CRIMINAL MISCELLANIOUS No.9917 OF 2005 ******* In the matter of an application under Section 482 of the Code of Criminal Procedure. ******* RAJDEO PRASAD----------------PETITIONER Versus 1. STATE OF BIHAR 2. DHANESHWARI DEVI ------OPP.PARTY ******* For the Petitioner : M/s Ajay Kumar Thakur & Amit Kumar For the Opp.Party : M/s S.N.P. Sinha & No.2 Ram Shanker Prasad For the State : Mr. Damodar Pd. Tiwary ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and learned counsel for opposite party no.2. 2. This is an application under Section 482 of the Code of Criminal Procedure seeking quashing of order dated 28th February, 2005 passed by learned Sessions Judge, Muzaffarpur, cancelling the privilege of bail granted to the petitioner in Sakra P.S. Case no. 164 2 of 2003 vide B.P. No. 1192 of 2003 on 29th October, 2003. 3. The relevant facts in this case is that Sakra P.S. Case no. 164 of 2003 was instituted for the offences under Sections 363, 364 and 120B of the Indian Penal Code against three persons including the petitioner. His prayer for bail was considered by the learned Vacation Judge (Sessions Judge) and considering the submission of charge sheet against the petitioner and materials collected till then, the petitioner was granted the privilege of bail. The last operative portion of the bail order reads as such: “It appears on a perusal of the case diary that except mere suspicion of the informant, there is no evidence at all against the petitioner to connect him with the aforesaid disappearance of the son of the informant. The investigation against the petitioner has concluded and he has been charge sheeted. So, no further evidence is expected to be collected on the case diary against the petitioner. So, considering these facts, I feel it proper to admit the petitioner to bail. Accordingly, he is directed to be released on bail on furnishing a bail bond of Rs.10,000/- with two sureties each of like amount to the satisfaction of the learned court below.” 4. Thereafter, prayer for bail on behalf of co- 3 named accused Jagarnath Prasad was made. At the time of hearing of such prayer same Judge, finding some direct materials as an outcome of subsequent investigation pending against the petitioner there, while rejecting the prayer made on behalf of co-named accused Jagarnath Prasad, noticed that same materials are equally applicable in case of the present petitioner against whom earlier not only charge sheet was submitted, but on consideration of materials, at the relevant time he was enlarged on bail. Consequently, notice to show cause was issued against the petitioner as to why not the privilege granted to him may be cancelled. In response, petitioner appeared, filed show cause and by detailed order court below cancelled the privilege granted to the petitioner giving rise to instant case. 5. It would be relevant to re-produce paragraphs 25 and 26 of the impugned order which reads as such: “I have already mentioned the facts and evidences collected on the case diary against accused Rajdeo Prasad after his release on bail in paragraph no. 4 hereinbefore. On similar facts and evidences this court subsequently 4 rejected the prayer for bail of co-accused Jagarnath Prasad. He moved for bail before the Hon’ble court on the ground that similarly situated co-accused Rajdeo Prasad had been granted bail by this court. The Hon’ble court rejected his prayer for bail stating therein that Rajdeo Prasad was granted bail at a stage when the victim was not recovered, but subsequently he was recovered and his statement was also recorded in the court in which he claimed that Rajdeo Prasad, Jagarnath Prasad and two others had kidnapped and kept him confined. The Hon’ble court while refusing bail to co- accused Jagarnath Prasad had also taken notice of the fact that this court had issued notice to Rajdeo Prasad for the cancellation of his bail. So, the position is that co-accused Jagarnath Prasad is lodged in jail custody for that last about one year or more and accused Rajdeo Prasad against whom there are the same evidences on the case diary and who is main accused is enjoying the privilege of bail simply due to late collection of evidences on the case diary by the Investigating Officer and submission of charge sheet against Rajdeo Prasad without actually concluding the investigation of the case in its entirety. Under such circumstance I feel sincerely that it will not be just and proper to let accused Rajdeo Prasad continue on bail. The court cannot allow, as a helpless spectator, to continue this anomalous situation and therefore, in the facts and circumstances of the concerned case it appears to be the requirement of justice to cancel the bail granted by this court to accused Rajdeo Prasad.” 6. From the above it is crystal clear that the learned Sessions Judge has cancelled the privilege of bail, earlier granted to the petitioner, merely on the 5 ground that though he was enlarged on bail on merit but the materials collected subsequent to submission of charge sheet against him, denied co-named accused, the privilege of bail and such denial was also confirmed by the High Court refusing prayer for bail to co-accused Jagarnath Prasad, the petitioner deserves not to continue availing the privilege, granted earlier. . 