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M. Jeyapaul, J.—Crl.O.P.No.28805 of 2005 is filed seeking cancellation of bail granted to the respondent/accused in Crl.M.P.No.149 of
2005 in C.C.No.58 of 2003 on the file of the learned Additional Special Judge for C.B.I. Cases, Chennai.
Crl.O.P.No.33852 is filed seeking cancellation of bail granted to the respondent/accused in Crl.M.P.No.148 of 2005 in C.C.No.9 of 2003 on
the file of the learned Additional Special Judge for C.B.I. Cases, Chennai.
In Crl.O.P.No.28805 of 2004, the respondent/accused stands charged with the offences under Sections 120-B r/w Section 420 of the Indian
Penal Code and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 in C.C.No.58 of 2003 on the file of the learned
Additional Special Judge for CBI Cases, Chennai and in Crl.O.P.No.33852 of 2005, the respondent/accused stands charged with the offences u/s
120-B r/w Sections 420, 468 and 471 of the Indian Penal Code and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act,
1988.
The respondent/accused caused loss to the tune of Rs.30 crores to the Indian Bank by committing the offence of cheating, it is reported.
The learned trial Judge, having observed that there is no chance for tampering with the evidence collected by the petitioner herein, that the
possibility of abscondence is also bleak inasmuch as the French Passport of the respondent was seized by the Investigating Agency and that the
ailment of the respondent at the age of 67 requires consideration, granted bail to the respondent who had been in custody for more than 135 days
at the time of granting bail.
Now the Central Bureau of Investigation, who is the petitioner herein, originally filed these criminal original petitions u/s 482 of the Code of
Criminal Procedure, invoking the inherent jurisdiction of this Court, seeking cancellation of bail. By abundant caution, the petitioner herein chose to
invoke Section 439(2) of the Code of Criminal Procedure also to grant the relief as prayed for.
It is contended by the petitioner herein that the respondent/accused who is a citizen of France could be arrested at Dubai by alerting the Interpol
on 6.2.2005. It is contended that 12 other cases also are pending before the Economic Offences Court at Chennai. It is further contended that
there is every likelihood of his escape from India.
Learned counsel for C.B.I., the petitioner herein, would submit that this Court has got jurisdiction u/s 482 of the Code of Criminal Procedure to
cancel the bail granted to the respondent/accused. He would further argue that this Court has every authority to upset the order passed by the trial
Judge in the interest of justice. His vehement contention is that the respondent/accused who had been brought to India after a long battle of
extradition proceedings and alerting the Interpol will definitely flee from justice.
Learned Senior Counsel argued on behalf of the respondent/accused would contend that this Court will have to consider only the supervening
circumstances after the grant of bail by the trial Court. This Court cannot decide, stepping into the shoes of the trial Court, as to whether bail
should be granted or not. Inasmuch as the accused was not at all released on bail, the provision u/s 439(2) of the Code of Criminal Procedure,
cannot upon be invoked. It is his further submission that as there was no abuse of the process of law and the learned trial Judge had exercised his
discretion properly taking into consideration the age of the respondent/accused, his ill health, lack of chance of fleeing from justice and the long
custody, this Court cannot upset the decision of the trial Court invoking the provision u/s 482 of the Code of Criminal Procedure. The last
submission made by the learned Senior Counsel argued for the respondent is that the loan obtained from the Indian Bank has been properly
secured.
Section 439(2) of the Code of Criminal Procedure reads as follows:-
Special powers of High Court or Court of Sessions regarding bail.---(2) A High Court or Court of Sessions may direct that any person who
has been released on bail under this Chapter be arrested and commit him to custody.
