Home > Judgement > HC: AB can be cancelled by same session judge if it was obtained by supression of facts

HC: AB can be cancelled by same session judge if it was obtained by supression of facts

Equivalent citations: 2001 CriLJ 2647, II (2001) DMC 359, 2001 (2) WLC 367
Bench: S K Garg

Smt. Sharda vs State Of Rajasthan And Anr. on 22/1/2001

ORDER

Garg, J.

1. This criminal misc. petition u/S. 482 Cr.P.C. has been filed by the accused petitioner against the order dated 16.9.1999 passed by the learned Sessions Judge, Dungarpur in Criminal Mise. Case No. 282/99 by which he cancelled the bail granted earlier to the accused petitioner u/S. 438 Cr.P.C. on 23.8.1999 in a case FIR No. 99/99, Police Station Vardha for the offence under sections 498A and 307 IPC and later on 302 IPC was added.

(2). It arises on the following circumstances:-

On 18.8.1999, the complainant Oanesh Lal lodged a report before the Police Station Vardha District Dungarpur to the effect that his sister Sarla (hereinafter referred to as the deceased) was married with Vinod S/o Lal Shanker and on 16.8.1999 her husband Vinod Kumar and mother-in-law Smt. Sharda (present accused petitioner) burnt her. On that report, FIR No. 99/99 was registered at the Police Station Vardha for the offence u/S. 307 and 498A IPC and investigation was started.

(3). It is further stated by the accused petitioner that on 16.8.1999, the deceased was admitted in the hospital and her statement was recorded where she has stated that she was preparing food on the stove and stove burst whereby her sari caught fire and she has not been burnt by anybody and in that statement, she did not utter a single word regarding ill-treatment or torture for demand of dowry.

(4). During the pendency of that FIR, a bail application u/S. 438 Cr.P.C. was presented before the learned Sessions Judge, Dungarpur on behalf of accused Vinod, husband of the deceased and Smt. Sharda, mother-in-law of the deceased (present accused petitioner) and the same was granted by the learned Sessions Judge on 23.8.1999 after perusal of the case diary.

(5). Later-on, complainant Ganesh Lal filed an application u/S. 439(2) Cr.P.C. for cancellation of the bail granted to both accused Vinod, husband of the deceased and Smt. Sharda, mother-in-law of the deceased (Present accused petitioner) on the ground that deceased had died on 23.8.1999 at Ahmedabad and her statement was recorded by the Magistrate at Ahmedabad as dying declaration on 19.8.1999 where she has specifically stated that her mother- in-law Sharda, present accused petitioner poured kerosene oil on her and lighted the fire, but this dying declaration was concealed by the present accused petitioner and obtained the bail order and it is further alleged that this dying declaration was within the knowledge of the present accused petitioner as when the statement of the deceased was recorded by the Magistrate, she was present in the hospital at Ahmedabad and thus, accused Vinod and the present accused petitioner Sharda obtained the anticipalory bail from the learned Sessions Judge, Dungarpur on 23.8.1999 by suppressing the material facts and, therefore, anticipatory bail which was granted to accused Vinod and the present accused petitioner Sharda on 23.8.1999 be cancelled.

(6). The learned Sessions Judge, Dungarpur after giving notice to accused Vinod and the present accused petitioner Sharda vide order dated 16.9.1999 cancelled the anticipatory bail granted to the present accused petitioner Sharda, mother-in-law of the deceased, but maintained the order granting anticipatory bail to accused Vinod, husband of the deceased holding inter-alia:-

1. That at the lime when he granted anticipatory bail on 23.8.1999, the fact that deceased had died at Ahmedabad and her statement was recorded by the Magistrate was not brought to his knowledge.

2. That the fact that kerosene oil was poured on the body of the deceased by the mother-in-law Sharda, present accused petitioner was also not brought to his knowledge.

3. That since these material facts were suppressed, the bail granted to the accused petitioner Sharda was liable to be cancelled and he accordingly cancelled it.

(7). Aggrieved from the said order dated 16.9.1999 passed by the learned Sessions Judge, Dungarpur cancelling bail granted earlier to the present accused petitioner Sharda, the present criminal misc, petition u/S. 482 Cr.P.C. has been filed by her with the prayer that the order of the learned Sessions Judge by which anticipatory bail granted earlier to her was cancelled, be set aside and the order of the learned Sessions Judge dated 23.8.1999 granting anticipatory bail to her may be restored.

(8). In this criminal misc, petition, it has been argued by the learned counsel for the accused petilioner:-

1. That it is well settled that once bail has been granted, same cannot be cancelled merely on the ground that higher offence has been added and there is no evidence to suggest that the accused petitioner is trying to tamper with the witnesses.

Note :- It may be stated here that after the death of the deceased on 23.8.1999 at Ahmedabad, in place of 307 IPC, Section 302 IPC was added.

2. That the bail, which was granted to the accused petitioner on 23.8.1999, was granted after seeing the case diary and, therefore, no question of suppression of material facts arises.

(9). On the other hand, the learned Public Prosecutor as well as the learned counsel for the complainant vehemently opposed this petition.

(10). I have heard the learned counsel for the accused petitioner, learned Public Prosecutor and the learned counsel for the complainant.

