Cancellation of Bail in Non Bailable Offences
Mubarik Khan vs Nasir Khan
Equivalent citations: 1998 CriLJ 4527
Author: D Misra
Bench: D Misra
Dipak Misra, J.
1. In this application preferred under Section 439(2) of the Code of Criminal Procedure, the petitioner has prayed for cancellation of order granting bail in favour of non-applicants 1 to 4 by the learned Additional Sessions Judge, Chhindwara, in Bail Application Nos. 785/97, 907/97, 940/97 and 947/97.
2. The facts, as have been unfurled, are thus : On the basis of the F.I.R. lodged by the informant Crime No. 175/97 was instituted for offences punishable under Sections 147, 148, 302 and 149, IPC against the accused, non-applicants 1 to 4, along with other accused persons, for assaulting one Habibullah who succumbed to the injuries sustained by him. According to the prosecution, a 2nd dispute between Habibullah and Nasir, Muselman, was going on for a considerable length of time and certain litigations had already cropped up. On the date of occurrence i.e. 9-6-97, at about 1 P.M., non-applicants 1 to 4 along with some other accused persons with an intention to plough the disputed land, arrived with a tractor and other agricultural implements. It was objected to by Nasir, but his protest was not paid heed to. Nasir went back to his village and returned with others for restraining the accused persons from plaughing the field. This gave rise to a fight in which Ramjan was injured. Deceased Habibullah intervened to rescue the injured person, but he was assaulted whereby he sustained injuries and ultimately succumbed to the same. After the Criminal machinery was not in motion, the accused-non-applicants 1 to 4 were apprehended and taken to custody. They filed applications for grant of bail before the learned Additional Sessions Judge, Chhindwara. The said applications were objected to by the Public Prosecutor as well as by the present petitioner. It was brought to the notice of the learned Additional Sessions Judge that the other accused persons, who had not been arrested, were terrorising the witnesses and all the accused persons had criminal antecedents and, therefore, they should not be enlarged on bail. It was also pointed out that if they would be released on bail, there was every possibility of their tampering with the witnesses. It was also high-lighted that their release would put the fair trial in jeopardy and defeat the course of justice. In spite of the objection, as the order granting bail was passed, the present petitioner has invoked the jurisdiction of this Court under Section 439(2) Cr.P.C.
3. Shri Y.P. Sharma,learned Counsel for the petitioner, assailing the impugned order, has contended that the learned trial Judge has failed to exercise his discretion while enlarging the non-applicants 1 to 4 on bail as he has not taken into consideration the serious allegations against them and the effect and impact of their release on bail. It is also submitted by him that after their release, they are tampering with the evidence by threatening the witnesses. It is contended that as they have betrayed the trust reposed in them and misused the liberty granted to them, there is justifiable ground to curtail their liberty.
Controverting the aforesaid submissions, Shri. S.L. Kocher,learned Counsel for non-applicants 1 to 4, has contended that there is no infirmity in the order passed by the learned Additional Sessions Judge in releasing the present accused persons on bail and the discretion used does not exhibit perversity of approach is appreciating the allegations as well as the obtaining factual matrix. It is also contended by him that after their release, they have not abused their liberty and in absence of specific instances brought on record to substantiate the allegations that there has been tampering of prosecution witnesses, there could be no order for curtailment of liberty and the accused persons would not be lable to forfeit the privilege of bail.
Mr. S.K. Gangrade, learned Panal Lawyer, for the State, appearing for the State non-applicant No. 5, has fairly submitted that the State has not preferred any application for cancellation of the order granting bail. He has also admitted that except the comunication made by one Mubarik Khan on 18-7-97 to the Town Inspector of Police Station, Chhindwara, which has been annexed to the petition, nothing else has been intimated at any point of time in regard to the conduct of the non-applicants 1 to 4, after their enlargement on bail.
