The power to cancel the bail granted to a accused person
can be passed broadly on the ground i.e. (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. These grounds are illustrative and not
exhaustive.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-26972 of 2015 (O&M)
DATED: 28.09.2015
Jagroop Singh
V
State of Punjab and another .
BEFORE:- JUSTICE DAYA CHAUDHARY
Citation: 2016 ALLMR(CRI)JOURNAL 526
This application has been filed for placing on record the reply
filed on behalf of respondent No.2.
Application is allowed and reply filed on behalf of respondent
No.2 is taken on record.
The present petition has been filed under Section 439 (2)
Cr.P.C. for cancellation of regular bail granted to respondent No.2 in case
FIR No. 38 dated 15.5.2013 registered under Sections 302,148,149,120-B
IPC, Sections 25,54 of Arms Act and Sections 449 and 201 of IPC (added
later on) at Police Station Tapa, District Barnala.
Aforesaid FIR was registered against respondent No.2 and
other accused persons. During pendency of the proceedings, respondent
No.2-Jaspal Singh @ Mohna filed a petition under Section 439 Cr.P.C.
before this Court for grant of regular bail on the ground that he was not
named in the FIR and no role was attributed to him and he might be in the
category of 4-5 unidentified persons. It was also contended in the bail
petition that even in the supplementary statement, the complainant did not
name respondent No.2 and no role was attributed to him. Respondent
No.2 was in the custody since 9.6.2013 and out of total 46 witnesses, only
two witnesses were examined till that time. It was also brought to the notice
of Court that an application was moved under Section 319 Cr.P.C., which
was allowed and de novo trial had started. Respondent No. 2 was
released on bail by this Court vide order dated 26.2.2015 in Crl. Misc. No.
M-3986 of 2015. The relevant portion of order of bail is reproduced as
under:-
“Admittedly, the petitioner was not named in the FIR and no
role has been attributed to him. Even in the supplementary
statement, the complainant has not named the petitioner. He is
presumed to be one of the 4-5 unidentified persons, then also,
allegations of giving stick blows on the shoulder and eyebrow
of the deceased have been levelled on him.
Keeping in view the submissions made by learned counsel for
the petitioner and also the fact that the the petitioner is in
custody for the last more than 1 year and 8 months; out of 46
prosecution witnesses, only two have been examined so far;
an application under Section 319 Cr.P.C. has been moved by
the prosecution and in case, the same is allowed then it will be
a case of de novo trial; no purpose would be served by
keeping the petitioner behind the bars; and moreover, the
complainant and eyewitness have been examined and
question of influencing them does not arise, the present
petition is allowed and the petitioner (Jaspal Singh @ Mohna)
is directed to be released on regular bail subject to furnishing
bail/surety bonds to the satisfaction of the trial Court.”
The present petition has filed for cancellation of bail granted to
respondent No.2 on the ground that the petitioner approached Hon'ble the
Apex Court by way of filing Special Leave to Appeal (Crl.) No. 11198 of
2015, whereby, liberty was granted to him to apply for cancellation of bail
before the appropriate forum, if occasion so arises.
Learned counsel for the petitioner submits that respondent
No.2 should not have been released on regular bail as there was specific
mention in the statement of PW-1 that respondent No.2 caused dang blow
on the person of Resham Singh, which hit on his back side due to which he
fell down on the ground. All the accused were present at the time of
occurrence and were actively involved in commission of offence.
Moreover, the petition filed by co-accused was also dismissed on
14.7.2014. Learned counsel further submits that a threat was also given to
the complainant party and that the petitioner was not released on regular
bail inspite of grant of bail by this Court as he could not furnish bail bonds
to the satisfaction of trial Court and it is a sufficient ground to cancel the
bail. Learned counsel has also relied upon the judgments of Hon'be the
Apex Court in the cases of Satish Jaggi Vs. State of Chhattisgarh and
others 2007 (3) RCR (Criminal) 964, Rajesh Ranjan Yadav @ Pappu
Yadav Vs. CBI through its Director AIR 2008 Supreme Court, 942 and of
Allahabad High Court in the case of Ram Kunwar @ Ram Kumar Vs.
