S.B. Cr.M..Bail Canc.Appl.No.5836/2009 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CRIMINAL MISC. BAIL CANC. APPLICATION NO. 5836/2009 Peer Mohd. vs. State of Rajasthan & Anr. DATE : 19.08.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI REPORTABLE Mr. Harendra Singh, for the petitioner. Mr. Yunus Khan, for the respondent No.2. Mr. Amit Poonia, P.P. for the State. This order governs the disposal of an application filed under Section 439(2) of Cr.P.C. by the petitioner Peer Mohd. seeking cancellation of bail of the respondent No. 2 Ajij, who has been granted anticipatory bail vide order dated 21st July, 2009 rendered by the learned Additional Sessions Judge, Sambhar Lake, District Jaipur. 2. Heard the learned counsel for the petitioner, learned counsel for the respondent as also learned Public Prosecutor appearing for the State and perused the relevant provisions of law as also relevant material available on record. 3. Learned counsel for the petitioner has craved the cancellation of bail on the following grounds:- i) That, the accused-respondent Ajij was involved in the offences under Sections 341, 323 and 308 of IPC. ii)That, the injured Jamal sustained injuries on his skull, abdomen, back and throat. S.B. Cr.M..Bail Canc.Appl.No.5836/2009 2 iii)That, all these three injuries were caused by a sharp edged weapon - knife. Though, none of the injuries is described to be dangerous to life by the Medical Jurists but the injuries are on the vital part of the body. iv)That, causing repeated injuries one after another with a knife reveals that the accused-respondent had an intention to kill Jamaal. From no stretch of imagination, it could be inferred that the case was false and groundless. iv)That, accused-respondent had blemished antecedents as there were seven more criminal cases pending against him in the courts. The accused-respondent is a habitual offender and of criminal background. Learned Additional Sessions Judge, Sambhar Lake, did not take into consideration all these factors and granted anticipatory bail on the basis of irrelevant and untenable grounds. 4. Per Contra, learned counsel for the respondent has opposed the bail cancellation petition and contended that the anticipatory bail order dated 21.07.2009 of the court below was just and proper and called for no interference. He has further contended that it is very well settled from the catena of judgments pronounced by the Hon'ble Apex Court from time to time that the parameters of accepting bail are altogether distinct from the parameters of cancelling the bail already granted. The respondent has not abused the S.B. Cr.M..Bail Canc.Appl.No.5836/2009 3 liberty of his bail and it is not the fault of the respondent, if the learned Additional Sessions Judge, Sambhar Lake did not take into consideration those factors which have been pressed upon by the learned counsel for the petitioner, hence, the pre-arrest bail already granted to the accused-respondent should not be cancelled and the petition may be dismissed. 5. Learned Public Prosecutor appearing for the State has fairly conceded that the pre- arrest bail has been granted to the accused- respondent by the court below on irrelevant considerations. 6. As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial court while granting pre-arrest bail acts on irrelevant materials or takes into account irrelevant materials, whether bail can be cancelled? 7. The grounds for cancellation of bail generally are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the due course of justice or the abuse of the concession granted to the accused in any manner, which are some illustrative instances and not exhaustive. However, ignoring material and evidence on record, a perverse order of bail is passed in a heinous crime without assigning reasons, such an order would be against the principles of law and liable to be cancelled even at the instance of the complainant. 8. If it is made out that the bail has been granted illegally and without jurisdiction by the trial court, it can be cancelled even though there may not be any additional S.B. Cr.M..Bail Canc.Appl.No.5836/2009 4 circumstances against the accused after the grant of bail. The parameters with regard to grant of bail under Section 437 and 438 are different. 