APPLICANT: HI6H COURT OF CHH^TraS^ARH. BILASPUR Criminai Mlsc. Petition No.Sof 2009 Kaiiashpafi Agrawai NON-APPLICANT: Versus Union of India ^' Post for pronouncement of order on /"? .Fcbryarv. 2009 Sd/- T.P. Sharma Judge M^ .8_.r ^^%. i/y~h- \ I? St-:-..^—.-. \^ j 1%^^ jl ^... ^-y .' ^:<-t^e-^' APPLICANT: HI6H COURT OF CHHATTIS5ARH, BILASPUR Criwinal Misc. Petltion No.8 of 2009 Kaiiashpati Agrawal, S/o Late Shanti Swaroop Agrawal, aged about 51 years/ Proprietor, M/s. Balajj Impex, Rishabh Complex, M.e. Road, Raipur (C.a), R/o Flat No,B~402, Ashok' Ratan, Shcnkar Nagar, Raipur (C.<5.) NON-APPLICANT: Versu^ Union of India, Through the Commissioner, Custom A Centrai Excise, Centrai Excise Buiiding, Tikrapara, ftaipur (C*S<) {Appiication under Section 482 of the Code of Criminal Procedure, 1973) Present: Mr. P. Diwaker, Senior Advocate with Mr. Adil Minhaj, Advocate for the app.licant, Mr« Bhishma Kin9er, Standing Counsel for the non-applicant, SlnQie Bench: Hora'ble Mr, T,P, Sharma, J ORDER (Passed on /"^ February, 2009) 1. This petition under Section 482 of the Code of Criminai Procedure, 1973 (for short 'the Code') is directed against the order dated 2-12-2008 passed by the Sessions Judge, Raipur in A^isc. Criminal Case No,97/2008 whereby learned Sessions Judge has canceiied the baii, under the provisions of Section 439 (2) of the Code, gronted to the applicant vlde or-der dated 84-2008 under Section 439 of the Code. 2, The order Is chaiienged on the ground that without any cogent reason the Court below has canceiied the bal! rnechanjcaily without application of mind and thereby committed illegolity re^uited in miscarrlage of justice, 3. Counsei for the parties are heord, Order impugned, the orderdated 8-1- 2008 and other copies of the documents filed on behaif of the appiicant A the non-appiicant are perused. ^•^^^.. ^^^-^^ /^ 'A k.'^" ^ 4< The oppiiaint is Proprietor' of M/s. Baiaji Impex engaged in the business of iron/steel and he used to export iron/stee) to abroad. Offence punishabie under Section 9 of the Centrol Excise Act, 1944 has been registered against the o.pplicant in Crime No,335/2007, After hearing the parties, baii wo^ granted to the app'licant vide order dated 8-1-2008 imposing certaln conditions thot (i) the applicant sholl cooperate in the investigation and shal! record hls presence on every AA.onday from 11 a,m< to 2 p<m, in the Centrai Bxcise & Customs Office; (ii) 4'he accused shall himself available during triai; (iii) the accused sholl not tamper the prosecution witnesse^; <& (iv) the accused wiii neither engage himseif in any offence nor repeat the offence. Vide order dated 22-5-2008; condition No,(i) was modified by the Court below and it was directed that in case of any interrogation or need of production of documents the Centroi Excise & Custorns is required to surnmon the applicant, the non-applicant will not unnecessarily detain the appiicont and the applicant will cooperate in the investigation at the instance of the non-applicant. After hearing the parties, the bail granted to the appjicant vide order dated 8~ln-2008 was cancelied vide order dated 2t-12-2008 m accordance with Sectjon 439 (2) of the Code on the ground that the applicont is not providing the infoi'&mation and not producing the documents demanded by the Deportrnent, thereby the applicant is not cooperating.and violating the conditions of bo.il order granted to him< 5. A4r, P* biwaker, learned Se'nior Advocate appearing on behaif of the appficant submits that according to the case of the prosecution, the appiicant has evaded the duty. After hearing the parties, the appiicant o.dmitted to bail vide order dated 8-1-2008 and the conditions were also modified vide order dated 22-5-2008, after3 proyjding opportunit/ of hearing to the parties. The appiicant has cooperated with the non" applicant in the investigation within his iimitation. The non-appiicant/ investigating age.ncy is not empowered to compei the appjjcant to become witness ogain^t himself and the appiicant is protected under cbuse 3 of Article 20 of the Constitution of Inaia. The applicant cannot be compelled by the Envestigating agency to odduce documentary evidence or ocubr eyidence aaainst himseif. Leorned Senior Advocote further submits that '•^^^^ w^""' '" 7 ['•—- ^:.