State Of Rajasthan vs Chintu @ Aslam Sher Khan

According to brief facts of the case, DB Criminal Appeal No.594/2009 was filed by the non applicant-accused against his conviction and sentence

vide judgment and order dated 30 th March 2009 passed in Sessions Case No.3/2006 by learned Additional Sessions Judge (Fast Track) No.2, Kota

for commission of offence under Section 302 of IPC, by which, the non applicant-accused was sentenced to life imprisonment. The case originated

out of FIR No.477/2005 registered under Section 302/34 of IPC dated 25.09.2005 registered at Police Station Gumanpura, District Kota. Charge-sheet

was submitted in the concerned court. In this appeal, non-applicant filed an application for suspension of sentence vide misc. application No.831/2012

before this Court and this Court dismissed the application for suspension of sentence vide order dated 21.11.2013.

Aggrieved against this order dated 21.11.2013, non-applicant preferred Special Leave Petition (Criminal) No.1334/2014 (subsequently converted into

criminal appeal No.561/2014) before the Hon'ble Supreme Court. Hon'ble Supreme Court vide order dated 07.03.2014 granted bail. In compliance of

the direction of Hon'ble Supreme Court, the non-applicant was released on conditions enumerated in the order.

After his release on bail in criminal appeal No.561/2014 vide order dated 07.03.2014, another FIR was registered against present non applicant-

accused, which was numbered as FIR No.493 dated 4 th September, 2018 at Police Station Nayapura, District Kota under Sections 307, 147, 148,

149, 247 read with Section 3/25 of Arms Act and charge-sheet was filed against the non-applicant as well as other accused persons. Thereafter, two

other FIRs were filed, which were FIR Nos.164/2019 and 228/2020 and in these FIRs, after investigation, charge-sheet was filed against the non

applicant-accused for offence of, inter-alia, threatening eye-witnesses of criminal case in FIR No.493/2018.

Accused non-applicant filed an application before this court under Section 439 of Cr.P.C. in FIR No.493/2018, which was allowed vide order dated

15.03.2019. Non-applicant intentionally concealed the fact from this court that another FIR No.164/2019 had already been registered against him for

threatening the eye-witnesses of the incident in the case under Sections 307, 147, 148, 149 and 247 of IPC read with Section 3/25 of the Arms Act

vide FIR No.493/2018. Therefore, Criminal Misc. Bail Cancellation Application was filed in FIR No.493/2018, which is pending for consideration.

Non-applicant in FIR No.164/2019 has been granted bail vide order dated 30.06.2020 by this court in SB Criminal Appeal No.786/2020. Aggrieved

against the order dated 30.06.2020, the State filed Special Leave to Appeal (Crl.) No(s).4857/2020. The Special Appeal came up for hearing on

02.11.2020 before the Hon'ble Supreme Court wherein, the Hon'ble Supreme Court was pleased to grant liberty to the State of Rajasthan to file

appropriate application for recalling the order dated 07.03.2014 passed by Hon'ble Supreme Court. Now, vide order dated 04.12.2020, the Hon'ble

Supreme Court disposed of the misc. application No.2197/2020 with an observation that ""we permit the applicant-State to file appropriate application

before the High Court for cancellation of bail in pending criminal appeal No.494/2009. The application be filed within one week from today"". Hence

this DB Criminal Misc. Bail Cancellation Application has been preferred in DB Criminal Appeal No.594/2009.

It has been submitted on behalf of applicant-State that Hon'ble Supreme Court granted bail to the non-applicant which obviously was on condition not

to indulge in any other criminal activity while on bail but non-applicant misused the liberty of bail granted by Hon'ble Supreme Court and had

committed serious crimes even after he was released on bail. It is also submitted that non applicant-accused is a history-sheeter, therefore, the bail is

liable to be cancelled.

Learned counsel for non applicant-accused has vehemently opposed the application of the State for cancellation of bail and has argued that non

applicant-accused has been falsely implicated in the FIRs allegedly registered against him, subsequently while he was on bail granted in DB Criminal

Appeal No. 594/2009. There is no iota of evidence against him. His involvement is on false grounds and is motivated, therefore, there are no cogent

and sufficient grounds for cancellation of his bail. He has not committed any breach of conditions. He has continuously followed and obeyed the

conditions imposed upon him. Hence it is prayed that application of the State for cancellation of bail be rejected. In support of his arguments, he has

placed reliance on judgment delivered by Hon'ble Supreme Court in Abdul Basit Alias Raju and ors. Vs. Mohd. Abdul Kadir Chaudhary and anr.

(2014) 10 SCC 754.

Heard both the parties and perused the record of the case carefully.

Hon'ble Apex Court vide order dated 07.03.2014 passed the following order in Criminal Appeal No. 561/2014 (Special Leave Petition (CRL.) No.

1334/2014) :-

Heard learned counsel for the parties. Leave granted.

Taking note of the fact that the appellant has served eight years in jail as against the sentence of life and also of the fact that there is no possibility of

appeal being heard in the near future and after going into all the materials placed and the grievance expressed, we are inclined to consider his claim

for bail. Therefore, the appellant is ordered to be released on bail to the satisfaction of the Additional Sessions Judge, Class 2, (Fast Track), Kota in

Sessions Case No. 03/2006.

The Additional Sessions Judge is free to impose appropriate condition(s) as he deems fit.