(11). A detailed reply has also been filed on behalf of the complainant in the present case and from that reply, one striking feature has come into light and the same is that the accused petitioner apart from this petition u/S. 482 Cr.P.C., has also filed a criminal bail application before this Court against the order dated 16.9.1999 passed by the learned Sessions Judge, by which her bail was cancelled and the same was registered as S.B. Cr. Misc. Bail Application No. 2600/2000 Smt. Sharda vs. Slate of Rajasthan. The said bail application was dismissed by this Court by a detailed order dated 8.12.1999 and a copy of that order is also available with this file. From perusing the said order dated 8.12.1999, it appears that arguments, which have been raised in this petition, were also raised by the learned counsel for the petitioner before this Court in the above bail application and the same were negatived by Hon’ble Mr. Justice Mohd. Yamin while rejecting the bail application of the accused petitioner,

(12). The next question that arises for consideration is whether in the above circumstances the order which was passed by the learned Sessions Judge, Dungarpur on 16.9.1999 by which he cancelled the anticipatory bail granted earlier to accused petitioner can be justified or not.

(13). Before proceeding further, it may be stated here that the reasons which have been assigned by Hon’ble Mr. Justice Mohd. Yamin while rejecting the bail application of the accused petitioner vide order dated 9.12.1999 are very cogent one and looking to them, this petition under Section. 482 Cr.P.C. can be dismissed straightway. All the same, to appreciate this, argument that once the bail has been granted, the same cannot be cancelled merely on the ground that higher offence has been added, has to be dealt with.

(14). Under inherent power, the High Court can cancel the bail granted to a person accused even of a bailable offence and in a proper case such power can be exercised in the interest of justice. In this respect, following authorities to the Hon’ble Supreme Court may be seen:-

1.T.H. Hussainvs. M.P. Mondkar(1)

2. Rampati vs. State of Mysore (2)

3. K.P. Tiwari vs. State of M.P. (3)

(15). Sub-section (2) of Section 439 Cr.P.C. expressly conferred powers not only to the High Court but also to the court of Session to cancel the bail. Guidelines for cancelling bail

(16). In the following cases the principles for cancelling bail have been most clearly stated by the Hon’ble Supreme Court :-

1. Talab Hari Hussan vs. Madhukar Mondkar Mondkal (supra)

2. State vs. Jagit Singh (4)

3. Ralilal Bhanji vs. Asstt. Collector of Custom (5)

4. Hajarilal Gupla vs. Rameshwar Prasad (6)

5. Gurcharan Singh vs. State (Delhi Administration) (7)

6. Delhi Administration vs. Sanjay Gandhi (8)

(17). The High Court and even the Sessions Court have powers to cancel the bail granted earlier pending the trial or investigation under Sec. 439(2) Cr.F.C. The High Court can further cancel it by exercise of its inherent jurisdiction u/S. 482 Cr.F.C., apart from powers under Article 227 of the Constitution of India.

Relevant consideration

(18). Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail.

(19). If a Court of Session had admitted an accused to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Sec. 439(2) Cr.P.C. to commit the accused to custody. A court of Session cannot cancel bail granted by him if new circumstances have not arisen after the bail was granted.

(20). In the present case, it is very much clear that when the anticipatory bail was granted by the learned Session Judge vide order dated 23.8.1999, some facts were not brought to his knowledge and the same were that dying declaration of the deceased was recorded at Ahmedabad on 19,8.1999 and thereafter, deceased died at Ahmed-abad on 23.8.1999 and in the dying declaration, she has levelled charges against the accused petitioner that the accused petitioner poured kerosene oil on her and lighted the fire. Since these are very material facts and have not been brought to the knowledge of the learned Sessions Judge when he heard the anticipatory bail application of the accused petitioner on 23.8.1999, therefore, the above circumstances ran be regarded as cogent and overwhelming circumstances and are sufficient to cancel the hail granted earlier to the accused petitioner. In other words, if the bail has been obtained by hoodwinking, that can be cancelled.

(21). Thus, looking to the entire facts and circumstances of the case, the order dated 16.9.1999 passed by the learned Sessions Judge, Dungarpur cancelling the anticipatory bail granted to the present accused petitioner on 23.8.1999 cannot be regarded as illegal one and the learned Session Judge was fully justified in passing the said order dated 16.9.1999.

(22). Hence, the argument that once bail has been granted, the same cannot be cancelled would not be helpful, to the present accused petitioner because of the simple reason that when the anticipatory bail was granted to the accused petitioner by the learned Sessions Judge vide order dated 23.8.1999, some material facts were not brought to his knowledge. Thus, the rulings relied upon by the learned counsel for the accused petitioner in the following cases would not be helpful to the present accused petitioner:-

1. Nand Ram vs. The State of Rajasthan (9)

2. Motilal & Ors. vs. Slate of Rajasthan (10)

3. Jaisa Ram & Ors vs. State of Rajasthan (11)

4. Vijendra Kumar vs. Slate of Rajasthan (12)

(23). The Court is aware of the position of law that considerations for cancelling the bail are totally different from those which are considered for granting bail. The Hon’ble Supreme Court in Aslam Babalal Desai vs. State of Maharashtra (13), has enumerated many grounds for cancellation of bail. But the present case is some what different in the manner that here the bail which was cancelled by the learned Sessions Judge was because some material facts were suppressed or new facts were not brought to his knowledge.

(24). For the reasons stated above, no interference with the order of the learned Sessions Judge, Dungarpur dated 16.9.1999 is called for in exercise of the powers u/S. 482 Cr.P.C

(25). Accordingly, this criminal misc. petition u/S. 482 Cr.P.C. is dismissed. The stay order granted by this Court on 28.10.1999 stands vacated.

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