Anil Kumar Bansal vs State
2011 Latest Caselaw 3078 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                                  Crl. Rev. P. No.350/2010


                                             Date of Decision : 04.07.2011

Anil Kumar Bansal                                           ......Petitioner
                                        Through:      Mr. Atul Kumar Sharma,
                                                      Advocate
                                         Versus

State                                                      ...... Respondent
                                        Through:      Mr. Naveen Sharma, APP
                                                      for the State.
                                                      Mr.Praveen      Mahajan,
                                                      Adv. for the Complainant.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                               YES
2.      To be referred to the Reporter or not ?                    YES
3.      Whether the judgment should be reported
        in the Digest ?                                            YES

V.K. SHALI, J.

1. This is a Revision Petition filed by the petitioner,

challenging the order dated 03.07.2010, passed by

Sh.Girish Kathpalia, learned Additional Sessions Judge,

cancelling the bail of the petitioner, granted by the learned

Magistrate in respect of FIR Nos.02/2007 and 53/2009 of

P.S. Gulabi Bagh, registered under sections 420/468/471

IPC.

2. Briefly stated, the facts of the present case are that FIR

No.02/2007 was registered against the petitioner on the

basis of a complaint made by his mother Shanti Devi

Bansal, alleging that the petitioner has fabricated

seals/stamps of Notary public and fraudulently induced

her to sign some documents with a view to transfer one half

share in property No.29, Rama Park, Delhi, constructed on

a piece of land measuring 217.5 sq. yards, which was

bequeathed to her by her husband. As a consequence of

this, it was shown by the petitioner, to have purchased the

said share of her mother. Accordingly, a case under

Sections 420 for cheating, 468 for forging documents and

471 IPC, for using fabricated document as genuine, was

registered against the present petitioner.

3. Similar offence was registered vide case FIR No.53/2009 on

the basis of a complaint made by one Mr.R.K. Khatri

(recorded as DK at various places), Advocate and Notary

public that it was his stamps/seals and signatures, which

were used by the present petitioner for the purpose of

transacting the property, which belonged to his mother in

respect of which earlier FIR was registered.

4. The petitioner had filed anticipatory bail application not

only in the Court of Sessions but also in the High Court as

well as in the Supreme Court, which was rejected on

10.12.2009, 31.12.2009 and 29.01.2010 respectively.

5. Since the petitioner was neither arrested nor surrendered,

the investigating agency initiated proceedings under section

82 Cr.PC. The present petitioner, left with no option,

surrendered before the learned Magistrate on 02.02.2010

and thereafter applied for regular bail before the learned

Magistrate. The said bail application was dismissed on

06.02.2010. Second bail application by the petitioner before

the learned Additional Sessions Judge also did not bring

any fruitful result and was rejected on 20.02.2010. Still not

feeling satisfied, the petitioner is purported to have filed

another bail application before the learned Additional

Sessions Judge, which was dismissed as withdrawn on

09.03.2010.

6. On 10.03.2010, the petitioner applied to the learned

Magistrate for grant of bail in respect of FIR No.53/2009

and he was enlarged on bail. Similar bail order was passed

by the learned Magistrate in respect of the other FIR

bearing No.02/2007 on 15.03.2010 on the ground that the

documents, on the basis of which allegations of cheating

were made in both the cases, were the same.

7. It is these bail orders in respect of which three cancellation

applications were filed; one by the State and other two by

the complainants in the two respective FIRs. It is not

necessary to dwell on the details of these applications and

the number of the FIRs in which these applications were

filed, as a common order has been passed by the learned

Sessions Judge, in respect of these applications on

03.07.2010.

8. The ground for cancellation of bail, which has been

adverted to by the learned Sessions Judge is that there was

an arbitrary and improper exercise of discretion by the

learned Magistrate in granting bail to the present petitioner

in both these cases. The learned Sessions Judge had also

observed the factors, which were factually not correct, were

taken into consideration while enlarging the petitioner on

bail.

9. To elucidate this, the order of grant of bail passed by the

learned Magistrate, notes that the investigations of the case

are complete, while as it has been observed that at the time

when the bail orders in respect of two cases were passed,

the investigations were not complete and the charge sheets

were obviously not filed before the competent Court. The

learned Sessions Judge after referring to various

pronouncements of the Supreme Court, with regard to the

factors to be taken into consideration, while cancelling the

bail order, has observed that the bail in the instant case

has been granted to the petitioner on considerations, which

are arbitrary, bereft of factual support and without due

regard to the orders, rejecting the bail application of the

present petitioner earlier by the superior Courts. It is this

order passed by the learned Sessions Judge, which has

been assailed by the present petitioner before this Court, in

the present revision petition.