7. The reason assigned by the learned Sessions Judge while canceling the privilege is not at all convincing. The learned counsel for the petitioner, while assailing the impugned order, placed reliance on the decision of Apex Court in a case of Aslam Babalal Desai V. State of Maharashtra; A.I.R.1993 S.C. 1. = 1992 Cr.L.J. 3712. Though in the above case matter for consideration was whether privilege granted under Section 167(2) to an accused due to non-submission of charge sheet during stipulated period may be cancelled merely because subsequently charge sheet has been submitted. But, the Hon’ble Court has equated the privilege granted to the petitioner on technical grounds that the privilege granted on merit under Section 437 of 6 the Code of Criminal Procedure has clearly held that such privilege cannot be taken away merely on changed circumstances, submission of charge sheet etc. and in paragraph 14 the Hon’ble Court has clearly held: “The provisions of the Code, in particular Ss.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 S. 167(2) of the Code. It must be realized 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 realize 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 S. 167(2) would be an order under S.437(1) or (2) of the Code. Since S. 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to S. 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 S. 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 of proviso (a) to S. 167(2) of the Code then recedes 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 7 the very purpose of instilling a sense of urgency expected by Ss. 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under S. 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. The ratio of Rajnikant’s case (AIR 1990 SC 71) to the extent it is inconsistent herewith does not, with respect, state the law correctly.” 8. In the same case in paragraph 15 the Hon’ble Court has gone to this extent that even if where two views are possible, this being a matter to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. 9. In the instant case the privilege of bail was granted to the petitioner after completion of investigation and submission of charge sheet at least so 8 far petitioner is concerned. No doubt, investigation against other co-accused persons who may not be apprehended earlier was pending wherein some more materials came out but only because of that the privilege once granted on merit cannot be taken out. 10.Almost similar view has been taken by the Apex Court in the case of Ram Charan V. State of M.P. (2004) 13 SCC 617, wherein in paragraph 4 it has been held : “It is not a case of the State before the High Court that the appellant abused, in any manner, the order suspending his sentence pending appeal and directing his release on bail. It is well settled that different considerations have to be weighed while considering an application for grant of bail and while considering an application for canceling the bail already granted. It is apparent from the impugned order canceling bail that the bail was cancelled on reappreciation of the facts of the case. In the order dated 11.1.2002, sentence was directed to be suspended noting the submission of the counsel for the appellant that the overt act attributed to him in evidence before the Court was wholly contradictory to what was stated by the witnesses in their statements before the police. In the impugned order, the High Court has noticed on a perusal of evidence that the deceased had died of several cutting and stab wounds and the appellant is attributed to have given knife blows to the deceased and it is in this context, the impugned order mentions that the order for bail passed on 11.1.2002 was based on some misapprehension of some factual position.” 9 11. In another case Sami Ullah V. Superintendent, Narcotic Central Bureau ; A.I.R. 2009 S.C. 1357, the Apex Court considering Section 37 of the N.D.P.S. Act has held in paragraph 10 as follows: “ The Act although is self contained Code, application of the provisions of the Code of Criminal Procedure, 1973, however, either expressly or by necessary implication, have not been excluded. There exists a distinction between an appeal from an order granting bail and an order directing cancellation of bail. While entertaining an application for cancellation of bail, it must be found that the accused had misused the liberty granted to him as a result whereof : (a) he has attempted to tamper with evidence: (b) he has attempted to influence the witnesses: (c) there is a possibility of the accused to abscond and, therefore, there is a possibility that the accused may not be available for trial. ” Ultimately, the Apex Court set aside the order canceling bail to the petitioner therein. 12. The learned counsel for the opposite party, while supporting the order of the learned Sessions Judge, placed reliance upon decision of the Apex Court in the case of Sant Ram V. State of Haryana & Ors.; 1994 Supp (2) SCC 205, but the same is not applicable in the 10 present case as would appear from the following as mentioned in paragraph 2 of the decision: “ We find that in the present case, the High Court was not justified in interfering with the order of the learned Sessions Judge canceling the bail of the respondent accused. The learned Sessions Judge has given cogent reasons for passing the order in question by pointing out that the accused had threatened the material witnesses in question including the complainant, on two occasions. On the first occasion, an application was filed for cancellation of their bail. It was, however, rejected. Within