Ram Newas vs Phaozdar

B.L. Yadav, J.—This is an application u/s 439(2) read with Section 482 of the Code of Criminal Procedure (Act No. 2 of 1974) (for short the Code) for cancellation of bail alleged to have been granted to the opposite party by the Order dated 03-04-1986 purporting to have been passed by me. The antecedents of the case reflect a commentary. In fact '' 03-04-86 '' was a date in the maddest of the Advocates'' Strike in the High Court in connection with creation of a Bench in the Western U.P. and I was not sitting in Court on that date, nor any application was filed before me, nor I passed any Order dated 03-04-1986 granting bail to the opposite party Phaujdar son of Sukhai, resident of village Rakhia, Police Station Kaptanganj,District Basti.

It is better to have few facts. The opposite party Phaujdar was involved in an offence Under Sections 302/307/34 IPC, read with Section 25 of the Arms Act in Crime No. 86 of 1985, Police Station Kaptanganj, District Basti. An incident took place at 2 p. m. on 19-07-1985 in which Smt. Peila Devi and Sita Ram Yadava were killed and the complainant Ram New as received injuries A fiist information report was lodged at 3.25 p. m. on the same day at Police Station Kaptanganj, District Basti Tiue copies of the postmortem examination reports conducted on the dead-bodies of the deceased Smt, Beila Devi and Sita Ram have been filed as Annexure '' 2 '' and '' 4 '' to the affidavit filed in support of this application. The learned Sessions Judge, Basti rejected bail application moved on behalf of the opposite party by Order dated 30-08-1985. Sri Q.P. Mathur, an Advocate of this Court, gave notice in the office of the Government office with an intention to move the first bail application and the notice number of that application was 8736 of 1985 That first bail application was presented before Hon''ble O.P. Saxena, J. and was argued by Sri G.P. Mathur. But the same was rejected on 03-12-1985. The learned Counsel for the applicant urged that it was averred in paragraph No. 8 of the affidavit filed in support of the present application that he was instructed on behalf of the complainant to watch the first bail application and oppose the same. He did watch the first bail application and the same was rejected The complainant informed his counsel that the opposite-party has been released on bail on the basis of the order purported to have been passed on 03-04-1986 by me. The present application has been filed for cancellation of that bail order.

Sri Jokhan Prasad, learned Counsel for the complainant, urged that as the first bail application was dismissed on 03-12-1985, hence if second bail application was to be filed that could have been filed only berore the Hon''ble Judge having dismissed the first bail application and not before any other Honb''e Judge. The alleged bail Order dated 03-04-1986, as presented before the Chief Judicial Magistrate. Basti indicates to have been passed in Criminal Misc. Bail Application No. 15793 of 1986 (Phaujdar son of Sukhai v. State of U.P). In this application Sri Shyam Lai Yadav, Advocate of this Court, has been shown as counsel for the applicant Phaujdar who moved the bail application and applied for a certified copy of the bail order. In paragraph No. 15 of the affidavit filed in support of the present application for cancellation of bail it has been averred that an endorsement has been obtained from Sri Shvam Lal Yadav, Advocate to the effect that he did not move any such application for grant of bail nor obtained the alleged bail order and that no bail application was ever presented before this Court on 03-04-1986. An endorsement was also obtained from the Criminal Department of this Court and there was no trace of the alleged bail application No. 15793 of 1986 (Phaujdar v. State). The order dated 03-04-1986 is fabricated by a gang which appears to have specialized in fabricating the stay orders and bail orders of this Court in civil and criminal matters without there being any application or order passed on it. It was urged that the Order dated 03-04-1986 may be cancelled and the opposite party may be taken into custody.

Sri Surendra Nath Singh, Assistant Government Advocate, representing the State, also stated that no notice has been received in connection with Criminal Misc. Application No. 15793 of 1986 in the office of the Government Advocate, for moving second or third bail application in which the Order dated 03-04-1986 granting bail to opposite party was passed.

I directed notice of this application to be issued and served on the opposite party. The complainant applicant was directed to serve the opposite party through " dasti process ". An affidavit of service has been filed stating that the opposite party refused to accept the notice before two witnesses, namely, Chandra Singh and Ram Ujagar Yadav. The notices on the opposite parties were deemed to be sufficiently served and he had sufficient opportunity to file a counter affidavit but he did not do so. Similarly, on 16-07-1986 ten days'' time was granted to the State to file counter affidavit at the request of the Assistant Government Advocate but the same was also not filed.

