Somesh Chaurasiya vs The State Of Madhya Pradesh
2022 Latest Caselaw 6271 MP

   IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                            BEFORE
                      HON'BLE SHRI JUSTICE SHEEL NAGU
                                MCRC NO.23625 OF 2019

               Between:-

               SOMESH CHAURASIYA S/O LATE SHRI
               DEVENDRA CHAURASIYA OCCUPATION:
               STUDENT R/O AZAD WARD, HATA, DISTT.
               DAMOH (MADHYA PRADESH)

                                                                              .....PETITIONER

               (BY SHRI ANIL KHARE, SENIOR ADVOCATE WITH SHRI ANAND
               KUMAR SHARMA, ADVOCATE)

                                              AND

       1.      THE STATE OF MADHYA PRADESH THROUGH
               P.S. HATA, DISTT. DAMOH (MADHYA
               PRADESH)

       2.      JAIKUMAR @ MONI TANTUVAY S/O SHRI
               KAMLESH TANTUVAY, AGED ABOUT 21
               YEARS, OCCUPATION: UNEMPLOYED R/O
               MURLI MANOHAR WARD, HATTA P.S. AND
               TEHSIL- HATTA, DISTT. DAMOH (MADHYA
               PRADESH)

                                                                           .....RESPONDENTS

               (RESPONDENT NO.1 BY SHRI MUKUND CHOURASIYA,
               PANEL LAWYER
               RESPONDENT NO.2 BY SHRI ISAR AHMED, ADVOCATE)

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       Reserved on                      :       16.12.2021

       Passed on                        :       27.04.2022

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Per: Sheel Nagu, J.

                                 ORDER

This petition filed u/S.439(2) of Cr.P.C. seeks cancellation of bail granted u/S.439 of Cr.P.C. passed in favour of respondent No.2- Jaikumar @ Moni Tantuvay on 20.05.2019 in M.Cr.C. No.20517/2019.

2. Shri Anil Khare, learned senior counsel for petitioner/victim and learned counsel for the State/respondent No.1 and accused/respondent No.2 are heard on the question of admission and as well as final disposal.

3. Learned senior counsel submits that order of bail granted in favour of respondent No.2 on 20.05.2019 in M.Cr.C No.20517/2019 deserves to be cancelled on following grounds:-

(i) Bail granted to respondent No.2 was based on misleading facts which are far from reality, and thus, if correct facts were brought to the notice of this Court, then order dated 20.05.2019 passed in M.Cr.C. No.20517/2019 could not have been passed in favour of respondent No.2.

(ii) Misleading facts as pointed out by Shri Anil Khare, senior counsel, are that this Court was given the impression that statements of most of eye-witnesses had already been recorded on 20.05.2019

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and none has made implicative statement against respondent No.2 therein.

(iii) Another misleading fact pointed out is that order of bail was granted on the assumption that none of eye-witnesses had identified respondent No.2 by mentioning his name.

(iv) Additional ground raised in favour of cancellation of bail is that similarly placed co-accused had suffered dismissal of his application for bail.

(v) Learned counsel for petitioner has placed reliance upon decisions of Apex Court in State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178 (Para 15 & 16) and Puran v. Rambilas, (2001) 6 SCC 338 (Para 10).

4. Learned counsel for respondent No.2 on the other hand opposes the prayer for cancellation of bail, but does not dispute that recording of eye-witnesses by the Trial Court had not commenced on 20.05.2019 when bail order was passed in favour of respondent No.2. Learned counsel for respondents also do not dispute that respondent No.2 was recognized in TIP held on 14.05.2019. It is also submitted that charge-sheet was filed on 13.06.2019 and statements of all the eye-witnesses had been recorded during investigation, therefore, it is not correct to say that statements of most of the eye- witnesses had been recorded before the Court.

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4.1 Learned counsel for respondents have placed reliance upon decisions of Apex Court in Mohd. Kalam v. State of Rajasthan, AIR 2008 SC 1813, Mahabir v. State of Delhi, 2008 Cr.L.J. 3036, Kashmira Singh v. Duman Singh, AIR 1996 SC 2176 and Vikramjit Singh v. State of M.P., AIR 1992 SC 474.

5. The aforesaid factual matrix reveals that relevant and true facts of eye-witnesses having not been examined and respondents having been recognized in TIP, was not brought to the notice of this Court, which in all probability led to grant of bail to respondent No.2.

5.1 However, the law in regard to cancellation of bail is well settled. The Apex Court has time and again laid down that causes which are posterior in point of time to grant of bail, can only be raised successfully for seeking cancellation of bail. The causes which arose prior to grant of bail ought not to be considered while deciding prayer for cancellation of bail. Meaning thereby, the discretion exercised by the Court while granting bail cannot be reviewed while considering the prayer for cancellation of bail. The statutory scheme under the Cr.P.C. does not permit review, and therefore, inferentially the inherent powers u/S.482 of Cr.P.C. also cannot be invoked for exercise of power which is otherwise prohibited by the Code. The appropriate forum, in such a situation for a person who is aggrieved by grant of bail, is the Higher Forum.

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6. Reliance placed by learned senior counsel in Rajballav Prasad (supra) and Puran (supra) is of no avail, since this case does not assist the petitioner as the facts involved were that the High Court had cancelled the bail granted by the trial Court, in which the Apex Court declined interference. Whereas, in the case of Rajballav Prasad (supra), the facts reveal that Apex Court interfered with the order of the High Court granting bail u/S.439 of Cr.P.C.

6.1 In both the above cases before the Apex Court, facts involved were at variance to the facts involved herein where this Court is called upon to cancel its own order of grant of bail. Thus, the judicial precedents cited by petitioner are of no avail.

7. This Court is bolstered in its view by various decisions of Apex Court in Dolat Ram Vs. State of Haryana, (1995) 1 SCC 349, CBI VS. Subramani Gopalakrishnan., (2011) 5 SCC 296 and Abdul Basit Alias Raju and others Vs. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754, relevant extracts of which are reproduced below for ready reference and convenience:-

Dolat Ram (supra) "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 dealt 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

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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"

Subramani Gopalakrishnan (supra) "23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, 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 concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, 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"

Abdul Basit Alias Raju (supra) "19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.

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

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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 granting bail cannot be reviewed by the court passing such 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 sitting in review of its judgment by entertaining miscellaneous petition."

8. In view of above discussion, this Court does not deem it appropriate to interfere in the matter.

9. Accordingly, present petition stands dismissed sans cost.

(SHEEL NAGU) JUDGE Sateesh Digitally signed by SATEESH KUMAR SEN Date: 2022.04.29 09:57:04 +05'30'