Grounds for Cancellation of Bail

"It is well settled that the grounds for cancellation of bail under Section 437(5) and 439(2) of the Code are identical, namely, bail granted under Section 437(1) or 439(1) of the Code can be cancelled broadly when one or more of the following conditions are fulfilled:
(i) The accused misuses his liberty by indulging in similar activity,
(ii) Interferes with the Course of investigation,
(iii) Attempts to tamper with the evidence,
(iv) Threaten witnesses or indulges in similar activities which would hamper smooth investigation,
(v) There is liklihood of the accused fleeing away to another country.
(vi) Attempts to make himself scare by going underground

graver offence.
18. The grounds referred to above are illustrative and not exhaustive.
19. Are these the only grounds on which the bail granted for non submission of the charge sheet can be cancelled"

Usha Devi vs The State Of Bihar And Ors. on 20 June, 2006

Equivalent citations: 2006 CriLJ 4435

Author: C K Prasad

Bench: C K Prasad

JUDGMENT
Chandramauli Kr. Prasad, J.
Page 1680
1. A child aged about four and half years old, kidnapped for ransom was recovered from the house of the petitioner. Earlier case under Section 363 and 365 of the Page 1681 Indian Penal Code was registered. According to the prosecution, the accused persons were demanding ransom of Rs. five lakhs for release of the child. During the course of investigation petitioner was found involved in the crime. She was arrested and on the failure of the Investigating Officer to submit charge sheet within 90 days she was released on bail in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure. Later on, charge sheet was submitted against the petitioner under Section 364A, 363 and 365 of the Indian Penal Code and the learned Magistrate took cognizance of the offence and the case was committed to the Court of Sessions. After commitment of the case petitioner appeared before the trial Court and prayed that she may be allowed to continue on bail, which prayer has been rejected by the 5th Additional Sessions Judge, Fast Track Court, Vaishali by order dated 7.2.2005 passed in Sessions Trial No. 449 of 2004.
2. Aggrieved by the same, petitioner has preferred this application under Section 482 of the Code of Criminal Procedure and her prayer is to quash the aforesaid order and direct continuance of the petitioner on bail.
3. It is relevant here to state that aggrieved by the aforesaid order refusing to allow the petitioner to continue on bail, petitioner earlier filed application for grant of bail under Section 439 of the Code of Criminal Procedure before this Court, which was registered as Criminal Misc. No. 7569 of 2005 Usha Devi v. State of Bihar and this Court by order dated 14.3.2005 rejected the prayer of the petitioner but while doing so it observed as follows:
Hence the learned Chief Judicial Magistrate took cognizance under Section 364-A of the Indian penal Code and gave the above direction and when the petitioner appeared before the learned Additional Sessions Judge and prayed to remain on previous bail, her prayer was rejected by order dated 7.2.2005. It seems that the order of the Additional Sessions Judge dated 7.2.2005 has not been challenged separately and the petitioner has filed this petition under Section 439 of the Code for grant of bail.
Now when the petitioner was granted bail under Section 167(2) of the Code, of course, it cannot be denied that her bail bond can be cancelled only under the provisions of Section 439(2) of the Code but at the same time it is also clear that if during investigation prima facie evidence of graver offence is found, that is also a ground to cancel the bail already granted. In this case also the case was registered under Sections 363 and 365 of the Indian Penal Code but during investigation, prima facie, evidence of graver offence under Section 364A of the Indian Penal Code was found, Therefore, the learned Additional Sessions Judge could cancel the bail and as the victim boy was admittedly recovered from the premises of the petitioner, I do not feel inclined to release the petitioner on bail.
4. Petitioner thereafter filed another application for grant of bail which was registered as Criminal Misc. No. 31721 of 2005 Usha Devi v. State of Bihar and this Court by order dated 6.12.2005 again rejected the prayer of the petitioner but while doing so it gave liberty to the petitioner to assail the order impugned in the present application in the following words:
It, however, may be made clear that this order and the earlier order passed by this Bench rejecting prayer of the petitioner will not prejudice any Court while Page 1682 considering the legality of the order dated 7th February, 2005 by which the bail of the petitioner granted under Section 167 (2) Cr. P.C. was cancelled.
5. Mr. Surendra Kishore Thakur, appearing on behalf of the petitioner contends that bail ones granted for not completing the investigation within stipulated time in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure, cannot be cancelled only on the submission of the charge sheet and can be cancelled only on the well known grounds known to law under Section 437(5) and 439(2) of the Code of Criminal Procedure.
6. Dr. Maya Nand Jha, Additional Public Prosecutor, however, contends that the bail granted for non-submission of the charge sheet can be cancelled on merits also in addition to the well known grounds for cancellation of bail.
7. For decision of the aforesaid question, it would be apt to understand the purport of bail granted under the Proviso (a) to Section 167(2) of the Code of Criminal Procedure, hereinafter referred to as the Code. Proviso (a) to Section 167(2) of the Code which is relevant for the purpose reads as follows:
167. Procedure when investigation cannot be completed in twenty-four hours,-
(1) xxx xxx xxx
(2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused persons shall be released on bail if he is prepared to an does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purpose of that Chapter.
8. From a plain reading of the aforesaid provision it is evident that the Magistrate to whom the accused is forwarded may authorise his detention for a term not exceeding 15 days in the whole. Further in a case in which the Magistrate has no jurisdiction to try the case or commit it for trial and considers further detention unnecssary he is required to order the accused to be forwarded to the Magistrate having jurisdiction. Such Magistrate may authorise the dtention of the accused Page 1683 beyond the period of 15 days if adequate grounds exists but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be, depending upon the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation is to be completed and if the same is not completed within the period prescribed the accused has right of release on bail if he is prepared to and furnish bail. An accused released on bail for not completing the investigation within the prescribed period is deemed to be released under the provisions of Chapter XXXIII of the Code. It is relevant here to state that the investigation culminates by submission of report under Section 173 of the Code of Criminal Procedure and accordingly, it is said that in case the charge sheet is not submitted within 90 days or 60 days as the case may be, depending upon the nature of crime alleged to have been committed accused has a right to be released on bail if he is prepared to and furnish bail.
9. True it is that by fiction of law an accused released on bail for not completing the investigation within the stipulated time shall be deemed to have been released under Chapter XXXIII of the Code and therefore, the question is as to whether such release shall be considered to be release on bail under Section 437 or 439 of the Code of Criminal Procedure, which fall in Chapter XXXIII of the Code.
10. Section 437 of the Code, confers power on a Court other than High Court or Court of Sessions to grant bail in case of non-bailable offence, same reads as follows:
437. When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment of life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non bailable and cognizable offence.
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
Page 1684
(2) If it appears to such Officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, (the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such Officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860)or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1) the Court may impose any condition which the Court considers
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An Officer or a Court releasing any person on bail under Sub-section (1), or Sub-section (2), shall record in writing his or its ( reasons or special reasons) for so doing.
(5) Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