It is a well settled proposition of law that the order granting or refusing bail to an accused is an interlocutory order. As against the order passed
u/s 439 of the Code of Criminal Procedure, there is a co-ordinate jurisdiction for the High Court as well as the Court of Sessions to order re-
arrest of the accused and commit him to custody after he had been released on bail by the trial Court. Inasmuch as the order of bail granted by the
trial Court was stayed by this Court and on account of which the accused in this case was not released on bail, as rightly pointed out by the learned
Senior Counsel for the accused, the petitioner herein cannot invoke the provision u/s 439(2) of the Code of Criminal Procedure, seeking for re-
arrest of the accused and committing him to custody. But as the order passed u/s 439 of the Code of Criminal Procedure is an interlocutory order
and not a final one, the petitioner herein has every right to approach this Court u/s 482 of the Code of Criminal Procedure.
The Karnataka High Court in The Intelligence Officer, Directorate of Revenue Intelligence v. Mohammed Abdul Rab @ Babloo and Ors.
1999 1 Crimes 422 has observed that in a case where the accused was not released on bail and he has been in custody as the order of bail was
stayed by the High Court, the High Court can exercise its jurisdiction u/s 482 of the Code of Criminal Procedure, inasmuch as no appeal or
revision would lie as against the order granting bail.
The Hon''ble Supreme Court in Puran Vs. Rambilas and Another etc. etc., has held as follows:-
Even if it is an interlocutory order, the High Court''s inherent jurisdiction u/s 482 is not affected by the provisions of Section 397(3) of the Code of
Criminal Procedure. That the High Court may refuse to exercise its jurisdiction u/s 482 on the basis of self-imposed restriction is a different aspect.
It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is
palpably illegal or is unjustified.
The above authorities would go to show that this Court has got inherent jurisdiction u/s 482 of the Code of Criminal Procedure to set aside the
impugned order in the interest of justice.
Learned Senior Counsel appearing for the accused referred to the authority in Arun Shankar Shukla v. State of U.P. and Ors. 1999 SCC
1076, the authority in Satya Narayan Sharma v. State of Rajasthan (2002) SCC 39 and the authority in State v. Navjot Sandhu 2003 SCC 1545,
wherein it has been consistently held that the inherent power of the High Court u/s 482 of the Code of Criminal Procedure cannot be resorted to if
there is a specific provision in the Code of Criminal Procedure or any other enactment to redress the grievance of a party.
Here in this case, the petitioner/complainant has not only invoked the provision u/s 482 of the Code of Criminal Procedure, but also the
provision u/s 439(2) of the Code of Criminal Procedure. Of course, Section 439(2) of the Code of Criminal Procedure provides remedy for
cancellation of the bail granted by the Court concerned. As already held by this Court, Section 439(2) cannot be effectively invoked as the
accused had not been actually released from custody in the aftermath of the order of bail obtained by him in his favour. Therefore, the
petitioner/complainant cannot invoke Section 439(2) of the Code of Criminal Procedure. Under such circumstances, this Court will have to invoke
its inherent jurisdiction u/s 482 of the Code of Criminal Procedure to set right the wrong, if any committed by the trial Judge in granting the bail.
Further, the quoting of a wrong provision of law will not deprive the valuable right of the petitioner/complainant to challenge the order impugned.
Learned Senior Counsel referred to an authority pronounced by the Bombay High Court in B.S. Rawat, Asstt. Collector of Customs, Bombay
Vs. Leidomann Heinrich and another, wherein it has been held as follows:-
In view of the clear and explicit language of Section 439(2) of the Cr.P.C., I am of the view that the application for cancellation of bail filed by the
Department, i.e., the Criminal Application No.1712 of 1990 is premature since no bail is granted as yet to the Applicant under the proviso to
Section 167(2) and as such he is also not released on bail Criminal Application No.1712 of 1990 is thus liable to be dismissed on this short
ground.
In the aforesaid case, it appears that even before grant of statutory bail sought for by the accused, the complainant invoked the provisions
under Sections 439(2) and 482 of the Code of Criminal Procedure to invoke the jurisdiction of the High Court. Such a recourse cannot be had by
the complainant in a case where no order of bail was passed by the trial Judge. The above authority will not in any way apply to the facts and
circumstances of this case.
