Kaushal Dubey vs Mukesh Rawat & Another

The petitioner has invoked the provision of Sec. 439(2) Cr.P.C. , for seeking cancellation of bail granted to respondent No.1 by order dated

16/4/2018 in Mcrc.No.12162/18 on primarily two grounds.

1.1 The first is that co-accused Bhupat Singh in the same crime number was denied bail by coordinate bench of this court on 11/5/2018 in

Mcrc.No.14129/18 after distinguishing order of bail granted to the respondent No.1 herein by this court and that the said order of declining bail to co-

accused Bhupat Singh has since been affirmed by the Apex Court on 21/6/2018 vide P/6.

1.2 The second ground raised in support of the prayer for cancellation of bail granted to respondent No.1 is that he has committed another offence

vide FIR, P/7 dated 25/6/2018 bearing Crime No.105/18 registered at Police Station Badoni, District Datia alleging offences punishable u/Ss. 353, 294,

336, 506/34 IPC.

So far as first ground is concerned, the same cannot be raised successfully for seeking cancellation of bail as it does not relate to any subsequent

objectionable act on the part of the private respondent which can compel this court to cancel the bail granted on merits. It seems that the submission

of learned counsel for petitioner that the bail granted ought not to have been granted to respondent No.1. Challenge to the order of grant of bail on

merits can only be made before a higher forum for which provision u/S. 439(2) Cr.P.C. cannot be invoked as held by the Apex Court in the case of

Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 whereby in categorical terms the Apex Court elucidating the scope of interference

under Section 439(2) of Cr.PC has succinctly held, thus,

“19.Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the

ground of accused’s misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the

aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court

superior to the court which granted the bail and not by the same court.

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It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory

provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set

aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment

and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of

the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.â€​

2.1 As regards the second ground, Division Bench of Rajasthan High Court in the case of State of Rajasthan Vs. Mubin reported in 2011 Cr.LJ

3850 has held that ground for cancellation of bail u/S. 439(2) Cr.P.C. on the strength of subsequent offence gets ripened at the stage when for the

first time judicial mind is applied to the subsequent offence which is the stage of framing of charge when the court of competent criminal jurisdiction

finds that prima facie offence has been committed and not prior to that. The relevant portion of the said decision in case of State of Rajasthan (supra)

is reproduced below:-

“9. The primary question which is to be considered by us in this case is as to whether the accused applicants had committed any offence, during

the pendency of the appeal, on account of lodging of some first information reports. In other words, can it be said that a person has committed an

offence when a first information report is lodged against him. In our considered opinion, merely lodging of a first information report, does not amount

to commission of an offence and it is only accusation/allegation which can be said to be levelled against the accused person at that stage. As a matter

of fact, the question as to whether an offence has been prima facie committed or not is considered when an opinion is formed by the Court after

applying mind on the material before it. That stage would come only at the time of framing of charge. It would be relevant to mention here that the

legislature, in its wisdom, has clearly laid down the distinction in the provisions under Section 228, Cr.P.C. and the terminology used at the stages prior

to it. The relevant provision of the Code of Criminal Procedure is a under:-

“228.- Framing of charge. â€" (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming

that the accused has committed an offence which â€

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief

Judicial Magistrate (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the

case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in

accordance with the procedure for the triable of warrant cases instituted on a police report.

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.â€​

In other words, an accused can be said to have committed an offence only when a Court, after considering the material before it and hearing the

parties, forms an opinion to that effect, at the time of framing of charge. It is only after judicious consideration by a Court and an opinion is formed by

it for presuming the commission of an offence that an accused can be said to have committed an offence. Therefore, an offence can be said to have

been committed only at the stage of framing of charge when the concerning court forms an opinion for presuming that the accused has committed the

offence and not at any earlier point of time. The word ‘commit’ as per Johnson Dictionary means “to be guilty of a crime.â€​

“In such view of the matter, merely on filing of first information reports against the accused applicants, it cannot be said that they had committed

any offence, during the period of bail. Consequently, they did not breach the conditions so imposed by the Court while granting order of bail on

12.09.2006.

For the aforesaid reasons, we are of the view that the accused applicants had not committed any breach of conditions imposed on them on

12.09.2006. Moreover, the accused applicants were awarded acquittal by the learned trial court on 5.5.2006 and it is against the said judgment that the

prosecution had preferred the present appeal in which they were given the benefit of bail, during the pendency of the same. The accused applicants

are in custody since 12.06.2008.

In the instant case, admittedly subsequent offence vide P/7 bearing Crime No. 105/18 has not resulted into framing of charge and therefore the

second ground too is not available to the petitioner.

In view of the above, this court dismisses the present petition for the time being with liberty to come again after framing of charge in the subsequent

offence, vide P/7 bearing Crime No.105/18 registered at Police Station Badoni, District Datia alleging offences punishable u/Ss. 353, 294, 336, 506/34

IPC.