11. The aforesaid provision enumerates grounds for grant of bail but prohibits grant of bail in a case when, it appears to a Court other than the High Court or Court of Sessions that, reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life or cognizable offence in which he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or having previously convicted on two or more occasions of non bailable and cognizance offence.
Page 1685
12. Section 439 confers power to the High Court or Court of Sessions to grant bail and to cancel the bail, same reads as under:
439. Special powers of High Court or Court of Session regarding bail. - (1) A High Court or Court of Session may direct -
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable. with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(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.
13. From a plain reading of the aforesaid provisions, it is evident that there is no restriction either to the Court of Sessions or the High Court to release an accused on bail and in respect of the offence of specified nature may impose any condition which it considers necessary. Proviso to Section 439(1) casts an obligation on the Court to give notice of application for bail to the Public Prosecutor in a case which is exclusively triable by the Court of Sessions or which though not so triable, is punishable with imprisonment for life unless for reasons to be recorded in writing, it is not practicable to give such notice.
14. Section 439(2) of the Code confers power to a High Court or a Court of Sessions to direct arrest and commit such accused who has been released on bail. From a conjoint reading of Section 437 and 439 of the Code of Criminal Procedure, it is evident that so far as power of the Court other than the High Court or the Court of Sessions, meaning thereby the Courts of Magistrate of different classes do not possess power to release such accused persons on bail for offence providing punishment of death or imprisonment for life or cognizable offence in which accused had been previsouly convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or convicted on two or more occasions of a non bailable and cognizance offence. However, there is no such restirction sofar as the Court of Sessions or the High Court is concerned.
15. I would like to add a word of caution here. The purport of Section 437 of the Code is not that in every case registered for offence punishable with death or imprisonment for life the Magistrate is denuded of its power. In a case, although registered for offence punishable with death or imprisonment for life or imprisonment for seven years or more but it appears to the Magistrate that reasonable ground does not exist for believing that the accused had committed offence punishable with death or imprisonment for life nothing prevents him to release such accused on bail. In nutshell it is the substance of the accusation and believe of the learned Magistrate not the nomenclature under which the case is registered.
Page 1686
16. Thus an accused released on bail either under Section 437 or 439 of the Code is released on fulfilment of certain conditions, whereas only condition required for release under Proviso (a) to Section 167(2) of the Code is that the investigation is not completed/charge sheet is not submitted within the prescribed period and the accused is prepared to and furnish bail. Section 167(2) ordains that every persons released on bail shall be deemed to be so released under the provisons Chapter XXXIII of the Code but that does not ipso facto mean that the bail order assumes the content and character of the bail order of the kind conceived under Section 437 and 439 of the Code. A bail order under Proviso (a) to Section 167(2) of the Code i.e. a bail order on default, as is popularly known in the legal circle.
17. It is well settled that the grounds for cancellation of bail under Section 437(5) and 439(2) of the Code are identical, namely, bail granted under Section 437(1) or 439(1) of the Code can be cancelled broadly when one or more of the following conditions are fulfilled:
(i) The accused misuses his liberty by indulging in similar activity,
(ii) Interferes with the Course of investigation,
(iii) Attempts to tamper with the evidence,
(iv) Threaten witnesses or indulges in similar activities which would hamper smooth investigation,
(v) There is liklihood of the accused fleeing away to another country.
(vi) Attempts to make himself scare by going underground or becoming unavailable to the Investigating Agency,
(vii) Attempts to place himself beyond the reach of the surety,
(viii) Bail has been granted by an inferior Court in a case involving serious offence shocking to the conscience of the superior Courts
(ix) After investigation the facts disclose commission of graver offence.
18. The grounds referred to above are illustrative and not exhaustive.
19. Are these the only grounds on which the bail granted for non submission of the charge sheet can be cancelled
20. On principle, I am of the opinion that when bail granted otherwise then under Section 167(2)(a) of the Code can be cancelled, if investigation discloses commission of graver offence, there is no justification to hold that an accused released on bail on default, his bail cannot be cancelled on submission of the charge sheet in case it discloses commission of graver offence. I am firmly of the view that bail granted for default cannot be put on a higher pedestal than the bail granted otherwise. I would hasten to add that mere submission of the charge-sheet for graver offence only shall by itself be not the ground for cancelling the bail. Before cancelling the bail the Court will have to be further satisfied that the case is of such a nature in which no Court would had accepted the plea of bail.
21. There is ample authority to support the view which I have taken on principle to which I will refer hereinafter. In the case of Raghubir Singh and Ors. v. State of Bihar , the Supreme Court answered this question and held that mere submission of the charge sheet itself not entail cancellation of bail but at the same time if there exists reasonable grounds to believe that the accused had Page 1687 committed a non-bailable offence and it is necessary to commit him to custody, the bail can be cancelled. Paragraph 22 of the judgment which is relevant for the purpose reads as follows:
22. The result of our discussion and the case law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc, The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging "in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
(underlining mine)
22. In the case of Aslam Babala Desai v. State of Maharashtra , the Supreme Court while dealing with this question held as follows:
14, We sum up as under:
The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting him without a Court's order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Section 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code. The fact, that the bail was earlier rejected or that it was secured by the thrust or proviso (a) to Section 167(2) of the Code then receds in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge sheet. Such a view would Introduce a sense of complacency in the investigating agency and would destroy the very Page 1688 purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge sheet but there must exist special reasons for so doing besides the fact that the charge sheet reveals the commission of a non-bailable crime .
23. The underlined portion of the judgment referred to above is a clear authority to support the view that if there exists special reasons the bail granted in default can be cancelled.
24. TO put the record straight, I may state here that the Counsel representing the petitioner had referred to the principles laid down in various authority while considering the cancellation of bail to an accused who has either been granted anticipatory bail or bail granted other than under Section 167(2)(a) of the Code. The present case does not involve cancellation of bail in the aforesaid category and, as such, I deem it inexpedient either to refer or analyse them.
25. Bearing in mind the aforesaid principle when I proceed to examine the merit of the case, I find that earlier a case under Section 363 and 365 of the Indian Penal Code was registered and after investigation it. has been found that a child aged about four and half years has been kidnapped for ransom and the petitioner had dominant role in that. Not only that the investigation had disclosed graver offence but offence of such nature that no Court would had granted bail to her. As such, the learned Judge rightly did not allow her to continue on bail granted earlier on default, after the submission of the charge sheet.
26. Any observation made by me in this case shall have no bearing at the later stage of the trial and further shall not prejudice the petitioner in case she resorts to remedy under Section 439 of the Code for grant of bail.
27. In the result, I do not find any merit in this application and it is dismissed accordingly.