State of U.P. 2013 (7) RCR (Criminal) 667, in support of his contentions.
Learned senior counsel for respondent No.2 submits that bail
was granted to respondent No.2 by considering certain facts and
circumstances of the case as well as by taking into consideration the stage
of the trial. The bail can be cancelled only in case the accused misused
the concession of bail; or is involved in other case of similar nature; or
attempts to tamper with the evidence or witness; or threatened the
witnesses; or indulges in some activity, which would hamper smooth
investigation; or in case there is likelihood of fleeing to other country but
none of the factors are there in the present case for cancelling the bail of
respondent No.2. Learned senior counsel further submits that SLP filed by
the petitioner was dismissed by Hon'ble the Apex Court and liberty was
given in case the situation arises for cancellation of bail. There was no
direction by Hon'ble the Apex Court to file petition for cancellation of bail as
nothing has come on record to show that respondent No.2 has misused the
concession of regular bail or has given any threat to the petitioner.
Learned counsel has also relied upon the judgment of Hon'ble the Apex
Court in the case of Abdul Basit @ Raju and others Vs. Md. Abdul Kadir
Chaudhary and another 2014 (4) RCR (Criminal) 716, in support of his
contentions.
Learned counsel for the respondent-State has also not brought
to the notice of this Court any complaint that has been made by the
petitioner alleging therein that respondent No.2 has given any threat to the
complainant party after being released on bail.
Heard the arguments advanced by learned counsel for the
parties and have also gone through the documents available on the file.
Admittedly, the petitioner has been ordered to be released on
regular bail by this Court vide order dated 26.2.2015 by considering his role
and stage of the trial. As per the arguments of learned counsel for the
petitioner (respondent No.2) in bail petition, the petitioner (respondent
No.2) was not named in the FIR and no role was attributed to him. Even in
the supplementary statement, the complainant did not mention the name of
the petitioner. Respondent No.2 was presumed to be one of the 4-5
unidentified persons but then also allegations of giving stick blow on the
shoulder and eyebrow of the deceased have been levelled qua to him.
When bail was granted, respondent No.2 was in custody for more than one
year and eight months and out of total 46 prosecution witnesses, only two
witnesses were examined. Thereafter, an application under Section 319
Cr.P.C. was moved by the prosecution, which was allowed and it was a
case of de novo trial. By considering this fact as well as the custody of
respondent No.2 and also the fact that as the complainant and eye
witnesses have already been examined, question of influencing the
witnesses did not arise, bail was granted to respondent No.2.
Section 439 (2) of the Cr.P.C. provides for the powers of the
High Court and the Court of Sessions regarding cancellation of bail granted
to accused person. It reads as under:-
"Section 439 - Special powers of High Court or Court of
Session regarding bail
(1) * * *
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter be
arrested and commit him to custody."
Since the submission made by the parties center round the
interpretation to be placed upon Section 362 of the Code, it may be
necessary to have a glance at the same. The heading of Section 362 of the
Code provides for the "Court not to alter judgment" and the provision
operates as a bar for the court to alter or review its decisions once
pronounced. It reads as under :
"Save as otherwise provided by this Code or by any other law
for the time being in force, no Court when it has signed its
judgment or final order disposing of a case, shall alter or
review the same except to correct a clerical or arithmetical
error.
Under Chapter XXXIII, Section 439 (1) empowers the High
Court as well as the Court of Sessions to direct any accused person to be
released on bail. Section 439 (2) empowers the High Court to direct any
person, who has been released on bail under Chapter XXXIII of the Code
to be arrested. The power to cancel the bail granted to a accused person
can be passed broadly on the ground i.e. (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. These grounds are illustrative and not
exhaustive.