9. With regard to the provisions of Section 438 of Cr.P.C., the Hon'ble Apex Court, in one case reported by Dhananjay Mahapatra, TNN in Times of India, has observed that:- “The pre-arrest bail provisions in the Criminal Procedure Code, inserted to save the innocent from harassment at the hands of Police, is the most abused provision today. The Hon'ble Supreme Court's anguish stemmed from the fact that a discretionary power of the High Courts and Sessions Courts was being repeatedly invoked by persons accused of heinous offences which was not the intent of the relief giving provision.” (Emphasis supplied) 10. It is clear from the observation of the Hon'ble Apex Court that the provisions under Section 438 of Cr.P.C. can be invoked only when a person is innocent and there is an apprehension of his being arrest at the hands of police. 11. In the case of Gurubaksh Singh Sibba vs. State of Punjab (AIR 1980 S.C. 1632) the Constitution Bench of Hon'ble Apex Court has observed as under: “Apart from the fact that the very language of the statute complels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes S.B. Cr.M..Bail Canc.Appl.No.5836/2009 5 reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious inference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits say, a murder in the presence of the public.” (Emphasis supplied) 12. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vaccum. 13. From the observations of the Hon'ble Apex Court, it is now well settled that the provisions of pre-arrest bail enshrined under Section 438 of Cr.P.C. can be invoked only when a person is being falsely implicated with mala fides by the police. It is the reason that the pre-arrest bail provisions are sparingly used in rarest of rare cases. 14. It is very settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In my opinion, therefore, the complainant could question the merits of the order granting bail. S.B. Cr.M..Bail Canc.Appl.No.5836/2009 6 15. Adverting to the pre-arrest bail order dated 21.07.2009, it is found that the learned trial Judge observed in the order that the only grave nature of offence against the accused- respondent was of Section 308 of IPC but so far as the offences under Sections 341 and 323 of IPC are concerned, they were of ordinary nature. The second ground for granting pre-arrest bail was that the Medical Jurists did not find any injury of Jamaal to be dangerous to his life but he utterly failed to take into consideration this fact that the accused-respondent repeatedly gave knife blows on his abdomen, neck, back and hands, which had reflected his intention to kill him. Learned court below did not consider this fact that these knife blows were caused on the vital parts of the body. Had these injuries caused on the abdomen and other parts been grievous and dangerous to life, the case could have converted into offence under Section 302 of IPC. However, the intention of the accused- respondent could not be abandoned from any stretch of imagination. The pre-arrest bail order dated 21.07.2009 rendered by the learned Additional Sessions Judge, Sambhar Lake is found to be totally unjustified, perverse and illegal. The provisions of Section 438 of Cr.P.C. are sparingly used in rarest of rare circumstances. 16. In Pankaj vs. State of Raj., RLW 1996(1) Raj., 628 this court has categorically observed that the provisions of Section 438 are attracted only when it is found that the accusation or allegations levelled against the petitioner are found to be totally false, baseless and groundless. It is for the accused to set out that no prima facie case is made out against him. From the facts on record, it is not reflected that the accusation against the petitioner is totally false and baseless. Hence, in the instant case, the petitioner was not entitled to get the S.B. Cr.M..Bail Canc.Appl.No.5836/2009 7 anticipatory bail. 17. The order of granting pre-arrest bail to the accused-respondent is found to be vulnerable. I find from the order that no tenable reasons were given by learned Additional Sessions Judge while granting pre-arrest bail and it seems to have been granted by extraneous considerations or with an oblique motive without considering the pros and cons of the matter. To my firm view, while granting pre-arrest bail particularly in serious cases like that of murder, attempt to commit murder, rape etc. valid reasons justifying the grant of pre-arrest bail are necessary. Learned Additional Sessions Judge seems to have abused the powers conferred on him for grant of pre-arrest bail, under Section 438 of Cr.P.C. 18. I, therefore, without expressing any opinion on the merits of the case, feel to cancel the pre-arrest bail granted to respondent No. 2 Ajij S/o. Chhitar Khan by learned Additional Sessions Judge, Sambhar Lake vide his order dated 21.07.2009 and thus, the same stands cancelled accordingly. Learned Additional Sessions Judge, Sambhar Lake is directed to take the accused- respondent No. 2 in custody and pass further necessary orders in accordance with the provisions of law. (MAHESH BHAGWATI), J. Mak/- s-1