Cancellation of Bail where police not completed investigation within sixty days-charge sheet not filed.

Ashok Shankarappa Hasure And Ors. vs The State Of Maharashtra on 20 April, 1991

Equivalent citations: 1992 (2) BomCR 101

Author: N Chapalgaonker

Bench: N Chapalgaonker

JUDGMENT

N.P. Chapalgaonker, J.

1. In the early hours of 6th October, 1990 two brothers namely, Baswaraj and Dhanraj, were sleeping in a cattle shed situated in Survey No. 29-A of village Badur, Taluka Nilanga, guarding crops and cattle when they were assaulted by some persons. One of the victims namely, Dhanraj, died on the spot and Baswaraj, also injured, managed to escape and then lodged a complaint. Crime No. 84 of 90 was registered under sections 302 and 307 of the Penal Code by Kasarsirsi Police Station and petitioner Nos. 1 to 3 were arrested on 6th October, 1990 and petitioner No. 4 was arrested on 10th October, 1990. Charge-sheet in this case came in be filed on 16th January, 1991 and as the charge-sheet was filed beyond the statutory limitation for detention of accused during investigation as laid down by section 167 of the Code of Criminal Procedure, 1973, accused prayed for bail and were released on bail by an order of learned Addl. Sessions Judge, Latur, dated 31st January, 1991.

2. On 7th February, 1991 an application was moved by the State for cancellation of the bail granted to the accused on 31st January, 1991. In this Criminal Misc. Application No. 49 of 1991, it was contended by the State that the complainant himself is an injured eye-witness who has witnessed the assault on deceased Dhanraj and his testimony would go to show that accused have committed a serious offence punishable with death or imprisonment for life. It was further alleged that one of the accused is Sarpanch of the village and all of them are influential persons in the village and they are threatening the prosecution witnesses and thus they are likely to tamper with the prosecution evidence. Learned Addl. Sessions Judge, Latur, after hearing parties was pleased to allow this application and by his order dated 30th March, 1991 cancelled the bail granted to the petitioners. It is this order which is subject-matter of challenge in this Criminal Application.

3. Shri N.H. Patil, learned Counsel appearing for petitioners, submitted that once the accused are released on bail under section 167, cancellation of bail would be governed by the same considerations which would be relevant for cancellation of the bail if it is granted under other provisions of the Code. He further submitted that though the bail granted for the non-compliance of the provisions of section 167 is not a bail on consideration of the merits and is a result of default on the part of the prosecution, it would stand on par with bail granted under section 437 or section 439. Relying on a judgment of Supreme Court in The State through the Delhi Administration v. Sanjay Gandhi, , he further contended that the consideration for

rejection of the bail when it is applied for would not be sufficient for the cancellation of the bail and unless it is made out that the accused enlarged on bail have misused their liberty, bail cannot be cancelled.

4. Shri S.K. Barlota, learned Addl. Public Prosecutor appearing for respondent-State, submitted that there are reasonable grounds to believe that accused-petitioners have committed a serious offence punishable with death or imprisonment for life and they are threatening witnesses in this case and, therefore, order of cancellation of bail is proper and is in the interest of justice. Shri Barlota further submitted that a right to get oneself released on bail if the investigation is not completed within the statutory limitation comes to an end when the charge-sheet is filed and merely because it was filed beyond the statutory limitation, accused shall not be entitled for bail if they apply after the charge-sheet is filed. In support of this contention Shri Barlota relied on a judgment of Full Bench of Gujarat High Court in the case of Shardulbhai Lakhmanbhai Panchali & another v. State of Gujarat, 1990 Cri.L.J. 1275, which dissents from an earlier view of Full Bench of the same High Court in the case of Babubhai Parshottamdas Patel v. State of Gujarat, 1982 Cri.L.J. 284, on the ground that later pronouncements of the Supreme Court should be deemed to have overruled Babubhai's case (cited supra).

5. Firstly, I will consider whether submission, of Shri Barlota that the right created under section 167 comes to an end as soon as the charge-sheet is filed, is correct. Detention of an accused person for the purpose of investigation and trial is restriction on personal liberty as guaranteed under Article 21 of the Constitution. A person cannot be deprived of the personal liberty except according to the procedure established by law and by virtue of section 167. Legislature has limited the power otherwise granted to the investigating agency and the courts to detain a person accused in an offence. This being the purpose of the provision, a valuable statutory right is created in favour of a person accused of a non-bailable offence and any such provision will have to be interpreted strictly and in consonance with the spirit of Article 21 of the Constitution of India.