The scope of this power to High Court under Section 439 (2)
has also been considered by Hon'ble the Apex Court in the case of
Gurcharan Singh and others Vs. State (Delhi Administration) 1978 (1)
SCC 118, wherein, it has been held 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 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 other words,
under Section 498(2) of the old Code, a person who had 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, is lifted in the new
Code under Section 489(2).Under Section 439(2) of the new
Code a High Court may commit a person released on bail
under Chapter XXXIIL by any Court including the Court of
Session 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 arise during the progress of the trial
after an accused, person has been admitted to bail by the High
Court. If, however, a Court of Session had admitted an
accused person 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 Section 439(2) to
commit the accused to custody. When, however, the State is
aggrieved by the order of the Sessions Judge granting bail and
there are no new circumstances that have cropped up except
those already existed, it is futile for the State to move the
Sessions 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-a-vis
the High Court."
Similarly in another judgment rendered in the case of Puran
Vs. Rambilas and another 2001 (2) RCR (Criminal) 801, Hon'ble the Apex
Court has held that concept of setting aside an unjustified, illegal or
perverse order is absolutely different from the cancelling an order of bail on
the ground that the accused has misconducted himself or because of some
supervening circumstances warranting such cancellation. In Dr. Narendra
K. Amin Vs. State of Gujarat and another 2008 (2) RCR (Criminal) 858,
the three-Judge Bench of Hon'ble the Apex Court has also reiterated the
aforesaid principle and a distinction has been drawn in granting of bail and
cancellation of bail. In the said case, the High Court cancelled the bail
granted to the accused in exercise of powers under Section 439 (2) of the
Code. In appeal, it was contended that the High Court has erred by not
appreciating the distinction between the parameters for grant of bail and
cancellation of bail. The Bench while affirming the principle as laid down in
Puran's case (supra) observed that when irrelevant materials have been
taken into consideration by the Court granting bail, the same makes the
said order vulnerable and subject to scrutiny by the appellate Court and no
review would lie under Section 362 of the Code. It was also held by
Hon'ble the Apex Court that if the order of grant of bail is perverse, the
same can be set at naught only by superior court and has left no room for a
review by the same Court.
Similar view has been taken by Hon'ble the Apex Court in the
case of Ranjit Singh Vs. State of M.P. And others 2013 (4) RCR
(Criminal) 6090, wherein, it has been observed as under:-
"20....There is also a distinction between the concept of setting
aside an unjustified, illegal or perverse order and cancellation
of an order of bail on the ground that the accused has
misconducted himself or certain supervening circumstances
warrant such cancellation. If the order granting bail is a
perverse one or passed on irrelevant materials, it can be
annulled by the superior court."
Similarly, Hon'ble the Apex Court in the case of Hari Singh
Mann Vs. Harbhajan Singh Bajwa 2000 94) RCR (Criminal) 650 has
observed as under:-
"9. There is no provision in the Code of Criminal Procedure
authorising the High Court to review its judgment passed either
in exercise of its appellate or revisional or original criminal
jurisdiction. Such a power cannot be exercised with the aid or
under the cloak of Section 482 of the Code.
10. Section 362 of the Code mandates that no court, when it
has signed its judgment or final order disposing of a case shall
alter or review the same except to correct a clerical or an
arithmetical error. The section is based on an acknowledged
principle of law that once a matter is finally disposed of by a
court, the said court in the absence of a specific statutory
provision becomes functus officio and disentitled to entertain a
fresh prayer for the same relief unless the former order of final
disposal is set aside by a court of competent jurisdiction in a
manner prescribed by law. The court becomes functus officio
the moment the official order disposing of a case is signed.
Such an order cannot be altered except to the extent of
correcting a clerical or an arithmetical error. The reliance of the
respondent on Talab Haji Hussain case is misconceived. Even
in that case it was pointed that inherent powers conferred on
High Courts under Section 561-A (Section 482 of the new
Code) has to be exercised sparingly, carefully and with caution
and only where such exercise is justified by the tests
specifically laid down in the section itself. It is not disputed that
the petition filed under Section 482 of the Code had been
finally disposed of by the High Court on 7-1-1999. The new
Section 362 of the Code which was drafted keeping in view the
recommendations of the 41st report of the Law Commission
and the Joint Select Committees appointed for the purpose,
has extended the bar of review not only to the judgment but
also to the final orders other than the judgment.
