Gauhati High Court
Biswajit Saikia vs The State Of Assam on 6 August, 2022
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GAHC010146842022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./377/2022
BISWAJIT SAIKIA
S/O SRI MOHENDRA SAIKIA
R/O VILL- KAUPOTIA
UNDER GARAMUR P.S. IN THE DIST. OF MAJULI, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. B M CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
06.08.2022
Heard Shri BM Choudhury, learned counsel for the petitioner whereas the State is
represented by Shri D Das, learned Addl. PP, Assam.
2. By this application under Section 401 read with Section 397 of the Cr.PC, the
petitioner has put to challenge two orders of the learned Sessions Judge, Majuli in
Sessions Case No.74/2021.
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3. By the first order dated 21.06.2022, the bail bond of the petitioner was
cancelled and he was remanded to jail hajot. By the second order dated 06.07.2022
which was also passed in Sessions Case No.74/2021, the petition of the petitioner filed
under Section 311 Cr.PC for further cross-examination of PWs 2, 3 and 7 has been
rejected.
4. This Court vide order dated 28.07.2022 had issued notice. Subsequently, on
03.08.2022, this Court after consideration of the materials on record, had made an
observation that the judgment which was to be delivered on 08.08.2022 be deferred
for the time being.
5. The first issue concerning the rejection of the petition under Section 311 of the
Cr.PC by which further cross-examination of three numbers of PWs has been sought
for would require some deliberations. However, the other issue concerning cancellation
of the bail bond is required to be decided as the petitioner is languishing in jail after
cancellation of the bail bond.
6. Shri Choudhury, learned counsel for the petitioner has submitted that once the
bail was granted to the petitioner after application of mind, the same can be rejected
only on certain conditions, namely, abuse of the liberty granted either by way of
influencing the trial by tampering with the evidence, inducing or threatening of
witnesses and in any other manner which would have an influence in the trial.
Cancellation of bail cannot be on the mere apprehension that the petitioner is likely to
abscond as, such apprehension was already taken into consideration at the time of
grant of bail. In this regard, Shri Choudhury, learned counsel has relied upon a
decision in the case of State (Delhi Administration) Vs. Sanjay Gandhi , reported in
(1978) 2 SCC 411 wherein the Hon'ble Supreme Court has carved out the distinction
between the rejection of bail and cancellation of bail. Reliance has also been placed in
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the case of Sanjay Dutt Vs. State though CBI, Bombay, reported in (1994) 5 SCC
410 wherein, similar observations have been made.
7. Shri D Das, learned Addl. PP submits that reasons have been cited for cancelling
the bail bond and this Court may not go into the sufficiency of the reasons as, it is
within the realm of the Trial Judge. He, however, submits that on principle,
cancellation of a bail already granted is to be on specific materials with regard to the
misuse of the liberty granted.
8. A perusal of the impugned order dated 21.06.2022 does not reveal that any
such materials were either brought to the notice of the learned Trial Judge or suo
moto taken up. The only reason for cancellation appears to be the chance of
absconding which is mere speculation and if that be the case, the entire concept of
bail would be obliterated.
9. In the case of Sanjay Gandhi (supra), the Hon'ble Supreme Court in paragraph
13 has held as follows:
"13. 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 or supervening circumstances, it would be no longer conducive to a fair trial to
allow the accused to retain his freedom during the
trial.................................................."
10. In the case of Sanjay Dutt (supra), the Hon'ble Supreme Court in paragraph 8
has made the following observations:
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"8. It is, therefore, clear that when a person to whom bail has been granted either
tries to interfere with the course of justice or attempts to tamper with evidence or
witnesses or threatens witnesses or indulges in similar activities which would hamper
smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on
one footing, but cancellation of bail is a harsh order because it takes away the liberty
of an individual granted and is not to be lightly resorted to."
11. In view of the above, the order dated 21.06.2022 is, accordingly interfered with
and set aside. Consequently, the petitioner be released on bail on the same conditions
which were imposed at the time of grant of bail on the previous occasion.
12. As regards, the validity of the order dated 06.07.2022, the learned counsel for
the parties have submitted that the issue would require some deliberations and
accordingly, the date for such deliberation is fixed on 18.08.2022.
13. However, to keep the issue alive, the direction of this Court made on 03.08.2022
to defer the judgment which is scheduled to be delivered on 08.08.2022 stands
extended till the next date fixed i.e., 18.08.2022.
JUDGE
Comparing Assistant
