It is quite well settled that the parameter for grant of bail
and cancellation of bail are entirely different. Bail granted
under Section 439(1) of the Cr.P.C. can be cancelled where
(i) 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. It is also well settled that even if two views are possible,
once the bail has been granted, it should not be cancelled
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr.M.P.No. 469 of 2015
Savita Khande
Versus
State Of Chhattisgarh
Hon'ble Shri Justice Sanjay K. Agrawal
DATED:27/07/2015
1. Invoking the jurisdiction of this Court under sub-section (2)
of Section 439 of the Code of Criminal Procedure, 1973 (for
Page 1 of 132
short ‘Cr.P.C.’), the petitioners herein seeks cancellation of
bail granted to the respondent No.2 herein in
M.Cr.C.No.6415 of 2014 on 4.12.2014 under Section 439 of
the Cr.P.C. for the offence punishable under Sections 304
and 304-A of the IPC claiming to be the victims of the
Sterilization Operation conducted by the respondent No.2.
2. In an application filed under Section 439(2) of the Cr.P.C.,
the petitioners herein averred that regular bail under
Section 439 of the Cr.P.C. was granted to the respondent
No.2 by this Court, rather he obtained bail by suppression
and misrepresentation of facts and this Court also
considered irrelevant material of a substantial nature. It has
been further pleaded that additional new adverse facts have
also surfaced after grant of bail to the respondent No.2 as
viscera reports of the victims made available after chemical
analysis have no signs of toxicity due to drugs and women
patients died mainly due to severe septicaemia, peritonitis
and septic shock as surgical instrument was not adequately
sterilized, when it was being used and surgical operations
were performed in gross violation of the Standard Operating
Procedures and the respondent No.2 performed the said
operations in the conditions, which he was well aware, were
not aseptic and he could not have been given the benefit of
interpretation rendered by their Lordships of the Supreme
Court in case of Jacob Mathew v. State of Punjab and
another1 of indiscriminate prosecution.. It has also been
pleaded that the respondent No.2 is highly influential doctor
and award winner and has close connection in the
bureaucracy, therefore, order granting bail may be
cancelled in exercise of the jurisdiction conferred under
Section 439 (2) of the Cr.P.C.
3. Ms Sudha Bhardwaj, learned counsel appearing for the
petitioners would vehemently submit though the grounds for
cancellation of bail stands on different footings than of
refusal of bail in the first instance, but there are cogent and
overwhelming circumstances of non-consideration of
relevant considerations, or where the bail order has been
granted ignoring the material and perverse order is passed
or if the accused obtains bail order by misrepresentation or
suppression of the facts, the bail order may be cancelled by
this Court exercising jurisdiction under Section 439 (2) of
1 (2005) 6 SCC 1
the Cr.P.C. She placed reliance upon the judgment of the
Supreme Court in cases of Ram Govind Upadhyay v.
Sudarshan Singh & Ors.2
, Ram Babu Tiwari v. State of
Madhya Pradesh3
and Harjeet Singh v. State of Punjab4
.
4. Ms Bhardwaj, learned counsel would further submit that in
the instant case, bail was obtained by the respondent No.2
by suppressing the material facts and misrepresenting the
facts as bail order reflects consideration of irrelevant
material of a substantial nature and new adverse facts have
come to the light duly pleaded in the application, that death
mainly resulted due to gross negligence of the respondent
No.2 in performing the operations violating the standard
operating guidelines as prescribed by the competent
authority and he was wrongly given the benefit of
interpretation made in the case of Jacob Mathew (supra) of
indiscriminate prosecution and as respondent No.2 being
the most influential person as the doctors community went
on strike in support of him suggestive of his influence and
therefore, order granting bail may be cancelled.
2AIR 2002 SC 1475
3AIR 2009 SCW 3803
4AIR 2002 SC 281
5. I have heard learned counsel for petitioners on question of
admission and given thoughtful consideration to the
submission made.
