Chandra Kumar Jain vs State Of Chhattisgarh
2021 Latest Caselaw 592 Chatt

                             1

                                                        NAFR

  HIGH COURT OF CHHATTISGARH, BILASPUR

          Order Reserved on : 25.02.2021
            Order Passed on : 25.06.2021


               CRMP No. 1686 of 2019
 Chandra Kumar Jain S/o Nathmal Jain Aged About 58
  Years R/o Durga Chowk, Killa Para, Rajnandgaon,
  Chhattisgarh., District : Rajnandgaon, Chhattisgarh
                                               ---- Petitioner
                         Versus
1. State Of Chhattisgarh Through Police Station-Basantpur,
   District-  Rajnandgaon,    Chhattisgarh.,   District  :
   Rajnandgaon, Chhattisgarh
2. Sunil Baradia S/o Dulichand Baradia, aged 58 years, R/o
   Sadar Bazaar, Rajnandgaon, Chhattisgarh., District :
   Rajnandgaon, Chhattisgarh
                                           ---- Respondents

CRMP No. 1685 of 2019  Chandra Kumar Jain S/o Nathmal Jain Aged About 58 Years R/o Durga Chowk, Killa Para, Rajnandgaon, Chhattisgarh.............(Complaint), District : Rajnandgaon, Chhattisgarh

---- Petitioner Versus

1. State Of Chhattisgarh Through Police Station Basantpur, District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh

2. Pankaj Parakh S/o Prakash Chand Parakh Aged About 45 Years R/o Chaukhadiya Para, Rajnandgaon, Tehsil And District- Rajnandgaon, Chhattisgarh...........(Accused), District : Rajnandgaon, Chhattisgarh

---- Respondents

CRMP No. 2223 of 2019  State Of Chhattisgarh Through Police Station Basantpur District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

---- Petitioner

Versus  Sunil Baradia S/o Dulichand Baradia Aged About 59 Years R/o Sadar Bazar, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

---- Respondent

CRMP No. 2224 of 2019  State Of Chhattisgarh Through Police Station Basantpur, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

---- Petitioner Versus  Pankaj Parakh S/o Prakash Chand Parakh, Aged About 45 Years R/o Choukhadiya Para, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

---- Respondent

For Petitioner : Shri Abhishek Sinha, Advocate along with Mr. Anumeh Shrivastava, Advocates in CRMP Nos.1686/2019 and 1685/2019.

For Respondent/State : Shri H.S. Ahaluwalia, Dy. A.G.

with Rakesh Sahu, Dy. G.A.

for the State.

For Respondents/accused : Shri Kishore Bhaduri, Advocate along with Shri Sabyasanchi Bhaduri in CRMP No.16862019, 1685/2019, 2223/2019 and 2224/2019.

Hon'ble Smt. Justice Rajani Dubey

CAV Order 25/06/2021

1. Since the aforesaid Criminal Miscellaneous Petitions

arise out of the same order, they are being disposed of

by this common order.

2. The petitioners have filed these petitions under Section

439(2) of the CrPC praying for cancellation of

anticipatory bail granted to respondent/accused namely

Sunil Baradia and Pankaj Parak by an order dated

18.06.2019 passed by the learned Sessions Judge,

Rajnandgaon (C.G.), in Bail Petition No.258/2019.

3. Briefly stated facts of the case are that an FIR under

Sections 306 and 201/34 IPC was registered at Police

Station Basantpur, District Rajnandgaon under Crime

No.151/2019 against the accused/respondents namely

Sunil Baradia and Pankaj Parakh, respondent No.2 in

CRMP No.1686/2019, CRMP No.1685/2019 and

respondent in CRMP Nos.2223/2019 and 2224/2019

respectively. As the accused/respondents were

apprehending their arrest in crime number, they had

moved an anticipatory bail application under Section

438 of Cr.P.C. before the learned Sessions Judge,

Rajnandgaon, which was registered as Bail Petition

No.258/2019. The petitioners in CRMP Nos.1686/2019,

1685/2019, 2223/2019 and 2224/2019 filed their

respective objection but the learned Sessions Judge

allowed the anticipatory bail application of

respondents/accused on 18.06.2019. Hence, these

petitions by the complainant and the State.