Learned Senior Counsel appearing for the accused cited a decision of the Hon''ble Supreme Court in Bhagirathsinh Judeja Vs. State of
Gujarat, , wherein it has been observed as follows:-
One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was
a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be
considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court
completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation
of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is
towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the
punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available
for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence.
It had been argued before the Hon''ble Supreme Court in that case that the trial Judge should not have granted bail in a case where the victim
who was attacked was a social worker. The Hon''ble Supreme Court in such circumstances has said that it was not for the High Court to decide
whether the bail should be granted, but the issue was whether cancellation of bail should be ordered.
In yet another case in Samarendra Nath Bhattacharjee Vs. State of West Bengal and Another, , the Hon''ble Supreme Court has observed
that the only ground on which the cancellation of bail could have been ordered being the ground of intimidation, the High Court erred in cancelling
the bail granted to the appellant.
It has been held in Nityanand Rai Vs. State of Bihar and Another, that grounds for cancellation of bail should be those which arose after the
grant of bail and should be referable to the conduct of the accused while on bail.
Of course in a case where cancellation of bail is sought for, the Court will have to find whether the accused had misused the liberty granted to
him or whether he is making any arrangement to flee from justice. Here in this case, though the bail was granted by the trial Court, the petitioner
could not come out on bail as the order of bail was stayed by this Court. Therefore the subsequent conduct on his release from jail could not be
tested in this case. In such circumstances, the Court, invoking the provision u/s 482 of the Code of Criminal Procedure, will have to see whether
the cancellation of bail is warranted to secure the ends of justice. Such power, in the special facts and circumstances of this case, is very much
available with this Court in its inherent regime.
There is no dispute as to the fact that the respondent is a citizen of France. In fact, the Government of India could not succeed in the
extradition proceedings initiated against the respondent which was hotly contested by the respondent in France. The respondent had remained a
fugitive till he was arrested at Dubai by the Interpol on 6.2.2005 based on the tips provided by the petitioner herein.
The respondent is facing 12 other cases instituted by the Enforcement Directorate. Learned Senior Counsel for the respondent would submit
that such revelation only at this stage before this Court shall not be considered by this Court, as the same will prejudice the interest of the accused.
It is not as if the accused was not aware of the 12 other cases launched by the Enforcement Directorate are pending against him. The accused is
not taken by surprise by such disclosure. Therefore, the pendency of 12 other cases as against the respondent will have to be taken note of by this
Court. The respondent has admittedly changed his name as Louis Jalu in order to migrate to the Country of France. Huge loss has allegedly
occasioned to the Indian Bank on account of the reported cheating perpetrated by the respondent along with others.
In the face of the aforesaid circumstances, the trial Court has unfortunately given much credence to the age of the respondent and his illness. If
at all the respondent was ailing, the Jail Authorities could have been directed to extend proper medical treatment to him.
Yet another important factor that will have to be taken into consideration by this Court is that the petitioner herein had filed an application
before the trial Court seeking permission to go ahead with the further investigation in this matter. When further investigation is contemplated in this
case, there is every possibility of tampering the witnesses to be examined by the Investigating Agency. It is unfortunate that the trial Court has come
to a conclusion that such a person who had been a fugitive giving tough fight to the extradition proceedings initiated by the Government of India will
not abscond.
If the respondent, who has as many as 12 other cases to his credit, is let on bail, he will definitely slip away from this Country and flee from
justice and will never be available for trial of this case. Rejecting the plea of the petitioner, the order passed by the trial Judge granting bail to the
respondent will have to be set aside in the interest of justice.
In the result, the order of bail granted to the respondent in Crl.M.P.Nos.148 and 149 of 2005 in C.C.Nos.9 and 58 of 2003 on the file of the
learned Additional Special Judge for CBI Cases, Chennai stands set aside and consequently, Crl.O.P.Nos.28805 and 33852 of 2005 stand
allowed. The connected criminal miscellaneous petitions stand closed.