6. In Babubhai's case (cited supra), Full Bench of Gujarat High Court had taken a view that the right conferred on the accused to be released on bail after 90 days of his custody must be considered to be an absolute right subject, of course, only to the cancellation of the bail if the requirement of section 437(5) are satisfied. In Bashir and others v. State of Haryana, , Supreme Court considered power of the Court to cancel the bail, in case, accused is released granting benefit of section 167(2). High Court of Punjab & Haryana had taken a view that the bail order under section 167 Cr.P.C. is not an order on merits of the case and as soon as the ground on which the Court had released the accused on bail ceases to exist by subsequent filing of the charge-sheet, the Magistrate or the Court of Session or the High Court can on that ground cancel the bail allowed earlier. Negativing this proposition Supreme Court observed :

"As the provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2) the mere fact that sequent to his release a challan has been filed is not sufficient to commit him to custody."

In the very case, Supreme Court has pointed out that while exercising powers under sub-section (5) of section 437, Court can cancel the bail when there are sufficient grounds to believe that the accused had committed a non-bailable offence and that it is necessary that be should be arrested and committed to custody.

7. In State of Uttar Pradesh v. Lakshmi Brahman and another, , the question for consideration of the Supreme Court was whether general power to remand the accused in custody when the enquiry or trial is still continuing comes to an end as soon as the statutory limitation prescribed by section 167, is over, and whether a Magistrate is empowered to remand accused for further custody even after 90 days period allowed for completion of the investigation under section 167 is over. Supreme Court ruled that further detention of the accused person does not become ipso facto illegal or void, power to remand him under section 309 shall always be there. Supreme Court further ruled that the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail. Therefore, if an accused person is not prepared to furnish bail, then Magistrate is not powerless and he can remand accused person to custody even when charge-sheet is not filed within the statutory limitation. High Court of Allahabad had held that a Magistrate had no jurisdiction, power or authority to remand the accused to custody after the charge-sheet is submitted and before the commitment order is made because that period (according to Allahabad High Court) could not be said to be an enquiry). Supreme Court ruled that :

"Thus, from the time the accused appears or is produced before the Magistrate with the police report under section 170 and the Magistrate proceeds to enquire whether section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by section 2(g) of the Code."

Therefore, during that period powers under section 309 to remand accused can be exercised. This case does not lay down a proposition that as soon as the charge-sheet is filed, right of the accused as conferred by section 167(2) to get himself released on bail because of non-observance of the statutory limitation gets exhausted. Same view is reiterated by the Supreme Court in Raghubir Singh and others v. State of Bihar, , and after discussing the case law on the point, Supreme Court has observed thus :-

"The result of our discussion and the case-law in this ; An order for release on bail made under the proviso to section 167(2) is not defeated by lapse of time, the filling of charge-sheet or by remand to custody under section 309(2). The order for release on bail may however be cancelled under section 437(5) or section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed."

8. In Shardulbhai Lakhmanbhai Pancholi's case (cited supra) Full Bench of Gujarat High Court took the view that Babubhai's case stands overruled in view of Lakshmi Brahman's case (cited supra) and the learned Judges interpreted Lakshmi Brahman's case to lay down that the accused cannot claim to be released on bail on account of default committed in submitting charge-sheet within prescribed time after submission of the charge-sheet. With great respect to the learned Judges constituting Full Bench, it will have to be said that this is not the ratio of Lakshmi Brahman's case. This case only deals with two questions. Firstly, whether the period after the charge-sheet is filed and the accused are committed to the Court of Sessions can be taken to be a part of the enquiry within the meaning of section 2(g) of the Code and whether during this period powers under section 309 can be exercised by the learned Magistrate. Second question was whether an order of further remand under section 309 would be competent in the face of the fact that the charge-sheet is submitted beyond the statutory limitation. Supreme Court said that further detention does not become ipso facto illegal but again reiterated that the accused had a right to get himself released on furnishing bail. This case is not a departure from the law laid down by the Supreme Court in Bashir's case , (cited supra) that the subsequent filing of the

charge-sheet after release of the accused is not a valid ground for cancellation of bail under section 437(5). Right created by section 167 does not come to an end by mere filling of the charge-sheet. The only course open for the prosecution is to get cancellation of the bail if it is able to satisfy the Court about the existence of the grounds relevant under section 437(5) or under section 439(2). What those considerations can be has already been laid down by the Supreme Court in Sanjay Gandhi's case and also in Raghubir Singh's case, (Both cited supra). Since the bail granted under section 167(2) is to be deemed to be a bail granted under Chapter XXXIII of the Code of Criminal Procedure, same considerations would be relevant for cancellation of bail under section 167 also. Instances of such valid reasons are misuse of liberty granted to the accused, interference with the administration of justice, an attempt to evade the trial, likelyhood of commission of similar serious offences again and so on. What material would be sufficient to hold that there are reasonable grounds for cancellation of bail would differ from case to case but the contentions must be relevant and must be at least prima facie proved.

9. Prosecution has mainly alleged two grounds for cancellation of the bail. The first one is that there is evidence against the petitioners that they have committed a non-bailable offence punishable with death or imprisonment for life. Once the accused are released on bail under section 167(2), this alone can hardly be a sufficient ground. If the nature of offence is such that by enlargement of the accused on bail they are likely to indulge in similar activities then this can be a matter of consideration.

10. Shri S.K. Barlota, learned Addl. Public Prosecutor, relied on a judgment of the Supreme Court in Rajnikant Jivanlal Patel & another v. Intelligence Officer, Narcotic Control Bureau, New Delhi, , to support his contention that the seriousness of an offence should also be looked into in the matter of cancellation of bail. In that case, the offence was under the Narcotic Drugs and Psychotropic Substances Act, 1985 and it was alleged that heroin was tried to be smuggled out of India and accused were participants in the offence. Therefore, Delhi High Court exercised its discretion by cancelling the bail and the Supreme Court did not interfere into the said discretion. The facts of this case differ from the facts of case at hand and no yardstick useful for every case can be made available in such matters. The second contention of the prosecution is that the accused are influential persons and, therefore, they are likely to tamper with the prosecution witnesses. It was also alleged that they are threatening the prosecution witnesses. These allegations are too vague to inspire confidence. No affidavit has come forward on behalf of the prosecution sworn by any of such witnesses who was threatened by the petitioner. No specific instances have been cited and, therefore, even this reason is not sufficient for cancellation of the bail. Learned Sessions Judge appears to have been moved by the fact that the complainant is an eye-witness to the crime of murder which is according to the prosecution, is commuted by the petitioners and, therefore, in the normal circumstances, barring the result of lapse on the part of the prosecution to submit charge-sheet in time, they would not have been released on bail. Therefore, no plausible and relevant ground was alleged or made out before the learned Sessions Judge to cancel the bail which was granted to accused petitioners.

