IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.6137 of 2009 MOHAMMAD UMAR SON OF MOHAMMAD SIDDIQUE, RESIDENT OF MOHALLA SHERGANJ, SASARAM, P.O. AND POLICE STATION SASARAM, DISTRICT- ROHTAS. ..........PETITIONER. Versus 1. THE STATE OF BIHAR 2. SURESH CHAUDHARY, ASSISTANT ELECTRIC ENGINEER (TOWN), SASARAM, ROHTAS, BIHAR. ----------- For the Petitioner :- Shri Durb Narain, Sr. Advocate. For the State :- Shri Ramchandra Singh, A.P.P. For the Electricity Board :- Sri Anand Kumar Ojha, Advocate. 4. 13.12.2010 Heard learned counsel for the petitioner and the State. This is an application for quashing the order dated 3.1.2009 passed by the learned District Judge, Rohtas at Sasaram in Criminal Miscellaneous No. 29 of 2008 by which he has granted bail to the petitioner in Sasaram (T) P.S. Case No. 244 of 2008. The petitioner is an accused in custody of theft of Electricity on the allegation made by the informant Surendra Choudhary, Assistant Electric Engineer, Sasaram along with other officers and the police force raided the shop of informant about the theft of Electricity, Md. Umar committing theft of electricity illegally by 5 H.P line and running motor of 5 H.P. causing loss of Rs.4,25,000/- to the Electricity Board and wire of the three phase were also seized. However in the said case a regular bail petition was filed before District Judge Rohtas and along 2 with the petition for bail annexed a receipt of payment of current electricity bill of Rs. 7015/- on 20.6.2008 to Electricity Board. On the said petition the bail was granted by the order dated 5.7.2008. However, after the grant of bail a petition has been filed for cancellation of the bail on the ground that bail was granted on the basis of alleged current Electricity Bill alleged to be issued by the Electricity Board in favour of the petitioner is forged. The bail has been granted on considering the forged bill. It is asserted that the petitioner was in jail when the petition for bail was filed. It was stated the bill is related to April and May, 2008 which was issued by the electricity officer. It was deposited on 20.6.2008 and during the different period the O.P was in jail custody. The O.P. was remanded to Jail on 9.6.2008 and he was granted bail on 5.7.2008 when the O.P. came outside, he came to know that two employees of the Electricity Department, Sasaram, namely, Indu Dubey and Balram Pandey came to his house and delivered the said bill to his inmate Bhabhi and assured her that if the bill amount is deposited Umar will be bailed out. On their assurance the Bhabhi of O.P., namely, Mehrun Nisha gave them Rs.7050/- for depositing the bill amount and on 20.6.2008 they handed over the said payment receipt to her. The original bill and the payment receipt is in the 3 custody of O.P. and strangely the signature of the counter clerk on the original payment receipt is the same which bears on the duplicate copy of the receipt of the same serial number and it has further been stated that if any manipulation has been made in the payment receipt by the counter clerk the O.P. is not responsible for the default of the staff of department. This manipulation might have been done by the officials in order to misappropriate the amount as in duplicate copy Rs.732/- has been shown in the name of another person while in the original copy issued to the O.P. Rs.7032/- has been shown and such practices are not new in the department rather prevalent. In both the copies of the payment receipt SM no. and LTIS computer No. as mentioned. It has further been stated that the O.P. is not liable for nefarious act of officials and the different entry in payment receipt in the signature of same counter clerk, which caste great doubt on the functioning of Electricity Department, Sasaram. After considering the show cause as well as the documents produced on behalf of the Insurance Company passed the impugned order cancelling the bail. However, while cancelling the bail the lower court consider the facts and circumstances as well as taking into consideration the show cause and documents filed 4 on behalf of the Electricity Board. Take into consideration the contention about the forged and manipulated computerized bill and taking into consideration the fact that the O.P. is consumer of the Electricity Department nor the bill was submitted by the Electricity Department nor any payment of any amount has been received from O.P. by the Electricity department. It has further submitted that the Computer No., the Ledger No., Connection No., amount of bill, deposit receipt, bill amount, period of bill and the deposit date are all of different persons and it has got no connection whatsoever with the O.P Md. Umar. The O.P. managed to create a forged receipt by tagging all these things in his own bill receipt and taking into consideration of this fact in the documents. The order of grant of bail was cancelled on consideration that the discovery of creation of fabricated bill receipt of bill amount which obviously amounts to subsequent consideration of to remain on bail. Learned counsel for the petitioner however, contended that bail has been cancelled on the basis of allegation that the receipt produced by the petitioner is forged and fabricated, without holding an enquiry under Section 340. It has further been contended that the bail 5 can only be cancelled under certain conditions as under sections 439 and 437 of the I.P.C. He contended that the condition for grant of cancellation of the bail mentioned and further contended that the bail was granted under Sections 437 and 439 can be cancelled when such an accused misuses his liberty, interferes with the court of investigation, attempts to tamper with the evidence and his likelihood to attempt to make himself scarce becoming inavailable in the attempts to place beyond the reach of his Secretary etc. However, it is well established that these grounds are only illustrative and not exhaustive. It is submitted that since no enquiry under Section 340 and no grounds as mentioned in 1993 Supreme Court for cancellation of bail has been made out the order cancellation of bail is vitiated from illegality as the cancellation of bail concerns with the freedom of the citizen. Learned counsel for the opposite parties however, contended that the forgery documents everything and forgery and justice cannot run together. When an order passed on forged documents, brought to the notice that the bail granted on the basis of the documents which is prima-facie forged and the petitioner is the beneficial of the said documents and hence order passed on a fraudulent document vitiates everything and 6 hence the order cannot be sustained. Hence, the question for consideration whether the order cancelling the bail is sustainable. However, taking into consideration and that on petition for cancellation of bail on the ground that the bail has been obtained by a forged document. It is true that the time of the occurrence the accused was in jail and some one on his behind, may have filed the bail petition it is true that if a criminal complaint has to be filed then enquiry under section 340 is required. However, the procedure of section 340 is required to be followed in the court hence to proceed to file a complaint under section 195 of the Cr.P.C and not for cancellation of bail. However, for cancellation of bail the court is not required to go for an enquiry under section 340. However, when a question for cancellation of bail concerned a notice is required to be given into the petitioner to show cause by the order granting bail be not cancelled. However, taking into consideration the fact that bail petition filed along with a receipt of payment of current electricity bill showing a bona fide consumer. On revealing the fact that order passed on forged receipt the notice issued giving opportunity to the petitioner. The petitioner filed show cause. After considering the show cause and taking into consideration the fact that the 7 receipt did not contain consumer name and number and issued in the name of other person and on due consideration came to conclusion that order passed on behalf of forged document cancelled the bail. Hence, the document which is found to be prima facie to be forged. Since the order is passed on the said document and hence cannot be allowed to be sustained. Hence, order cancelling the bail for the reason if them complaint is filed then a requirement of section 340 Cr.P.C. may be necessary. However, it is well settled that the order is fraud and justice cannot run together and order granting bail on forged document cannot serve and since the order considering bail amount to effacing the order by which bail granted. Hence, I do not find any illegality or irregularity in the impugned order. However, if the petitioner so desire he may take step for filing fresh bail petition which may be considered on his own merit. However, the enquiry under section 340 can only be relevant for filing a complaint under section 195 C.P.C. and not for complaint. I do not find any merit to interfere with the impugned order however, if the petitioner so desire he may file a fresh bail petition and which may be 8 considered on its own merit. This petition is hereby dismissed. Devendra/ ( Gopal Prasad, J.)