4. Learned counsel for the petitioner in CRMP

Nos.1686/2019 and 1685/2019 submits that the

impugned order is totally contrary to the settled

principles of law and equity and is based upon perverse

finding which has resulted in grave injustice to the

petitioner. The order passed by the learned Sessions

Judge suffers from serious infirmity of law and facts and

is patently illegal and contrary to the law. He further

submits that before Sessions Court,

accused/respondents namely Sunil Baradia and Pankaj

Parakh had filed anticipatory bail application, which was

registered as Bail Application No.237/2019, but for no

plausible reason the same was got dismissed as

withdrawn on 15.05.2019. The accused/respondents

Sunil Baradia and Pankaj Parakh, after a passage of

some time, on 03.06.2019, preferred a second

anticipatory Bail Application on the very same ground.

The petitioner had filed objection before the learned

Sessions Judge and had also preferred an application for

transfer of the bail petition to some other Court on the

ground that accused/respondents No.2-Sunil Baradia is

senior and active member of Lions Club and the learned

Sessions Judge had been a part of the functions

organized by them. As there were very thick chances for

accused to have interacted or to have access to

Sessions Judge, it would be in the interest of justice,

equity and good conscience, that the matter may be

heard by some other Judge.

5. He also submits that vide order dated 12.06.2019, the

learned Sessions Judge allowed the application of

transfer of bail petition mentioning that as there accrued

suspicion in the mind of objector, thus, this second bail

application is transferred to the Court of Additional

Sessions Judge (FTC), Rajnandgaon. But the learned

Additional Sessions Judge (FTC), vide order dated

17.06.2019, returned the file to the learned Sessions

Judge for further order with a note that due to some

unavoidable reason the disposal of the Bail Application is

not possible by him. On 17.06.2019, the next date of

hearing, the learned Sessions Judge instead of

transferring the matter to any of the available two other

Additional Judges, decided to proceed ahead with the

case and call upon the petitioner to satisfy on point of

his right to directly object the bail petition, but also

wrote that if the objector's counsel does not remain

present at 11.30 am on 18.06.2019, then it will be

presumed that they do not wish to argue on point of

review and, thereafter, hearing the petitioner's counsel

on bail application the orders may be passed.

6. He also submits that on 18.06.2019, the learned

Sessions Judge went ahead with the proceedings. The

learned Court below mentioned a baseless reason to

come to an inference that the bail application cannot be

transferred to remaining two Courts of Additional

Sessions Judges as they are juniors to the said Presiding

Officer of the FTC Court and the learned Sessions Judge

rejected the objections of the petitioner and allowed the

bail applications of accused/respondents. The flow

events categorically points towards the inclination of the

accused persons to get the matter listed before the

learned Sessions Judge only as there was no reason for

them to have withdrawn the first application on

15.05.2019, when the learned Sessions Judge was going

on vacation and preferred second bail application on

03.06.2019 only when the learned Judge resumed office.

Learned counsel next submits that the petitioner in the

light of the material available with him showing a chance

of personal and mellow relationship between

respondents No.2-Sunil Baradia and the learned judge

through the functions of the Lion's Club, was justified in

his own right to have bonafidely preferred the transfer

application, which even the learned Sessions Judge

appreciating on the first round had allowed it, perhaps

keeping the larger interest of justice in mind under the

principle that justice should not only be done but also

appear to be done. Hence, taking a contrary view, with

no changed circumstances, on the second round of

litigation was highly unjustified.

7. Learned counsel also submits that the learned Sessions

Judge also failed to appreciate that there were two other

additional Judges with equal judicial powers and

jurisdiction to entertain the bail petition, to whom the

bail application can be transferred, but the learned

Sessions Judge refrained himself from transferring the

bail application to any of those two Additional Sessions

Judges by a baseless and unacceptable ground that

those two Additional Sessions Judges are junior to the

presiding officer of the said FTC Court.