11. The impugned orders of the High Court dated 30-4-1999
and 21-7-1999 which are not referable to any statutory
provisions, having been passed apparently in a review petition
in a criminal case are without jurisdiction and liable to be
quashed."
Hon'ble the Apex Court in the case of Central Bureau of
Investigation Vs. V. Vijay Sai Reddy 2013 (3) RCR (Criminal) 252 has
cautioned that cancellation of bail necessarily involves the review of a
decision, which has already been made and it should be exercised very
sparingly by the Court of law.
It is a well settled proposition of law that what cannot be done
directly, cannot be done indirectly. While exercising a statutory power a
Court is bound to act within the four corners of the Statute. The statutory
exercise of the power stands on a different pedestal than the power of
judicial review vested in a Court. The same has been upheld by Hon'ble the
Apex Court in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and
Ors., (2006) 13 SCC 737, U.P. State Brassware Corporation Ltd. and
Anr. v. Uday Narain Pandey, 2006(1) S.C.T. 77 : (2006)1 SCC 479 and
Rashmi Rekha Thatoi and Anr. v. State of Orissa and Ors., 2012(2)
R.C.R.(Criminal) 870 : 2012(2) Recent Apex Judgments (R.A.J.) 591 :
(2012)5 SCC 690. It is the duty of the superior courts to follow the
command of the statutory provisions and be guided by the precedents and
issue directions which are permissible in law.
In the present case, learned counsel for the petitioner has not
been able to show anything as to how the order of bail is perverse and how
the concession has been misused by respondent No.2. Even no complaint
has been made to the police authority or to the trial Court that respondent
No.2 has tampered with the record/evidence or any threat was given to
depose in his favour.
In view of the facts as mentioned above, there is no merit in
the contentions raised by learned counsel for the petitioner and the petition
being devoid of any merit is hereby dismissed.
September 28, 2015 (DAYA CHAUDHARY)
can be passed broadly on the ground i.e. (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. These grounds are illustrative and not
exhaustive.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-26972 of 2015 (O&M)
DATED: 28.09.2015
Jagroop Singh
V
State of Punjab and another .
BEFORE:- JUSTICE DAYA CHAUDHARY
Citation: 2016 ALLMR(CRI)JOURNAL 526
This application has been filed for placing on record the reply
filed on behalf of respondent No.2.
Application is allowed and reply filed on behalf of respondent
No.2 is taken on record.
The present petition has been filed under Section 439 (2)
Cr.P.C. for cancellation of regular bail granted to respondent No.2 in case
FIR No. 38 dated 15.5.2013 registered under Sections 302,148,149,120-B
IPC, Sections 25,54 of Arms Act and Sections 449 and 201 of IPC (added
later on) at Police Station Tapa, District Barnala.
Aforesaid FIR was registered against respondent No.2 and
other accused persons. During pendency of the proceedings, respondent
No.2-Jaspal Singh @ Mohna filed a petition under Section 439 Cr.P.C.
before this Court for grant of regular bail on the ground that he was not
named in the FIR and no role was attributed to him and he might be in the
category of 4-5 unidentified persons. It was also contended in the bail
petition that even in the supplementary statement, the complainant did not
name respondent No.2 and no role was attributed to him. Respondent
No.2 was in the custody since 9.6.2013 and out of total 46 witnesses, only
two witnesses were examined till that time. It was also brought to the notice
of Court that an application was moved under Section 319 Cr.P.C., which
was allowed and de novo trial had started. Respondent No. 2 was
released on bail by this Court vide order dated 26.2.2015 in Crl. Misc. No.
M-3986 of 2015. The relevant portion of order of bail is reproduced as
under:-
“Admittedly, the petitioner was not named in the FIR and no
role has been attributed to him. Even in the supplementary
statement, the complainant has not named the petitioner. He is
presumed to be one of the 4-5 unidentified persons, then also,
allegations of giving stick blows on the shoulder and eyebrow
of the deceased have been levelled on him.
