Vikash Raghuvanshi vs State of M.P. and Another

Sujoy Paul, J.—This first petition u/s 439(2) of Code of Criminal Procedure, 1973 (Cr.P.C.) is filed for cancellation of bail order dated 8-10-2013 passed by this Court in M. Cri. C. No. 6833/2013. The present applicant has prayed for cancellation of the bail by stating that respondent No. 2-Toran Singh filed first bail application, which was disallowed. Thereafter, he filed second bail application in connection with same Crime No. 663/2012 registered in Police Station, Ganjbasoda, District Vidisha. It is prayed that the bail granted by the order dated 8-10-2013 in M. Cri. C. No. 6833/2013 be cancelled.

The facts, as narrated by the petitioner, is that on 7-11-2011, FIR was registered by Rajesh Raghuvanshi against Toran Singh, Chaturbhuj and three other persons. The said FIR was registered in offences under Sections 294, 324, 451 and" 506/34, IPC. It was registered as, Crime No. 227/2011. Toran Singh filed a bail application before the Trial Court. The Trial Court by order dated 30-11-2011 enlarged Toran Singh on bail. However, certain conditions u/s 437(3), Cr.P.C. were imposed in the said bail order for Toran Singh.

Shri Deependra Raghuvanshi, learned Counsel for the petitioner submits that in the incident dated 7-11-2011, which was registered as Crime No. 227/2011, Harishankar was not an accused, whereas Toran Singh and Chaturbhuj were accused. It is contended that Toran Singh violated the conditions of bail order dated 30-11-2011 and again attacked Rajesh Raghuvanshi. Rajesh Raghuvanshi was returning from his agricultural farm when Toran Singh and other persons including Harishankar and Chaturbhuj attacked him by use of farsa, axe and stick. Rajesh died on the spot. This incident was recorded as Crime No. 663/2012.

It is contended by the petitioner that initially bail was refused to Toran Singh, but in M. Cri. C. No. 6833/2013, bail was granted by this Court on the basis of parity with Harishankar who was enlarged on bail by co-ordinate Bench. It is contended that the case of Harishankar and Toran Singh and Chaturbhuj are entirely different. Harishankar was not an accused in the first case, i.e., Crime No. 227/2011, whereas Chaturbhuj and Toran Singh were accused in the commission of first crime. Harishankar joined Toran and Chaturbhuj in the second attack in which Rajesh Raghuvanshi died.

It is submitted that, on the basis of aforesaid factual background, there is no parity between Harishankar and Toran Singh, and between Harishankar and Chaturbhuj. In addition, it is submitted that in view of conduct of Toran Singh, there is every likelihood of misuse of freedom by him. He will temper the evidence and material on record. In support of this contention, Shri Deependra Raghuvanshi relied on certain judgments.

Per contra, Shri R.K.S. Kushwaha, learned Counsel for the respondent No. 2 opposed the prayer for cancellation of bail.

Shri A.S. Rathore, Panel Lawyer for the State supported the prayer for cancellation of bail.

Shri R.K.S. Kushwaha, learned Counsel for the respondent No. 2, relied on Dolat Ram and Others Vs. State of Haryana, , Puran Vs. Rambilas and Another etc. etc., , State Vs. Amarmani Tripathi, and Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Another, .

I have heard learned Counsel for the parties and perused the record.

The bone of contention of Shri R.K.S. Kushwaha is that the factors for grant of bail and considering the rejection of bail are different. In other words, Shri Kushwaha submitted that the criteria and ingredient for grant of bail are totally different than that of for cancelling the bail already granted. In support of this, he relied on Dolat Ram (supra). By relying on it, it is contended that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, already granted. Bail can be cancelled when accused interferes or attempts 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. If Court is satisfied on the basis of material placed on record that accused may possibly misuse the bail order, bail can be cancelled, but it should not be cancelled in a mechanical manner. By relying on Puran (supra), it is contended that High Court can cancel the bail only if it feels there are sufficient reasons for doing so (Para 14). The judgment of Amarmani (supra), is pressed into service in support of the contention that there must be material to establish that the abused has actually misused his freedom. Reliance is also placed on Prashanta Kumar Sarkar (supra), by Shri Kushwaha to bolster his submission.