Thereafter, following order was passed by Hon'ble Supreme Court in Misc. Application No. 2197 of 2020 in Criminal Appeal No. 561 of 2014 :-

However, in our opinion, it is appropriate that in the first place the bail granted by this Court on 07.03.2014 in criminal appeal no. 561 of 2014 itself be

revisited in view of alleged involvement of the non-applicant in new offences while on bail, for which we permit the applicant-State to file appropriate

application before the High Court for cancellation of bail in the pending Criminal Appeal No. 594 of 2009. That application be filed within one week

from today.

We request the High Court to dispose of the same expeditiously and preferably within two weeks from the date of filing thereof in view of the

urgency pointed out by the State.

We will take up Special Leave Petition (Crl.) No. 4857 of 2020 arising out of or order dated 30.06.2020 passed by the High Court in Criminal Appeal

(SB) No. 786 of 2020.

In the light of above order of Hon'ble Supreme Court, the State has preferred this application for cancellation of bail which was granted to accused-

non applicant in Criminal Appeal No. 594/2009 pending in this Court. It has been argued on behalf of the State that non applicant-accused-appellant

was ordered to be released on bail which was on condition amongst others ""not to indulge in any other criminal activity while on bail"", despite that

condition the non applicant- appellant has allegedly committed offence under Sections 147, 148, 149, 427, 307 of IPC read with Section 3/25 of Arms

Act for which FIR No. 493/2018 was registered at Police Station Nayapura, District Kota. In this FIR, charge-sheet has been filed against accused-

appellant. It is also submitted that accused non applicant-appellant is also involved in other offences for which FIR No. 164/2019 under Sections 384,

341, 195-A of IPC and Section 3 of SC/ST (Prevention of Atrocities) Act, and FIR No. 228/2020 under Sections 341, 365, 384, 387 of IPC and

Section 3 of SC/ST (Prevention of Atrocities) Act are registered at Police Station Gumanpura, District Kota. Thus, accused-appellant has been

charge-sheeted in three serious criminal cases while he was on bail in DB Criminal Appeal No. 594/2009 pending in this Court. Thus, he has misused

the liberty granted to him and has violated the conditions imposed upon him while he was granted indulgence of bail.

Following citation has been submitted on behalf of accused- appellant :-

Abdul Basit Alias Raju and ors. Vs. Mohd. Abdul Kadir Chaudhary and anr. (Supra) It is not disputed that accused-appellant was granted bail under

Section 389 of Cr.P.C. in DB Criminal Appeal No. 594/2009 pending in this Court by Hon'ble Apex Court vide order dated 07.03.2014 and admittedly

this benefit of bail was granted on the condition that he shall not involve in any other criminal activity while being on bail. This fact is also admitted that

FIR No. 493/2018 registered at Police Station Nayapura, Kota, FIR No. 164/2019 registered at Police Station Gumanpura, Kota and FIR No.

228/2020 registered at Police Station Gumanpura, Kota, were filed against the present non applicant-accused and he has been charge-sheeted in these

matters. FIR No. 493/2018 related to offence under Section 307 amongst others, while other two FIRs were filed for offences alleging threatening of

eye-witnesses of FIR No. 493/2018. Thus, all these FIRs are related to serious offences and after investigation, charge-sheet has also been filed in the

competent courts. Thus, involvement of accused- appellant in those offences is supported by the relevant documents (FIRs and charge-sheet).

Hon'ble Supreme Court has held in Ramesh Kumar Singh Vs. Jhabbar Singh and others (2003) 10 SCC 195 :-

Held, the accused who misutilised the liberty granted to him earlier was not entitled to the privilege of being released on bail - Bail cancelled and

accused directed to be taken into custody forthwith.

Thus, it has been held by Hon'ble Apex Court that if bail is granted under Section 389 of Cr.P.C. and accused misutilised the benefit of bail by

committing other offences, is not entitled to the privilege of being released on bail and bail is liable to be cancelled on this ground. Bail is a benefit,

which is granted subject to certain conditions and it is always incumbent upon the accused to comply with those conditions and if it is found out that

these conditions have been seriously violated and accused has misutilised or misused the benefit of bail granted to him, it is always open for the courts

to cancel the bail granted to him earlier.

In this matter, State has placed on record sufficient documents which clearly indicates involvement of accused-appellant in three criminal cases of

serious nature, committed by him, while he was on bail in DB Criminal Appeal No.594/2009. In all these subsequent cases, after investigation charge-

sheet has been filed in competent courts and this goes to show the involvement of the accused-appellant in these subsequent criminal activities. No

one can be allowed to enjoy the benefits of bail if he misuses the benefit granted to him under the provisions of law. The grant of bail is a privilege

which can be enjoyed by the accused-appellant only till the date he complies with the conditions imposed upon him.

In this case, there is serious violation of the condition imposed upon the accused-appellant. Therefore, this privilege cannot be allowed to be enjoyed by

the accused-appellant any more and his bail is liable to be cancelled.

In these circumstances, therefore, the application of State deserves to be allowed and the same is allowed and bail granted to accused-appellant under

Section 389 of Cr.P.C. in D.B. Criminal Appeal No. 594/2009 is hereby cancelled. It is directed that accused-appellant Chintu @ Aslam Sher Khan

S/o Ahmed Ali, be taken into custody forthwith in D.B. Criminal Appeal No. 594/2009. Arrest warrants be issued. Trial Court is directed to proceed

accordingly.