Bombay High Court
Salim Khan Saheb Khan vs Unknown on 30 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPLICATION NO. 501 /2011
1) Salim Khan Saheb Khan
Aged about 60 years, occu: Agril.
2) Hafiz Khan Saheb Khan
Aged about 55 years, occu: Agril.
3) Mosin Khan Salim Khan
4) Alim Khan Saheb Khan,
Aged about 23 years occu: Agril.
Aged about 50 years, occu: Agril.
5) Firdos Khan Bismilha Khan
Aged about 19 years, occu: Agril.
6) Sonu Khan Sharif Khan
Aged about 21 years, occu: Agril.
7) Sheikh Babu Sheikh Nasir
Aged about 23 years, occu: agril.
Applicant Nos. 1 to 7
R/o Kharpi, Chandur Bazar,
Dist.Armavati. . ..APPLICANTS
v e r s u s
State of Maharashtra
(Through PSO Shirasgaon Kasba
Tah. Chandur Bazar
Dist.Amravati. ..RESPONDENT
............................................................................................................................
Mr. S.V.Sirpurkar, Advocate for applicants
Mr P V Bhoyar, APP for Respondent
Mr J B Kasat Adv.to assist the prosecution
.......................................................................................................................
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CORAM: A.P.BHANGALE , J.
DATE OF RESERVING: 22.11.2011
DATE OF PRONOUNCEMENT: 30.11.2011
JUDGMENT :
1. Admit. Heard forthwith with the consent of the learned
counsel for respective parties.
2.
The applicants pray for to quash and set aside the order
dated 29/07/2011 passed by the learned J. M F C Court no 2, Chandur
Bazaar under section 437(5) of the Criminal Procedure Code, 1973, in
Crime No. 35 of 2011 whereby the bail granted earlier in favour of the
applicants was cancelled. The court considered the application for
cancellation on the ground that there was complaint as to violation of
the bail order as they were not to enter village Kharpi till the filing of the
charge-sheet by the Shirasgaon Police in the case. The court found the
ground pleaded by the complainant as doubtful and without merits. But
on the ground that the offence appeared serious punishable with
imprisonment for life, the court decided to cancel the bail. The
applicants prayed, in the alternative, for the order of anticipatory bail.
3. Heard submissions at the Bar. The facts appear as under :-
FIR No. 35 of 2011 was lodged on 02/07/2011 at
Shirasgaon Police Station in District Amravati by first informant Sheikh
Sattar Sheikh Karim under section 324,147,148,149 of the IPC against
applicants on the ground that they had raised quarrel over the boundary
of the agricultural field and the access road and assaulted first
informant, and family members by means of axe, iron pipe,and sticks.
Learned JMFC, Chandur Bazaar was pleased to grant conditional bail in
favour of the applicants upon execution of bond in the sum of Rs
15000/- and furnishing a solvent surety by each of them and a
conditions were added that they will not enter Kharpi village till the
filing of the charge-sheet in the case and shall not tamper with
evidence. Warning was given that if they enter in the Kharpi village till
the charge sheet is filed, their bail shall be cancelled. After recording
supplementary statement and perusal of the C.T. Scan, medical
document and certificate as to the nature of the injury caused to head
of the first informant, on 19/07 2011 section 307 IPC was introduced in
the accusations made earlier. Police sought to arrest the accused again
for investigation and prayed for to cancel the bail granted earlier. The
first informant applied for cancellation of the bail on the ground that the
offence is serious, punishable with life imprisonment and alleged that
the accused have managed the police to register simple offence under
section 324 of the IPC instead of under section 307 of IPC and further on
the ground that the accused gave threat to kill complainant and his
relatives. However the first informant failed to substantiate the grounds
pleaded by him. Heavy reliance is placed for the applicants upon the
ruling of the Supreme Court in Dolat Ram v. State of Haryana: (1995)
1 SCC 349 in which it is held as under:-
"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."
This decision is also referred to in the recent ruling in Hazari lal
Das vs. State of W.B. reported in AIR 2010 SC 91.
4. Considering the aforesaid decisions of the Hon'ble Supreme
Court, it is more than clear that the considerations which are required to
be taken into account at the stage of consideration of a bail application
and those which are required to be examined at the time of
consideration of an application for cancellation of bail, are drastically
different. Once bail is granted, there is need for very cogent and
overwhelming circumstances to upset the order of bail. The Supreme
Court has broadly indicated that the grounds for cancellation of bail
could possibly be where there is an attempt to interfere with the due
course of administration of justice, or where there is an abuse of the
concession granted to the accused, or where new material comes on
record to necessitate the cancellation of the Bail, or where bail was
earlier granted on the basis of suppression of facts and or
misrepresentation / misstatement. It is also clear from the Supreme
Court decisions that a Court of concurrent jurisdiction ought not to
interfere with an order of bail already granted, inasmuch as such
interference would amount to the subsequent court virtually functioning
as a Court of appeal / revision in respect of the earlier court, which is not
permissible. It is only in exceptional circumstances, as indicated by the
Supreme Court above, that a Court of concurrent jurisdiction can
interfere with an order of bail already granted. Cancellation of bail
necessary involves the review of a decision already made and can 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. However, bail granted illegally or improperly by a
wrong, arbitrary exercise of judicial discretion can be cancelled even if
there is absence of supervening circumstances. If there is no material to
prove that the accused abused his freedom court may not cancel the bail.
5. In the present case, it would be pertinent to note that there
was alteration in the penal provision as section 307 was invoked later
instead of Section 324 of the I.P. C. but no city scan report was produced
of alleged injury. The police did not ask for P.C.R. but had asked for M.
C. R. Of the applicants which was granted, weapon of offence was
already seized on the date of arrest of the applicants. Plain reading of
the provisions of section 482 Cr.P. Code would show that nothing in the
Code (which includes section 397(2)) shall be deemed to limit or affect
the inherent power of the High Court. However, the real question is
when and at what point of time as well as under which circumstances
the same is required to be exercised. There is no quarrel that inherent
power can be exercised in case of abuse of process of the courts, when
there is a failure of justice or there is a grave miscarriage of justice,
irrespective of the fact where it relates to an order which may be
interlocutory in nature. At the same time, it is equally well settled that
inherent power of the High Court can ordinarily be exercised when there
is no express provision in the Code for redressal of grievance, but if there
is equally effective and alternate remedy available and there is an
express provision barring a particular remedy, the High Court should not
resort to exercise of inherent power.
6. In my opinion in the present case mere alteration/addition
of the aggravated penal provision was not by itself a sufficient,
overwhelming ground to cancel the bail already granted particularly
when the investigating officer did not specifically pressed for the police
custody remand of the applicants for further investigation even after
adding aggravated penal provision under Section 307 of the IPC. The
impugned order of cancellation of the bail granted earlier to the
applicants is therefore unsustainable and indefensible. No one shall
be deprived of his personal liberty, which is most sacrosanct, on the bald
premise. This is a proper case to interfere by exercising inherent power
to secure the ends of justice.
7. The impugned orders of cancellation of the bail are
therefore quashed and set aside. Upon surrender to the custody of the
trial court and upon application for grant of bail, let the applicants be
released on bail upon furnishing the personal bond in the sum of Rs
25,000/- with two or more solvent sureties to the satisfaction of the trial
Court, to be provided in the equal sum by each of them.
Provided further that
i) They shall attend the trial on each date of hearing and shall not
tamper with the evidence in any manner.
ii) They shall not commit any crime while on Bail.
Application disposed of accordingly.
JUDGE
Sahare
