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Judgment
[1] This application is against the order of granting bail by the Additional Sessions Judge, Nagpur, in Session Trial No.436/2017 dated 17/7/2008. The
short question involved in this application is that :-
The non-applicant/accused was arrested for giving contract of killing of Surjit Khandke on account of property dispute between them. The applicant
moved an application for grant of bail before this Court vide Criminal Application (BA) No. 267/2018. It is the contention of the present applicant that
this order was followed by the predecessor of the concerned Judge who granted bail. On merit, the bail application was not granted by the then Judge
(Shri S.K. Kulkarni).
Thereafter on 17/7/2018 in para-7, the trial Court has observed as:-
“In this respect, I am of the view that no doubt the charge is framed against the accused person in this case and sometime is required to record the
evidence the evidence, but it should be seen that there is no direct evidence against the present accused No.8 and no purpose would be served by
keeping the present accused No.8 in jail in any longer period of time. Moreover other accused person already granted bail in this case by this
Hon’ble High Courtâ€.
Therefore, the accused no.8 was granted bail.
This order is under challenge in this application.
[2] Heard, the learned Counsel for the applicant.
He has submitted that there is sufficient material against the applicant. Therefore, this Court was not inclined to grant bail. Specific direction was
given that if the trial was not started within a period of 3 months, then the accused No. 8 was at liberty to move the bail application. As per the
observations of the trial Court in the order dated 27/6/2018, charge was already framed but counsel for the accused requested for the adjournment.
Therefore, it is clear that the trial was commenced. The learned trial Court did not follow the directions of this Court and wrongly granted the bail to
accused No.8.
[3] Heard Shri R.K. Tiwari, learned Counsel for non-applicant No.2/accused no.8. He has submitted that there is no any eye witness of the incident.
There is no any direct evidence. The learned trial Court has observed that there is no likelihood of completing the trial within a short period. On the
basis of merit, the trial Court has granted bail to accused No.8. The learned Counsel has submitted that once the bail is granted on merit, it cannot be
cancelled. The Court can cancel the bail only on the ground of breach of any direction, threatening of witnesses etc.,
[4] Shri S.S. Doifode, learned Additional Public Prosecutor has strongly supported this application and submitted that all the grounds raised by the non-
applicant was available to him, when the bail was not granted by this Court. Hence, the bail granted by the Trial Court is nothing but breach of the
order of this Court .
[5] There is no dispute that the applicant was arrested for the offences punishable under Section 302, 143, 147, 148, 150, 120B and 34 of the Indian
Penal Code. At this stage, I need not go into the merits of this case. The bail application was moved by the non-applicant / accused No.8 before this
Court vide Criminal Application No. 267/2018. By the order dated 10/4/2018, this court has passed following order:-
“After hearing this matter for sometime, the learned Counsel for the applicant, on instructions seeks leave of the Court to withdraw the application
with liberty to file a fresh bail application before the trial Court, if the trial does not commence within a stipulated period of time.
Leave with liberty, as prayed for, is granted. The applicant shall have liberty to move the Sessions Court for seeking bail, in case the trial does not
commence within three months from the date of this order.â€
[6] There is no dispute that the charge was framed before three months after passing this order. On 27/6/2018, the trial Court passed order granting
temporary bail to the non-applicant on the ground of performing last ritual of his mother. The bail was from 28/6/2018 to 5/7/2018 in para-7 of the
order. The trial Court has observed that the charge is already framed and case was fixed for evidence. The learned Counsel for accused fairly
submitted that as the matter is going to be adjourned he will not claim that privilege which was granted by the High Court. Para-7 of the order reads
thus :-
“As per the direction of the Hon'ble High Court in Criminal Application (APPP) No. 402/2018 dated 10/04/2018 liberty is granted to present
accused to move bail application, in case the trial does not commence within three months from the date of order. However, the learned Advocate
Shri Jaltare appearing for accused fairly submitted that the matter is going to be adjourned for the accused he will not claim privilege of that underâ€
[7] Therefore, it is clear that the trial not commenced within three months is not a ground for the non-applicant / accused no.8 to claim bail. There is
no any substantive change after the order passed by this Court. The learned Counsel for the non-applicant has pointed out the decision in the case of
Dolat Ram and others V/s State of Haryana reported in (1995) 1 SCC 349. In this case it is observed that :-
“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 be 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.â€
[8] The cited decision is not applicable because it is not a ground for cancellation of bail. In this application, there is no question of threatening
witnesses etc. The question is before this Court whether the trial Court was right in granting bail by not following the directions of this Court.
[9] The learned Counsel Shri R.K. Tiwari has pointed out the decision in the case of Babu Singh and Ors V/s State of U.P. reported in (1978) 1 SCC
In this judgment, the Hon’ble Supreme Court has held that if there is a change in the circumstances, then second bail application is
maintainable. In the present case, there is no change in the circumstances because as per the directions of this Court, second bail application is
maintainable, if the trial not commenced within three months. There is no dispute that the trial commenced within three months. Hence the cited
decision is not applicable in the case is in hand. Other cited decisions are on different footings not applicable to the case in hand.
The Hon’ble Supreme Court in the case of Lokesh Singh Vs. State of U.P. and anr. reported in 2008 (16) SSC753 has observed as under :-
“If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new
circumstances have arisen which were not earlier known to the State and necessarily,. Therefore, to that court. The State may as well approach the
High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of
the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to
move the Sessions Judge again it is competent in law to move the High Court for the cancellation of the bail. This position follows from the
subordinate position of the Court of Sessions vis-a-vis the High Court.â€
[10] In the present case, this Court has specifically directed that the second bail application can be moved by the non-applicant only when the trial not
commenced within period of three months. As the trial was already commenced within a period of three months. Therefore, accused No.8 could not
have applied for bail. The learned Sessions Judge, while granting bail to non-applicant / accused No.8, recorded the merits of the case stating that
there is no material evidence against the accused No.8. This is nothing but contrary to the order passed by this Court. Prima facie, it appears that the
learned trial Court wrongly granted the bail to the non-applicant without following the order passed by this Court in Criminal Bail Application
No.267/2018 dated 10/04/2018.
[11] Hence, the following order:-
[i] The application is allowed.
[ii] Bail granted to the non-applicant/accused No.8 is hereby cancelled.
[iii] The applicant shall surrender before the trial Court within a period of seven days.
[iv] If accused No.8 fails to surrender then Trial Court is at liberty to get him in custody by issuing non-bailable warrant.
[v] The learned Counsel Shri R.K. Tiwari has requested for four weeks to surrender. The request is rejected as seven days time is already granted.