^-4 the non-applicant is not empowered to corr^pe! the applicant to confess the crlme. The Court bebw has .passed the order cancelfing bail mechanicGi!y without appijcation of mind ond committed iiiegaiity resulting in grave miscarr'iage of Justice. However, the remedy ayaiiGb-le against canceiiation of bail is quashment of the order under Section 482 of the Code. He placed reliance in the mctter of Bhagjrathslnh JudeJG v. Statgi of Sujarat in whlch the Apex Court has held that cogent and overwhelming cjrcumstances are necessary for order seeking co.nceilation of bai!. He further ptaced reiiance in the matter of Nath v. and another2 in which the Caicutta High Court hss he!d that without any evidence of tampering with prosecution witnesses or Impeding the course of Justice or vioiation of the conditlons i.mposed by Magistrate whib granting bail, bai! gronted cannot be cancelled, Learned counsel also pbced reliance in the matter of Kukkadapu Baifi Krishna v. Stat®of A.P.3 in ^hjch the Andhra Prodesh High Court has heid that bail cannot be cancelied on the ground already avaiiable at the time of gront of bail or in absence of the rnoteria! to show that the appiicant has misused fociiity of grant of bai! and rnade attempt for tampering with evidence or created hurdies in inve^tigation. Learned counse) further* placed rellance in th.e matter of Aslam BabaSal Desai v. State of Maharashtra4 in which the Apex Court has he!d thot cancelbtion of baii is different from refusal to grant bail, it includes and involves review on merits of the declsion granting baii. He also piaced r^liance In the matter of Dolat Ram arid oth@rs v. Stat®of HarysnG in which ths Apex Court has held that rejection of bai! in non-boibbte offence and canceiiation of bail aiready granted must be considered and dealt with on differentbasis, without cogent & overwheiming circumstances once bail granted cannot be canceilecl 6. On the other hand, learned counse! for the non-applicant submits that the appiicant has evaded du-ty of Rs.2»l,5 crores, he is a dealer of steei/iron ' AIR 1984 SC 372 2 199! Cn.LJ. 1422 32QOOCri.LJ.2555 4 (1992) 4 SCC 272 s (1995) 1 SCC 349 ...,-;^ '^. ^-^ // ;'^ ^'^-•- and has ex.ported the material to abroad or has sold the materia! in Indla and has not provided the documents as to whom he has sold or supplied the material and how much arnount he has raceived. The applicant is not cooperating with the investigation, although he is under obligation to cooperate in accordance with the order dated 8-1-2008, He has not provided any document relating to export of mGterlat, payment received and materiai sold to the person^ within the country, Learned counse! reiied upon the queries put to the appiicant by the non-applicant and the answers given by the appiicant in which the applicant has not stated that how i^uch quont'rl-y' of materia! he has so!d in the country and how much amount he has received, who is the man named Mr. Pankaj and who was engaged in the iiaison work. Learned counsel also submitted that the applicant isdeoling wlth stee! business, the appiicant has not paid any duty and he has evaded the entire duty of about Rs.2,15 crores. He has not provided any document or even address of the person'to whom he has sold the material. Learned counse! further sjbmitted that the Court below has not considered this fact at the time of grant of bail, but imposed a specific condition of cooperation in the investigation, but the appllcant has not cooperated in the investlgation, The applicant was not entitied for grant of bai! at the first instance and on the ground of vioiation of the conditions imposed, the Court be!ow hos rightly cancelled the bail granted to him. Learned counsei ptoced reiiance in the matter of Dlnesh M,N. (S.P.) v. Stat©of ©ujarat in which it has bsen held by the Apex Court that bail can be cancelled if materiot(s) on which baii is granted are/is substontiaily irrelevant. 7. In the present cose, boi! was gronted to the applicant vide order dated 8" 1-2008 and subsequently it was cancelbd vide order dated 2-12-2008, but after canceilation of bai!, the appllcant has not surrendered hjrnseif before the Court to obey the order and without surrendering himseif or obeying the order, he has filed this petition for quashment of the order of canceilation of bail (2008) 5 SCC 66 ) 8, Perusal of the order impugned and coples of the documents filed on behalf of tjyie parties reveais that that the appticant is deaiing with steei material and he Is required to poy duty, but he has not pdd any duty. The applicant is Proprietor of M/s, Bciaji Impex. This is not the case in which the non- appiicont has any dutv which the appiicant has not paid, but the applicant has dealt with steei material and according to the appiicant, he has soid the materlal to firms & cotTtponies situated ot abroad, but he has not paid singie penny towords duty. The applicant has not provided any document to show that as to whom he has sold the material and how much quantit)'' he has sold to the companies or firms situated at abroad and within the country. 