On that date i.e. 16-07-1986, the Registrar of this Court was directed to furnish information, in respect of such bail orders, which purported to have been issued from this Court, but in respect of which no bail applications were filed. This fact could have been ascertained with the assistance of the Chief Judicial Magistrate of different districts in the State by receiving information�s as to how many bail orders were received by them for enlarging the accused on bail during the Advocates'' Strike period. Particular numbers of the bail applications given in the order itself could have been compared here in the Criminal Department. In this way, it could have been ascertained, as in how many cases the bail orders were fabricated and used by the gang operating in this regard, to get a number of accused, and in many cases hard hardened Criminals, enlarged on bail, in respect of which neither bail applications were filed nor orders were passed by the Bench concerned. The information was sought for by letter dated 26-07-1986 from the Chief Judicial Magistrate, Basti but no compliance report has been received so far. A report dated 20-07-1986 was submitted by the office of the Criminal Department which was placed before me clearly shows that since 03-04-1986 to 11-05-1986 no such bail order was issued from the office of the Criminal Department. Another report was also received showing that during the strike period no bail application concerning Basti Judgeship was moved before this Court which was evident from the perusal of the relevant registers.

Under these circumstances it was clear that no such bail application was filed before this Court nor the same was allowed nor the bail was granted. As I am sure that during the entire strike period I did not entertain any such bail application, nor was any such bail application ever presented before me at my residence. Bail Order dated 03-04-1986 appears to have been fabricated or manufactured at the instance of some gang which is engaged in preparing and issuing fake bail orders purporting to have been issued from High Court in respect of which neither any bail application was filed nor the same was allowed. But on the basis of fake order the opposite party and similarly other accused got themselves released from incarceration.

Having heard the learned Counsel for the complainant-applicant and the learned Counsel for the State the point for determination is as to whether a bail order requires to be cancelled which was never passed by me or by any other Bench. But the application for cancellation of the same has been filed before me. At the same time it is a fact that the opposite partv has been set at liberty on the basis of a fake and fabricated bail order purporting to have been passed by me. A copy of the fake bail order has been filed as Annexure '' 5 '' to the affidavit filed in support of the application for cancellation of bail. The statutory provisions regarding powers of this Court and the Court of Session for cancellation of bail are contained u/s 439(2) of the Code. It is better to set out the relevant statutory provisions: "439(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.

A bare reading of the aforesaid statutory provision would make it evident that the power of the High Court for cancellation of bail u/s 439(2) of the Code is only in that Case in which the accused has been released on bail. But the opposite party actually has been released from jail on bail but no such bail order was passed by me, nor any bail application on behalf of the opposite party was presented before me, nor did I pass any order granting bail to the opposite party. Even Sri S.L. Yadav, Advocate, who was shown to have moved that bail application and applied for a certified copy of the alleged bail order, has already made an endorsement on the present application (vide page 2) that he was neither engaged for moving the second bail application on behalf of the opposite party nor he obtained the certified copy of the alleged bail Order dated 03-04-1986. But if the Parliament enacts that this Court may direct any person who has been released on bail under this Chapter may be arrested and commit him to custody, the intention of the Parliament in enacting this clause appears to me that " any person who purports to have been released on bail may also be arrested and that this Court may commit him to custody." The clause "any person who has been released on bail " is comprehensive enough to include any person who has been either released on bail on the basis of the order passed on a genuine application for bail having been moved or that person managed to get himself released on bail on the basis of fake and fabricated bail order. I am of the view that the interpretation of Section 439(2) of the Code is not to be made in a pedantic manner. In American Jurisprudence (2nd Edn.) Volume I Para�s 36-37, Page''s 829-839 it has been observed as follows:

A statute must speak for itself and be construed according to its own terms, except where ambiguity & uncertainty appear, in which case the history and purposes of the legislation and other relevant considerations as well as its terms, may determine the meaning of a statutory provision. When once ascertained the intention of the legislature will be given effect to even though it may not be consistent with the strict letter of the statute.

See also Onahar And C.B. Street, R.C.O. v. Inter State Commerce Co., 230 U.S. 324, United States v. Public Utilities Com. 345 U.S. 295, United States v. Wit Kovich, 353 U.S. 194.

Further on pages 839-840, paragraph 38 the following observations! Have been made:

While the words of a statute are the basic date from which to draw its meaning, not every problem of the statutory construction should be solved simply by a literal readings of the language. The particular language may & shoud be construed in light of the purposes of the legislation, specially, a declared policy " See United States v. Witkoich, 353 U.S. 194, South Land Gesoline Co. v. Bayky, 319 U.S. 44, Shrveport Engraving Co. v. United States, 323 U.S. 749.

In view of the aforesaid observations it is obvious that the particular statute has to be interpreted keeping in view the intention of the legislature. In the instant case, I am of the opinion that the intention of the legislature in enacting Section 439(2) of the Cede was that any person, either he was released on bail, on a proper application having been filed and the order enlarging him on bail, having been passed on it, by the Court, or he might have been released on bail, on the basis of the fake and fabricated bail order in respect of which neither any bail application was filed nor any Court allowed that bail application, in both these cases the High Court or the Court of Session, has got jurisdiction to cancel the bail.

