$-47 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 1265/2011 RAJESH KUMAR Petitioner Thi-ough : Mr. Vivek Pachomi, Advocate versus STATE GOVT. OF NCT OF DELHI & ANR Respondent Thi-ough : Mi". Manoj Ohii, APP for State CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA ORDER % 25.04.2011 Crl. MA 4711/2011 (exemption) Exemption allowed subject to all just exceptions. CRL.M.C. 1265/2011 1. This petition under Section 482 read with Section 439(2) Cr.P.C. has been prefen-edby the Petitionerassailingan order dated s"' Febmaiy2011 passed by the learned Additional Sessions Judge, Delhi dismissing the application of the Petitioner for cancellation of bail of respondent no.2 herein who was granted bail vide order dated 5"' May, 2010 by the learned Metropolitan Magisti^ate. 2. Brief facts of the case are that the Respondent No. 2 is alleged to have committed cheating for a sum of ?15,00,000/- by entering into an agreement CRLM.C. 1265/2011 Page 1 of 5 Signing Date:28.08.2024 16:54:31 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified to sell dated 2?"' December, 2006 with the Complainant/Petitionerfor the sale of property bearing No.8, First Floor, Khasra No. 29 at Krishna Nagar, Humayun Pur, Delhi which actually did not belong to him for a sum of ^40,00,000/- out of which ?15,00,000/- were paid as earnest money. It is alleged that Respondent No. 2 sold the said property to another person namely Shailesh Kumar Awasthi s/o Sh. D.C. Awasthi. Thereafter, Petitioner made a written complaint against the Respondent No.2 and based upon the said complaint FIR No. 64/2010 under Section 420/468/471/120B IPC was registered at P.S. Safdaijung Enclave against Respondent No.2 and his associates. Respondent No.2 was aixested by the police and he moved an appHcation for grant of bail. Vide order dated 5*'' May, 2010, learned Meti-opolitanMagisti-ate gi'anted bail to Respondent No. 2 noting that he had filed on record two Manager's cheques in the smn of ^7,50,000/- each dated 5"' May, 2010 di^awn on HDFC Bank in the name ofthe Complainantand submitted that he has no objection if the said cheques are given to the Complainant and if the Petitioner would pay the amount of ?40,00,000/- he was willing to perform his part of the conti-act. No other inquiry was to be made from him and he was not required to be in custody. 3. Thereafter, the Petitioner herein filed an application for cancellation of bail of the Respondent No.2 before the learned Additional Session Judge stating that the Respondent No. 2 has mislead the Trial Court and is not CRLM.C 1265/2011 Page 2 of 5 abiding by the terms and conditions of the bail and the agreement dsXed/li December, 2006. This application of the Petitioner was dismissed by the learnedAdditionalSessionsJudge, Saketvide orderdated S"' Febmaiy,2011 which is the order impugned in the present petition. 4. Learned counsel for the Petitioner contends that the respondent no.2 while seeking grant of bail wi'ongly stated that he had not signed the agreement in his personal capacity whereas he has done so. He further contends that Respondent No.2 is threatening him and a complaint has been fded in this regai'd before the learned MM. 5. I have heard learned counsel for the petitioner. As per the impugned order, while dismissing the application for cancellation of bail, the learned ASJ observed that there is nothing on record to show that the accused had in any manner misused the libeity or tampered with the evidence after grant of bail. On a specific queiy put by this Court to learned counsel for the petitioner to point out any application or complaint with regard to the threats by Respondent No.2, no document has been shown. 6. Hon'ble Supreme Court in Gurcharan Singh And Others vs. State (Delhi Administration) (1978) 1 Supreme Court Cases 118 held:- "24. Section 439(1), Cr. P.C. of the new Code, on the other hand, confers special powers on the High Court or the Comt of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Cr. P.C. against granting of bail by the High Court or the Court of Sessions to persons accused of an offence punishable with death or imprisomnent for life, it is, CRL.M.C 1265/2011 Page 3 of 5 however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magisti'ate and after the investigation has progi'essed thi'owing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section.439(l), Cr. P.C. of the new Code. The oveniding considerations in granting bail to which we adverted to earlier and which are common both In the case of Section 437(1) and Section 439(1), Cr. P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing fi'om Justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its Investigation end other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. 25. The question of cancellation of bail under Sec. 439(2), Cr. P.C. of the new Code is certainly different from admission to bail under Section 439(1), Cr. P.C. The decisions of the various High Courts cited before as ere mainly with regard to the admission to bail by the High Court under Section 498, Cr. P.C. (old) Power of the High Court or of the Sessions Judge to admit persons to bail Under Section 498, Cr. P.C. (old) was always held to be wide without any express limitations in law. In considering the question of bail justice to both sides governs the judicious exercise of the comt's judicial discretion. The only authority cited before us where, this Court cancelled bail granted by the High Comt is that of The State v. Captain Jagjit Singh (1962) 3 SCR 622 . The Captain was prosecuted along with others for conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act, 1923 for passing on official secrets to a foreign agency. This Court found a basic eiTor In the order of the High Court in ti'eating the case as falling under Section 5 of the Official Secrets Act which is a bailable offence when the High Court ought to have proceeded on the assumption that it was under Section 3 of that Act which is a non-bailable offence. It is because of this basic eiTor into which the High Court felt that this Court interfered with the order of bail granted by the High Court. CRL.M.C 1265/2011 Page 4 of 5 29. We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair tiial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable foraiula in the matter of granting bail. The facts and cir^cumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail." 7. In view of the law laid down by the Hon'ble Supreme Court, I fmd no illegality in the impugned order passed by learned ASJ dismissing the application of the Petitioner for cancellation of bail. The petition is hereby dismissed. APRIL 25, 2011 rd MUKTA GUPTA,J CRLM. C. 1265/2011 Page 5 of 5