Crl Bail(Can) 1248/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench *** Criminal Misc. Cancellation of Bail Application No.1248/2008 in Criminal Misc. Bail Appl No.629/2008 CP System (P) Ltd Versus State, Smt. Kiran Sharma, Naresh Verma & Ajay Verma Date of Order ::: 17/03/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Sudhir K. Jain, for applicant (complainant) Mr. Jainendra Jain, Public Prosecutor Mr. AK Gupta, for respondents (accused) Matter has come up for consideration of application of complainant U/s 439(2), CrPC seeking cancellation of bail granted to respondents (accused) U/s 438, CrPC vide order dt.29/01/08 of this Court. Complainant - Sanjay Shandalia Director of M/s CP System (P) Ltd submitted complaint dt.13/08/07 against five persons out of whom three are respondents herein for offences U/Ss 406, 419, 420, 467, 468, 471, 120-B, IPC before ACJM Dausa, who sent it U/s 156(3) CrPC for investigation to the police, on which FIR- 422/07 was registered at police station Nagal Rajavatan (Dausa) on 27/11/07. In the complaint, it was basically alleged that a work order from Indian Oil Corporation was received by complainant- Company – for execution whereof, MOU was Crl Bail(Can) 1248/08 //2// executed between complainant and accused respondents on 02/02/04 and as per terms & conditions whereof, machines & equipments on hire basis were provided to accused respondents for executing the work order. It has further been alleged that the accused respondents intentionally and fraudulently disposed of and sold out machines & equipments provided by complainant on hire basis and thus committed breach of trust, besides misappropriated machines & equipments entrusted to them worth more than Rs.Twenty lacs, inasmuch as blank cheque of Rs.Two lacs drawn on UTI Bank, Ashok Vihar, New Delhi by manipulation & fabrication was got converted into Rs.27 lacs; and by usurping sale proceeds of machines and equipments, their motive behind fabrication was to cause loss to the complainant with an intention to extort money. After investigation challan was filed U/s 299, CrPC against accused respondents on 02/01/08 and since one of co-accused Brijesh was arrested and released on bail, however, as regards present respondents (accused), as is recorded in order sheet dt.02/01/08, they were declared to be absconder, and proceedings U/s 82 & 83 CrPC were initiated against them on Crl Bail(Can) 1248/08 //3// 19/01/08. They moved application for pre- arrest bail U/s 438, CrPC but was declined by learned Sessions Judge, Dausa vide order dt. 17/01/08 & 21/01/08 - against which they preferred bail application No.629/08 U/s 438, CrPC, wherein after hearing Public Prosecutor all the three respondents (accused) were enlarged on pre-arrest bail U/s 438, CrPC vide order dt.29/01/08. It will be relevant to mention that while granting anticipatory bail, reasons noticed by this Court were of two facts viz., (1) on same set of facts, informant also filed FIR at Police Station Ashok Vihar (New Delhi) on 19/08/06 – investigation of which is pending and thereafter FIR in question has been lodged on 27/11/07 at Dausa, was considered to be second one for self-same incident. Accordingly the Counsel submitted that even otherwise this is second FIR on the same set of facts and is not maintainable; (2) It was also observed by this Court that accused respondents herein shall surrender before trial Court on the date of filing of the challan. Application seeking cancellation of bail (supra) has been filed on the premise that this Court has been misled by the accused Crl Bail(Can) 1248/08 //4// respondents to the fact that neither there is any FIR registered/filed at police station Ashok Vihar (N.Delhi) and this fact was never apprised by their Counsel that by the time, matter was taken up for consideration of pre- arrest bail, challan against them had already been filed U/s 299, CrPC on 02/01/08. Counsel for complainant further submits that even after filing of application seeking cancellation of their bail, and notices were served upon their Counsel (accused’s) on 19/02/08 and was posted for hearing on 26/02/08, still they surrendered on20/02/08 before the learned trial Judge and got their regular bail U/s 437 CrPC on 20/02/08. According to the Counsel, such an act of accused respondents is nothing but to over-reach the process of Court; and in such circumstances, indulgence of pre-arrest bail to them U/s 438, CrPC vide order dt. 29/01/08 deserves to be annulled. While supporting pre-arrest bail order, Counsel for accused respondents submits that complaint was submitted by complainant before SHO Ashok Vihar Delhi, and Permanent Legal Service Clinic issued notice to the accused but any how, because of non-co- Crl Bail(Can) 1248/08 //5// operation of complainant, the case was closed and consigned to record on 08/04/07. As regards the fact recorded by this Court in its order dt.29/01/08 that the accused shall surrender before the trial Court on the date of submission of challan, Counsel submits that despite the