4. From the rival contentions raised at the Bar, it is perceptible that Mr. Sharma,learned Counsel for the petitioner, has sought cancellation of the order granting bail on two counts, namely, the order has been passed improperly by erroneous and arbitrary exercise of judicial discretion and there are supervening circumstances which go a long way to establish that the accused persons have misutilised the liberty given to them after their admission to bail. It is not in controversy that the powers of this Court under Section 439(2) of the Code of Criminal Procedure can be exercised even in absence of any supervening circumstance. This means that if there is impropriety in the order passed by the lower Court in exercise of its discretion, this Court can exercise its jurisdiction under Section 439(2) Cr.P.C. to cancel the order granting bail. If the power so exercised does not smack of arbitrariness or impropriety, this Court would not exercise its jurisdiction for cancellation of bail unless there arc supervening circumstances to show that it would be no longer conducive to a fair trial to allow the accused to retain his freedom. In this regard, I may refer to the decision rendered in the case of Ku. Anju Khatri v. Gyanchand 1993 Cr LJ 2274 (MP) wherein it has been held as follows (at page 2278) :
In the present case the Sessions Judge having admitted the non-applicants to bail on irrelevant considerations after the rejection of the bail application by this Court without there being any fresh ground available to the accused, it amounted to the arbitrary exercise of judicial discretion and as such the order was vitiated by serious infirmity. It would be right and proper for this Court in the interest of justice in suo motu exercise of inherent powers to interfere with such an order of grant of bail.
Thus, there is no prohibition that is absence of supervening circumstances indicating that the accused has misutilised the liberty granted to him, after being admitted to bail, the superior Court cannot exercise the power of cancellation of bail. Recently this Court in Haridatt Arya v. Sadan Arya, M. Cr. C. No. 2523/96, decided on 5-8-97 held as :
From the aforesaid it is luminously clear that bail granted illegally or improperly by arbitrary exercise of judicial discretion can be cancelled by use of the lancet under Section 439(2) of the Code even if there is no additional circumstances against the accused after his enlargement on bail.
5. Keeping the aforesaid parameter in view, let me proceed to scrutinise whether the order passed by the learned Additional Sessions Judge suffers from arbitrariness or exercise of injudicious discretion.
On a perusal of the impugned order, I find that the learned trial Judge has considered the nature of allegations against the petitioner, the dispute existing between the parties prior to the occurrence, the altercation and the fight that took place on the date of occurrence and such other accompanying factors. He has indicated is the order that there are materials to indicate that another accused named Ebrar was the main assailant. The bail application of the said accused has been rejected. The learned Additional Sessions Judge has also taken note of the omnibus allegation against the non-applicants. Taking into consideration the totality of the circumstances and the entire range of facts, I am of the considered view that enlargement of the accused, non-applicants 1 to 4 on bail by the learned Additional Sessions Judge neither smacks of arbitrariness nor show use of discretion in a capricious or injudicious manner. I am of the considered view that the same does not warrant any interference on the ground of illegal or improper exercise of discretion.
6. The second contention of thelearned Counsel for the petitioner relates to the supervening circumstances which have necessitated cancellation of the order granting bail. In this regard, I may refer to the decision of the Apex Court rendered in the case of Daulatram v. State of Haryana 1995 (1) SCC 349 : 1995 Cri LJ 3648 wherein the Apex Court registered the view as follows:
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 due course of administration of justice or abuse 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 justify ing the cancellation of bail. However, bail once grained 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. The present factual matrix has to be decided on the touchstone of the aforesaid settled principles of law. In the petition, except slating that there is every likelihood of (he accused persons committing murder of the objector and other eye-witnesses nothing specific has been brought on record. The complaint, which has been annexed to the petition, is absolutely vague and is genera! in nature. An allegation, which is mercurial in nature, cannot form the foundation to curtail the liberty of an accused who has already been enlarged on bail. Nothing has been brought on record to indicate that continuance of non-applicants 1 to 4 on bail would impade a fair trial. The power vested in the Court for cancellation of bail has to be exercised, with circumspection. There has to be cogent and overwhelming circumstances for directing cancellcation of the bail granted. The bail granted to art accused should not be cancelled unless there are strong and compelling circumstances and the Court is not expected to interfere with a discretion which has been exercised for granting bail. On the basis of vague allegations regarding tampering with evidence by giving threats to witnesses without mentioning specific instances of threat. It is well-settled that an application for cancellation of bail has to be bona fide and cannot be utilised as a tool to wreak vangeance. Vendatta cannot be a base for cancellation of bail. Grounds, which are germane for cancellation of bail must exist. The allegations, which are spacious and unsupported, cannot form the foundation for exercise of jurisdiction of this Court under Section 439(2) Cr.P.C.
8. In view of the preceding analysis, the application being devoid of merit, deserves to be and is hereby dismissed.