11. It is true that a situation may arise that the prosecution may not be able to investigate within the statutory limitation a serious offence in which normally the bail would not have been granted but the legislative mandate being clear will have to be availed. Learned Judges of the Supreme Court expressed their anguish about this eventuality in Natabar Parida and others v. State of Orissa, , as

follows :

"In serious offences of criminal conspiracy-murders, dacoites, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant to discretion to the Court and to make it obligatory for it to release the accused on bail. .. ... ..... .. Such a law may be a "paradise for the criminal's", but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature."

12. When we come to the conclusion that unless there is a necessity to arrest accused and commit him to custody, the bail need not be cancelled, it will have to be held that the learned Sessions Judge erred in law in cancelling the bail which was granted to the accused-petitioners. If the said order is viewed as order under section 437(5) or under section 439(2), it becomes unjustifiable order and, therefore, it will have to be quashed.

13. In the result, Criminal Application is allowed. Order dated 30th March, 1991 passed by learned Addl. Sessions Judge, Latur, in Criminal Misc. Application No. 49 of 1991, is hereby quashed. Order passed by Addl. Sessions Judge, Latur, dated 31st January, 1991 in Criminal Misc. Application No. 23 of 1991 is restored. In addition to the conditions imposed by order dated 31st January, 1991 on petitioners-accused, petitioners are directed to attend the Police Station Nilanga on every Monday and Thursday between 10.00 a.m. to 12.00 Noon. Rule is made absolute in the above terms.

Cancellation of Bail in section 498-A-IPC

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th January, 2011
Date of Order: February 14, 2011
+ Crl. MC No. 2462/2010
% 14.02.2011 Nitika Gauba ...Petitioner Versus
State & Ors. ...Respondents Counsels:
Mr. M.S. Yadav for petitioner.
Mr. Sunil Sharma, APP for State/respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. This application has been preferred by the petitioner for cancellation of anticipatory bail granted to the
Asha Gauba (mother-in-law), Kanika Gauba (nanad) and Shiv Kumar Gauba (Taya) on the ground that the
learned ASJ while granting anticipatory bail had not appreciated the facts correctly. The respondent no.2 is the
widowed mother in law of complainant, respondent no.3 is unmarried sister in law(husband's sister) of the
complainant and respondent no.4 is the elder brother of deceased husband of respondent no.2 (Taya Sasur).
2. In the complaint, the applicant had made allegations against the husband and these three respondents for
harassing her for dowry. The learned ASJ while granting bail to them had considered that mother in law of
complainant was a government servant in Ministry of Railways and was aged around 50 years. The
respondent no.4 Taya Sasur was aged around 70 years and respondent no.3 was an unmarried sister of
respondent Crl.MC 2462/2010 Page 1 Of 3 no.2. The learned ASJ observed that he had perused the police file
and without commenting upon the merits or otherwise of the allegations, considered that no useful purpose
was likely to be served by directing the investigating officer to arrest these three persons for the purpose of
investigation and he therefore granted anticipatory bail to them.
3. In the grounds for cancellation of anticipatory bail, it is stated that the husband of the petitioner played
fraud upon the petitioner. While petitioner and husband were living under the same roof, he filed a divorce
petition against the petitioner without information of the petitioner and even after filing divorce petition, he
continued to maintain physical and sexual relations with her. The respondents no.2, 3 and 4 were having
knowledge of this act of the husband of the petitioner. The husband in order to blackmail her and to disrepute
her took vulgar snaps of her to force her to withdraw the petition. She also alleged that she was badly beaten
up by mother in law, nanad. Even servant of respondent no.2 gave her merciless beatings. Her husband
Nitika Gauba vs State & Ors. on 14 February, 2011


hatched up a criminal conspiracy of criminal assault on her on 25th April 2010 and she had to be taken to
DDU Hospital by the police where her MLC was prepared.
4. For cancellation of bail, the court must have strong reasons. In the present case, the bail was granted by the
trial court looking into the nature of allegations. In cases of matrimonial discord Section 498A/406 IPC are
invariably invoked against every family member of husband, it becomes very difficult for the trial court to
assess the truth of the allegations made by the complainant. Normally every complainant ropes in all relatives
including the remote relatives living far away from the matrimonial home making stereotyped and similar
allegations against everybody. This tendency of roping in every known relative including the minors in
offences under Section 498A/406 IPC etc has in fact made these provisions introduced in Indian Penal Code,
to prevent cruelty upon women, blunt. The gross misuse of these provisions for roping in every known
relatives Crl.MC 2462/2010 Page 2 Of 3 of the husband poses a grave problem for the courts during trial and
while deciding bail applications. Only oral statement of complainant and her parents is there in respect of
cruelty and dowry demand, and normally there is no agreed list of articles given at the time of marriage
Dowry Prohibition Act proved futile to bring to an end to the evil of dowry for this reason. Mere oral
allegations of giving huge dowry without substantiating these allegations by bills of purchase of the articles or
list prepared at the time of marriage and signed by both the parties cannot be given credence. Even those
people, who have meager salaries or are hand to mouth, claim of giving huge amounts at the time of marriage.
It is in the interest of both the parties that a list of dowry articles should be prepared by the parties at the time
of marriage duly signed by both the parties. Though in this way, the evil of dowry cannot be curbed but it
would curb the tendency of making astronomical claims later on just to rope in every member of the family of
in laws as a criminal.
5. In the present case, there is no corroboration of the oral allegations of the applicant. I find no reason to
cancel the anticipatory bail granted to the respondents no.2 to 4 when there are no allegations of misuse of the
bail on their part. The application for cancellation of bail is hereby dismissed

Cancellation of Bail in High Court

Mubarik Khan vs Nasir Khan 

Equivalent citations: 1998 CriLJ 4527

Author: D Misra

Bench: D Misra

ORDER

Dipak Misra, J.