6. The short question that falls for consideration in order to
entertain the present application under Section 439(2) of
the Cr.P.C. is whether the petitioners have prima facie
made out any ground for cancellation of bail under Section
439 (2) of the Cr.P.C.
7. It is quite well settled that the parameter for grant of bail
and cancellation of bail are entirely different. Bail granted
under Section 439(1) of the Cr.P.C. can be cancelled where
(i) 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. It is also well settled that even if two views are possible,
once the bail has been granted, it should not be cancelled
(See Jayendra Saraswathi Swamigal v. State of T.N.5
and Nityanand Rai v. State of Bihar6
).
8. The Constitution Bench of the Supreme Court has
considered the scope of power of the High Court under
Section 439(2) of the Cr.P.C. in Gurcharan Singh v. State
(Delhi Administration) and other7
and catalogued the
principles governing the powers of the Courts granting and
cancelling bail in paragraph 16 of the report which reads as
under:-
“16. Section 439 of the new Code confers
special powers on High Court or Court of
Session regarding bail. This was also the
position under Section 498, Cr. P.C. of the old
Code. That is to say, even if a Magistrate
refuses to grant to bail to an accused person,
the High Court or the Court of Session may
order for grant of bail in appropriate cases.
Similarly under Section 439(2) of the new
Code, the High Court or the Court of Session
may direct any person who has been released
on bail to be arrested and committed to
custody. In the old Code, Section 498 (2) was
worded in somewhat different language when
it said that a High Court or Court of Session
may cause any person who has been
admitted to bail under sub –section (1) to be
arrested and may commit him to custody. In
5(2005) 2 SCC 13
6(2005) 4 SCC 178
7(1978) 1 SCC 118
other words, under Section 498 (2) of the old
Code, a person who has been admitted to bail
by the High Court could be committed to
custody only by the High Court. Similarly, if a
person was admitted to bail by a Court of
Session, it was only the Court of Session that
could commit him to custody. This restriction
upon the power of entertainment of an
application for committing a person, already
admitted to bail, to custody, in lifted in the new
Code under Section 439(2). Under Section
439 (2) of the new Code High Court may
commit a person released on bail under
Chapter XXXIII by an Court including the
Court of Section to custody, if it thinks
appropriate to do so. It must however be
made clear that a Court of session cannot
cancel a bail which has already been granted
by the High Court unless new circumstances
arises during the progress of the trial after an
accused person has been admitted to bail by
the High Court. It, however, a Court of
Session had admitted an accused person to
bail, the State has two options. It may move
the Session Judge it 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 Section 439 (2) to commit the
accused to custody. When however, the State
is aggrieved by the order of the Session
Judge grating bail and there are no new
circumstances that have cropped up except
those already existed, it is futile for the State
to move the Session Judge again and it is
competent in law to move the High Court for
cancellation of the bail. This position follows
from the subordinate position of the Court of
Session vis-à-vis the High Court.”
9. Similarly in the matter of Puran vs. Rambilas and
another8
, Their Lordships of the Supreme Court has held
that the concept of setting aside, unjustified, illegal or
perverse order is absolutely different from cancelling an
order of bail on the ground that accused has misconducted
himself or because of some supervening circumstances
warranting such cancellation.
10. Quite recently, their Lordships of the Supreme Court in the
matter of Abdul Basit alias Raju and others vs. Mohd.
Abdul Kadir Chaudhary and another9
considered all its
earlier judgments on the issue and pointed out distinction
between review/recall of order granting bail from
cancellation of bail order and have held that the Court
granting bail cannot review its order on the ground of it
being illegal, unjustified or perverse in view of express bar
contained in Section 362 of the Cr.P.C. and held in
paragraphs 20, 21, 26 and 27 of the report as under.
