10 of 2002 was dismissed as not pressed vide order dated 21.1.2002. Since the bail application was dismissed as not pressed, in the order dated 21.1.2002 the learned Addl. Sessions Judge has not mentioned the offences in which the opposite party No. 2 was involved. Taking advantage of such order as well as the fact that initially the FIR had been registered for commission of offences under Sections 498A, 506 and 34 of the Penal Code, the opposite party No. 2 approached this Court for grant of FIR was annexed to the petition as Annexure-1 which indicated that the offences alleged against the opposite party No. 2 were under Sections 498A, 506 and 34 of the Penal Code. The certified copy of the order dated 21.1.2002 passed by the learned Addl. Sessions Judge, Parlakhemundi in C.M.C No. 10 of 2002 was also filed which did not indicate the offences in which the opposite party No. 2 was involved. In the body of the petition also it was mentioned that the offences alleged against the opposite party No. 2 are under Sections 498A, 506 and 34 of the Penal Code. Even though the opposite party No. 2 was fully aware of the fact that subsequently the offences under Sections 376, 493 and 417 of the Penal Code as well as u/s 3 of the S.C. and S.T. (P.A.) Act had been added, the said fact was purposefully suppressed in the bail application presented before this Court indicating the involvement of the opposite party No. 2 in commission of offences Sunder Sections 498A, 506, and 34 of the Penal Code only. This Court having accepted the xerox copy of the FIR filed along with the petition as well as the statements made in the bail application, granted bail to the opposite party No. 2 without knowing that the offences had subsequently been modified to under Sections 376, 493 and 417 of the Penal Code as well as Section 3 of the S.C. and S.T. (P.A.) Act. Therefore, on perusal of the averments made in the bail application in Criminal Misc. Case No. 1172 of 2002 as well as the two documents attached to it, it is clear that even though the opposite party No. 2 was fully aware that the offences had subsequently been modified, the same was suppressed. This observation of mine also gets support from the fact that the opposite party No. 2 did not file all the orders passed in Criminal Misc. Case No. 10 of 2002 since the first order passed in the said Criminal Misc. Case indicates the offences for which the opposite party No. 2 had been taken to custody. It also appears that the xerox copy of the FIR was attached to the petition to give an impression to the Court that the offences alleged against the opposite party No. 2 were only under Sections 498A, 506 and 34 of the Penal Code. The opposite party No. 2 also deliberately suppressed in the petition that the offences were subsequently modified to Sections 376, 493, 417 of the Penal Code as well as Section 3 of the S.C. and S.T. (P.A.) Act.

The question that comes up for consideration is whether on ground of commission of fraud on Court this Court can cancel the bail order or not. Reference may be made to the decision of the Calcutta High Court in the case of Shri T.K. Dutta Vs. Pawan Kumar Didwani and Another, . In the said case the accused was granted bail on the ground that he was suffering from Cardiac infraction while in jail custody. Subsequently, it was found that the accused was not suffering from any serious ailment, and application for cancellation of bail was filed after two years of the release of the Petitioner on the ground that the accused had committed fraud on the Court and not on the ground of abuse of liberty. The Court held that since the bail was obtained by practising fraud on Court, it was liable to be cancelled to uphold and maintain dignity of Court and sanctity of its orders. In the case of Brijeshwar Dayal Verma Vs. State of U.P. and Another, as well as in Vijay Singh v. State of Rajasthan reported in 1990 (11) Crimes 52 (SJ)(Raj) bail was cancelled solely on the ground that while filing the application for bail, rejection of the previous application had not been mentioned and that was treated to be commission of fraud on Court.

In view of the above. I am of the view that in a given case, when it is found that the order of bail has been obtained by commission of fraud on Court the bail should be cancelled even if the accused is not shown to have abused the privilege of bail or liberty granted to him. The learned Counsel appearing for the opposite party No. 2 referring to some decisions submitted that bail cannot be cancelled merely because of the order granting bail was illegal. So far as the present case is concerned, it can never be said that as per the fact placed before the Court, the order granting bail was illegal. Had the opposite party No. 2 approached this Court indicating all the offences for which the case had been registered, this Court might not have granted bail. Since fraud was committed on this Court for obtaining the bail, the same is liable to be cancelled.

I accordingly, cancel the bail granted by this Court vide order dated 14.2.2003 in Criminal Misc. Case No. 1172 of 2002. The learned S.D.J.M., Parlakhemundi is directed to issue warrant of arrest against the opposite party No. 2 in G.R. Case No. 225 of 2001 arising out of Parlakhemundi P.S. Case No. 123 of 2001 immediately and the Superintendent of Police, Gajpati is directed to take immediate, steps to apprehend the opposite party No. 2 on receipt of the warrant of arrest.

The Crl. Misc. Case is disposed of.

Later:

A memo is filed by the learned Counsel for the Petitioner stating that since the G.R. Case has already been committed to the Court of Session, the direction issued by this Court should be carried out by the Sessions Court and accordingly the order should be modified. From the order dated 20.12.2002 it appears that during the pendency of this application, the G.R. Case has already been committed to the Court of the learned Addl. Sessions Judge, Parlakhemundi and has been registered as S.C. Case No. 20 of 2002. This fact was not brought to the notice of the Court when the matter was taken up for hearing. In view of the fact that the case has already been committed to the Court of Session, the direction contained in today''s order i.e. 25.2.2003 shall be carried out by the learned Addl. Sessions Judge, Parlakhemundi in S.C. Case No. 20 of 2002.

Crl. Misc. Case disposed of.