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Judgment
V. Narasingh, J.
This is an application under Section 439(2) of the Cr.P.C. for cancellation of bail granted to the accused Opposite Party No.2 by the learned 1st Addl. Sessions Judge, Khurda at Bhubaneswar by order dated 23.09.2021 in B.A. No. 1937 of 2021 arising out of C.T. No. 1624 of 2021 in which final form has been submitted under Sections 294/420/506/34 IPC.
It is the contention of the learned counsel for the petitioner that the accused Opposite Party No. 2 was granted bail disregarding the guidelines fixed by the Apex Court while dealing with white color offences and also the ground that the Opposite Party No.2 has no criminal antecedent which according to the learned counsel for the petitioner weighed with learned Court below is factually incorrect.
Learned counsel for the Opposite Party No.2 refutes such submission and states that the guidelines for exercise of power under Section 439(2)Cr.P.C are well defined and by no stretch of imagination, it can be said that in granting bail to the Opposite Party No.2, learned Court below has ignored the principles to grant bail. As such, the CRLMA is liable to be rejected.
An affidavit has been filed by the I.O. in terms of the order passed by this Court relating to the allegation of the accused-opposite party No.2 having criminal antecedents, which shall be adverted to at a later stage.
Brief facts germane for just adjudication bereft of unnecessary details are stated herein below.
5-A. The petitioner informant lodged the written complaint to the effect that the Opposite Party No.2 had taken Rs.36,25,000/- from her and her husband assuring to sell a plot of land and to execute the agreement after full payment. But, notwithstanding the payment of the entire consideration as agreed to, the Opposite Party No.2 did not register the plot on some pretext or the other and thereafter, there was a settlement between the Parties and Opposite Party No.2 issued cheques to the tune of Rs.35,00,000/- in pursuance of such settlement and the said cheques were dishonored and when the petitioner insisted on payment of his consideration money, the Opposite Party No.2 threatened her and her family members with dire consequences. For which at her instance Infocity P.S. Case No.61 of 2021 was instituted under Sections 294/420/506 IPC. And, after investigation final form has been submitted under Sections 294/420/506/534/34 IPC. During the course of investigation, the accused opposite party No. 2 was taken into custody on 17.06.2021.
5-B. By the impugned order dated 23.09.2021, the learned 1st Additional Sessions Judge-cum-Special Judge Vigilance-1 Bhubaneswar directed release of the petitioner taking into account the nature of the allegations, punishment prescribed, period in custody, his age, criminal proclivity and filing of charge sheet.
It is the grievance of the petitioner that the observation of the learned 1st Addl. Sessions Judge that the Opp.Party no2 has no criminal antecedent is ex facie incorrect and de hors the record and in this context, it is stated that the opposite party No. 2 has two criminal antecedents of similar nature. In as much, he has been cited as an accused in Lingaraj P.S. Case No. 199/2016 and one in Balianta P.S. Case No. 220 of 2019.
6-A. Such submission is fortified by the affidavit filed by the I.O.
It is the submission of learned counsel for the Petitioner that as prima facie the Opp. Party no 2 has criminal antecedents of similar nature the same ought to be one of the grounds for cancellation of bail.
In this context it is apt to note here that as stated in CRLMA petition that the opposite party no. 2 has been acquitted in- one of the cases that is Lingaraj P.S. Case No. 199 of 2016.
Though the petitioner takes exception that since the said acquittal is based on compromise, the same has to be treated as an antecedent.
9-A. To fortify his submission seeking cancellation learned counsel for the petitioner has relied on the judgments dated 03.11.2015 and 25.08.2006 passed by this Court in the case of Ramesh Pradhan Vs. State of Orissa and Ors. in CRLMA No. 31 of 2014 and Kalikumar Das Vs. Bhakta Charan Jena and others in CRLMA No. 78 of 2005 respectively.
The learned counsel for the opposite party No. 2 filed an objection to the CRLMA petition, inter alia, indicating that since 1CC case has been instituted in respect of the cheques which was dishonored there was no cause of action to institute the criminal case in the first place.
10-A. Reply affidavit has been filed by the Petitioner Contra verity the stand of opposite party no. 2.
It was reiterated by the learned counsel for the opposite party no.2 that there was no illegality or irregularity in exercise of jurisdiction by the learned 1st Additional Sessions Judge in granting bail to the opposite party No. 2 and therefore, the case at hand does not merit consideration.
