Cancellation of bail on re-appreciation of facts would amount to review of earlier order: Himachal Pradesh High Court

 Hig h C o urt of H.P on 29 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 1619 Judgment reserved on 23 rd Sept.2020 Date of Decision 27 th November 2020________________________________________________________Virender Kumar…PetitionerVersusState of H.P. & another….RespondentsCoramThe Hon’ble Mr. Justice Vivek Singh Thakur J. Whether approved for reporting 1 Yes______________________________________________________________For the Petitioner: Mr. Sahil Malhotra Advocatethrough Video Conferencing.For the Respondents: Mr. Desh Raj Thakur AdditionalAdvocate General for respondentNo.1 and Mr.Neeraj K. Sharma Advocate for respondent No.2 through Video Conferencing. __________________________________________________________________Vivek Singh Thakur J. Petitioner has approached this Court for modificationof order dated 12.9.2019 passed by learned Sessions Judge Mandi in Bail Application No. 1819 titled Virender Kumar1 Whether Reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 29 11 HCHP 2vs. State of H.P. whereby condition to surrender the passport bypetitioner at the time of granting the bail has been imposed uponthe petitioner. Petitioner is also praying for direction toInvestigating Officer to return his passport so as to enable him tovisit abroad and earn his livelihood.2 Petitioner is an accused in a case FIR No. 37 dated9.9.2019 registered in Police Station Women Police StationMandi at Bhiuli under Sections 498 A 323 506 and 34 of IndianPenal Code.3 On 12.9.2019 in an application preferred bypetitioner under Section 438 of Cr.P.C. he in the event of arrest was directed to be enlarged on bail on furnishing personal andsurety bonds and was also directed to surrender his passportbefore the Investigating Officer. 4. On 25.9.2019 interim order dated 12.9.2019 wasmade absolute subject to further conditions imposed bySessions Judge Mandi. Therefore order dated 12.9.2019 andconditions imposed therein have now merged in order dated25.9.2019.5. On 25.9.2019 amongst other conditions imposed there was condition No.3 whereby petitioner was directed that Hig h C o urt of H.P on 29 11 HCHP 3he shall not leave the country without prior permission ofInvestigating Officer Court. 6 Though petitioner has prayed for modification oforder dated 12.9.2019 instead of 25.9.2019 however ignoringthis technicality present petition is being considered to havebeen filed for modification of order dated 25.9.2019 whereinorder dated 12.9.2019 has merged. 7 Earlier petitioner had also approached the trial Courti.e. Additional Chief Judicial Magistrate Court No.1 Mandi forrelease of his passport. Vide order dated 16.1.2020 hisapplication was dismissed by the trial Court on the ground thatpetitioner was admitted to bail by imposing condition ofsurrendering the passport by learned Sessions Judge Mandi andtherefore petitioner should have placed such an application inthe Court of learned Sessions Judge Mandi as the trial Court wasnot having the power to dilute the condition imposed at the timeof granting bail to petitioner by learned Sessions Judge.8 Learned counsel for petitioner referringpronouncement of the Apex Court in case Abdul Basit @ Rajuand others. vs. Mohd. Abdul Kadir Chaudhary andanother reported infor an amount as considered by Courtjust and reasonable taking into consideration the entire facts andcircumstances of case and petitioner may be directed to ensurehis presence on the dates as and when his presence isindispensable during trial with further direction to him to ensurehis representation on each and every date of hearing through an Hig h C o urt of H.P on 29 11 HCHP 8Advocate and failure to ensure that would definitely be resultedinto cancellation of bail for breach of condition imposed uponpetitioner at the time of granting the bail.15 Plea raised on behalf of petitioner that SessionsCourt is not empowered to review or recall its earlier orderspassed on 12.9.2019 and 25.9.2019 is not applicable in presentcase for the reason that in order dated 25.9.2019 itself there iscondition that applicant shall not leave the country without priorpermission of Investigating Officer Court entitling the petitionerto file an appropriate application before the same Court to seekpermission to leave the country and therefore allowing ordisallowing such application by learned Sessions Court cannot betreated as modification variation recalling or review of earlierorders passed by Court at any stretch of imagination rather itwould be in continuation and in consonance with earlier orderspassed by the said Court. 16 Cancellation of bail on re appreciation of same factsby the same Court would amount to review of earlier order but cancellation of bail for breach of condition imposed at the timeof granting bail does not amount to review or modification ofearlier order grating the bail rather it would be in consonancewith and in continuation to the previous order wherein Hig h C o urt of H.P on 29 11 HCHP 9cancellation of bail on breach of condition is inherent for thereason that bail is granted subject to certain condition(s) breachwhereof would entail cancellation of the bail. At the time ofgranting bail normally a condition is imposed and I would saythat it is always desirous to impose such condition that in case ofviolation of breach of any condition imposed upon the accused atthe time of granting the bail his bail shall be liable to becancelled and in such eventuality prosecution should be grantedliberty to approach the competent Court of law for cancellation ofbail in accordance with law. It is not modification or review of theorder but an order consequential to the previous order. 17. Similarly modification of condition(s) imposed at thetime of granting bail after taking into consideration new additional or other facts not considered earlier also does notamount to review of previous order particularly when order itselfcontains the condition that conditions so imposed may bevaried modified and or altered suitably as and when it would bedeemed fit by the Court in the facts and circumstances of thecase.18. Normally at the time of granting confirming the bailby the Sessions Court and or High Court a condition is imposedthat it will be open to prosecution to apply for imposing any such Hig h C o urt of H.P on 29 11 HCHP 10other or further condition on petitioner as deems necessary inthe facts and circumstances of the case and in the interest ofjustice and also that it shall also be open to trial Court to imposeany other or further condition on petitioner as it may deemnecessary in the interest of justice. For such condition imposedat the time of granting the bail the trial Court shall also becompetent to impose any other or further condition on petitionereither suo moto or on request of prosecution includingmodification of condition on the application