8. It is next submitted that the wife of petitioner hanged

herself and committed suicide and the petitioner filed

report against accused/respondent Sunil Baradia and

Pankaj Parakh because the very same day, the deceased

went to accused/respondent's office and immediately

after returning from his office, she hanged herself, but

the learned Sessions Judge has failed to appreciate that

present case was a clear case of abetment of suicide in

the light of immediate provocation by mental and

physical harassment/cruelty at the hands of the accused

persons, in their office. Hence, it would be arbitrary to

say that, a gap of 2 to 3 hours was sufficient delay to put

the accused out of the ambit of the alleged offence. It is

also submitted that the learned Sessions Judge has

wrongly taking the time 18:15 hours as time of

committing suicide, whereas it is infact the time when

the family came to know about it. This possibility cannot

be ruled out that the suicide was committed

immediately after the petitioner went to sleep at about

16:00-16:15 hrs. The learned Sessions Judge ought to

have appreciated the rampant cases of suicide and other

related offences arising out of the illegal business of

money lending, in which the accused persons were

involved in. This allowing of the bail application would

send a motivating message to all such offenders who

never lose any opportunity to defraud unsuspecting

victims like that of the deceased.

9. It is also submitted that the defence of

accused/respondents - Sunil Baradia and Pankaj Parakh,

as reflected in the impugned order, that respondent No.2

Sunil Baradia had no financial dealing with the deceased

is baseless and completely false. Accused/Respondent

No.2 has given a receipt of Rs.2,36,50,000/- on

17.01.2019 in the name of daughter of the deceased

which was seized by police after the sad demise of

deceased. Learned counsel for the petitioner also

submits that the deceased has led a very happy and

successful married life for more than 34 years and the

relationship between the deceased and her husband

have been very harmonious. They have a son and a

daughter. Son is a Class-I Officer in Indian Railway and

daughter is a known presenter and show anchor

presently working in Qatar. The deceased was also

blessed with a two grandsons and a recently born grand

daughter. She had all the reasons of satisfaction and

happiness from the family front. There were no issues

from family side of the deceased, as opposed to the

pleadings made by the accused persons, and she had all

the reasons to look forward to her life but for the

continuous harassment and fraud by the accused

persons, but the learned Sessions Judge did not

appreciate these aspects of the matter and written a bail

order like a judgment and appreciated the defence of

accused persons and granted anticipatory bail.

10. In support of his argument, learned counsel for the

petitioner placed reliance on the decisions of Hon'ble

Apex Court in the matter of Bhima Bhai Bharwad Vs.

State of Gujrat reported in AIR Online 2019 SC 734,

Kanwar Singh Meena V. State of Rajasthan reported

in AIR 2013 SC 296, Anil Kumar Yadav Vs. State of

NCT Delhi reported in AIR 2017 SC 5398, C.B.I. Vs.

Vijay Sai Reddy reported in 1993 CriLJ 2274, Ku.

Anju Khatri Vs. Gyanchand and Ors reported in

1994 CriLJ 2274, Gurcharan Singh & Ors Vs. State

(Delhi Administration) reported in 1978 AIR 179,

Satish Jaggi Vs. State of Chhattisgarh reported in

(2007) 11 SCC 195, The State of Orissa Vs.

Mahimananda Mishra reported in AIR 2019 SC 302,

decisions of High Court of Madhya Pradesh in the matter

of Imratlal Vishwakarma and Ors. Vs. State of

Madhya Pradesh reported in 1996(0) MPLJ 662 and

decisions of this Court in the matter of Gyanchand

Agarwal @ Gyani Vs. State of CG passed in MCRC

No.2528/2006, Dharmendra @ Golu Vs. State of

C.G. passed in MCRC No.6053/2017.

11. Learned counsel for the State/petitioner in CRMP Nos.

2223/2019 and 2224/2019 submits that the whole

incident took place in the office of accused/respondents

Sunil Baradia and Pankaj Parakh, which is at first floor of

the building, and further the office of the respondents is

under surveillance of CCTV camera. Hence, to collect

more evidence regarding the incident, a notice was

issued under Section 91 of Cr.P.C to the

respondent/accused vide notice dated 21.06.2019. In

reply to the notice, the respondent/accused had clearly

admitted that the footage of CCTV camera has been

burned and further denied to provide the register

maintained in their office regarding transaction occurred

between the respondents and deceased. This very fact

shows that the accused/respondents had tempered with

the evidence of crime after granting anticipatory bail by

the trial Court. Hence, considering these facts and

circumstances of the case, the anticipatory bail granted

by the trial Court may be cancelled.