10. I have heard the learned counsel for the petitioner and the

learned APP for the State including the counsel for the

complainants. I have also gone through the record.

11. The main contention of the learned counsel for the

petitioner has been that once the bail is granted to the

present petitioner and he has not misused his liberty so as

to endanger the holding of a fair investigation or trial then

his bail ought not to have been cancelled.

12. It has been contended that the learned Sessions Judge has

grossly erred by referring to facts of the case and not taking

into consideration the fact that the petitioner had remained

in custody for sufficiently long period of time at the time

when the bail was granted to him. It was contended that

the learned Magistrate had mistakenly stated that the

petitioner remained in custody for 60 days while as the

petitioner had remained in custody for 38 days only

including four days of police remand, during which nothing

was recovered. Therefore, no infirmity could be found in the

orders passed by the learned Magistrate.

13. The learned counsel for the petitioner has copiously

referred various pronouncements of the Apex Court as well

as of the Delhi High Court in the petition, regarding the

question of cancellation of bail and circumstances in which

such a power ought to be invoked by the superior Court

although, no such judgment or a copy thereof has been

cited by the learned counsel for the petitioner but I have

gone through the said judgments referred to including the

judgments referred by the learned APP and the counsel for

the complainant.

14. The counsel for the complainants, on the other hand, has

contended that the order, which is impugned by the

present petitioner regarding cancellation of his bail is not a

routine case, where the bail is sought to be cancelled on

the ground that there is misuse of liberty by the petitioner

but the order is being assailed by the respondents on the

ground that the bail was granted in an arbitrary manner

without reference to the fact that earlier the bail application

of the petitioner was rejected not only by the learned

Magistrate but also by the Sessions Court and, therefore,

on the ground of judicial propriety, the learned Magistrate

ought not to have released the present petitioner on bail

without reference to the orders of the superior Court or at

least by showing a proper application of mind.

15. It may be pertinent here to mention that although this

submission may be correct with reference to order dated

10.03.2010 but it could not be said so, with regard to the

order dated 15.03.2010 because in the latter order the

learned Magistrate has referred to the Supreme Court

judgment cited by the Respondent No.2.

16. I have carefully considered the submissions made by the

learned counsel for the parties. I have also gone through

the impugned judgment.

17. The present petition has been admittedly filed by the

petitioner as a revision petition. An order granting bail is an

interlocutory order (Refer to Amar Nath Vs. State of

Haryana, AIR 1977 SC 2185). Similarly, an order refusing

bail or an order cancelling bail has been held to be an

interlocutory order. This is a view expressed by Orissa,

Allahabad and Andhra Pradesh High Courts. It may be

pertinent here to refer to a Division Bench judgment of the

Orissa High Court in Durga Prasad Sao Vs. State of Orissa,

1983 Cri LJ 1590, where the question as to whether the

order regarding granting, refusing or cancelling a bail are

interlocutory orders or not has been dealt with and it has

been held that all these orders are essentially interlocutory

orders. The reasons for holding this view is that the grant

or the cancellation of a bail does not determine the guilt or

the innocence of the accused nor does it terminate the trial

and conversely successive bail applications lie at the stage

of investigation or trial provided that there is a change in

circumstances or new facts are discovered. If that be so,

then on account of the statutory bar under Section 397 (2)

Cr.PC, it has been held that the orders granting, refusing or

cancelling the bail being interlocutory orders cannot be

subject matter of revision by the superior Courts.

18. I do not find any reasonable justification to hold contrary to

the view expressed by the Division Bench of the Orissa

High Court. The Apex Court in Kalyan Chandra Sarkar Vs.

Rajesh Ranjan @ Pappu Yadav & Anrs., AIR 2005 SC 921

has also observed that the principles of res judicata do not

apply to bail application meaning thereby successive bail

application can be filed. The only thing to be noted is that

there must be change in circumstances or new factors

ought to have come in operation. This is only to prevent the

abuse of the processes of law by trying to do forum

shopping what is called as bench hunting. It may also be

noted here that the Apex Court in Babu Singh Vs. State of

U.P., AIR 1978 SC 527, has also held that an order

refusing bail does not necessarily preclude another on a

later occasion giving more materials, further developments

and different considerations. The reason for this is that

interim direction is not conclusive adjudication. This

apart, the present Revision Petition in my considered

opinion is not maintainable against the impugned order

dated 03.07.2010, cancelling the bail of the petitioner as he

is free to file fresh bail applications before the same Court

or the Sessions Court in case there is a change in

circumstances.