Keeping in view the submissions made by learned counsel for
the petitioner and also the fact that the the petitioner is in
custody for the last more than 1 year and 8 months; out of 46
prosecution witnesses, only two have been examined so far;
an application under Section 319 Cr.P.C. has been moved by
the prosecution and in case, the same is allowed then it will be
a case of de novo trial; no purpose would be served by
keeping the petitioner behind the bars; and moreover, the
complainant and eyewitness have been examined and
question of influencing them does not arise, the present
petition is allowed and the petitioner (Jaspal Singh @ Mohna)
is directed to be released on regular bail subject to furnishing
bail/surety bonds to the satisfaction of the trial Court.”
The present petition has filed for cancellation of bail granted to
respondent No.2 on the ground that the petitioner approached Hon'ble the
Apex Court by way of filing Special Leave to Appeal (Crl.) No. 11198 of
2015, whereby, liberty was granted to him to apply for cancellation of bail
before the appropriate forum, if occasion so arises.
Learned counsel for the petitioner submits that respondent
No.2 should not have been released on regular bail as there was specific
mention in the statement of PW-1 that respondent No.2 caused dang blow
on the person of Resham Singh, which hit on his back side due to which he
fell down on the ground. All the accused were present at the time of
occurrence and were actively involved in commission of offence.
Moreover, the petition filed by co-accused was also dismissed on
14.7.2014. Learned counsel further submits that a threat was also given to
the complainant party and that the petitioner was not released on regular
bail inspite of grant of bail by this Court as he could not furnish bail bonds
to the satisfaction of trial Court and it is a sufficient ground to cancel the
bail. Learned counsel has also relied upon the judgments of Hon'be the
Apex Court in the cases of Satish Jaggi Vs. State of Chhattisgarh and
others 2007 (3) RCR (Criminal) 964, Rajesh Ranjan Yadav @ Pappu
Yadav Vs. CBI through its Director AIR 2008 Supreme Court, 942 and of
Allahabad High Court in the case of Ram Kunwar @ Ram Kumar Vs.
State of U.P. 2013 (7) RCR (Criminal) 667, in support of his contentions.
Learned senior counsel for respondent No.2 submits that bail
was granted to respondent No.2 by considering certain facts and
circumstances of the case as well as by taking into consideration the stage
of the trial. The bail can be cancelled only in case the accused misused
the concession of bail; or is involved in other case of similar nature; or
attempts to tamper with the evidence or witness; or threatened the
witnesses; or indulges in some activity, which would hamper smooth
investigation; or in case there is likelihood of fleeing to other country but
none of the factors are there in the present case for cancelling the bail of
respondent No.2. Learned senior counsel further submits that SLP filed by
the petitioner was dismissed by Hon'ble the Apex Court and liberty was
given in case the situation arises for cancellation of bail. There was no
direction by Hon'ble the Apex Court to file petition for cancellation of bail as
nothing has come on record to show that respondent No.2 has misused the
concession of regular bail or has given any threat to the petitioner.
Learned counsel has also relied upon the judgment of Hon'ble the Apex
Court in the case of Abdul Basit @ Raju and others Vs. Md. Abdul Kadir
Chaudhary and another 2014 (4) RCR (Criminal) 716, in support of his
contentions.
Learned counsel for the respondent-State has also not brought
to the notice of this Court any complaint that has been made by the
petitioner alleging therein that respondent No.2 has given any threat to the
complainant party after being released on bail.
Heard the arguments advanced by learned counsel for the
parties and have also gone through the documents available on the file.
Admittedly, the petitioner has been ordered to be released on
regular bail by this Court vide order dated 26.2.2015 by considering his role
and stage of the trial. As per the arguments of learned counsel for the
petitioner (respondent No.2) in bail petition, the petitioner (respondent
No.2) was not named in the FIR and no role was attributed to him. Even in
the supplementary statement, the complainant did not mention the name of
the petitioner. Respondent No.2 was presumed to be one of the 4-5
unidentified persons but then also allegations of giving stick blow on the
shoulder and eyebrow of the deceased have been levelled qua to him.