“20. In the instant case, the respondents
herein had filed the criminal miscellaneous
petition before the High Court seeking
cancellation of bail on grounds that the bail
was obtained by the petitioners herein by
8(2001) 6 SCC 338
9(2014) 10 SCC 754
Page 8 of 139
gross misrepresentation of facts, misleading
the court and indulging in fraud. Thus, the
petition challenged the legality of the grant of
bail and required the bail order to be set aside
on ground of it being perverse in law. Such
determination would entail eventual
cancellation of bail. The circumstances
brought on record did not reflect any situation
where the bail was misused by the petitioneraccused.
Therefore, the High Court could not
have entertained the said petition and
cancelled the bail on grounds of it being
perverse in law.
21. It is an accepted principle of law that when
a matter has been finally disposed of by a
court, the court is, in the absence of a direct
statutory provision, functus officio and cannot
entertain a fresh prayer for relief in the matter
unless and until the previous order of final
disposal has been set aside or modified to that
extent. It is also settled law that the judgment
and order in the absence of any express
provision in the Code for the same. Section
362 of the Code operates as a bar to any
alteration or review of the cases disposed of
by the court. The singular exception to the
said statutory bar is correction of clerical or
arithmetical error by the court.
26. In the instant case, the order for bail in
the bail application preferred by the accusedpetitioners
herein finally disposes of the issue
in consideration and grants relief of bail to the
applicants therein. Since, no express provision
for review of order granting bail exists under
the Code, the High Court becomes functus
officio and Section 362 of the Code applies
herein barring the review of judgment and
order of the Court granting bail to the
petitioner-accused. Even though the
cancellation of bail rides on the satisfaction
and discretion of the court under Section
439(2) of the Code, it does not vest the power
of review in the court which granted bail. Even
in the light of fact of misrepresentation by the
petitioner-accused during the grant of bail, the
High Court could not have entertained the
respondent/informant’s prayer by setting in
review of its judgment by entertaining
miscellaneous petition.
27. Herein, the High Court has assigned an
erroneous interpretation to the well settled
position of law, assumed expanded jurisdiction
into itself and passed an order in
contravention of Section 362 of the Code
cancelling the bail granted to the petitioners
herein. Therefore, in our considered opinion,
the High Court is not justified in reviewing its
earlier order of grant of bail and thus, the
impugned judgment and order requires to be
set aside.”
11. Applying the statement of law rendered by their Lordships
of the Supreme Court in the aforesaid cases particularly
Abdul Basit (supra), it is limpid that the petitioners herein
have sought cancellation of order granting bail on the
ground that bail order was granted to the respondent No.2
by suppression and misrepresentation of facts as well that
the order considering bail reflects consideration of irrelevant
material of a substantial nature and additionally new
adverse facts have surfaced, thereby claiming that the
order of bail is absolutely unjustified, illegal and perverse. It
is not the case of the petitioners herein that the respondent
No.2 has misconducted himself after grant of bail by this
Court warranting cancellation of bail order, therefore, order
granting bail deserves to be cancelled. The facts and
grounds pleaded in an application for cancellation of bail
under Section 439(2) Cr.P.C. and submissions made
therein, in light of the law laid down by their Lordships of the
Supreme Court in the above mentioned judgment is not the
scope and jurisdiction of this Court, as such alleged
illegality, perversity cannot be determined by this Court in
this application for cancellation of bail filed under Section
439(2) of Cr.P.C. as it would amount to review/recall of bail
order, which impermissible, in the light of express bar
contained in Section 362 of the Cr.P.C. which bars the
jurisdiction of this Court to alter or review the bail order or
judgment except to correct an clerical or arithmetical error.
12. As a fall out and consequence of the aforesaid discussion, the
application filed under Section 439(2) of the Cr.P.C. deserves to
and is hereby rejected at the admission stage without notice to
other side. No order as to cost(s).
Sd/-
(Sanjay K.Agrawal)
HEAD NOTE
Order granting bail cannot be cancelled in the light of provision
contained in Section 362 Cr.P.C.
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