Pooran Singh Yadav vs State of M.P. and Another

Sheel Nagu, J.—The petitioner has filed this petition u/s 482 of Cr.P.C. seeking recall of the final order dated 27.06.2013 passed in MCRC No. 4623/2012 filed u/s 439(2) of Cr.P.C., whereby the bail granted to the petitioner vide order dated 04.06.2012 in MCRC No. 2716/2012 was cancelled by holding that the petitioner herein suppressed the material fact of recording of implicative statement of eye-witness namely Kamla Yadav u/s 161 of Cr.P.C. on 28.02.2012. Learned counsel for the petitioner has placed reliance on the decisions of Apex Court in the cases of Ramcharan Vs. State of M.P., Balubhai Nathalal Bharada Vs. State of Maharashtra reported in (2006)1 SCC (Cri.) 512 , Kashmira Singh Vs. Duman Singh, , Bani Singh and ohters Vs. State of U.P., Bhagirathsinh Judeja Vs. State of Gujarat, , Jethsur Surangbhai Vs. State of Gujarat, Dolat Ram and Others Vs. State of Haryana, Chandra Shashi Vs. Anil Kumar Verma, & Mehboob Dawood Shaikh Vs. State of Maharashtra, to contends that suppression of material fact of non-disclosure of recording of implicative statement of the eye-witness (Kamla Yadav) may be a ground for rejection of bail application, but cannot be a ground for cancellation of bail granted earlier. It is further contended that parameters and scope of power to cancel the bail granted earlier are much stringent and to be sparingly exercised as it amounts to depriving the liberty of bail granted to the accused.

Thus, the sole question to decide is whether suppression of material fact of recording of implicative statement of the eye-witness is sufficient to invoke jurisdiction of this Court u/s. 439(2) of Cr.P.C. to cancel the bail granted earlier?

The reason for passing the order, whose recalling has been sought is that while granting bail earlier on 04.06.2012, this Court had considered the exculpatory statements of the prosecution witnesses namely Baghchand Sen, Vinod Gupta and Akhlish Kumar, who had denied occurrence of incident. The implicative statement of eye-witness Kamla Yadav was not placed before this Court, which is evident from plain reading of order of enlargement on bail dated 04.06.2012.

Eye-witness Kamla Yadav in her statement dated 28.02.2012 categorically stated that she saw the petitioner Pooran Singh assaulting the deceased with fire arm leading to fire arm injury in the chest of the deceased, which led to his death.

The malice of suppression of material fact suppressio veri is a facet of "fraud". It is settled law that any judicial order founded upon fraud is a nullity in the eye of law, as held in the decision of the Apex Court in the cases of Hamza Haji Vs. State of Kerala and Another, & Venture Global Engineering Vs. Satyam Computer Services Ltd. and Another,

The enlargement of the petitioner Pooran Singh on bail by order dated 04.06.2012 passed in MCRC No. 2716/2012 was based upon suppression of material fact and it can safely be presumed that suppression could have been intentional. The reason for such presumption is that the statement of eye-witness Kamla Yadav was recorded way back on 28.02.2012 u/s 161 of Cr.P.C. and there was no reason why the same could not be brought to the notice of this Court when the order of enlargement on bail of the petitioner was passed on 04.06.2012 in MCRC No. 2716/2012.

Before parting, it would be appropriate to dwell upon the aspect whether implicative statement of eyewitness Kamla Yadav recorded u/s 161 of Cr.P.C. was a material fact or not? A "material fact" is a fact which is important enough to be capable of changing the course of finding to the extent that its disclosure may compel the court to take a particular view, whereas, on the other hand, non-disclosure of the same may persuade the Court to take a different view. In the case at hand, the statement of eye-witness Kamla Yadav recorded as early as on 28.02.2012 was clearly implicative in nature alleging the petitioner to be prime accused. In case, this implicative statement of eyewitness Kamla Yadav was placed before this court on 04.06.2012 when the petitioner was enlarged on bail there is all probability that this Court may not have been inclined to grant bail. Thus, this Court has no hesitation to hold that the statement of eye-witness Kamla Yadav was a material fact.

This Court would not like to go into the aspect as to who was instrumental in playing fraud as the above said finding of fraud having been established is enough for this Court to hold that suppression of material fact of non-discloser of implicative statement of eye-witness Kamla Yadav was good enough ground for this Court to cancel the bail of the petitioner.

In view of above, this Court is not inclined to interfere in this petition filed u/s 482 of Cr.P.C. as the petitioner has failed to establish that any miscarriage of justice has taken place or that if inherent jurisdiction is not exercised by this Court in his favour, injustice would occasion. Accordingly, this petition u/s 482 of Cr.P.C. deserves to be and is hereby dismissed, sans cost.