Mohd. Jilani vs The State Of Madhya Pradesh
2022 Latest Caselaw 5892 MP

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                                                             M.Cr.C. No. 58115 of 2021

           IN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                             BEFORE
             HON'BLE SHRI JUSTICE VISHAL DHAGAT
                    ON THE 22 OF APRIL, 2022
              MISC. CRIMINAL CASE No. 58115 of 2021
       Between:-
       MOHD. JILANI S/O SHRI MOHD.
       MAJID, AGED ABOUT 38 YEARS,
       OCCUPATION: PRIVATE WORK, R/o
       PALIYA     350,    P.S.   RAIPUR
       KARCHULIYAN      DISTT.     REWA
       (MADHYA PRADESH).
                                                 .....APPLICANT
       (NOTICEE SURESH PATEL BY SHRI SHREYASH PANDIT,
       ADVOCATE AND APPLICANT MOHD. JILANI BY SHRI
       RAJEEV KUMAR PATHAK, ADVOCATE)

       AND

       THE STATE OF MADHYA PRADESH
       THR. P.S. RAIPUR KARCHULIAN
       REWA (MADHYA PRADESH)
                                                                      .....RESPONDENT
        (BY SHRI K.S. BAGHEL, GOVERNMENT ADVOCATE)
----------------------------------------------------------------------------------------------
       This application coming on for hearing this day, the court passed the
following:
                                         ORDER

1. Applicant Mohd. Jilani filed second bail application under Section 439 of Code of Criminal Procedure in connection with Crime No. 70/2021, registered at Police Station Raipur Karchuliyan, District Rewa (M.P.) for

M.Cr.C. No. 58115 of 2021

offence under Sections 8/20-B, 21 and 22 of N.D.P.S. Act and Section 5/13 M.P. Drugs Control Act.

2. Applicant Mohd. Jilani had filed bail application on ground that co- accused in the case namely Suresh Patel has been enlarged on bail. Case of applicant is identical to that of co-accused Suresh Patel, therefore, he may be released on bail. First bail application filed by applicant Mohd. Jilani was dismissed vide order dated 26.07.2021. Thereafter, his second bail application was also dismissed vide order dated 14.01.2022 and notices were issued to co-accused in the case namely Suresh Patel for cancellation of his bail granted vide order dated 18.08.2021 in M.Cr.C. No. 37231/2021.

3. Notices were issued to applicant for cancellation of bail because bail was granted to him on ground that he was made accused on basis of memorandum of co-accused in case and no recovery or other incriminating material is available against him. While hearing bail application of co-accused Mohd. Jilani, it came to light that 1.800 Kg of ganja and 49 bottles of Onrex cough syrup having codeine as ingredient was seized from Suresh Patel and Mohd. Jilani.

4. After receipt of notice, Suresh Patel filed reply to notice for cancellation of bail and it was stated therein that there is no misrepresentation on his part. In para 5.1 of his bail application, it is specifically stated that police had seized 1.800 Kg ganja and 49 bottles of Onrex cough syrup from possession of applicant. It is further submitted that co-accused in the case namely Gopi Prasad Upadhyay has also been released on bail.

5. Counsel appearing for noticee relied on para 13 and 24 of the judgment reported in AIR 1978 SC 961, Delhi Administration vs Sanjay Gandhi, which reads as under :

M.Cr.C. No. 58115 of 2021

"Para 13 - rejection of bail when bail is applied for is one thing and 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 bail such a case. Cancellation of bail necessarily involves the review of a decision already made and can by large be permitted only if by reason of supervening circumstances.

Para 24 - The power to take back in custody an accused (under the provisions of Section 439(2) of the Cr.P.C. who has been enlarged on bail has to be exercised with care and circumspection."

Further reliance is placed on judgment reported in (1995) 1 SCC 349, Daulatram and others vs State of Haryana, wherein Apex Court has held that cogent and overwhelming circumstances are necessary for cancellation of bail. Counsel for the noticee also placed reliance on judgment reported in (2011) 6 SCC 189, Prakash Kadam and others vs Ram Prasad Vishwanath Gupta and another, wherein the Apex Court has held as under :

"In considering whether to cancel the bail the court has also to consider to gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, if there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him."