9. In the case of Dolat Ram (sypra), whiie deaiing with cancellation of bail the Apex Court hcs held that for canceltation of baii coQen.t and overwhelming circumstances are required. Para 4 of the judgment of fne Apex Court reads thus "Rejection of bai! in a non-bailable case at the initial stage and the cancellation of baii so granted, have to be considered and deait with on differer?t basis, Very cogent and overwhelming circum^tance^ are necessary for an order directing the ^concellation of the bdl, already granted. ^eneraily speaking, the grounds for canceilatjon of baii, broadly (iilustrative and not exhaustive) 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 abuse of the concession granted to the accused in any manner." 10. Whl!e dealing with the ^ame question in the case of Aslam (supra)/ the Apex Court has heid that bal! granted to the accused can be canceSIed on the grounds where (i) the accused misuses his liberly by indulging m similar criminaJ activit/, (li) interferes with th^ course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witne^ses or induiges in simibr1' activities which would hatnper smooth investigation, (v) there is likelihood of hls fleeing to another country, (vi) attempts. to make himself scarce by going underground or becoming unavaiiabie to the investigating ogency, (vii) attempts to pbce himse!f beyond the reach of his suret^/, etc. These grounds are iilustrative and not exhoustive. It must aiso be remembered that rejection of bail stands on one footing but conceliation of bail is a horsh order because it interferes with the iiber^ of the indiyiduai and hence it must not be IlohtJy resorted to* ll.In the matter of Bhagrathsinh (sypra), while deaiing with the same question, the Apex Court has heid that "even where a prima facie case is established, the approach of the court in the matter of baii is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily avaiiabie for trial or that he is iikely to abuse the discretion granted in his favour by tampering with evidence, We would have certainiy overlooked this ospect of the matter if the approach of the learned Judge was otherwise one which would commend to us". 12. While deallng with canceilation of boil, in the case of ttanjlt Prakash & Ors. v. Shobhe D©vl& Anr7 the Apex Court has held that "Rsjection of bai! and cancelbtion of bai! - Stand on different footings - Canceibtion of baii is a harsh order because it takes woy liberty of an individual", Para 7 of the judgment reads thus "It is, therefore, ciear that when a person to whorn bail has been granted either tries to interfere with the course of Justice or attempts to tamper with evidence or witnesses or threatens witnesses or induiges in simiiar activities which would hamper smooth investigation or trial, bd! granted can be cance!!ed< ftejection of bai! stands on one footing, but concellation of bail is a harsh order because it takes away the iiber^ of an individual granted and is not to be lightly resorted to," 13.In the case of i&obarbhai NaronbhQi v. of Syjarat & Ors.8 the Apex Court has he3d that at the time of grant of bail the Court is required to observe the bosic requirements necessary for grant of bail and Sf same are comptetely ignored then the cancelbtion is Justified, Paras 24 & 25 of the Judgment read thus, "Shri Arun Jaitiey, iearned senior counsel appearing for the respondents, submitted that this Court should not 7 2008 AIR SCW 5099 8 2008 AIR SCW 1014 ir ^.wi33b. r '^•^'Sih ^ l ru'5i§j- ^^t^^y:^" ^^s^^ ordinarlly interfere in the matters reiating to baii, It was pointed out that in the last two years, the respondent has not misused the liberty granted to him. There is no doubt that thls Court does not ordinarily interfere in the matters granting baii but the same is subject to certain exceptions. VVhen the basic requirements necessary for grant of bail are complete!y ignored by the High Court, this Court wouid be justified in canceling the bail* In the present case, three witnesses, who had aliegediy seen the occurrence, have unequivocaily in their stGtements under Section 161, CrP.C. have ^tated that the respondent, was present at the time of occurrence and he had fired with his gun. Prima faciea case for grant of bail was not made out, This Court in Amarmani Tripathi's case [(2005) 8 SCC 21] had held that whiie considering the appiication for bail, what is required to be looked is, (i) whether there is any prima facie or reasonabie ground to beljeve that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) dcxnger of accused absconding or fieeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonabie apprehension of the witnesses being tampered with; and (viii) danger, of course, of Justice being thwarted by grant of bail." 14. In the case of binesh (sypra), while deaiing with the provisions of Section 439 (2) of the Code, the Apex Court has held that if bail is granted on the basis of materiai substantia'ly irreievant, then bail can be cancelled. 