Rajendra Singh vs State Of Rajasthan
2021 Latest Caselaw 17297 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Bail Cancellation Application No. 52/2018

Rajendra Singh S/o Bikar Singh, Aged About 51 Years, R/o Ward No. 10, Kesrisinghpur, Tehsil Srikaranpur, District Sri Ganganagar.

----Petitioner/Complainant Versus

1. State of Rajasthan

2. Bhadur Singh @ Kuku S/o Shri Satpal Singh, R/o Ward No. 14 Kesrisinghpur, Tehsil Srikaranpur, District Sri Ganganagar.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Pritam Solanki
For Respondent(s)          :     Mr. Mukhtiyar Khan, P.P.


             HON'BLE MR. JUSTICE SUDESH BANSAL
                                      Order

      Reserved on                : 09.11.2021
      Pronounced on             : 20.11.2021
Reportable

The petitioner / complainant has filed the present application

seeking cancellation of bail granted to the respondent No.2 -

Bhadur Singh @ Kuku by this Court, vide order dated 13.10.2017

passed in S.B. Criminal Misc. Bail Application No.9458/2017 under

Section 439 Cr.P.C.

The facts of the case are that the petitioner filed a written

complaint dated 15.02.2017 at Police Station Kesrisinghpur, Tehsil

Srikaranpur, District Sriganganagar alleging, inter alia, that

Bhadur Singh @ Kuku entered into marriage with her daughter

and after the marriage Bhadur Singh @ Kuku and his mother

Smt. Nirmal Kaur @ Nirmala Devi and other members of inlaws

(2 of 11) [CRLBC-52/2018]

family harassed her daughter for dowry and she could not meet

out their demand. The petitioner alleged in the complaint that he

apprehends that Bhadur Singh @ Kuku, his mother Smt. Nirmal

Kaur @ Nirmala Devi and other family members have killed his

daughter by strangulation due to non-fulfillment of their demand

for dowry.

On such complaint of the petitioner, Police registered FIR

No.21/2017 for offence under Section 498(A) and 304(B) IPC and

carrying out the investigation. After thorough investigation, Police

submitted charge-sheet for offence under Section 306 IPC against

two persons namely Bhadur Singh @ Kuku (respondent No.2

herein) and Smt. Nirmal Kaur @ Nirmala Devi. Both the accused

were arrested, however, later on they were released on bail under

Section 439 Cr.P.C. The bail application of Smt. Nirmal Kaur @

Nirmala Devi was allowed vide order dated 01.06.2017 and later

on, the bail application of respondent No.2 Bhadur Singh @ Kuku

was allowed vide order dated 13.10.2017, by this Court.

Learned counsel for the petitioner submitted that though

charge-sheet against the accused persons was filed under Section

306, the petitioner filed an application under Sections 193 and

216 Cr.P.C. before the trial Court for addition /alteration of the

charges, for offences punishable under Section 302 IPC and in

alternative under Section 304(B) IPC as also under Sections 201

and 498(A) IPC. This application of the petitioner was allowed by

the trial court vide order dated 14.08.2018, observing that the

evidence/material available on record attracts the lebeling of

alternative charges against the accused persons and accordingly

the learned trial court amended the charge under Section 306 IPC

(3 of 11) [CRLBC-52/2018]

in the manner that in alternative to the charge under Section 306,

a charge for offence under Section 302 further an alternative

charge for offence under Section 304(B) IPC and additional

charges for offence under Section 498(A), 201 IPC have been

framed against both the accused Bhadur Singh @ Kuku and Smt.

Nirmal Kaur @ Nirmala Devi.

Thereafter, the petitioner filed an application dated

28.08.2018 under Section 439(2) Cr.P.C. for seeking cancellation

of bail granted to both the accused i.e. Bhadur Singh @ Kuku and

Smt. Nirmal Kaur @ Nirmala Devi. The court of Special Judge

(Women Atrocities), Sriganganagar dismissed the application for

cancellation of bail vide order dated 20.09.2018 and hence, the

petitioner has filed the present application for cancellation of bail

before this Court.

This Court issued notices to the respondent No.2, however

despite service of notices no one has put in appearance.