19. Having said so, the Division Bench has also taken note of

the fact that rejection of a bail, when it is applied, is one

thing and the cancellation of a bail already granted is

another as has been held by the Apex Court in State

through the Delhi Administration Vs. Sanjay Gandhi, AIR

1978 SC 961. The cancellation of a bail necessarily involves

the supervening circumstances to be taken into

consideration or the conduct of the petitioner, who is

enlarged on bail as to whether his continuance on bail is

conducive to the fair trial or not. This is a view expressed

by the Apex Court in Kalyan Chandra's case also (supra),

which has been referred by the learned Sessions Judge.

20. Having said so, there is another aspect of the matter that

the bail can be cancelled under Section 439(2) not only on

account of the supervening factors or the conduct of the

accused but also on the ground that the order of grant of

bail passed by the Court below was an arbitrary order and

it had not taken into consideration the factors which were

germane for the grant of bail or that it had not taken into

consideration that the earlier bail applications of the

accused persons were rejected by the higher Courts.

21. So far as the facts of the present case is concerned, it is

admittedly not the case of the respondent No.2 or the

prosecution that the petitioner has misused his liberty or

that there are supervening circumstances, which warrant

the cancellation of the bail of the petitioner. The grievance

of respondent No.2 and the prosecution that the bail which

was granted to the petitioner on 10.03.2010 in one FIR and

on 15.03.2010 in the second FIR had been granted without

giving due consideration to the orders of the higher Courts,

rejecting his bail applications earlier. It was also observed

that it was on account of the fact that the learned

Magistrate had observed that the investigations of the case

were complete, which was factually incorrect, that the bail

was sought to be cancelled.

22. I have observed hereinabove that although the revision,

which is filed by the petitioner, is not maintainable on the

ground that the order of cancellation of bail passed on

03.07.2010 by the learned Sessions Judge is an

interlocutory order and, therefore, cannot be subjected to

revision under section 397 read with section 401 of the

Cr.PC. However, in order to satisfy the conscious of this

Court, in exercise of its power under Section 482 of Cr.PC, I

have gone through the impugned order and I find that there

is no infirmity in the order, which has been passed by the

learned Sessions Judge, warranting, holding of an opinion

different than the one, expressed by him. This is on

account of the fact that the learned Magistrate has shown

great haste in passing the orders regarding grant of bail

firstly on 10.03.2010, without taking note of the fact that

on 09.03.2010 the petitioner's application for bail had come

up before the learned Sessions Judge, which was dismissed

as withdrawn earlier. An application is dismissed as

withdrawn only when a party finds that its submissions are

not bringing the desired result as prayed for, by him.

Meaning thereby, as the Sessions Judge was not inclined to

enlarge the petitioner on bail, the petitioner was

constrained to withdraw the said bail application. Even

prior to this, on 20.02.2010, the learned Sessions Judge

had rejected the bail application of the petitioner and

similarly on 06.02.2010, the learned Magistrate had also

rejected the bail application of the petitioner and there did

not seem to be any change in circumstances except the

number of days of custody of the petitioner had got

increased. It was totally inappropriate on the part of the

learned Magistrate to observe that the petitioner was not

guilty of forgery as the signatures had been forged by one

Dinesh Dua though in the latter portion of the order, it has

been observed that Dinesh Dua had signed the documents

or put the signatures only at the instance of the petitioner.

Apart from this, the investigations of the case were not

complete as has been observed by the learned Magistrate.

The learned Magistrate has not shown in the first order,

that is, on 10.03.2010, that it had applied its mind to the

fact that two custodial bail applications of the petitioner

stood rejected earlier. I feel that the learned Magistrate

ought to have mentioned in the order that it had taken into

consideration the earlier rejection orders yet the discretion

was being exercised in favour of the petitioner. Therefore,

the order dated 10.03.2010, as observed by the learned

Sessions Judge, was undoubtedly an arbitrary and was

rightly set aside by him by cancelling the bail order of the

petitioner.

23. So far as the second order dated 15.03.2010 is concerned

that was also passed as a consequential order on account

of the order dated 10.03.2010 . However, in the latter order,

the learned Judge has referred to the judgment of the Apex

Court in Kalyan Chandra's case (supra) but it seems that

the learned Magistrate has not appreciated the

submissions made by the learned counsel for the

respondents.

24. I, accordingly, feel that the learned Sessions Judge has

rightly passed the impugned order and, there is no

infirmity in the same, which can be said to be an abuse of

the processes of law or warranting passing of any order

different than the one passed by him to further the interest

of justice.

25. Accordingly, the present petition of the petitioner is

dismissed. However, as there is a stay order in favour of the

petitioner against the impugned order, the stay order

stands vacated but the petitioner is given two days time to

surrender before the trial Court. Expression of any opinion

hereinbefore may not be treated as an expression on the

merits of the case to have an impact on any bail application

filed by the petitioner on a later date.

26. Dismissed.

V.K. SHALI, J.

July 04, 2011 ss