The principle for cancellation of bail is well settled. The object of cancellation of bail is primarily to ensure fair trial. It is trite law that power under Section 439(2)Cr.pc for cancellation of bail is to be exercised in exceptional circumstances where there is glaring irregularity in exercise of inherent jurisdiction in granting bail.
The broad illustrative principles have been restated by the Apex Court in the Case of Deepak Yadav vs. The State Of Uttar Pradesh and another reported in (2022) 8 SCC 559. In the said case the Apex Court re-affirmed the grounds of cancellation as laid down in the case of Daulat Ram and others vs. State Of Haryana reported in (1995) 1 SCC 349 which are culled out hereunder.
The Apex Court in Deepak Yadav (supra) further held thus:
“33. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-
33.1 Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.
33.2 Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.
33.3 Where the past criminal record and conduct of the accused is completely ignored while granting bail.
33.4 Where bail has been granted on untenable grounds.
33.5 Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.
33.6 Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.
33.7 When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.’’
It is apt to note here that the learned 1st Addl. Sessions Judge while granting bail to the opposite party No. 2 took into account that the age of the said opposite party is 60 years and also not only filing of the charge sheet but also framing of charge.
The learned Court while granting bail to the petitioner has noted that none of the alleged offences attract substantive sentence for more than 7 years and was cognizant of the fact that “the I.O. has not justified arrest of the petitioner as required under Section. 41(b)(i) of the Cr.P.C”.
It is apposite to refer to the pronouncement of the Apex Court in the case of Arnesh Kumar vrs. State of Bihar and another reported in (2014) 58 OCR (SC) 999 wherein the Apex Court has categorically laid down that in offences punishable up to 7 years no arrest can be made without confirming to the stipulations under Section-41(A) of the Code.
In the factual matrix of the case at hand it is clearly borne out that there has been clear violation of the direction of the Apex Court in the case of Arnesh Kumar(supra) and on the said ground alone the opposite party No. 2 was entitled to be released on bail.
Even otherwise the exercise of jurisdiction by the learned Court in seisin cannot be said to be perverse. And this Court is of the considered opinion that no fault can be attributed to the learned Court in seisin, for recording the finding that the petitioner has no criminal antecedent when the same was admittedly not placed before the said Court. In this context the affidavit filed by the I.O. may be referred in which he has tendered unconditional apology for failing to bring to the notice of the Court about non-mentioning of the antecedents of opposite party No.2. Even if the said antecedents were placed before the Court below, in the considered opinion of this Court, Opposite Party No.2 is entitled to be released on bail solely an account of violation of mandate of the Apex Court in the case of Arnesh Kumar (supra).
Hence on a conspectus of the material on record, on consideration of rival submissions, this Court does not find any infirmity in exercise of the jurisdiction by the learned 1st Additional Sessions Judge in granting bail to the Opposite Party No.2 warranting interference of this Court.
Learned Counsel for the Petitioner relied upon the judgment of this Court in the case of Ramesh Pradhan and Kalikumar Das (supra) bereft of the factual matrix.
21-A. In Ramesh Pradhan, the case was one inter alia under Sections 302/307 of the IPC and in the said case this Court specifically took note of the fact that there was mention in the case Diary that the accused released on bail had number of criminal cases whereas, learned Court below while granting bail which, was ultimately cancelled, had noted that the petitioner has no criminal antecedent. And this Court came to a conclusion that exercise of Judicial discretion by the learned 1st Additional Sessions Judge granting bail to the opposite party No. 2 therein was illegal, improper and arbitrary. Therefore, the bail granted to the opposite party No. 2 should be cancelled.
21-B. Kalikumar Das(supra) relates to a case under Section. 498(A)/304(B)/302 IPC read with 4 DP Act and on going through the materials on record this Court came to the finding that after being released on bail the opposite party therein “Has flagrantly misused his liberty and there is ample material to show that opposite party No. 1 has attempted to intimidate the witnesses to obstruct the smooth progress of fair trial “in Court”. And on basis of such analysis the bail granted to the opposite party No. 1 therein was cancelled.
It bears repetition that cardinal principle of interpretation of Judgment is that the Judgment is not to be read as Euclid’s Theorem and has to be understood in the context in which the same has been delivered. Ref: Haryana Financial Corporation and another v. Jagdamba Oil Mills and another (2002) 3 SCC 496.
In relying on the judgment of this Court discussed above the petitioner has obviously lost sight of such salutary principle of interpretation.
The aforementioned judgment of this Court relied upon by the petitioner has ex facie no application in the factual background of the case, as discussed.
Hence, the CRLMA being devoid of merit is dismissed. No costs.
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