12. Learned counsel for accused/respondents namely Sunil

Baradia and Pankaj Parakh in all cases supported the

impugned order of granting anticipatory bail. Learned

counsel for accused/respondents Sunil Baradia and

Pankaj Parakh submits that 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

differently under Section 439 (2) of Cr.P.C. Very cogent

and overwhelming circumstances are necessary for

passing an order directing the cancellation of the bail,

already granted. The Hon'ble Apex Court has time and

again reiterated that broadly the grounds for

cancellation of bail 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. Learned counsel for

accused/respondents has pointed out principles for the

cancellation of bail laid down by the Hon'ble Supreme

Court, which reads thus:-

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 any witness 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. viii. It is also well settled that even if two views are possible, once the bail has been granted, it should not be cancelled.

13. Learned counsel for accused/respondents further

submits that 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 but unless the petitioner has not pleaded

any supervening circumstances that have occurred after

the grant of bail vide the impugned order. The petitioner

has submitted incorrect and misleading facts before the

Court, which was denied by the accused/respondents.

14. Learned counsel also submits that accused/respondent

Sunil Baradia runs a Financial Company styled as

'Dhanesh Finance' situated at Sadar Bazar,

Rajnandgaon, where accused/respondent Pankaj Parakh

also works as an Accountant. The deceased had not

invested/deposited any money with the 'Dhanesh

Finance'. Thus, there was no financial relationship

between the deceased and the finance company of

accused/respondent. In-fact, it is the daughter and son-

in-law of deceased who had deposited money with this

company but the accused/respondents had returned the

amount of Rs.37,00,000/- to her in the month of March-

April 2019 itself. The daughter of deceased, in her

statement under Section 161 CrPC, herself has accepted

that she and her husband Rahul Jain had

deposited/invested an amount of Rs.30,00,000/- each

and she has received the deposited amount along with

interest from the respondents. Prior to this complaint,

respondents had filed written complaint against the

deceased on 25.03.2019 that she had been forcibly

entering the house and office of accused/respondents

and was quarreling and constantly harassing the

accused/respondents Sunil Baradia and Pankaj Parakh to

return the money by sitting in the office for hours and

disturbing the staff of office. With intent to falsely make

out a case against the accused/respondents, the son of

complainant handed over a typed letter on the next day

of the incident i.e. on 03.05.2019 to the Investigating

Officer, from the examination of which it seems that the

same has been drafted as an afterthought, after taking

legal advice from someone since deceased was a house

wife, and it is doubtful that the letter could have been

drafter/written by her.

15. Learned counsel for accused/respondents also submits

that on the basis of FIR, the criminal proceedings were

initiated and during the course of investigation, the

Investigating officer did not find any suicide note/dying

declaration of the deceased where-from it could be held

the accused persons accountable for her death. The

criminal proceedings were initiated against the accused

persons only on the basis of written complaint filed by

husband of the deceased. Further, the allegation of

tempering of CCTV footage or hard disk are baseless and

there is no evidence to show that the same has been

done by the accused/respondents. Moreover, the seizure

report shows that CCTV set up box was seized by the

police. The order passed by the learned Sessions Judge

is proper. The FIR has been solely registered in

accordance with the written complaint of the husband of

deceased and it is pertinent to mention that the same

has not been corroborated by any dying declaration. The

learned Sessions Judge has categorically recorded in its

order dated 18.06.2019 that on the objection raised by

the petitioner, the anticipatory bail application filed by

accused/respondent was transferred to Fast Track Court

but the Presiding Officer of the Court did not hear and,

thereafter, the bail application was sent to the original

Court. The learned Sessions Judge, after taking into

consideration the objection raised by the petitioner, has

observed that since the Presiding Officer of the FTC, who

was a senior judicial officer, did not hear the anticipatory

bail application of the accused/respondents and that is

why the other two Additional Sessions Judges, who are

junior to the learned Judge of the FTC, cannot hear the

said bail application and the said application was heard

by the learned Sessions Judge only.

