1. The petitioner/complainant has filed this application under Section 439(2) of the Code of Criminal Procedure, 1973 for cancellation of bail granted to respondent No.1 in M.Cr.C. No.4695/2015 on 10.09.2015 and to respondent No.2 in M.Cr.C. No.5021/2015 on 22.09.2015 on the ground that they are misusing the privilege of bail granted to them which is in violation of Section 437(3) of the Code of Criminal Procedure, 1973.
2. Dr. Shailesh Ahuja, learned counsel for petitioner, would submit that respondents No.1 & 2 are misusing the privilege of bail granted to them on 10.09.2015 and 22.09.2015, respectively, as on the complaint of the petitioner on 15.01.2016, F.I.R. in Crime No.39/16 against Anil Kumar Jain and Sagar Jain under Sections 294 and 506 read with Section 34 of the IPC was registered at Mohan Nagar Police Station, Durg and also on 23.01.2006 F.I.R. in Crime No.41/16 against Anil Kumar Jain and others under Sections 294, 506 and 323 read with Section 34 IPC wasregistered and four F.I.Rs. have also been lodged against them on various dates, therefore it is a clear case where the bail granted to them deserves to be cancelled, in the interest of justice.
3. Mr. P.R. Patankar, learned counsel appearing for respondents No.1 & 2, would submit that the petitioner is not citizen of India and is citizen of Pakistan. Copy of his Form 5 (Annexure R-6) clearly shows that he was born in Pakistan and is citizen of Pakistan. Further, his statement (Annexure R-8) recorded before the J.M.F.C. Durg in paragraph 10 clearly proves that he is not having citizenship of India and is having citizenship of Pakistan and has prepared forged Passport for which also an F.I.R. has been registered against him under the Passport Act vide Annexure R-9. He would further submit that P.S. City Kotwali has investigated the matter and has submitted a report before the J.M.F.C. Durg on 28.11.2016 in which it is clearly mentioned in paragraph 2 that petitioner Puran Bhagat Panjwani is doing all acts for the purpose of cancellation of bail granted to respondents No.1 & 2 and certified copy of report dated 28.11.2016 has been filed to support the plea.
4. Mr. Dheeraj Kumar Wankhede, learned Government Advocate appearing on behalf of the State/respondent No.3, would submit that on complaint of the petitioner, two criminal cases for offence under Sections 294, 506 and 34 of the IPC have been registered against respondents No.1 and 2 and they have been chargesheeted before the jurisdictional criminal court and trial is pending consideration. He would further submit that on the complaint of respondents No.1 & 2 offence under Sections 294, 506 read with 34 IPC have been registered against the petitioner in two cases and he has also been charge-sheeted for the above-stated offences and on 28.11.2016, Station House Officer, P.S. Kotwali Durg has found the complaint filed by the petitioner against respondents No.1 & 2 false and frivolous.
5. I have heard learned counsel for the parties and also considered their rival submissions made therein and gone through the record with utmost circumspection.
6. Section 439(2) of the Cr.P.C. provides as under:-
"439. Special powers of High Court or Court of
Session regarding bail:-
(1) **** **** ****
(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."
7. It is now quite well settled that rejection of bail stands on one
footing, but cancellation of bail is a harsh order because it
interferes with the liberty of the individual and hence it must not be
lightly resorted to and the grounds for cancellation of bail under
Sections 437(5) and 439(2) of the CrPC are identical, namely, bail
granted under Sections 437(1) or (2) or 439(1) of the CrPC can be
cancelled where (i) the accused misuses his liberty by indulging in
similar criminal activity; (ii) interferes with the course of
investigation; (iii) attempts to tamper with evidence or witnesses;
(iv) threatens witnesses or indulges in similar activities which would
hamper smooth investigation; (v) there is likelihood of his fleeing to
another country; (vi) attempts to make himself scarce by going
underground or becoming unavailable to the investigating agency;
(vii) attempts to place himself beyond the reach of his survey, etc.
8. In a decision in the matter of Dolat Ram and others v. State of Haryana (1995) 1 SCC 349 , Their Lordships of the Supreme Court while highlighting the factors for consideration of bail, have held as under:-
"4. 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."