15. At the tlme of grant of bail the Court is required to observe the basic requirements for grant of boil and if at the time of grant of baii the Court has considered the material substantialiy irrelevant, then the Court is empowered to cancei the bai! at the subsequent stage, but if the Court has considered relevant factors and baslc requirements for grant of baii, then baii granted shouid not be cancelled* 16. This is a petition under Section 482 of the Code for exercising the extra ordinary inherent Jurisdiction. Exercise of power under S. 482 of ttie Code in a of this nature is the exception and not the ruie. The section does not confer any new powers on the High Court, It oniy saves the inherent power which- the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent Jurisdiction may be exercised, nameiy, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice, 17. For invoking the extra ordlnary inherent jurisdiction the Gppiicant is required to corpe with cjeon hands and obey the order of the Court, In this case, bail granted to the applicant has been canceiJed vide order dated 2--12-2008/but after cancellation of bail, the applicant has not surrendered before the Court below to obey the order and to apply for grant of bail or to cxpply under Sec. 482 of the Code, and he has straightway filed this petition under Section 482 of the Code, 18. Admittedly, in this case, the applicant is dealing with the business of steel/iron and according to the case of the appiicant, he has sold material to the companies & firms situated at abroad and the companies & firms sjtuateo1 within India for which he is required to poy duty on the materia!, but he has not paid a single penny, The Court whiie granting bal! has not considered these material aspects and has granted bai! to the appiicant, and olso imposed the condition to cooperate with the Department in the investigation i.e. at least to. supply the documents &. addresses of the persons/companies & firms to whom the applicant hos sold materia! so as to enable the bepartment to recover duty from the appiicant and aiso from other companies & firms, but the appiicant has not cooperated. 19. Article 20 (3) of the Constitution of India protects the person from any compulsion of becoming witness of any offence against himself. But the applicant has failed to show any compulsion made by the non-applicant. The questions put to the opplicant and answers given by him show that the non-applicant has asked questions retoting to the names of firms & companies <& quantity of the materiai soid to them with a view to recover duty from the said componies & firms i*e. reiating to third person and any such privilege is not availoble to the applicant to answer or to plead reiating to third person who rnay be the accused. _^^f^^ Soma 20.According to the case of both the parties, the appiicant is a deaier of steel, According to the applicant, he has exported steel to different firms & companies at abroad, According to the non-applicant, the appiicant has supplied &. sotd steel to different companies A firms within the country. The applicant is under obligatJon and was required to pay duty, but he has not paid a single penny, This is not the case in which the appticant has paid dut/ as per his assessment, but occording to the non" appiicant, the appiicant hos not paid duty, as per rules or law. This is a CGSC of totai non-payment of duty by the applicant knowing fuliy well that he is under obiigation to pay duty. 21. At the time of grant of bail, the Courts are required to consider the facts and circumstances of each case. In the present cose, the applicant, who is a busines^man, hos acted jn the rponner prejudicia! to the State and society. The act of the applicant has shaken the economy of the country. The applicant has induiged in the econoinic offence, But the learned Sessions Judge has not considered these materiai facts and circumstances at the time of grGnting bail to the applicant. The learned Sessions Judge has on!y considered the availabilit/ of the applicant and his cooperotion in investigation. Therefore, leamed Sessions Judge has granted bai! to the applicont on irrelevant considerations. Subsequently, the order gronting bail was rejected on the ground that the applicant has not complied with the conditions imposed upon him whiie granting him bail. 22.Considering the facts and circumstances of the case, it is clear that at the time of grant of baii the Court betow has not considered the material facts that the appiicant has completely evaded duty and granted bail to the applicant. After grant of bai! the accused has not cooperated in the investigation of the case and even after canceibtion of bail, he has not surrendered himseif before the Court to obey the order, 23. For the foregoing reasons, I do not find any illegalit/ in cancellotion of boii to the applicant. Consequently, the petition is liable to be dismissed and it is herebydismissed. r Sd/- i T.P. Sharma Judge •W^m^'l'.