16. Learned counsel also submits that apart from all these

allegations there were no acts or utterances on the part

of the accused/respondents that it would amount to

instigation or abetment of suicide on the part of

accused/respondents. In the present facts and

circumstances of the case, there is absence of mens rea

on the part of the accused to incite the deceased to

commit suicide. It is next submitted that under Section

306 IPC, establishment and attribution of mens rea, on

the part of the accused, which caused him to incite the

deceased to commit suicide is of great importance. The

cruelty shown towards the deceased in such cases, must

be of such magnitude that it would in all likelihood, drive

the deceased to commit suicide. The utterances of a

few harsh words on one occasion does not amount to

harassment/cruelty of such intensity that it may be

termed as abetment to commit suicide. As per

complaint, the complainant was resting at home for

entire time till the evening. Sister of deceased came to

the house of deceased on or around 6.30 pm and after

meeting mother-in-law of deceased started searching for

her sister and found the body of deceased lying on the

stairs with cloth tied around her neck. From the

examination of complaint, FIR, Statements, etc, it is

evident that the deceased did not commit suicide right

after coming from the office of accused Sunil Baradia.

The learned Single Judge is not wrong in holding that a

gap of 3 to 4 hours is sufficient a delay to put the

respondent out of the ambit of alleged offence. The

husband of deceased was present at home the entire

day from 2.30 pm in the afternoon but had no clue that

his wife had committed suicide and as per his statement

he came into knowledge of his wife's suicide only in the

evening when the sister of deceased came home around

6.30 pm, which creates a doubt and suspicion not taken

on record by the petitioner.

17. He also submits that in the facts and circumstance of the

present case, the grant of anticipatory bail to the

accused/respondents Sunil Baradia and Pankaj Parakh is

totally sustainable because no ingredients of offence

under Section 306 IPC can be made out against the

accused/respondents. Even assuming harsh words in a

fit of anger against the deceased shall not earn the

status of abetment. It is trite law that words uttered on

the spur of the moment or in a quarrel, without

something more cannot be taken to have been uttered

with mens rea. The onus is on the prosecution to show

the circumstances, which compelled the deceased to

take an extreme step to bring an end to her life.

18. Learned counsel for the accused/respondents also added

that in the present case, charge sheet has been filed on

06.07.2019, perusal of which, shows that no direct or

indirect evidence can be meted out against the

accused/respondents. In the facts and circumstances of

the case, no offence can be made out against the

accused/respondents under Section 306 IPC. Even if the

allegation made out in the FIR/charge sheet are taken on

its face value and accepted in entirety, the same do not

prima-facie constitute any offence against the accused.

19. In support of his argument, learned State counsel placed

reliance on the decisions of Hon'ble Supreme Court in

the matter of Ranjit Thakur V. Union of India

reported in (1987) 4 SCC 611 : 1988 SCC (L&S) 1,

Kanwar Singh Meena V. State of Rajasthan reported

in (2012) 12 SCC 180 and Nira Radia V. Sheeraj

Singh reported in (2006) 9 SCC 760 : (2006) 3 SCC

(Cri) 397.

20. I have heard learned counsel for the parties and perused

the material available on record.

21. The question which falls for consideration, in order to

invoke the jurisdiction of this Court in entertaining the

present application under Section 439(2) of the Cr.P.C., is

whether the petitioner has prima-facie made out any

ground for cancellation of bail under Section 439(2) of

the Cr.P.C.. Section 439 Cr.P.C. confers concurrent

jurisdiction on the Court of Sessions and the High Court.

For facility of reference, Section 439 Cr.P.C., is

reproduced herein-under :-

"439. Special powers of High Court or Court

of Session regarding bail.---

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or

modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

1[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.]

2[(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).]

(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."

22. The petitioner has filed order-sheets of anticipatory bail

proceedings of the Court below, which clearly goes to

show that on 03.06.2019 the accused/respondents filed

bail petition before the Special Court and, on the next

date of hearing i.e. on 04.06.2019, the counsel for

objector raised his objection and gave copy of objection

to accused/respondent's counsel. On 11.06.2019, for the

reasons mentioned in the objection, a detailed order

with regard to transfer of bail petition was passed by

Sessions Judge, Rajnandgaon, and the same was

transferred to the Court of Additional Sessions Judge

(F.T.C.), Rajnandgaon. Thereafter, on 12.06.2019 and

14.06.2019, the learned Additional Sessions Judge

(F.T.C.), Rajnandgaon, ordered for case diary and on

17.06.2019 an order was passed, which reads thus:-

"vifjgk;Z dkj.kksa ls mDr tekur vkosnu i= dk fujkdj.k fd;k

tkuk esjs }kjk laHko ugha gksus ds dkj.k ;g tekur izi= vfxze dk;Zokgh okcr ekuuh; ftyk ,oa l= U;k;k/kh'k dks lknj

izfrizsf"kr fd;k tkrk gS "