1. In this application preferred under Section 439(2) of the Code of Criminal Procedure, the petitioner has prayed for cancellation of order granting bail in favour of non-applicants 1 to 4 by the learned Additional Sessions Judge, Chhindwara, in Bail Application Nos. 785/97, 907/97, 940/97 and 947/97.

2. The facts, as have been unfurled, are thus : On the basis of the F.I.R. lodged by the informant Crime No. 175/97 was instituted for offences punishable under Sections 147, 148, 302 and 149, IPC against the accused, non-applicants 1 to 4, along with other accused persons, for assaulting one Habibullah who succumbed to the injuries sustained by him. According to the prosecution, a 2nd dispute between Habibullah and Nasir, Muselman, was going on for a considerable length of time and certain litigations had already cropped up. On the date of occurrence i.e. 9-6-97, at about 1 P.M., non-applicants 1 to 4 along with some other accused persons with an intention to plough the disputed land, arrived with a tractor and other agricultural implements. It was objected to by Nasir, but his protest was not paid heed to. Nasir went back to his village and returned with others for restraining the accused persons from plaughing the field. This gave rise to a fight in which Ramjan was injured. Deceased Habibullah intervened to rescue the injured person, but he was assaulted whereby he sustained injuries and ultimately succumbed to the same. After the Criminal machinery was not in motion, the accused-non-applicants 1 to 4 were apprehended and taken to custody. They filed applications for grant of bail before the learned Additional Sessions Judge, Chhindwara. The said applications were objected to by the Public Prosecutor as well as by the present petitioner. It was brought to the notice of the learned Additional Sessions Judge that the other accused persons, who had not been arrested, were terrorising the witnesses and all the accused persons had criminal antecedents and, therefore, they should not be enlarged on bail. It was also pointed out that if they would be released on bail, there was every possibility of their tampering with the witnesses. It was also high-lighted that their release would put the fair trial in jeopardy and defeat the course of justice. In spite of the objection, as the order granting bail was passed, the present petitioner has invoked the jurisdiction of this Court under Section 439(2) Cr.P.C.

3. Shri Y.P. Sharma,learned Counsel for the petitioner, assailing the impugned order, has contended that the learned trial Judge has failed to exercise his discretion while enlarging the non-applicants 1 to 4 on bail as he has not taken into consideration the serious allegations against them and the effect and impact of their release on bail. It is also submitted by him that after their release, they are tampering with the evidence by threatening the witnesses. It is contended that as they have betrayed the trust reposed in them and misused the liberty granted to them, there is justifiable ground to curtail their liberty.

Controverting the aforesaid submissions, Shri. S.L. Kocher,learned Counsel for non-applicants 1 to 4, has contended that there is no infirmity in the order passed by the learned Additional Sessions Judge in releasing the present accused persons on bail and the discretion used does not exhibit perversity of approach is appreciating the allegations as well as the obtaining factual matrix. It is also contended by him that after their release, they have not abused their liberty and in absence of specific instances brought on record to substantiate the allegations that there has been tampering of prosecution witnesses, there could be no order for curtailment of liberty and the accused persons would not be lable to forfeit the privilege of bail.

Mr. S.K. Gangrade, learned Panal Lawyer, for the State, appearing for the State non-applicant No. 5, has fairly submitted that the State has not preferred any application for cancellation of the order granting bail. He has also admitted that except the comunication made by one Mubarik Khan on 18-7-97 to the Town Inspector of Police Station, Chhindwara, which has been annexed to the petition, nothing else has been intimated at any point of time in regard to the conduct of the non-applicants 1 to 4, after their enlargement on bail.

4. From the rival contentions raised at the Bar, it is perceptible that Mr. Sharma,learned Counsel for the petitioner, has sought cancellation of the order granting bail on two counts, namely, the order has been passed improperly by erroneous and arbitrary exercise of judicial discretion and there are supervening circumstances which go a long way to establish that the accused persons have misutilised the liberty given to them after their admission to bail. It is not in controversy that the powers of this Court under Section 439(2) of the Code of Criminal Procedure can be exercised even in absence of any supervening circumstance. This means that if there is impropriety in the order passed by the lower Court in exercise of its discretion, this Court can exercise its jurisdiction under Section 439(2) Cr.P.C. to cancel the order granting bail. If the power so exercised does not smack of arbitrariness or impropriety, this Court would not exercise its jurisdiction for cancellation of bail unless there arc supervening circumstances to show that it would be no longer conducive to a fair trial to allow the accused to retain his freedom. In this regard, I may refer to the decision rendered in the case of Ku. Anju Khatri v. Gyanchand 1993 Cr LJ 2274 (MP) wherein it has been held as follows (at page 2278) :

In the present case the Sessions Judge having admitted the non-applicants to bail on irrelevant considerations after the rejection of the bail application by this Court without there being any fresh ground available to the accused, it amounted to the arbitrary exercise of judicial discretion and as such the order was vitiated by serious infirmity. It would be right and proper for this Court in the interest of justice in suo motu exercise of inherent powers to interfere with such an order of grant of bail.

Thus, there is no prohibition that is absence of supervening circumstances indicating that the accused has misutilised the liberty granted to him, after being admitted to bail, the superior Court cannot exercise the power of cancellation of bail. Recently this Court in Haridatt Arya v. Sadan Arya, M. Cr. C. No. 2523/96, decided on 5-8-97 held as :

From the aforesaid it is luminously clear that bail granted illegally or improperly by arbitrary exercise of judicial discretion can be cancelled by use of the lancet under Section 439(2) of the Code even if there is no additional circumstances against the accused after his enlargement on bail.

5. Keeping the aforesaid parameter in view, let me proceed to scrutinise whether the order passed by the learned Additional Sessions Judge suffers from arbitrariness or exercise of injudicious discretion.

