Telangana High Court

Embadi Swamy, vs Uskamalla Raghupathi, on 26 February, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

         THE HONOURABLE DR.JUSTICE G. RADHA RANI

               CRIMINAL PETITION No.1808 of 2024

O R D E R:

This Criminal Petition is filed by the petitioner - de-facto complainant

under Section 439(2) of Code of Criminal Procedure (for short "Cr.P.C.") for

cancellation of bail granted to respondent No.1 - A1 vide order dated

31.01.2024 in Criminal Petition No.672 of 2024.

2. Heard Sri Nimma Narayana, learned counsel for the petitioner and Sri

T.Srujan Kumar Reddy, learned counsel for the respondent No.1 - A1 and the

learned Additional Public Prosecutor representing respondent No.2 - State.

3. Learned counsel for the petitioner submitted that the respondent No.1 -

A1 was granted bail in connection with FIR No.344 of 2023 on the file of

Mavala Police Station for the offences under Sections 307, 109, 102-B, 427

read with Section 34 of IPC and Section 3 of Prevention of Damage to Public

Property Act, 1984 and Section 3(2)(v) of SC / ST (Prevention of Atrocities)

Act, 1989. This Court over-looked the material record of the case, the counter

affidavit filed by the petitioner herein and the common order dated 05.01.2024

in Criminal Petition Nos.12826 of 2023 and Criminal Petition No.180 of 2024

in granting bail to the respondent No.1 - A1. This Court also ignored the

criminal antecedents of respondent No.1 - A1.

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4. Learned counsel for the petitioner further contended that as per the

Remand Case Diary dated 06.01.2024, the victim (LW.2) belonged to Schedule

Caste. He was having love affair with the daughter of accused No.1. Due to

which Accused No.1 bore grudge against LW.2 and took him to his farm house

two years ago and threatened to kill him, if he continued his love affair with his

daughter. Accused No.1 hired Accused Nos.3, 4 and 6 for killing LW.2. He

also took Accused Nos.3 and 4 to Mavala in his Creta Car bearing No.TS-01-

EM-0099 and had shown the house of LW.2 and asked him to kill LW.2. The

evidence also revealed that accused Nos.3 and 4 visited and moved in the area

of LW.2 and sketched a plan to hit LW.2 with a vehicle and observed the

movement of LW.2 with the help of accused No.1 and on 18.12.2023, he

followed LW.2 and hit him with a Commander Jeep nearby a cemetery at

Mavala. Due to which LW.2 fell down on the road and sustained head injuries

and on other parts of the body. A4 took the vehicle in reverse and hit the

electric pole. This Court while dismissing anticipatory bail of A1 passed

common order in Crl.P.Nos.12826 of 2023 and 180 of 2024 by observing that:

"Having received complaint, on the basis of investigation conducted by the Police, it is revealed that the petitioners / A1 and A2 bore grudge against the victim that he may cause damage to their fame and reputation as the victim is having an affair with the daughter of these petitioners and accordingly A1 hired A3 to kill the victim with the help of A4 secured the commander jeep which belongs to A6 to kill the victim. A5 allegedly acted as mediator in

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between A4 and A6 for arranging commander jeep having accepted an amount of Rs.10,000/-."

5. He further submitted that this Court overlooked the above order while

granting bail to respondent No.1 - A1. The investigation also revealed that

respondent No.1 - A1 was having criminal antecedents, he was involved in large

number of cases as mentioned in the Remand Case Diary dated 06.01.2023, but

this Court overlooked the criminal antecedents of the respondent No.1 - A1

while granting bail. The Special Public Prosecutor appearing before the Special

Judge for Trial of Cases under SC / ST (POA) Act, Adilabad observed that A1,

if released on bail would threaten the witnesses and tamper the evidence. This

Court in its order dated 31.01.2024 observed that the de-facto complainant

suspected that respondent No.1 - A1 and his family members and other

followers had planned to cause death of LW.2. The conclusion arrived at by

this Court in its order dated 31.01.2024 that the possibility and probability of a

hit and run case could not be ruled out as argued by the learned counsel for the

respondent No.1 - A1 and the involvement of respondent No.1 - A1 was on

account of suspicion was totally perverse, as it was contrary to the record and

the earlier orders dated 05.01.2024 of this Court. This Court failed to consider

the severity of punishment in the event of conviction for the offences alleged

and the nature and gravity of the accusation against the respondent No.1 - A1.