23. On 17.06.2019, again the case was put-up before the

Court of Sessions Judge, and again objection was raised

by the objector and it was ordered, which reads thus:-

"pwafd nksuksa vkifRrdRkkZ ds vf/koDrk ds vuxZy cgl ,oa vuxZy

vkjksi dks ns[krs gq;s bl eqn~ns ij fopkj fd;k tkuk gksxk fd D;k vkifRrdrkZ ds vf/koDrk o vkifRrdrkZ dks lh/ks rkSj ij is'k tekur ;kfpdk dk fojks/k djus dks vf/kdkfjrk gS vFkok ughA bl eqn~ns ij dy fnukad dks vkifRrdrkZ ds vf/koDrk Jh frokjh ,oa Jh ds- ds- flag nksuksa 11%30 cts cgl djsaxsA ;fn muds }kjk fu/kkZfjr le; ij cgl u fd;k tkrk gS rks bl n'kk esa ;g eku fy;k tkrk tk;sxk fd mDr fjO;w ij os cgl ugh djuk pkgrsA ,slh n'kk esa vkosnd dh vksj ls is'k tekur ;kfpdk ij vkosnd ds vf/koDrk dks lquk tkdj vkns'k ikfjr

fd;k tk ldsxkA"

24. Thereafter, the case was fixed for argument on

18.06.2019 and the impugned order granting

anticipatory bail was passed. In initial paras of the

impugned order, the learned Sessions Judge mentioned

the objections so raised by learned counsel for the

objector and gave its finding, which is reproduced

herein-under:-

"bl U;k;ky; }kjk iwoZ esa lquokbZ ds nkSjku vkifRrdrkZ dh

vkifRr ij vkosndx.k dh tekur ;kfpdk dks fujkdj.k gsrq ,Q- Vh-lh- U;k;ky; esa varfjr fd;k x;k FkkA fdUrq ,Q-Vh-lh- U;k;ky; ds ihBklhu vf/kdkjh }kjk vkosndx.k dh tekur ;kfpdk dh lquokbZ ugha dh tkdj vkosndx.k dh tekur

;kfpdk ewyr% bl U;k;ky; dks okil dj fn;k x;k gSA "

"pwafd ,Q-Vh-lh- U;k;ky; ds ihBklhu vf/kdkjh tks ofj"B

U;kf;d vf/kdkjh gS] mUgksaus vkosndx.k dh tekur ;kfpdk ij dksbZ lquokbZ ugha fd;k gS vkSj bl U;k;ky; dks tekur ;kfpdk ewyr% okil dj fn;k gSA blfy, izFke o f}rh; vij l= U;k;ky; ds ihBklhu vf/kdkjh tks ,Q-Vh-lh- U;k;ky; ds ihBklhu vf/kdkjh ls dfu"B U;kf;d vf/kdkjh gS] muds }kjk bl

tekur ;kfpdk dks ugha lquk tk ldsxkA"

25. The contention of learned counsel for the petitioner in

CRMP No.1686/2019 and 1685/2019 is that once the

case was transferred to the Court of Additional Sessions

Judge on their objections, then the learned Sessions

Judge ought not to have heard the petition and pass any

order in that regard. The main objection of learned

counsel for the objector before the Court below was that

the learned Sessions Judge and respondents/accused

have some family relation. They have filed newspaper

cutting of public function in which the learned Sessions

Judge and members of Lions Club (accused) are clearly

seen. In this regard, the petitioner has filed one more

document that a departmental inquiry was also initiated

against the learned Sessions Judge. Therefore, looking

to the aforementioned suppression and

misrepresentation of facts, order of granting bail may be

cancelled in exercise of the jurisdiction conferred under

Section 439(2) of the Cr.P.C.

