Manik Chand Ex-J.C.O. v. State Of Bihar And ANR

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.45159 of 2014 Arising Out of PS. Case No.-83 Year-2011 Thana- RAJPUR District- Buxar ====================================================== Manik Chand Ex-J.C.O. Son of Shiv Prasad Singh resident of villageAttaonn, P.S.- Dumraon, District- Buxar ... ... Petitioner/s

Versus

1.

The State Of Bihar 2.

Panchratan Singh Son of Late Shiv Bachan Singh Resident of villageHathuwa, P.S.- Rajpur, District- Buxar. ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Binod Kumar Singh For the Opposite Party/s :

Mr.Satyendra Narayan Singhapp ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 28-08-2019 The present application has been filed for cancellation of bail, granted to opposite party no. 2 vide order dated 03.10.2012 passed in Cr. Misc. No. 33221 of 2012.

It appears that opposite party no. 2, being the father of the husband of the victim, was granted bail in connection with Sessions Trial No. 303 of 2011, arising out of Rajpur P.S. Case No. 83 of 2011, pending in the Court of learned Ad hoc Additional Sessions Judge, F.T.C. V, Buxar.

The accusation is of killing the daughter of the informant within slightly over one year of marriage by causing firearm injury.

2/8 It appears that the opposite party no. 2 was granted bail after remaining in custody for more than one year. The present application for cancellation of bail has been filed on the ground that in 2012 a report was submitted by the S.H.O. of Rajpur Police Station to the effect that the accused persons of Rajpur P.S. Case No. 83 of 2011 are threatening the informant. On the basis of said report, the present cancellation application was registered on 11.11.2014. On specific enquiry being made regarding the stage of the trial of the case in which the opposite party no. 2 was granted bail, learned counsel for the petitioner submits that he has no information. Hence, the opposite party no. 2 has enjoyed the privilege of bail for last more than six months. Mere a report submitted by the police cannot be a substantive ground of misuse of the privilege of bail. However, no case has been lodged in pursuance to the report submitted by the S.H.O., Rajpur Police Station.

The parameters for grant of bail and its cancellation are quite different. The entire application does not suggest any accusation of misuse of the bail by the O.P. No. 2. It is well settled law that once an accused is granted bail either in exercise of jurisdiction under Section 437(1)(2) or 439(1) of the Cr.P.C., the same can be cancelled either in exercise of jurisdiction under sub-

3/8 section (5) of Section 437 or sub-section (2) of Section 439 Cr.P.C. The grounds of cancellation under Section 437(5) and 439(2) of the Cr.P.C. are identical. Some of the circumstances enumerated by the Supreme Court in the case of Raghubir Singh and Ors. Vs.

State of Bihar (1986) 4 Supreme Court Cases 481 in which bail can be cancelled, are - (i) if the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc.

However, it was made clear that these grounds are illustrative not exhaustive but cancellation of bail stands on a different footing and the same is harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. The aforesaid proposition has also been dealt with by the Apex Court in the case of Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in (2004) 2 SCC 362. None of the above quoted grounds is applicable in the present case.

4/8 the case of State (Delhi Administration) Vs. Sanjay Gandhi, AIR 1978 SC 961 where it has been held that power of cancellation of bail is extraordinary in nature where it is found that the accused is interfering with the course of justice by tampering the witness and such power can be exercised with utmost care and circumspection. Paragraph 13 reads as follows:

"13. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.brother,a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection,

5/8 not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude-, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. Therefore, Mr.

Mulla is right that one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have, of their own volition, attempted to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent has obliged them in the past.

6/8 necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent." In the case of Bhagiratthsinh Vs. State of Gujrat (1984) 1 Supreme Court Cases 284 the Supreme Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. Similar view was taken by the Apex Court in the case of Dolat Ram and Ors. Vs. State of Haryana, (1995) 1 Supreme Court Cases 349. Paragraph 4 reads as follows: "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis.

Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted.

7/8 abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."

While granting bail, the nature of accusation is being judged and the whole purpose is that the accused may not abscond or tamper with the evidence. In the entire cancellation application, there is no such averment made that the petitioner has abused the conditions of bail.

8/8 From the entire application for cancellation of bail of O.P. No. 2, it does not appear that any case has been registered against the O.P. No.2 with regard to misuse of privilege of bail granted in the above mentioned case.

In view of the discussions made above, this Court does not find any substantial ground for cancellation of bail of O.P. No. 2 as the petitioner has not been able to make out any case for cancellation of bail, particularly, to put the present case within the broad parameters for cancellation of bail as laid down by the Supreme Court as quoted above.

This application is, accordingly, dismissed.

It is expected from the learned trial Court to conclude the trial, if the same has not been concluded as yet. (Dinesh Kumar Singh, J) DKS/-Anil/ U T