In the alternative, there would be another aspect of the matter that strictly speaking the opposite party has not been released on bail on the basis of any order passed by this Court on any bail application being filed on behalf of the opposite party. This can, therefore, be said, that the order of release on bail, cannot be cancelled in the exercise of power u/s 439(2) of the Code.

13 The fact, however, remains that the opposite party maneuvered to get himself enlarged on bail. At this stage it is better to appreciate the concept of '' bail ''. As a matter ot fact the term '' bail '' when used as a noun according to grammar, means the security given for the due appearance of a prisoner to obtain his release from imprisonment. In other words, the '' bail '' connotes the means or process of procuring the release of an accused charged with certain offence, by insuring his future attendance in court and compelling him to remain within the jurisdiction of the Court. To put it differently, even after having been released from jail, either on the basis of fake or fabricated bail order; or on the basis of a genuine and legal bail order; but still he is within the jurisdiction of the Court. It is better to quote the relevant discussion in Corpus Juris Secundum, Volume 8 (Eight) page 31, page 60 (Sixty) as follows:

One enlarged on bail is, however, also considered as being in the custody of the law and the bail does not divest the Court of its inherent power to deal with the person of the accused.

The opposite party has abused the process of Court in getting himself released on bail without moving bail application and without there being any order of this Court. The separate and independent inherent powers have been conferred on the High Court by the provisions of Section 482 of the Code. The statutory provisions of Section 482 of the Code can be set out below:

Saving of inherent powers of High Court:

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

There is no limitation to the inherent powers of the High Court. But it has not to be exercised capriciously but it is to be exercised, '' ex debit Justinian '' to do real and substantial justice in case where grave and substantial injustice has been done or the process of the Court has been seriously abused. See Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, .

As the opposite party managed to get a fake bail order dated 03-04-1986, purporting to have been passed by me, without any application for bail having been moved and without any order for bail having actually been passed by me and as stated earlier, as the first bail application was rejected by Hon''ble O.P. Saxena, J. on 3-12-1985, hence the second bail application must have been moved before that Court alone. I have no manner of doubt that this Court has inherent powers to cancel bail granted to a person who by his subsequent conduct forfeits his right to be released on bail. He deserves to be committed to custody. See also Ratilal Bhanji Mithani v. Asstt Collector Customs, Bombay AIR 1967 SC 1639 : 1967 CriLj 1526 , Pampapathy Vs. State of Mysore, and Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, .

In these circumstances, the alleged bail Order dated 03-04-1986 purporting to have been passed by me, on the basis of which the opposite party was released on bail deserves to be cancelled by exercising the inherent powers of this Court.

Before parting with this case it appears necessary that the Registrar of this Court may obtain necessary orders from Hon''ble the Chief Justice and all the Chief Judicial Magistrates may be asked to send details of the bail orders (with particular reference to Criminal Misc. (Bail) Application No and the order of bail, Crime No and names of accused) received during strike period (since March 21 to May 14, 1986 and those orders may be compared here from the Criminal Misc. Bail Application No. and details of bail orders from the Criminal Department and it can be ascertained as to how many accused managed to escape from custody just on fake bail orders, without moving any bail application and without obtaining any bail order from this Court.

It has been noticed that some accused managed to escape from Tihar Jail in New Delhi last year on the basis of some forged & fake bail orders purporting to have been passed by the Supreme Court. In order to trace out the gang operating in preparing fake bail orders of the Supreme Court, and with a view to punish them, the investigation was entrusted by Hon''ble the Chief Justice, Supreme Court of India to the Central Bureau of Investigation, New Delhi and after great efforts by interrogating the accused, the sureties and so many other connected persons the Central Bureau of Investigation was successful in finding out the culprits this year in April-May, 1986, and actions are being taken against them. I am of the view that in the instant case also the Registrar, under the orders of Hon''ble the Chief Justice should entrust the investigation to the Central Bureau of Investigation, New Delhi, so that the investigation may be completed within three months. This is with a view so that culprits may be punished according to law at the earliest, so that the bail orders and the stay orders of this Court may not be fabricated and process of the justice may not be abused.

It is further desirable that the Registrar may get necessary rules for release of prisoners from jail attar receipt of the bail orders from this Court suitably amended. No prisoner should be released simply on production of bail order, unless another bail order issued from the Criminal Department has been received indicating that a proper bail application has been filed and a genuine bail order has been passed by this Court.

In view of what has been said herein before, the application succeeds and is allowed, the so called order of bail dated 03-04-1986 purporting to have been passed by me is hereby cancelled. The bail bonds are discharged. The result is that the Chief Judicial Magistrate, Basti, the Station Officer, Police Station Kaptanganj, Basti, and the Senior Superintendent of Police, Basti are directed to take necessary steps to arrest Phaujdar, the opposite party, immediately and commit him to custody.

The office is further directed to place a copy of this judgment and order before the Registrar and Hon''ble the Chief Justice of this Court within a week so that other necessary steps, as indicated above, may be taken forthwith.