9. Further, Their Lordships of the Supreme Court in the case of
Puran v. Rambilas and another AIR 2001 SC 2023
, has held as under:-
"9. ....One such ground for cancellation of
bail would be where ignoring material and
evidence on record a perverse order granting bail
is passed in a heinous crime of this nature and
that too without giving any reasons. Such an
order would be against principles of law. Interest
of justice would also require that such a perverse
order be set aside and bail be cancelled. It must
be remembered that such offences are on the rise
and have a very serious impact on the Society.
Therefore, an arbitrary and wrong exercise of
discretion by the trial Court has to be corrected."
10. Likewise, in a decision in the matter of Ram Govind Upadhyay
v. Sudarshan Singh and others AIR 2002 SC 1475
, Their Lordships of the Supreme
Court have held as under:-
"8. While it is true that availability of over
whelming circumstances is necessary for an
order as regards the cancellation of a bail order,
the basic criterion, however, being interference or
even an attempt to interfere with the due course
of administration of justice and/or any abuse of
the indulgence/privilege granted to the accused.
The contextual facts depict and as noticed
hereinbefore that the incident occurred at the time
when the election was going on and the murder
was said to have been committed in the broad
day light by reason of interference of the
deceased when the informant was prohibited
from casting his vote. The situation is rather grave
having regard to the same, the High Court on
29th August, 2000 refused the application for bail.
9. Undoubtedly, considerations applicable to the
grant of bail and considerations for cancellation of
such an order of bail are independent and do not
overlap each other, but in the event of nonconsideration
of considerations relevant for the
purpose of grant of bail and in the event an earlier
order of rejection available on the records, it is a
duty incumbent on to the High Court to explicitly
state the reasons as to why the sudden departure
in the order of grant as against the rejection just
about a month ago. The subsequent FIR is on
record and incorporated therein are the charges
under Sections 323 and 504, IPC in which the
charge-sheet have already been issued - the
Court ought to take note of the facts on record
rather than ignoring it. In any event, the discretion
to be used shall always have to be strictly in
accordance with law and not de hors the same.
The High Court thought it fit not to record any
reason far less any cogent reason as to why
there should be a departure when in fact such a
petition was dismissed earlier not very long ago.
The consideration of the period of one year spent
in jail cannot in our view be a relevant
consideration in the matter of grant of bail more
so by reason of the fact that the offence charged
is that of murder under Section 302, IPC having
the punishment of death or life imprisonment - it
is a heinous crime against the society and as
such the Court ought to be rather circumspect
and cautious in its approach in a matter which
stands out to be a social crime of very serious
nature."
11. Bearing in mind the principles of law laid down in the aforesaid
cases if the facts of the case are examined, it is quite vivid that
after grant of bail on the complaint of the petitioner two criminal
cases for the offence under Sections 294, 506 and 34 of the IPC
have been registered against respondents No.1 & 2 and they have
been charge-sheeted. Likewise on the complaint of respondents
No.1 & 2, two criminal cases have been registered against the
petitioner under Sections 294 and 506 of the IPC and the petitioner
as well as respondents No.1 & 2 both are facing criminal trial
before the jurisdictional criminal court. However, the report
submitted by the Station House Officer, Durg dated 28.11.2016 in
the Court of J.M.F.C. is quite pertinent and states as under:-
"VERNACULAR MATTER OMITTED"
12. Thus, in light of the facts and circumstances of the case, case
and counter case have been lodged by the petitioner as well as
respondents No.1 & 2 against each other and the nature of report
submitted by the Station House Officer noticed herein-above
clearly indicating that the petitioner is trying to implicate
respondents No.1 and 2 falsely to get the order of bail granted to
them cancelled, it cannot be held that the petitioner has been able
to bring his case within the parameters laid down by the Supreme
Court in the matters of Dolat Ram (supra) Puran (supra) and Ram
Govind Upadhyay (supra), as such there is no material to invoke
jurisdiction of this Court under Section 439(2) of the Cr.P.C.
Accordingly, the application filed under Section 439(2) of the
Cr.P.C. deserves to be and is rejected.