Learned counsel for the petitioner has argued that when the

respondent No.2 was released on bail under Section 439 Cr.P.C.,

charge for offence under Section 306 IPC was there but thereafter,

the charge has been altered with an addition of Section 302 IPC

with an alternative charge of Section 304(B), though in alternative

to the previous charge of Section 306 IPC and the additional

charges under Sections 498(A), 201 IPC have also been framed.

Learned counsel for the petitioner has argued that after alteration/

addition of charges, the previous bail order of respondent No.2 is

liable to be cancelled and the learned trial Court has committed

illegality in dismissing the application for cancellation of bail.

(4 of 11) [CRLBC-52/2018]

Learned counsel for the petitioner to support the aforesaid

argument has placed reliance upon the judgment passed in

Pradeep Ram Vs. State of Jharkhand & Anr. Citation 2019

(3) CJ (Criminal) (SC ) 721 and two other judgments of Hon'ble

the Supreme Court, delivered in case of Mahipal Vs. Rajesh

Kumar @ Polia & Anr. 2020 (2) SCC 118 and in case of Kumer

Singh Vs. State of Rajasthan & Anr. in Criminal Appeal

No.571/2021.

Heard learned counsel for the petitioner / complainant and

learned Public Prosecutor and perused the material available on

record.

A perusal of bail order dated 13.10.2017 of respondent

No.2, goes to show that the High Court released him on bail, after

taking into consideration the charge-sheet and the evidence,

available on record as also considering the fact that co-accused

Smt. Nirmal Kaur @ Nirmala Devi has already been granted bail. It

is true that thereafter the trial court, vide order dated 14.08.2018

has altered/added the charges but the trial court has just altered

the charge of Section 306 on the basis of evidence / material

already available on record and in the alternative to Section 306

IPC, charges of Section 302 further in alternative 304(B) have

been added as alternative charges. The addition of charges for

Sections 498(A), 201 IPC is also on the basis of the evidence /

material already available on record. It is not that case where the

trial court has found any additional evidence or after revelation

and accrual of some new / subsequent developments of facts, the

additional charges of Section 302 IPC with an alternative charge of

Section 304(B) and 498(A), 201 IPC have been added. After

(5 of 11) [CRLBC-52/2018]

passing the bail order dated 13.10.2017, nothing new

facts/subsequent developments/ additional evidence have come

on record and the previous charge has been altered only on the

basis of facts and evidence already available on record. It is

worthy to note that in the present case except the alteration of

charges in the aforesaid manner no other grounds / reasons have

been alleged by the petitioner for seeking cancellation of bail of

the respondent No.2.

The principles of law governing the cancellation of bail are

no more res-integra Hon'ble the Supreme Court, in the case of

Dolatram & Ors. Vs. State of Haryana (1995) (1) Supreme

Court Cases 349) held that:-

"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 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




                                         (6 of 11)                      [CRLBC-52/2018]


        circumstances       have        rendered       it      no      longer

conducive to a fair trial to allow the trial.

In the case of Smt. Rajbala Vs. State of Rajasthan (2005 (1) R.C.C. 289), the Court has held as under:- "

"It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so.

In the case of Aslam Babalal Desai Vs. State of Maharashtra (AIR 1993, SC 1(1) it has been held that:-

"The grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) of (2) or 439(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 evidence or witnesses, (iv) threatens witnesses 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."

In the case of Neeru Yadav Vs. State of Uttar Pradesh

2014 (16) SCC 508, it has been opined that:

"It is well settled in law that cancellation of bail after it is granted because the accused has

(7 of 11) [CRLBC-52/2018]

misconducted himself or or some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It , on the contrary, delves into the justifiability and the soundness of the order passed by the Court."

By perusal of the judgment of Hon'ble the Supreme Court

passed in case of Pradeep Ram (supra), on which learned

counsel for the petitioner has placed reliance, it reveals that in

that case First Information Report No.02/2016 was lodged for

offences under Sections 414, 384, 386, 387 & 120-B IPC read with

Sections 25(1-B)(a), 26, 35 of the Arms Act and Sections 17(1)

and (2) of the Criminal Law Amendment Act. The accused was

granted regular bail by the High Court and the charge-sheet was

submitted for the aforesaid offences and the Chief Judicial

Magistrate took cognizance for the aforesaid offences. Thereafter,

on the prayer made by the Investigating Officer, the new offences

under Sections 16, 17, 20 and 23 of the Unlawful Activities

(Prevention) Act, 1967 were added against the accused and after

(8 of 11) [CRLBC-52/2018]

