-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P No.1571 of 2016 Bishnu Kumar Budhia, S/o Late Mahabir Prasad Budhia, R/o of Budhia Building, Main Road, P.O. - G.P.O., P.S. - Kotwali, District - Ranchi ….. Petitioner Versus 1. The State of Jharkhand, through Vigilance Bureau/ Anticorruption Bureau, Jharkhand, P.O., P.S. & District – Ranchi 2. Md. Sadrul, S/o Late Anunul Haque, R/o Gwalatoli, P.O. & P.S. - Hindpiri, District - Ranchi ….. Opp. Parties --------- CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA --------- For the Petitioner : Mr. Rohitashya Roy, Advocate Mr. Tarun Kr. Mahto, Advocate For the A.C.B : Mr. Shailesh, Advocate For O.P. No.2 : Mr. Mahesh Tewari, Advocate Mr. Abhishek Kr. Dubey, Advocate --------- 08/Dated:
28. h September, 2016 The present criminal miscellaneous petition has been filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, for cancellation of the bail granted to O.P. No.2, Md. Sadrul, in B.A. No.996 of 2016.
2. Learned counsel for the petitioner has submitted that Vigilance P.S. Case No.22 of 2012 (corresponding to Special Case No.24 of 2012) was registered under Sections 420, 467, 468, 469, 471, 477A of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against O.P. No.2 and other accused on the basis of the complaint, filed by the petitioner/ informant, alleging that O.P. No.2 in connivance with the officials of the revenue department had manipulated and committed forgery in the revenue records by incorporating the name of his father in place of the name of the petitioner/ informant with respect to the land originally recorded in the name of the petitioner. It is submitted that O.P. No.2's bail application was rejected twice, however O.P. No.2 renewed his prayer for bail by swearing an affidavit that he would not claim the said land in future. The Court after taking note of and on consideration of the statement of O.P. No.2 admitted him to bail. It is argued by the learned counsel that O.P. No.2 had suppressed -2- the material fact that he had already sold the land by registered sale deeds in 2010 and 2012 respectively. That in fact O.P. No.2 did not disclose the fact that he had filed writ petition being W.P.(C) No.5546 of 2013, challenging the expunction of the name of his father from the revenue records. That the misrepresentation of the actual state of affairs tentamounts to misguiding and playing fraud upon the Court with an intent to secure the bail. Learned counsel while relying on the decision reported in (2008) 13 SCC584 has submitted that the Supreme Court has held that when irrelevant materials are taken into consideration for granting bail the High Court is justified in cancelling the bail under Section 439(2) of the Cr.P.C.
3. Learned counsel appearing on behalf of Anti-Corruption Bureau, Jharkhand, has submitted that in the bail application O.P. No.2 did not disclose nor certified regarding the pendency of W.P.(C) No.5546 of 2013. That suppression of such fact is violative of Rule 139(1)(g) of the High Court of Jharkhand Rules. That due to non-disclosure of the above fact the Department was unable to render proper assistance to the Court during the hearing of the bail application and O.P. No.2 was granted bail on the basis of incorrect statement made on affidavit.
