Sh. Rajinder Jaipuria S/O Late Shr ... vs State And Sh. Manish Bindal S/O ...
2002 Latest Caselaw 1172 Del

JUDGMENT

V.S. Aggarwal, J.

1. Rajinder Jaipuria, hereinafter described as the petitioner, has filed the present petition under Sub-section (2) to Section 439 read with Section 482 of the Code of Criminal Procedure seeking cancellation of the bail order of 29th January, 2002 granted to respondent no.1 by the learned Additional Chief Metropolitan Magistrate.

2. The learned Additional Chief Metropolitan Magistrate disposed of the application of respondent no.2 and admitted him to bail. On 17th January, 2002 the learned Metropolitan Magistrate admitted the respondent no.2 to interim bail for a period of seven days subject to furnishing personal bond to a sum of Rs. 1 lakh each with the condition to pay Rs.2,60,000/- to the petitioner. The said order was confirmed on 29th January, 200. The first information report has been registered against respondent no.2 with respect to an offence punishable under Section 406/409 read with Section 120B of the Indian Penal Code.

3. The grievance of the petitioner in this regard is that keeping in view the nature of the offence, the gravity thereto and the huge amount that is involved, the learned Metropolitan Magistrate was not justified in admitting respondent no.2 to bail. Learned counsel for the petitioner even had drawn the attention of the court the certain documents to urge that some of the facts pertaining to the alleged amounts being involved which are stated to have been embezzled are admitted.

4. So far as the alleged admission, if any, are concerned, indeed it will not be proper for this court to express any opinion at this stage because that would be pre-judging the matter in question at the threshold.

5. The principle as to under the circumstances bail once granted to an accused can be cancelled is not subject matter of much controversy. In the case State v. Sanjay Gandhi the Supreme Court categorically and in unambiguous terms stated that rejection of bail is one thing and cancellation of bail already granted is quite another. It was held that certain basic conditions must be satisfied before the earlier order granting bail is reviewed. In paragraph 13 the Supreme Court observed:

"Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large 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....."

Thereafter the Supreme Court went on further to lay down certain principles. In paragraph 24 it was held:

"Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process. We might as well wind up the courts and bolt their doors against all than permit a few to ensure that justice shall not be done."

6. A Division Bench of Calcutta High Court in the case of Bhola Nath Das v. State of Anr. 1991 Crl. Law Journal 1422 1422 also had considered the same controversy. In the facts of that case it was taken note of the consideration that when there is no material before the court that there is a strong prima facie case that if the accused were allowed to be at large they would tamper with prosecution evidence and impede course of justice the bail once granted should not be granted. Liberty of a person even if he is an accused of a henious crime cannot be taken away lightly. In another decision rendered by the Supreme Court in the case of Aslam Babalal Desai v. State of Maharashtra 1992 Crl. L.J. 3712 the said principles had again been gone into. It was held that grounds for cancellation could be:

".....(1) 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 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. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to."

7. Learned counsel for the petitioner had further relied upon the decision of the Supreme Court in Puran etc. v. Rambilas and Anr. etc. 2001 IV AD (SC) 344 344. The Supreme Court held that if on the face of it the order passed is erroneous or perverse, the bail once granted can be cancelled. It was held:

"..... One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also required that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected."

8. Reliance further was placed on a decision of this court in the case of Nafees Ahmad Siddiqui and Anr. v. The State of Delhi and Ors. 1999 (2) JCC (Delhi) 448. This court held that Sub-section (2) to Section 429 would be attracted after an accused has been released on bail and some supervening circumstances has arisen after the bail is granted. In that particular this court held that discretion had not been exercised properly and bail granted had been cancelled.

9. In other words, one can conveniently state that grant of bail is a wise exercise of judicial power. It has not to be used in temperate manner. Whatever may be the discretion it has always to be exercised in an appropriate manner keeping in view the facts and circumstances. The sum of the circumstances enumerated by the Supreme Court have already been reproduced above. Without being exhaustive it can be stated briefly that if the order is basically perverse, Illegal and there is no proper exercise of discretion the bail once granted can be cancelled. In addition to that if there is any supervening circumstance after grant of bail the court would be well within its power to withdraw the concession that has been granted.

10. In the present case much stress has been laid by the learned counsel for the petitioner on the correctness of the order and the enormity of the offence keeping in view the amount involved. As already pointed above with respect to certain admissions purported to have been made is concerned, at this stage detailed reference purposely is not made. The respondent no.2 has already been enlarged on bail. There is indeed no material to show that he has misused the concession, he is in any way interfering in the process of law or trying to tamper with the evidence. In that view of the matter once the learned Metropolitan Magistrate had awarded the concession of bail this court deems ti unnecessary to withdraw the same and consequently the petition being without merit must fail and is dismissed.