When bail was granted, respondent No.2 was in custody for more than one
year and eight months and out of total 46 prosecution witnesses, only two
witnesses were examined. Thereafter, an application under Section 319
Cr.P.C. was moved by the prosecution, which was allowed and it was a
case of de novo trial. By considering this fact as well as the custody of
respondent No.2 and also the fact that as the complainant and eye
witnesses have already been examined, question of influencing the
witnesses did not arise, bail was granted to respondent No.2.
Section 439 (2) of the Cr.P.C. provides for the powers of the
High Court and the Court of Sessions regarding cancellation of bail granted
to accused person. It reads as under:-
"Section 439 - Special powers of High Court or Court of
Session regarding bail
(1) * * *
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter be
arrested and commit him to custody."
Since the submission made by the parties center round the
interpretation to be placed upon Section 362 of the Code, it may be
necessary to have a glance at the same. The heading of Section 362 of the
Code provides for the "Court not to alter judgment" and the provision
operates as a bar for the court to alter or review its decisions once
pronounced. It reads as under :
"Save as otherwise provided by this Code or by any other law
for the time being in force, no Court when it has signed its
judgment or final order disposing of a case, shall alter or
review the same except to correct a clerical or arithmetical
error.
Under Chapter XXXIII, Section 439 (1) empowers the High
Court as well as the Court of Sessions to direct any accused person to be
released on bail. Section 439 (2) empowers the High Court to direct any
person, who has been released on bail under Chapter XXXIII of the Code
to be arrested. The power to cancel the bail granted to a accused person
can be passed broadly on the ground i.e. (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. These grounds are illustrative and not
exhaustive.
The scope of this power to High Court under Section 439 (2)
has also been considered by Hon'ble the Apex Court in the case of
Gurcharan Singh and others Vs. State (Delhi Administration) 1978 (1)
SCC 118, wherein, it has been held 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 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 other words,
under Section 498(2) of the old Code, a person who had 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, is lifted in the new
Code under Section 489(2).Under Section 439(2) of the new
Code a High Court may commit a person released on bail
under Chapter XXXIIL by any Court including the Court of
Session 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 arise during the progress of the trial
after an accused, person has been admitted to bail by the High
Court. If, however, a Court of Session had admitted an
accused person 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 Section 439(2) to
commit the accused to custody. When, however, the State is
aggrieved by the order of the Sessions Judge granting bail and
there are no new circumstances that have cropped up except
those already existed, it is futile for the State to move the
Sessions 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-a-vis
the High Court."
Similarly in another judgment rendered in the case of Puran
Vs. Rambilas and another 2001 (2) RCR (Criminal) 801, Hon'ble the Apex
Court has held that concept of setting aside an unjustified, illegal or
perverse order is absolutely different from the cancelling an order of bail on
the ground that the accused has misconducted himself or because of some
supervening circumstances warranting such cancellation. In Dr. Narendra
K. Amin Vs. State of Gujarat and another 2008 (2) RCR (Criminal) 858,
the three-Judge Bench of Hon'ble the Apex Court has also reiterated the
aforesaid principle and a distinction has been drawn in granting of bail and
cancellation of bail. In the said case, the High Court cancelled the bail
granted to the accused in exercise of powers under Section 439 (2) of the
Code. In appeal, it was contended that the High Court has erred by not
appreciating the distinction between the parameters for grant of bail and
cancellation of bail. The Bench while affirming the principle as laid down in
Puran's case (supra) observed that when irrelevant materials have been
taken into consideration by the Court granting bail, the same makes the
said order vulnerable and subject to scrutiny by the appellate Court and no
review would lie under Section 362 of the Code. It was also held by
Hon'ble the Apex Court that if the order of grant of bail is perverse, the
same can be set at naught only by superior court and has left no room for a
review by the same Court.