On a perusal of the impugned order, I find that the learned trial Judge has considered the nature of allegations against the petitioner, the dispute existing between the parties prior to the occurrence, the altercation and the fight that took place on the date of occurrence and such other accompanying factors. He has indicated is the order that there are materials to indicate that another accused named Ebrar was the main assailant. The bail application of the said accused has been rejected. The learned Additional Sessions Judge has also taken note of the omnibus allegation against the non-applicants. Taking into consideration the totality of the circumstances and the entire range of facts, I am of the considered view that enlargement of the accused, non-applicants 1 to 4 on bail by the learned Additional Sessions Judge neither smacks of arbitrariness nor show use of discretion in a capricious or injudicious manner. I am of the considered view that the same does not warrant any interference on the ground of illegal or improper exercise of discretion.

6. The second contention of thelearned Counsel for the petitioner relates to the supervening circumstances which have necessitated cancellation of the order granting bail. In this regard, I may refer to the decision of the Apex Court rendered in the case of Daulatram v. State of Haryana 1995 (1) SCC 349 : 1995 Cri LJ 3648 wherein the Apex Court registered the view as follows:

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 due course of administration of justice or abuse 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 justify ing the cancellation of bail. However, bail once grained 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.

7. The present factual matrix has to be decided on the touchstone of the aforesaid settled principles of law. In the petition, except slating that there is every likelihood of (he accused persons committing murder of the objector and other eye-witnesses nothing specific has been brought on record. The complaint, which has been annexed to the petition, is absolutely vague and is genera! in nature. An allegation, which is mercurial in nature, cannot form the foundation to curtail the liberty of an accused who has already been enlarged on bail. Nothing has been brought on record to indicate that continuance of non-applicants 1 to 4 on bail would impade a fair trial. The power vested in the Court for cancellation of bail has to be exercised, with circumspection. There has to be cogent and overwhelming circumstances for directing cancellcation of the bail granted. The bail granted to art accused should not be cancelled unless there are strong and compelling circumstances and the Court is not expected to interfere with a discretion which has been exercised for granting bail. On the basis of vague allegations regarding tampering with evidence by giving threats to witnesses without mentioning specific instances of threat. It is well-settled that an application for cancellation of bail has to be bona fide and cannot be utilised as a tool to wreak vangeance. Vendatta cannot be a base for cancellation of bail. Grounds, which are germane for cancellation of bail must exist. The allegations, which are spacious and unsupported, cannot form the foundation for exercise of jurisdiction of this Court under Section 439(2) Cr.P.C.

8. In view of the preceding analysis, the application being devoid of merit, deserves to be and is hereby dismissed.

Cancellation of Bail in Supreme Court

Nityanand Rai vs State Of Bihar & Anr on 11 April, 2005

Author: S Hegde

Bench: N S Hegde, S Sinha

CASE NO.:

Appeal (crl.) 529 of 2005

PETITIONER:

Nityanand Rai

RESPONDENT:

State of Bihar & Anr.

DATE OF JUDGMENT: 11/04/2005

BENCH:

N. SANTOSH HEGDE & S.B. SINHA

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl) No. 3280 of 2004)

SANTOSH HEGDE, J.

Heard learned counsel for the parties.

Leave granted.

By this appeal the appellant challenges an order of the High Court of Judicature at Patna made in Criminal Miscellaneous No. 29702 of 2003 dated 19-5-2004 by which order the High Court cancelled the bail granted to the appellant earlier by itself on 19-9-2003. Basic facts necessary for the disposal of this appeal are as follows :-

It is stated by the prosecution that the petitioner is an accused in Hajipur (T) P.S. Case No. 71 of 1993 which was registered U/s 302, 307, 120 B of the I.P.C. and Section 27 of the Arms Act on the basis of a complaint given by one Raj Kishore Rai on 6-3-1993 wherein it is stated that the appellant along with some others had murdered his brother Ram Davan Rai. Pursuant to the said complaint so far as the present appellant is concerned a charge-sheet was filed only on 11th July, 2003 nearly 10 years after the date of alleged incidence. On coming to know of the filing of such a charge-sheet the appellant moved the Sessions Court at Vaishali for grant of anticipatory bail which was rejected by the Sessions Court as per its order dated 30th of May, 2003. And being aggrieved by the said order of the Sessions Court, the petitioner preferred an anticipatory bail application before the High Court of Patna which also came to be rejected on 17-7-2003 directing the appellant to surrender and seek regular bail. As per the said direction, it is stated that the appellant surrendered before the C.J.M., Vaishali at Hajipur on 21-7-2003 and moved a regular bail application which was rejected by the learned Sessions Judge on 7-8-2003. Against the said order of rejection of regular bail, the appellant preferred a Criminal Miscellaneous Petition before the High Court of Patna which by its order dated 19th of September, 2003 granted the bail to the petitioner subject to his furnishing a bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of the CJM, Hajipur.

However, even before the appellant could be released from custody pursuant to the bail granted by the High Court the complainant in the case moved an application before the High Court of Patna in Crl. Misc. No. 29702 of 2003 seeking cancellation of the bail granted to the appellant alleging that the appellant was an influential man and had been manipulating the investigation for the past ten years and was ultimately brought to trial only because of the change in the hierarchy of police i.e. when an impartial investigating agency came into picture. It was also urged that the appellant had suppressed material facts while obtaining the bail from the High Court in as much as the appellant did not disclose that in the connected criminal trial the co- accused have been found guilty of an offence under Section 302 etc. and that since the date of the appellant's surrender pursuant to the direction issued by the High Court on 17th of July, 2003, the appellant and his musclemen have been threatening the witnesses and preventing the complainant from pursuing the case against the appellant. It was also stated in the said application for cancellation of bail that two complaints have already been filed in the Sadar Police Station, Hajipur on 10-10-2003 and 13-10-2003 alleging a threat by the appellant and his henchmen.