4. Per contra, learned counsel for O.P. No.2 has contended that it would be evident from para – 2 of the bail application, filed in B.A. No.996 of 2016, that statements have been made in accordance to Rule 139(1)(g) of the High Court of Jharkhand Rules, hence the argument on this count is rather misplaced and not sustainable. Learned counsel has argued that, in fact the bail was granted on two grounds firstly, taking into account the period of custody and secondly the statement on affidavit that he would not lay any claim over the land. It is argued that after being released on bail O.P. No.2 has not prosecuted W.P.(C) No.5546 of 2013 and averments have been made in para – 14 of the supplementary affidavit as under :-
“14. That in reply to the statements made in para 16 of the petition, it is stated and submitted that answering opposite party shall withdraw the said Writ-petition bearing W.P.(C) No.5546/2013 in terms of the affidavit filed by him before the court below.” -3- Learned counsel has canvassed that the sale deeds were not executed by O.P. No.2 rather they were executed by the power of attorney holder without the knowledge of O.P No.2. That O.P. No.2 has made a categorical statement on affidavit once again that he is relinquishing all claims over the land in question. It is submitted that non-mentioning of the pendency of the petition, in para – 2 of the bail application, cannot be termed as violation of the Rules as the aforesaid application was filed for bail and certificate was given to that effect in accordance with Rule 139(1)(g) of the High Court of Jharkhand Rules. Learned counsel has relied on the decision reported in (2014) 10 SCC754and submitted that in para – 23, the Supreme Court while referring to the case of Gian Singh V. The State of Punjab, reported in (2012) 10 SCC303 has reiterated the settled legal position that the bar under Section 362 acts as a necessary check on inherent powers of the High Court under Section 482 and the inherent powers cannot override the provisions of Section 362. That cancellation of bail would amount to review of an order by the court which has become functus officio after passing of the bail order. It is submitted that power of granting bail and cancellation of bail has been succinctly explained and distinguished by the Supreme Court while reiterating the well-settled principle that what cannot be done directly cannot be done indirectly. That this Court does not have the power to review its own order as the power of review under Section 362 Cr.P.C is vested with the appellate court and exercise of power under Section 482 Cr.P.C for cancellation of bail cannot be resorted to as it would be an exercise of power of review in disguise. It is argued that in the case of Gurucharan Singh Vs. State of Delhi reported in (1978) 1 SCC118guidelines have been laid down, by the Supreme Court, regarding the procedure to be followed for cancellation of bail as under :-
“16. ….... If, however, a Court of Sessions had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that -4- have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.” At this juncture, learned counsel for the petitioner has argued that the argument advanced by the learned counsel for O.P. No.2 is misconceived, as he has relied only on the extract of the order divorced from the context as it is settled principle that some words or phrases cannot be picked and chosen and tailored to suit and support such misplaced argument. That for appreciating the principles germane to the decision, it is necessary that the judgment should be read in its entirety. That in fact the said decision does not bar the Court in exercising the powers enshrined under Section 439(2) Cr.P.C for getting an accused arrested or committed to custody. It is argued that it is well settled that order of bail is an interlocutory order and power for cancellation of bail is enshrined under Section 439(2) which can be invoked and exercised taking into account the facts and circumstances of each case. That a person cannot be given the liberty to violate and flout the law by misrepresenting the facts and swearing false affidavit in order to secure the privilege of bail and thereafter contend that exercise of power under Section 439(2) Cr.P.C would amount to review of the order under Section 362 Cr.P.C.
5. Heard. In this context it would be relevant to reiterate that the Supreme Court has on several occasions laid down the guidelines and parameters whereunder power under Section 439(2) can be invoked for getting a person arrested or for committing him into custody. Though it has been observed that the grounds are illustrative and not exhaustive however it has been held that when the accused had misused the liberty and privilege of bail by indulging in similar activity or when he indulges in similar activity which would hamper the smooth investigation then the power under Section 439(2) can be invoked and exercised for cancellation of bail by taking into account and on consideration of the facts and circumstances of each case. It is explicitly clear from the exposited facts of the present case that O.P. No.2 has not denied that the writ -5- application challenging the expunction of the name of the father of O.P. No.2 from the Jamabandi record, has been filed by him. In the affidavit filed by him earlier he had made categorical statement that he would not lay any claim whatsoever on the said land and again in supplementary affidavit he has stated that he shall withdraw the said writ application. He has also stated that the sale deeds were executed without his knowledge by the power of attorney holder. It is evident that O.P. No.2 is adept at mouthing platitudes by making such statements on affidavit. This is only a pretence because till date the averments have not been translated into reality. It is abundantly clear that till date he has not withdrawn the writ application neither taken any legal action against the power of attorney holder who had executed the sale deeds without his knowledge. The conduct of O.P. No.2 is not aboveboard and he has been indulging in similar activity contrary to the statements made on affidavit. This amounts to misuse of the privilege of bail in violation of the ground on which he was granted bail. In the attending facts and circumstances, it is evident that O.P. No.2 has been granted bail due to misrepresentation of the facts, hence, this Court deems it fit and proper in exercise of the power under Section 439(2) Cr.P.C to cancel the bail of O.P. No.2 granted by order dated 24.06.2016 in B.A. No.996 of 2016 Consequent, thereto, O.P. No.2 is directed to surrender in the court below in connection with Vigilance P.S. Case No.22 of 2012, corresponding to Special Case No.24 of 2012, pending in the court of learned Special Judge (Vigilance) Ranchi, failing which, the trial court is at liberty to take necessary steps in accordance with law for securing the custody of O.P. No.2.
6. In the result, the Cr.M.P stands allowed. (AMITAV K. GUPTA, J.) Chandan/-