26. The Hon'ble Supreme Court, in the matter of Abdul

Basit alias Raju and others Vs. Mohd. Abdul Kadir

Choudhary and another reported in (2014) 10 SCC

754, has 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 its 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, which reads thus:-

"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 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 its 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

petitioner-accused. 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 accused-

petitioners 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 required to

be set aside."

27. Further, on the issue with regard to rejection of bail and

cancellation of bail already granted, the Hon'ble

Supreme Court, in the matter of Dolat Ram and others

Vs. State of Haryana reported in (1995) 1 SCC 349,

has held in para 4, which reads 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

dealth 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. These principles, it

appears, were lost sight of by the High Court

when it decided to cancel the bail, already

granted. The High Court it appears to us

overlooked the distinction of the factors

relevant for rejecting bail in a non-bailable

case in the first instance and the

cancellation of bail already granted.

28. 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 to the accused persons namely Sunil

Baradia and Pankaj Parakh on the ground that there is

mellow family relationship between the learned Sessions

Judge and the accused persons & the accused persons

have tempered with and destroyed the evidence of

crime after getting anticipatory bail by the trial Court.

29. It is clear from order sheets that this case was discussed

under Section 306 of IPC. It cannot be presumed only on

the basis of objector's suspicion that the accused

persons are interfering with the administration of justice.

It is clear from the order sheet that the Objector

(petitioners) threatened the Sessions Judge that if the

Court hears the bail application, they will make

complaint. The relevant part of the order sheet is

reproduced below, which reads thus:-

"izdj.k esa vkifRrdrkZ ds vf/koDrkx.k }kjk ;g tksj nsdj cgl

fd;k x;k fd bl U;k;ky; }kjk vkosndx.k dh tekur ;kfpdk

dh lquokbZ ugha dh tk ldrh gS] D;ksafd bl U;k;ky; }kjk iwoZ

esa tekur ;kfpdk dks ,Q-Vh-lh- U;k;ky; esa varfjr dj fn;k

x;k FkkA mDr vkns'k dks ;g U;k;ky; Lo;a fjO;w ugha dj ldrh

gSA blfy, nksuksa tekur ;kfpdkvksa dks izFke ;k f}rh; vfr- l=

U;k;k/kh'k] jktuanxkao ds le{k varfjr fd;s tkus ij tksj fn;k

x;kA bl U;k;ky; }kjk tekur ;kfpdk dh lquokbZ fd;s tkus

ij] mUgsa ?kksj vkifRr gS o lquokbZ fd;s tkus ij f'kdk;r gksxh"

30. The Hon'ble Supreme Court in the matter of Hazari Lal

Das Vs. State of West Bengal and Another reported

in (2009) 10 SCC 652 held in para 7, which reads thus:-

"7. There is nothing on record that there

has been interference or attempt to interfere

with the due course of administration of justice

by the appellant. It also does not appear from

the record that the concession granted to him

has been abused in any manner. No

supervening circumstances have surfaced nor

shown justifying cancellation of anticipatory

bail. The judicial discretion exercised by the

Sessions Judge in granting the anticipatory bail

has been interfered with by the High Court in

the absence of cogent and convincing

circumstances. We are, thus, satisfied that the

impugned order cannot be sustained."

31. As regards submission of learned counsel for the State

that the accused would try to destroy evidence of the

case and threaten the witnesses, this Court finds that at

present the investigation has been completed and

charge sheet has been filed. The learned Sessions Judge

in his detailed order has discussed each and every

aspect of the case, which was available at that time in

the case diary. This Court does not find gross

misrepresentation of facts and in no way it appears that

the Sessions Court was misled.

32. Applying the statement of law by their Lordships of

Hon'ble Supreme Court in Hazari (Supra), there is no

scope or jurisdiction of this Court, as such alleged

illegality or perversity cannot be determined by this

Court in application of bail under Section 439 (2) of

Cr.P.C.

33. For the foregoing reasons, this Court finds that the order

of the Sessions Court allowing the bail application

cannot be faulted with. Moreover, no supervening

circumstance has been made out so as to warrant

interference by this Court in cancellation of the bail.

There is no cogent material to indicate that the accused

persons have been guilty of conduct which would

warrant them being deprive of their liberty.

34. In the result, the aforesaid petitions filed under Section

439 (2) of Cr.P.C. are hereby dismissed.

Sd/-

(Rajani Dubey) JUDGE PKD