IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33012 of 2000 MD. EKHLAQUE ALAM SON OF ABDUL HAMEED, RESIDENT OF VILLAGE CHULHANIA, P.S. MAHALGAON (JOKIHAT), DISTRICT ARARIA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. BIBI FARZANA W/O FAKHRUDDIN, RESIDENT OF VILLAGE BUDESHWARI, P.S. MAHALGAON (JOKIHAT), DISTT. ARARIA. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S Md. Anis Akhtar, Adv. Md. Rashid Alam, Adv. Arifdaula Siddiqui,Adv. For the State : M/S Subhash Prasad Singh, G.A.8 Dilip Kumar, J.C. to G.A.8 For O.P. No.2 : Mr. Uday Bhanu Roy, Adv. ---------- 3. 9.11.2010. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 8.11.2000 passed in Araria P.S. Case No.313 of 2000. By the said order, learned Chief Judicial Magistrate, Araria has cancelled the bail bond of the petitioner and directed for issuance of non bailable warrant of arrest against the petitioner and show cause to the bailors as to why the bail bond amount be not forfeited. Short fact of the case is that earlier the petitioner was granted bail by order dated 21.10.2000 passed by the Incharge 2 court i.e. Additional Chief Judicial Magistrate, Araria in Araria P.S. Case No.313 of 2000. After noticing the fact that petitioner was granted bail, a petition was filed on behalf of the informant in the court of learned Chief Judicial Magistrate, Araria disclosing therein that the petitioner, by way of suppression of fact, had obtained the order from the Incharge court. It was disclosed in the petition for cancellation of bail that initially, the petitioner had filed an anticipatory bail petition in the court of Vacation Judge (Additional Sessions Judge-I, Araria). In the said anticipatory bail application, hearing was deferred to 12.10.2000. Again on 12.10.2000, the case was adjourned to 1.11.2000 for hearing. In the meanwhile, the Public Prosecutor was directed to produce the case diary. After the order dated 12.10.2000, the petitioner filed surrender-cum-bail petition before the Incharge court and on the same date, he was granted bail. It was disclosed by the informant in the petition for cancellation of bail that in the surrender-cum-bail petition, a false certificate was granted to the extent 3 that no bail petition was earlier filed before any other court. It was alleged that purposely this false certificate was issued and thereafter, the petitioner was granted bail. A petition for cancellation was filed on 8.11.2000 and on the same date, by the impugned order, the learned Chief Judicial Magistrate cancelled the bail bond of the petitioner. Aggrieved with the order of cancellation of bail, the petitioner approached this Court by filing the present petition. Before this Court, it was submitted on 11.4.2002 that the petitioner has also preferred a quashing application vide Cr. Misc. No.6262 of 2001 against the order of cognizance. Accordingly, vide order dated 11.4.2002, it was directed to list the case after disposal of Cr. Misc. No.6262 of 2001. In the present case, earlier by order dated 4.12.2000, the impugned order i.e. order dated 8.11.2000 was directed to remain stayed and order of stay is still continuing. After disposal of Cr. Misc. No.6262 of 2001, the present matter has been listed for hearing under the heading for admission. 4 Learned counsel appearing on behalf of the petitioner, while challenging the impugned order, has raised several grounds. Learned counsel for the petitioner has emphasized that the petition for cancellation of bail was filed on 8.11.2000 and on the same date, without granting any opportunity to the petitioner, the learned Chief Judicial Magistrate has cancelled the bail bond of the petitioner. It was submitted that it was contrary to the principle of natural justice. In support of his stand, learned counsel for the petitioner has relied on a judgment of apex court reported in A.I.R. 2000 Supreme Court 3536 (Rajednra Prasad Arya Vs. State of Bihar). It was submitted that the Supreme Court has already held that in case of recalling earlier order on whatever ground may be it is must to provide opportunity to the other side. In the present case, even from the impugned order, it is evident that no opportunity was given. Learned counsel for the petitioner has also relied on a judgment of Supreme Court reported in A.I.R.1978 Supreme Court 179 (Gurucharan Singh & anr. Vs. Delhi Administration). Learned counsel 5 for the petitioner has specifically referred to paragraph-24 of the said judgment. It was submitted that in case of cancellation of bail, there are certain specified procedure and without adopting such procedure, bail bond cannot be cancelled. In similar circumstances, learned counsel has also referred to a case law reported in 1978 Supreme Court 1095 (Mohan Singh Vs. Union Territory, Chandigarh). On the aforesaid grounds, it was submitted that the learned Chief Judicial Magistrate has committed serious error while canceling the bail bond of the petitioner. Shri Uday Bhanu Roy, learned counsel appearing on behalf of opposite party no.2, has vehemently opposed the prayer of the petitioner. At the very outset, it was submitted by learned counsel for opposite party no.2 that in case of commission of fraud, there is no question for adopting principle of natural justice. It was submitted by learned counsel for opposite party no.2 that while canceling the bail bond of the petitioner, the learned Chief Judicial Magistrate had perused the certified copy of 6 the order sheet of the anticipatory bail as well as the application for granting bail filed before the Incharge court i.e. Additional Chief Judicial Magistrate. Learned counsel has also submitted that the learned Chief Judicial Magistrate had also perused the certified copy of the anticipatory bail application and thereafter, there was no reason for the learned Chief Judicial Magistrate to refuse the prayer of opposite party no.2 save and except to pass the impugned order. It was submitted that since in the present case, it was apparent from record that false certificate was granted while filing the surrender-cum-bail petition to the extent that no bail petition was earlier filed before any of the court, it was necessary to cancel the bail bond of the petitioner on an allegation of commission of fraud. It was further submitted that the learned Magistrate, while canceling the bail, had taken lenient view in the present case. It was submitted that it was required for the Magistrate to conduct enquiry or instituting a separate case for filing false certificate in the court proceeding. 7 Shri Indeshwar Prasad Mandal, learned Additional Public Prosecutor appearing on behalf of the State, while supporting the stand of the learned counsel for the opposite party no.2, has also submitted that the learned Chief Judicial Magistrate has rightly cancelled the bail bond of the petitioner and there is no requirement for interference with the said order. Besides hearing learned counsel for the parties, I have perused the materials available on record. So far as granting opportunity to the petitioner is concerned, in the facts and circumstances of the present case, the court is of the opinion that since it was a case of commission of fraud in a judicial proceeding, there was no requirement to defer the matter for granting such opportunity. So far as Rajendra Prasad Arya’s case (Supra) is concerned, in the said case, there was no allegation of suppression of fact. Accordingly, the petitioner may not get any benefit from the judgment of the said case. In Gurucharan Singh’s case(Supra), criteria was laid down for cancellation of bail. In that case also, there was no 8 allegation of suppression of fact or commission of fraud in the judicial proceeding. Accordingly, no benefit can be given to the petitioner on the strength of the said judgment. Similarly, Mohan Singh’s case (Supra) does not apply in the facts and circumstances of the present case. The court is of the opinion that when the learned Magistrate was satisfied that fraud was committed in the judicial proceeding, while canceling the bail bond of the petitioner, it was further required for him to direct for institution of separate case for commission of fraud in the judicial proceeding. The learned Magistrate, in the present case, has simply cancelled the bail bond of the petitioner. Of course, in the facts and circumstances of the present case, this Court was not at all inclined to interfere with the impugned order, but keeping in view the stand of the petitioner that on the same date, when the petition for cancellation of bail was filed, the impugned order was passed, the court is of the opinion that for the ends of justice, an opportunity can be granted to the petitioner to satisfy 9 N.H./ the learned Magistrate that no fraud was committing while filing petition for surrender-cum-bail petition. Accordingly, the impugned order is set aside and the matter is remitted back to the learned Chief Judicial Magistrate to pass a fresh order in accordance with law keeping in view the observation and direction as indicated in the present order. The petitioner is directed to appear before the concerned court on 15th December,2010 and thereafter, the learned Magistrate may pass final order preferably by 21st December,2010. With above observation and direction, the matter is remitted back to the court below. Let a copy of this order be sent to the court below through fax on cost being deposited by opposite party no.2. ( Rakesh Kumar,J.)