re-registering of the FIR No.RC-06/2018/NIA/DLI and further

investigation was carried out. During the start of further

investigation, the Investigating Agency sought production warrant

of the accused as he was under custody in some other case and

the Special Judge allowed the prayer of Investigating Agency. In

the backdrop of such facts, the issue arose as to whether in a case

where accused has been bailed out in a criminal case, in which

case, subsequently new offences are added, is it necessary that

bail earlier granted should be cancelled for taking the accused in

custody? Hon'ble the Supreme Court, while answering the said

question has held in para Nos.25 and 29 as under:-

"25. We may have again to look into provisions of Sections 437(5) and 439(2) of Cr.P.C. Sub- section (5) of Section 437 of Cr.P.C. uses expression 'if it considers it necessary so to do, direct that such person be arrested and commit him to custody'. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides: 'may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody'. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing arrest of such accused who has already been granted bail must necessary cancel his earlier bail. A discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non-

cognizable offences. Two Judges Bench judgment in Mithabhai Pashabhai Patel (supra) uses the

(9 of 11) [CRLBC-52/2018]

word 'ordinarily' in paragraph 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be cancelled before Investigating Officer to arrest him due to addition of graver and non-cognizable offences."

"29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody

(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail."

(10 of 11) [CRLBC-52/2018]

Thus, in the aforesaid case, after addition of the new

offences under Sections 16, 17, 20 and 23 of the Unlawful

Activities (Prevention) Act, 1967 and on re-registration of FIR and

starting of re-investigation therein, the Investigating Agency

asked for the permission from the Special Judge for taking the

accused in judicial custody and the permission was granted.

Whereas, the facts and circumstances of present case are different

as in the present case after alteration of charges against

respondent No.2 and co-accused, the State/ Investigating Agency

has not asked for taking respondent No.2 again in custody for

further investigation nor any subsequent / new facts have

occurred nor any additional evidence have come on record and it

is a case where merely on the basis of the evidence / material,

already available on record, the trial court has just framed

alternative and additional charges.

As far as, the two other judgments of Mahipal (supra) and

Kumer (supra) are concerned, in these matters for serious

offence under Section 302 IPC, the regular bail was granted by the

High Court to the accused under Section 439 Cr.P.C. in a routine

manner and on filing criminal appeals thereagainst, the Hon'ble

the Supreme Court considered, parameters of granting/refusing

the bail under Section 439 Cr.P.C. for serious offence of Section

302 IPC. Both the cases do not pertain to the issue of cancellation

of bail. Therefore, the judgments of Hon'ble the Supreme Court,

on which reliance has been placed by learned counsel for the

petitioner, are not applicable to the facts of the present case. In

the present case, no case is made out for cancellation of bail of

(11 of 11) [CRLBC-52/2018]

respondent No.2, within parameters of law as propounded herein

above in the catena of judgment.

Further in the present case, the Investigating Agency / State

has not moved any application for the cancellation of bail or has

not invoked the provisions of Section 437(5) and 439(2) of Cr.P.C.

It is also worthy to take note that although the petitioner filed an

application for cancellation of bail of both the accused persons

namely Bhadur Singh @ Kuku and Smt. Nirmal Kaur @ Nirmala

Devi before the Sessions Court but after rejection of his

application, the petitioner has filed the present application for

cancellation of bail of only respondent No.2 Bhadur Singh @ Kuku

and not for the another co-accused Smt. Nirmal Kaur @ Nirmala

Devi. By perusal of order dated 13.10.2017, it is clear that while

granting bail to respondent No.2, this Court placed reliance on the

fact that co-accused has already been enlarged on bail vide order

dated 01.06.2017. For these additional reasons also, the

application of petitioner for cancellation of bail of respondent No.2

is not liable to be allowed.

For the discussion made here-in-above, this Court does not

find that the case of the petitioner falls within parameters of

cancellation of the regular bail, granted to respondent No.2 under

Section 439 Cr.P.C.

Hence, this criminal bail cancellation application is not liable

to be accepted and thus the same is hereby dismissed.

(SUDESH BANSAL),J

87-Ravi Kh/-

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