another few days a second attempt was made to threaten the witnesses. That was inquired into both by the Station House Officer as well as by the Deputy Superintendent of Police. They found substance in the complaints. Hence it was the state which moved the Court for cancellation of the bail relying upon the verified report of the Police Officers. The learned Sessions Judge took into consideration all the relevant facts and came to the conclusion that it was necessary to cancel the bail in order to maintain a terror free atmosphere during he proceedings. The High court, while setting aside the order of the learned Sessions Judge stated that the learned Judge was arbitrary and had made the order of cancellation of bail without any material being “ marshalled on the record” to support the conclusion. We are unable to appreciate this reason. A perusal of the order of the learned Sessions Judge shows that he had referred to all the material circumstances on record and has come to his conclusion in question. We, therefore, set aside the impugned order of the High Court and maintain the order of the Sessions Judge dated 20.11.1992 and direct that the accused, who have already been taken into custody, pursuant to the non-bailable warrants issued by this Court, will remain in custody till 11 the trial is over.” 13. From the discussions of the decisions of the Apex Court it is crystal clear that the law makers has made the provision to grant bail to the accused persons if they qualified certain conditions but at the same time once the privilege is granted, ordinarily it could not be taken away. To further appreciate the intention of law maker it would be relevant to re- produce here Section 437 of the Code of Criminal Procedure: “ 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 Session, 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 for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously converted 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 12 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 they shall comply with such directions as may be given by the Court. (2) If it appears to such officer or Court at any stage of 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 enquiry, 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 necessary – (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 13 © otherwise in the interest 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 or 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.” 14. In Sub-section (2) of Section 437 of the Code of Criminal Procedure it has clearly been provided that in case the Court, considering the prayer of bail of any accused, and if anticipate that some more materials may come during enquiry against him but at the time of consideration there is no material justifying his detention the petitioner may be enlarged on bail subject 14 to condition as contemplated under Section 446A of the Code of Criminal Procedure which reads as such: “446A. Cancellation of bond and bailbond:- Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of condition- (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled, and (b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure or the person bound by the bond to comply with its condition: Provided that subject to any other provision of this Code he may released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.” 15. The position could have been different in the instant case if the learned Sessions Judge while granting privilege of bail to the petitioner taking into consideration pending investigation against co-accused, could have released him on bail till either recovery of the victim or submission of charge sheet or any anticipated period but, when the petitioner was granted the privilege of bail on merit after submission of charge sheet against 15 him, the liberty cannot be easily snatched. 16. The Apex Court in the case of Aslam Babalal Desai (Supra) in paragraph 11 towards end has held: “As stated in Raghubir Singh’s case (1987 Cri.L.J. 157) the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439 (1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scaree by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 17. No doubt, the above grounds specified by the Apex Court are only illustrative and not exhaustive but at the same time none of such grounds are applicable in the instant case on which the privilege of bail granted to the petitioner earlier could be cancelled. 18. The provisions as contained under 16 Sections 437(5) and 439(2) of the Code of Criminal Procedure empowers the Court of Session of the High Court to cancel the privilege of bail granted earlier and the grounds for cancellation though illustrative has already been prescribed by the Apex Court in earlier decisions and the Courts just on the ground of the same being illustrative not exhaustive cannot take a view extremely contrary to the grounds prescribed for cancellation of the bail. No doubt, the Courts are required to be innovative towards application of law in positive side and act to copy with the situation arrived at before them but at the same time they are to keep in their mind, consistent decisions on the points involved which lacks in the instant case. Accordingly, the impugned order is not at all sustainable, hence quashed. This application is hereby allowed. (Akhilesh Chandra, J.) Patna High Court, The 19th August, 2010. AAhmad/(AFR)