The orders passed by this Court in granting bail to respondent No.1 - A1 were

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against the guidelines issued by the Hon'ble Apex Court in Shakthi Vahini v.

Union of India 1 and therefore prayed to cancel the order dated 31.01.2024.

6. Learned counsel for the respondent No.1 - A1 on the other hand

contended that the respondent No.1 - A1 had not violated any conditions

imposed by this Court while releasing him on bail on 31.01.2024. He was

regularly appearing before the concerned Station House Officer twice a week as

directed by this Court. No reports were lodged against the respondent No.1 -

A1 by any of the witnesses that the respondent No.1 - A1 was threatening them

or inducing them. Cancellation of bail could not be ordered mechanically and

relied upon the judgments of the Hon'ble Apex Court in Dolat Ram and

Others v. State of Haryana 2 and X vs. State of Telangana and Another 3.

7. In reply, the learned counsel for the petitioner - de-facto complainant

relied upon the judgment of the Hon'ble Apex Court in Deepak Yadav v. The

State of Uttar Pradesh 4 on the aspect that the Courts had inherent powers and

discretion to cancel the bail of an accused even in the absence of supervening

circumstances.

8. The learned Additional Public Prosecutor on the other hand submitted

that there were criminal antecedents against the respondent No.1 - A1, but he

(2018) 7 SCC 192

(1995) 1 SCC 349

(2018) 16 SCC 511

Criminal Appeal No.861 of 2022 dated 20.05.2022

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was regularly appearing before the concerned Station House Officer and had not

violated the conditions imposed by this Court and that no complaints were

received against him during this period.

9. Perused the record.

10. The record would disclose that while granting bail to the respondent No.1

- A1 in Criminal Petition No.672 of 2024, the present petitioner herein - the de-

facto complainant was also a party to the said petition and he also filed his

counter affidavit. The contentions raised by the learned counsel representing

the de-facto complainant were also considered in the Criminal Petition No.672

of 2024 by this Court while granting bail.

11. This Court gave its reasons for considering the bail application of the

respondent No.1 - A1 and observed that the possibility and probability of a hit

and run case could not be ruled out. The involvement of the petitioner was on

account of suspicion and also considering that all the other accused were

granted bail including the accused persons who were present in the vehicle,

allowed the petition. The petitioner - de-facto complainant is now seeking for

cancellation of bail on the ground of justifiability and soundness of the order by

this Court, but not on any supervening circumstances that had happened

subsequently. If he was aggrieved by the order of this Court, the remedy for

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him is to prefer an appeal against the said order, but not for seeking cancellation

of bail.

12. In the case relied by the learned counsel for the petitioner in Deepak

Yadav v. The State of Uttar Pradesh (cited supra), it was an appeal filed by

the de-facto complainant against the bail order passed by the High Court.

13. The 3-Judge Bench of the Hon'ble Apex Court while considering the

principles governing grant of bail and the judicial discretion in granting or

refusing the bail and also the circumstances under which bail once granted

could be cancelled observed that:

"31. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-

a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.

b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is primafacie misuse of position and power over the victim.

c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.

d) Where bail has been granted on untenable grounds.

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e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.

f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.

g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case."

14. The Hon'ble Apex Court also considered the 2-Judge Bench judgment in

Dolat Ram and Others Case (cited supra), which was relied by the learned

counsel for the respondent No.1 - A1 for cancellation of bail, observed that:

"30. This Court has reiterated in several instances that 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 trial. Having said that in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two-Judge Bench of this Court in Dolat Ram And Others Vs. State of Haryana laid down the grounds for cancellation of bail which are :-

(i) interference or attempt to interfere with the due course of administration of Justice

(ii) evasion or attempt to evade the due course of justice

(iii) abuse of the concession granted to the accused in any manner

(iv) Possibility of accused absconding

(v) Likelihood of/actual misuse of bail

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(vi) Likelihood of the accused tampering with the evidence or threatening witnesses."

15. In Dolat Ram Case (cited supra), the Hon'ble Apex Court held that:

"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 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."

16. In X vs. State of Telangana and Others (cited supra), the 3-Judge

Bench of the Hon'ble Apex Court again observed that:

"Rejection of a 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

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directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of the bail, already granted, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion of 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 circumstances have rendered it no longer conducive to a fair trial to allow accused to retain his freedom by enjoying concession of bail during trial.