The High Court by the impugned order allowed the said application for cancellation of bail filed by the complainant on the ground that there was a threat to the prosecution witnesses by the appellant and his musclemen and that the appellant had not brought to the notice of the court that in the connected trial the two accused have already been convicted by the trial court and were sentenced to life imprisonment. The court in the impugned order also noticed that in the order granting bail it unfortunately failed to notice that the appellant was one of the two accused who were described as the active assailants.

Challenging the above order of cancellation of bail in this appeal the appellant contends that the High Court while canceling the bail has not borne in mind the well settled principles of law in regard to cancellation of bail and has approached the case as if it was hearing a bail application for the first time. It is also contended that the basis of the alleged threat which was taken note of by the High Court, i.e. the two complaints filed by the complainant dated 10-10-2003 and 13-10-2003 in Hajipur Police Station could not have been genuine in as much as on the date when these two complaints were filed, the appellant was, as a matter of fact, in custody and was only released pursuant to the bail granted by the High Court on 15-11-2003 nearly a month after the two alleged complaints of threat were lodged, hence, no reliance could have been placed on such a pre planned complaint. It is also submitted on behalf of the appellant that though the appellant was included in the First Information Report filed in the year 1993, the investigating agency could not find any material against the appellant, hence no charge-sheet was filed against the appellant for nearly 10 years until the same was done on 11-7-2003, this too because of the fact that that the investigating Police officer was annoyed with the appellant because of a privilege motion brought against the said police officer in the assembly at the instance of the appellant as a Member of the Legislative Assembly, in which the said police officer had to tender an apology.

Learned counsel for the State as well as for the complainant in rebuttal submitted that the appellant being a very influential person has managed with the investigating agency to keep himself out of the trial all these years and because of the efforts of a good police officer he has at last been charged for a heinous crime and if he is let out on bail there is every possibility of his interfering with the fair trial, therefore, the High Court was justified in canceling the bail. It is also pointed out that since the Sessions court in the connected trial has convicted two persons for life imprisonment and in the evidence adduced in that trial found material against the appellant of his involvement in the crime. This is not a fit case in which the appellant should be granted bail.

Having considered the argument advanced on behalf of the appellant and respondent, we think the High Court was not justified in considering the application for cancellation of bail as if it was an application for grant of bail. Consideration of an application for grant of bail stands on a different footing than one for cancellation of bail. 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, such is not the case made out in application for cancellation of bail. Of course, the complainant had alleged in the petition for cancellation of bail that the witnesses in the case had received threats from the appellant and his henchmen, this is supported by two complaints filed by him before the police dated 10-10-2003 and 13-10-2003. But as contended by the learned counsel for the appellant these two complaints cannot be accepted ex-facie because on the dates mentioned in those complaints the appellant was still in jail and was not yet released on bail though the High Court had granted him bail, therefore, the question of the appellant administering threats to the witnesses as alleged by the complainant cannot be accepted. The next ground on which the High Court considered it appropriate to cancel the bail is the fact that the appellant had not brought to its notice that in the connected trial, two of the co-accused had been convicted for an offence punishable under Section 302. This fact has been denied by the appellant before us by pointing out from his bail application wherein para 10 he had specifically mentioned about the conviction of the two accused persons. Be that as it may, it was the duty of the prosecution to have brought this fact to the notice of the High Court and the appellant cannot be held guilty of suppression of that fact. The 3rd ground on which the bail was cancelled is an error committed by the court itself in not noticing the fact that in the judgment of the trial court in the connected matter the trial court found material as to the participation of the accused in the offence. We are of the opinion that this also cannot be a ground for canceling the bail already granted which was not challenged by any person be it the prosecution or the complainant. The factum that the learned Sessions Judge in the judgment convicting the two co-accused expressed certain views as to the involvement of the appellant in this crime cannot be a ground to cancel the bail. As contended by the learned counsel for the appellant if really there was such material against the appellant before the Sessions court in that trial the procedure contemplated under Section 319 of Cr.PC could have been invoked either by the complainant or the court itself which having not been done, at this stage that observation of the learned Sessions Judge or the evidence given by the witnesses in that trial in which appellant was not an accused can be construed as material sufficient to cancel the bail.

Learned counsel for the respondent then pointed out that the appellant was absconding since the date of incident, hence, investigation as against him could not be concluded for the last many years, and if he is released there is a possibility of he again absconding. This argument, in our opinion, runs counter to the material on record. Since the filing of the complaint in the year 1993, 7 earlier charge- sheets were filed against various accused mentioned in the complaint and in all these charge-sheets, last of which was on 31.3.2003, the appellant's name was shown in Col.No.2 as an accused against whom investigation was still being conducted. In the said charge-sheets, he was not shown as an absconder. That apart there is material on record to show that the appellant has been elected to the Legislative Assembly in the year 2000 and again in the year 2005, and has been attending the Assembly proceedings till he surrendered in the year 2003. If that be so, the allegation of abscondence in past or the likelihood of abscondence in future cannot be accepted. As a matter of fact that for nearly 10 years and after filing 7 charge-sheets, the investigation did not find sufficient material to include the appellant as an accused in those 7 charge-sheets is an indicator of the fact that for all these years the investigation agency could not find material against the appellant.

Therefore, we are satisfied that the cancellation of bail by the impugned order, by the High Court is unsustainable. However, taking into consideration the apprehension of the complainant that the appellant by using his power as member of the Legislative Assembly might interfere in the trial or try to influence the witnesses in the case, we feel it appropriate to direct the appellant not to enter the territorial jurisdiction of Hajipur Sub Division of District Vaishali except for the purpose of attending the trial. If for any reason it becomes imperative for the appellant to visit Hajipur then he shall do so after informing the investigating agency in the case. This condition shall be in addition to the conditions imposed by the High Court for granting bail as per its order dated 19-9-2003.

For the reasons stated above, we allow this appeal, set aside the impugned order of the High Court and restore that of the High Court dated 19-9-2003 granting bail to the appellant.

We make it clear that whatever conclusion we have expressed in this order of ours is purely prima facie and for the limited purpose of finding out whether the impugned order of the High Court is sustainable or not. The trial court shall not be in any manner be influenced by these observations of ours or that of the High Court made in the course of the order granting bail or order canceling bail. Appeal allowed.