Counsel for noticee Suresh Patel also relied on judgment reported in (2001) 6 SCC 338, Pooran vs Ram Vilas and another, 2012 (4) Crimes 144 (SC), Ash Mohammed vs Shiv Raj Singh @ Lalla Babu and another, (2009) 14 SCC 638, Subodh Kumar Yadav vs State of Bihar, (1984) 1 SCC 284, Bhagirathsinh vs State of Gujarat, (2005) 4 SCC 178, Nityanand Rai vs State of Bihar and (2004) 13 SCC 617, Ramcharan vs State of M.P.

6. Government Advocate appearing for the State submitted that bail was granted to noticee Suresh Patel on basis of parity with co-accused Gopi

M.Cr.C. No. 58115 of 2021

Prasad Upadhyay. It was submitted that only memorandum of co-accused was available against Gopi Prasad Upadhyay but same is not the case with noticee Suresh Patel. He was caught on spot with contrabands. Therefore, his bail may be cancelled.

7. Heard the counsel for the noticee as well as respondent/State.

8. Reasoning of an order is the foundation on which the order stands in a case. Reasoning given by Court for allowing or disallowing a case is based on facts of the case. If due to misconception of fact and on incorrect fact, reasoning has been drawn by court to pass an order then such order is vitiated.

9. Now the question before the Court is whether court can pass an order for cancellation of bail on basis of facts, which were not supervening in nature. Applicant has not abused the liberty granted to him and there are no supervening circumstances for cancellation of bail. In such condition whether court can cancel a bail order.

10. Grounds for cancellation of bail and setting aside an order are different. There is a bar on court to revisit its order in view of Section 362 of Code of Criminal Procedure, which is quoted as under :

"362. Court not to after judgement. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. "

11. In view of bar contained in Section 362 of Code of Criminal Procedure whether a Court can cancel a bail order on basis of facts is the consideration before this Court. From the various judgments passed by the Apex Court and the High Courts, it is clear that court cannot cancel bail order mechanically. There must be very cogent and overwhelming circumstances for cancellation

M.Cr.C. No. 58115 of 2021

of bail order. Court has to be very alert while cancelling bail as said order will affect the liberty of a person who has been released on bail. Court has inherent power and discretion to cancel bail of accused under Section 439 of Code of Criminal Procedure even in absence of supervening circumstances but order for cancellation of bail shall not be passed mechanically and casually. Court has to be over cautious in its approach for cancellation of bail order. In the present case, it has come to light that there is serious discrepancy in order granting bail because reason on basis of which bail has been granted is vitiated due to wrong mentioning of facts in bail order. Canceling a bail order, which has been passed on basis of perverse fact is not same as re- appreciation of evidence and reviewing the order. Very foundation of order is taken away as same is based on perverse fact. Bail was granted to Suresh Patel on ground that he has been arrested on basis of memorandum and there is no recovery or any other incriminating material available against him. Said fact mentioned in bail order is contrary to record.

12. In view of same, bail order dated 18.08.2021 passed in M.Cr.C. No.37231/2021 is cancelled. Police Station Raipur Karchuliyan is directed to arrest noticee Sandeep Patel and commit him to custody.

13. A copy of this order be kept in record of M.Cr.C. No. 37231/2021.

(VISHAL DHAGAT) JUDGE

vkt Digitally signed by VINOD KUMAR TIWARI

VINOD KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=502f56362111056e3584ca82279e5efd816766cb7c5a1f4

TIWARI 90a5ca63b1116883f, pseudonym=064375E039EECAAF492B2C2C606076E420E163D2, serialNumber=121D0E9F65C983AD56493378702622477111B501 6F24D35FA8A76C2CA46685EE, cn=VINOD KUMAR TIWARI Date: 2022.04.23 15:12:10 +05'30'