Similar view has been taken by Hon'ble the Apex Court in the
case of Ranjit Singh Vs. State of M.P. And others 2013 (4) RCR
(Criminal) 6090, wherein, it has been observed as under:-
"20....There is also a distinction between the concept of setting
aside an unjustified, illegal or perverse order and cancellation
of an order of bail on the ground that the accused has
misconducted himself or certain supervening circumstances
warrant such cancellation. If the order granting bail is a
perverse one or passed on irrelevant materials, it can be
annulled by the superior court."
Similarly, Hon'ble the Apex Court in the case of Hari Singh
Mann Vs. Harbhajan Singh Bajwa 2000 94) RCR (Criminal) 650 has
observed as under:-
"9. There is no provision in the Code of Criminal Procedure
authorising the High Court to review its judgment passed either
in exercise of its appellate or revisional or original criminal
jurisdiction. Such a power cannot be exercised with the aid or
under the cloak of Section 482 of the Code.
10. Section 362 of the Code mandates that no court, when it
has signed its judgment or final order disposing of a case shall
alter or review the same except to correct a clerical or an
arithmetical error. The section is based on an acknowledged
principle of law that once a matter is finally disposed of by a
court, the said court in the absence of a specific statutory
provision becomes functus officio and disentitled to entertain a
fresh prayer for the same relief unless the former order of final
disposal is set aside by a court of competent jurisdiction in a
manner prescribed by law. The court becomes functus officio
the moment the official order disposing of a case is signed.
Such an order cannot be altered except to the extent of
correcting a clerical or an arithmetical error. The reliance of the
respondent on Talab Haji Hussain case is misconceived. Even
in that case it was pointed that inherent powers conferred on
High Courts under Section 561-A (Section 482 of the new
Code) has to be exercised sparingly, carefully and with caution
and only where such exercise is justified by the tests
specifically laid down in the section itself. It is not disputed that
the petition filed under Section 482 of the Code had been
finally disposed of by the High Court on 7-1-1999. The new
Section 362 of the Code which was drafted keeping in view the
recommendations of the 41st report of the Law Commission
and the Joint Select Committees appointed for the purpose,
has extended the bar of review not only to the judgment but
also to the final orders other than the judgment.
11. The impugned orders of the High Court dated 30-4-1999
and 21-7-1999 which are not referable to any statutory
provisions, having been passed apparently in a review petition
in a criminal case are without jurisdiction and liable to be
quashed."
Hon'ble the Apex Court in the case of Central Bureau of
Investigation Vs. V. Vijay Sai Reddy 2013 (3) RCR (Criminal) 252 has
cautioned that cancellation of bail necessarily involves the review of a
decision, which has already been made and it should be exercised very
sparingly by the Court of law.
It is a well settled proposition of law that what cannot be done
directly, cannot be done indirectly. While exercising a statutory power a
Court is bound to act within the four corners of the Statute. The statutory
exercise of the power stands on a different pedestal than the power of
judicial review vested in a Court. The same has been upheld by Hon'ble the
Apex Court in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and
Ors., (2006) 13 SCC 737, U.P. State Brassware Corporation Ltd. and
Anr. v. Uday Narain Pandey, 2006(1) S.C.T. 77 : (2006)1 SCC 479 and
Rashmi Rekha Thatoi and Anr. v. State of Orissa and Ors., 2012(2)
R.C.R.(Criminal) 870 : 2012(2) Recent Apex Judgments (R.A.J.) 591 :
(2012)5 SCC 690. It is the duty of the superior courts to follow the
command of the statutory provisions and be guided by the precedents and
issue directions which are permissible in law.
In the present case, learned counsel for the petitioner has not
been able to show anything as to how the order of bail is perverse and how
the concession has been misused by respondent No.2. Even no complaint
has been made to the police authority or to the trial Court that respondent
No.2 has tampered with the record/evidence or any threat was given to
depose in his favour.
In view of the facts as mentioned above, there is no merit in
the contentions raised by learned counsel for the petitioner and the petition
being devoid of any merit is hereby dismissed.
September 28, 2015 (DAYA CHAUDHARY)
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