In the aforesaid factual backdrop, one thing is clear that Harishankar was not an accused in the first incident, which occurred on 7-11-2011 (Crime No. 227/2011). Chaturbhuj and Toran Singh were the accused in the said case. Toran was granted bail by the Court below on 30-11-2011. Certain conditions were imposed by the Court below, despite that it is Toran Singh, who misused it and second incident took place on 29-10-2012 (Crime No. 663/2012). On 29-10-2012, complainant-Rajesh Raghuvanshi died on spot. Thus, I find force in the contention of Shri Deependra Raghuvanshi, Advocate that there is no wholesome parity between Harishankar and Toran Singh.

In the considered opinion of this Court, law is well-settled that there is nothing to indicate in Section 439(2), Cr.P.C. that power of cancellation of bail can be exercised only if the State or Investigating Officer or Public Prosecutor moves the petition. The power so vested in the High Court can be invoked by the State or by any aggrieved party. Power of cancellation of bail can be exercised "suo motu " by the High Court. Any member of public, whether he belongs to any particular profession or otherwise can move the High Court to remind it of the need to exercise its power suo motu. This view is taken by the Supreme Court in Puran (supra) (Para 14).

The Apex Court in Prashanta Kumar Sarkar (supra), again considered the judgment of Amarmani (supra). In Prakash Kadam and Vs. Ramprasad Vishwanath Gupta and Another, , the Apex court opined that while considering the application for cancellation of bail, the Court needs to consider the gravity and nature of offence, prima facie case against the accused, position and standing of accused etc. Court opened that in cases of very serious allegations, bail can be cancelled even if he has not misused the bail granted to him. The Apex Court considered the judgment of Dolat Ram (supra), in the case of Prakash Kadam (supra). Paragraphs 17-19 of Kadam (supra), as under:--

It was contended by the learned Counsel for the appellants before us, and it was also contended before the High Court, that the considerations for cancellation of bail are different from the consideration of grant of bail vide Bhagirathsinh Judeja Vs. State of Gujarat, , Ramcharan Vs. State of M.P., . However, we are of the opinion that, that is not an absolute rule, and it will depend on the facts and circumstances of the case.

In considering whether to cancel the bail, the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same Court, which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an Appellate/Revisional Court.

In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also, which may be seen while deciding to cancel the bail.

(Emphasis supplied)

The judgment of Prakash Kadam (supra), is followed by the Supreme Court in Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and Another, . As noticed above, the judgment of Dolat Ram (supra), was considered by the Supreme Court in the latest judgment in Prakash Kadam (supra). It is held in the case of Prakash Kadam (supra), that once bail is granted it can be cancelled if there is likelihood of misuse of the bail. In the considered opinion of this Court, Toran Singh is the accused in both the crime vide Crime Nos. 227/11 and 663/12. He violated the conditions of bail. Complainant-Rajesh Raghuvanshi died in the second incident. Harishankar is admittedly not an accused in the first crime. Thus, there is no absolute parity between Toran Singh and Harishankar. Since, Toran Singh is an accused in two criminal incidents, gravity of offence on his part is much higher.

Apart from this, likelihood of misuse of bail by Toran Singh cannot be ruled out. In view of the law laid down in Prakash Kadam (supra), I deem it proper to cancel the bail granted to Toran Singh by order dated 8-10-2013. Accordingly, the said order dated 8-10-2013 passed in M. Cri. C. No. 6833/2013 is cancelled. The accused is directed to surrender for custody forthwith, failing which it shall be the duty of investigating agency to take him into custody immediately. It is made clear that anything, which has been stated hereinabove, is only with a view to consider the question of annulment of grant of bail and it will have no bearing whatsoever on trial.

Petition is accordingly allowed.