of accused inchanged circumstances as deemed necessary in the interest ofjustice as in view of specific condition contained in order suchaddition modification or alteration in the condition by the trialCourt shall be consequential extension of order passed by Courtat the time of granting the bail. In present case unfortunately no such condition has been imposed by learned Sessions Judge.To some extent condition No.3 may be taken as a conditionempowering the trial Court to consider the case of petitioner forpermission to leave India but here also it is not clear that‘Court’ referred in the said condition means the Court grantingthe bail or also includes the trial Court. Therefore the trial Courthas rightly rejected the application filed by petitioner foralteration of condition imposed in order granting the bail to him. Hig h C o urt of H.P on 29 11 HCHP 1119. Keeping in view the provisions of Section 362 Cr.P.C. it would be desirous that at the time of granting the bail theCourt should incorporate the condition in bail order itselfempowering the same Court and the trial Court to impose anyother or further condition or alter modify the conditions alreadyimposed on application of prosecution or the accused asdeemed necessary by such Court for ends of justice. Though it isinherent in order however by way of abundant caution it mayalso be specifically incorporated in order granting the bail thatsuch bail shall liable to be cancelled by the competent Court onbreach violation of any condition imposed upon accused at thetime of granting the bail and prosecution should be grantedliberty to approach the competent Court of law in thateventuality for cancellation of bail in accordance with law.20 Release of passport has been opposed bycomplainant wife respondent No.2 by raising various contentionsnarrated in reply and submitted by learned counsel representingher during course of arguments. The said contentions are notdiscussed herein for the reason that this Court is not passing anyorder for release of passport of petitioner at this stage bydirecting the petitioner to approach the same Court which hasimposed the condition to seek permission to leave the country Hig h C o urt of H.P on 29 11 HCHP 12and also for release the passport in case such permission isgranted by the said Court. Release of passport shall precedepermission to leave India. 21. No opinion with respect to merit of rival contentionsraised by parties for seeking and opposing release of passportare being expressed by this Court. 22. In view of aforesaid discussions and in the peculiarfacts and circumstances of the case petitioner is directed toapproach the Sessions Court by filing an appropriate applicationseeking permission to leave the country and also forconsequential relief that in case permission so prayed isgranted to petitioner for release of his passport.23 Parties are at liberty to raise all contentions beforelearned Sessions Judge who after taking into consideration allsuch contentions shall pass an order on its own merits inaccordance with law. Petition stands disposed of in aforesaid terms. November 27 2020 (ms) Judge 

Summary: Cancellation of bail for breach of a condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail. The single-judge bench consisting of J. Vivek Singh Thakur adjudged on the matters of breach of bail conditions and the power of Trial Court in the case of Virender Kumar v. State of H.P. &amp;Anr. [Cr. Revision No. 161 of 2019].   The Petitioner was accused and registered in Women Police Station Mandi under Section 498-A, 323, 506 and 34 of the Indian Penal Code. He later preferred an application under Section 438 Crpc wherein he was directed to be enlarged on bail on furnishing personal and surety bonds and was also directed to surrender his passport before the Investigating Officer. These orders were made absolute by the Sessions Judge and the Petitioner was not allowed to leave the country. His previous application for release of passport was dismissed by the trial court on the grounds that such a request should have been made to the Sessions Judge and the trial court now, did not have the power to dilute the conditions imposed at the time of granting bail. The counsel for the petitioner argued that for earning a livelihood, the petitioner was required to go out of India frequently since he was in Merchant Navy. That his fundamental right to earn a livelihood (Article 21) had been affected and he should be given his passport as held in Gian Singh v. State of Rajasthan [(1999) 5 SCC 694].  The High Court held that based on various previous cases, such as Sunil K. Sinha v. State of Bihar [AIR 1999 SC 1533] and Hazari Lal Gupta v. Rameshwar Prasad and Anr. [AIR 1972 SC 494], the Court was empowered to impose such restrictions and the release of passport so surrendered depended upon the facts and circumstances of each case on its own merit by “balancing the individual interest of accused and the complainant and also the larger interest of the public to ensure the presence of an accused before the Court during the trial”. The HC observed that the 3rd condition of bail enabled the petitioner to seek the permission of the Investigating Officer or Court to leave the country and the natural corollary thereof would be the entitlement of the petitioner to have his passport released. Upon the issue of the power of the Trial Court, the HC held that “condition No.3 may be taken as a condition empowering the trial Court to consider the case of the petitioner for permission to leave India, but, here also, it is not clear that ‘Court’ referred in the said condition means the Court granting the bail or also includes the trial Court. Therefore, the trial Court has rightly rejected the application filed by petitioner for alteration of condition imposed in order granting the bail to him”. The HC directed the petitioner to seek the Sessions Court for the release of passport and stated that “Cancellation of bail on re-appreciation of same facts by the same Court would amount to review of earlier order, but, cancellation of bail for breach of condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail, rather it would be in consonance with and in continuation to the previous order wherein cancellation of bail on breach of condition is inherent, for the reason that bail is granted subject to certain condition(s), breach whereof would entail cancellation of the bail Similarly, modification of condition(s) imposed at the time of granting bail, after taking into consideration new, additional or other facts, not considered earlier, also does not amount to review of previous order, particularly when order itself contains the condition that conditions, so imposed, may be varied, modified and/or altered suitably as and when it would be deemed fit by the Court in the facts and circumstances of the case”.  The petition has been disposed of. Click here to read the judgement