fact being specifically mentioned in bail application and so also in synopsis too, about challan being filed U/s 299 CrPC, it appears that this fact escaped notice and it cannot be inferred that there was ill-intention on the part of the accused to mislead as is also fortified from the fact that immediately on getting certified copy of bail order dt.29/01/08, without loss of time, application was filed by their Counsel on 01/02/08 U/s 482, CrPC seeking clarification of the fact – reference whereof has been made by the Court in the bail order. No doubt, this Court taking note of facts brought to its notice, in exercise of judicial discretion granted pre-arrest bail to the accused respondents vide order dt. 29/01/08, but the facts brought to the notice of this Court by complainant in instant application seeking cancellation of bail clearly reveal that it was a written report Crl Bail(Can) 1248/08 //6// filed at police station Ashok Vihar (N.Delhi); on which indisputably, no FIR was registered; and notice was issued by some Permanent Legal Service Clinic for preliminary discussion; as such to construe the present one as second FIR for self same incident lodged/registered at police station Nagal Rajavatan (Dausa), as pleaded by accused respondents for considering pre-arrest bail, was factually incorrect. It is indeed that in bail application and so also synopsis thereto, it was mentioned that challan has been filed U/s 299 CrPC but while examining bail application, its contents are not construed and considered as pleadings, and this Court certainly can take judicial notice of the fact that contents of bail application are never taken note of while examining bail application as considerations thereof are different, being based on material appearing in the case diary and brought to the notice by Counsel for parties; and in instant case, this Court when specifically observed that accused respondents herein shall surrender before trial Court on the date of submission of the challan, it clearly shows that this Court was never apprised of the fact of challan against accused respondents herein Crl Bail(Can) 1248/08 //7// having already been filed on the date when bail order was passed on 29/01/08. Both the facts brought to the notice of this Court by complainant in instant application clearly corroborate from the record and thus this Court was certainly misled on such crucial facts (supra) while bail application being considered vide order dt.29/01/08. That apart, certainly in the opinion of this Court, accused respondents herein have over-reached process of Court for the reason that once application filed by the accused respondents on 01/02/08 U/s 482, CrPC for re- calling of order dt.29/01/08 granting pre- arrest bail, besides praying therein that their application for bail be heard afresh, was pending and simultaneously cancellation of bail was also filed – copies whereof were made available to their Counsel on 19/02/08 and matter was coming up for consideration of instant application on 26/02/08, yet accused respondents were advised to surrender and get their regular bail U/s 437, CrPC, on 20/02/08, which was a clear attempt to over-reach the process of Court and thus, they do not deserve indulgence of exercise of discretion of pre- arrest bail on the facts of the instant case. Crl Bail(Can) 1248/08 //8// It is true that for cancellation of bail there should be cogent reasons and over- whelming circumstances which are always necessary for orders seeking cancellation of the bail but from material on record, this Court is of the considered opinion that not only the accused respondents herein have misled on crucial facts but has also over- reached the process of Court, as well, which dis-entitle them for exercise of discretionary power for pre-arrest bail. Consequently, application seeking cancellation of bail is hereby allowed. Order dt.29/01/08 is re-called; and pre-arrest bail granted to accused respondents (Smt. Kiran Sharma, Naresh Verma, & Ajay Verma) U/s 438, CrPC vide order (supra) is hereby cancelled. A copy of this order be sent to the trial Court for compliance. (Ajay Rastogi), J. K.Khatri/p.8/1248CanBail08-38.doc Crl Bail(Can) 1248/08 //9// Criminal Misc. Bail Appl No.629/2008 Smt. Kiran Sharma, Naresh Verma & Ajay Verma Versus State Date of Order ::: 17/03/08 Hon'ble Mr. Justice Ajay Rastogi Mr. A.K.Gupta, for petitioners Mr. Sudhir K. Jain, for complainant Mr. Jainendra Jain, Public Prosecutor Matter has come up on application U/s 482, CrPC for withdrawal of order dt.29/01/08 andfor fresh consideration of their Cr.Misc. Bail Application No.629/08 in accordance with law. Matter has been heard alongwith Cr. Bail (Cancellation) application No. 1248/08 filed by complainant seeking cancellation of bail granted vide order (supra). In view of what has been observed by this Court in the order pronounced today disposing of cancellation of bail application, instant application U/s 482, CrPC, filed on 01/02/08 stands disposed of. (Ajay Rastogi), J. K.Khatri/p.9/1248CanBail08-38.doc