Raju Kumar Choudhary v. The State Of Bihar And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.31197 of 2016 Arising Out of PS. Case No.-275 Year-2014 Thana- RUNISAIDPUR District- Sitamarhi ====================================================== Raju Kumar Choudhary Son of Shri Mahendra Baitha Resident of Village - Prem Nagar, Police Station - Runni Saidpur, District - Sitamarhi. ... ... Petitioner/s
Versus
1. The State of Bihar.
2. Abhay Kumar Jha son of Kedar Jha @ Kedar Nath Jha
3. Pankaj Kumar Jha @ Pankaj Jha @ Anuj Kumar Jha son of Kedar Jha @ Kedar Nath Jha
4. Chandan Jha @ Mukesh Jha son of Chulhai Jha All residents of Village - Manik Chauk, Paschim, P.S. - Runni Saidpur, District - Sitamarhi. ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Ram Narayan Jha For the Opposite Party/s :
Mr. Sri Sadanand Paswan ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL JUDGMENT Date : 19-09-2018 Heard learned counsel for the petitioner and learned APP for the State.
The present application has been filed for cancellation of anticipatory bail granted to opposite party nos. 2, 3 and 4, Abhay Kumar, Pankaj Kumar Jha @ Pankaj Jha @ Anuj Kumar Jha and Chandan Jha @ Mukesh Kumar Jha respectively, who were granted anticipatory bail vide order dated 12.04.2016 passed in Cr. Misc. No. 15244 of 2016 in connection with Runnisaidpur P.S. Case No. 275 of 2014 registered for the offences punishable under Sections 341, 323, 406, 420, 120B, 504/34 of the Indian Penal Code and Section
2/7 3(1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, pending in the Court of learned Chief Judicial Magistrate, Sitamarhi.
Considering the delayed lodging of the FIR, as for the occurrence of 14.06.2014 the complaint was filed on 26.06.2014, which came to be registered as police case on 14.07.2014, after complaint being transferred under Section 156(3) of the Cr.P.C,. by the Court of Chief Judicial Magistrate, Sitamarhi to the Runnisaidpur police station and the accusation arising out of contractual relationship between the parties, the opposite party nos. 2, 3 and 4 were granted anticipatory bail.
The cancellation of bail has been filed on the ground that the opposite party nos. 2 to 4 were threatening to compromise the case and for that a complaint was submitted before the S.P., but there is nothing on record to suggest that any substantive case was registered against opposite party nos. 2 to 4 or there is specific proof of misuse of bail. The parameters for grant of bail and its cancellation are quite different. The entire application does not suggest any accusation of misuse of the anticipatory bail by the O.P. Nos. 2to 4. It is well settled law that once an accused is granted bail
3/7 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-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, reported in, (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 go underground by 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 and that the grounds for cancellation of bail stands on a different footing than that of rejection of bail and the same is harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.
4/7 present case and the petitioner has sought to get the bail of O.P. Nos. 2 to 4 cancelled by reconsidering the accusation on merits. Similar view has been taken by the Supreme Court in the case of State (Delhi Administration) Vs. Sanjay Gandhi, reported in, 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. A 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, not out of persuasion by the accused.
5/7 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. It is therefore 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,
6/7 reported in (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, reported in, (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.
Generally speaking, the grounds for cancellation of bail, broadly (illustrative 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. 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.
7/7 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."
In view of the discussions made above, in the considered opinion of this Court, it would not be proper to cancel the bail of O.P. Nos. 2 to 4 as the petitioner has not been able to make out any case or substantial ground for cancellation of bail, particularly, to put the present case within the broad parameters laid down by the Supreme Court as quoted above. Accordingly, this application is dismissed.
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