The High Court cancelled a bail order granted by the Session Judge because the respondent had deliberately concealed the fact that his prior bail application had been dismissed on merit by the High Court.
Bail order dated 22.4.2015 cancelled; respondent-accused directed to be taken into judicial custody.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR
O R D E R
S.B. Criminal Misc.(Cancellation of Bail) Application No.10/2015 (Manish Kumar Sharma Vs. State of Rajasthan & Anr.)
: :
Date of Order 02.09.2016
HON'BLE MR.JUSTICE PRASHANT KUMAR AGARWAL
Mr.C.C.Ratnu, for the petitioner-complainant. Mr.Rajendra Raghav, Public Prosecutor for the State. Mr.Rajesh Mehrishi, for the respondent-accused.
The complainant-petitioner has filed this application under Section 439 (2) with a prayer to cancel the order dated 22.4.2015 passed by the Additional Sessions Judge No.4, Jaipur Metropolitan whereby the learned Court below allowed the second application filed by the respondent-accused under Section 439 Cr.P.C. and granted benefit of bail to him in respect of FIR No.1178/2013 registered at Police Station JDA, Jaipur for the offences under Sections 420, 406 and 120-B IPC.
Brief relevant facts for the disposal of this application are that FIR No.1178/2013 came to be registered at Police Station JDA, Jaipur on 28.10.2013 for the aforesaid offences at the instance of petitioner against respondent and during the course of investigation respondent was arrested. With a prayer to grant bail to him respondent filed Misc.Bail Application No.53/2015 under Section 439 Cr.P.C. which was dismissed by the Additional Sessions Judge No.4, Jaipur Metropolitan, Jaipur on merit vide a reasoned order dated 6.2.2015 after hearing counsel for the respondent as well as Additional Public Prosecutor and also counsel for the petitioner-complainant. Respondent filed S.B.Criminal Misc.Bail Application No.1776/2015 for grant of bail under Section 439 Cr.P.C. before this Court
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and the same was dismissed on merit by this Court by a reasoned order dated 4.3.2015 after taking into consideration the evidence collected during investigation which was produced before this Court by way of case diary and also the gravity of the offence. Thereafter, charge-sheet was filed against the respondent for the aforesaid offences in the Court concerned and respondent filed second application for grant of bail under Section 439 Cr.P.C. on 20.4.2015 and the same was allowed by the Court below vide order dated 22.4.2015. It is this order dated 22.4.2015 which has been challenged by the complainant by way of this application under Section 439 (2) Cr.P.C. with a prayer to set aside the same.
It was submitted by the learned counsel for the petitioner that after submission of the charge-sheet respondent filed second application for grant of bail under Section 439 Cr.P.C. before the Court below but this material and relevant fact was concealed that the bail application filed by the respondent under Section 439 Cr.P.C. has been dismissed by High Court on merit vide order dated 4.3.2015 and on account of concealment of this material fact only, order dated 22.4.2015 is liable to be cancelled as it is well settled legal position that an order of bail passed in ignorance or overlooking a material fact is liable to be cancelled under Section 439 (2) Cr.P.C. It was further submitted that it was the duty of the respondent and his counsel to mention in the second application the fact that the bail application filed by respondent under Section 439 Cr.P.C. has been dismissed by the High Court but in the application filed by the respondent on 20.4.2015 through his counsel it was specifically mentioned that no application for grant of bail under Section 439 Cr.P.C. has been filed before Hon'ble High Court. It was submitted that if the fact of dismissal of
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application for bail by the High Court would have brought to the knowledge of the Court below there was possibility that the second application filed by the respondent would not have been allowed. It was further submitted that the ground recorded by the Court below to grant benefit of bail to the respondent appears to be that after investigation charge-sheet has been filed and the trial is unlikely to be concluded within a reasonable period whereas the first application was dismissed by the same Court observing that the offences for which the accusation has been made against the respondent are very serious and grave. It was submitted that in a serious and grave case bail cannot be granted to an accused merely by the reason that after investigation charge-sheet has been filed and the trial is unlikely to be concluded within a reasonable period. It was also submitted that by mere filing of charge-sheet it cannot be said that there is substantial change in the facts and circumstances of the case rather it is indication of the fact that the allegations made in the FIR are prima facie correct. It was submitted that at the time of hearing of the second application filed by the respondent counsel for the complainantpetitioner was not present before the Court below as is clear from the fact that his name was not mentioned in the title of the order and in Para No.3 of the order it has wrongly been mentioned that counsel for the complainant was also present, who opposed the prayer made on behalf of the respondent. In the order-sheet dated 22.4.2015 also, name of counsel for the petitioner was not mentioned. It was submitted by the learned counsel for the petitioner that after the order was passed by the Court below on 22.4.2015 granting bail to the respondent and when this fact came into the knowledge of the complainant, immediately an application
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was filed on his behalf stating therein that the accused has deliberately concealed the fact of dismissal of his application for bail by the High Court. The application filed by the petitioner was taken on record by the Court below vide order-sheet dated 22.4.2015 at 12.15 PM. It was submitted that if the counsel for the petitioner would have present before the Court below at the time of hearing of the second application filed by the respondent this fact would have certainly been mentioned in the ordersheet drawn on the application filed by the petitioner. It was submitted that Vakalatnama/Power on behalf of the petitioner was filed by his counsel alongwith the aforesaid application and not in the second application filed by the respondent for grant of bail under Section 439 Cr.P.C.
On the other hand, learned counsel for the respondent inviting attention of the Court towards Para 3 of the impugned order submitted that counsel for the petitioner-complainant was also present when Court below allowed the second application filed by the respondent and, therefore, it has wrongly been submitted by the counsel for the petitioner that counsel for the petitioner was not present when this order was passed and his presence has wrongly been mentioned by the Court below. It was further submitted that it is an admitted fact that counsel for the petitionercomplainant was present at the time the first application filed by the respondent was dismissed vide order dated 6.2.2015 but even then name of the counsel was not mentioned in the title of the order whereas his presence has been mentioned in Para 3 of that order and, therefore, it cannot be accepted that counsel for the petitioner was not present when the impugned order dated 22.4.2015 was passed merely by the reason
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that in the title of the order his presence is not mentioned. It was further submitted that merely because the fact of dismissal of bail application by the High Court was not mentioned in the application filed by the respondent it cannot be said that some material and important fact was concealed by the respondent from the Court below more particularly in view of the fact that counsel for the petitioner was also present when the order dated 22.4.2015 was passed. Even if for the sake of arguments it is admitted that fact of dismissal of bail application by the High Court was not brought to the knowledge of the Court below by the counsel for the respondent even then it was the duty of the counsel for the petitioner to bring this fact in the knowledge of the Court below and the petitioner can not be allowed now to contend that a material fact was concealed from the Court below. It was further submitted that benefit of bail has been granted to the respondent by the Court below vide order dated 22.4.2015 on merit after considering the overall facts and circumstances of the case and the evidence which was collected during investigation and placed before it by way of charge-sheet and also considering the fact that the trial is unlikely to be concluded within a reasonable period and also the period of custody of the respondent. It was submitted that once benefit of bail has been granted to respondent on merit the same cannot be cancelled merely on account of the fact that some material fact was concealed from the Court below.
On consideration of submissions made on behalf of the respective parties and the material made available on record and more particularly in view of the fact that fact of dismissal of application for grant of bail by the High Court vide order dated 4.3.2015 was not brought to the
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knowledge of the Court below rather this fact was deliberately concealed, I find it a fit case in which the discretion conferred upon this Court under Section 439 (2) Cr.P.C. is to be exercised and the order dated 22.4.2015 is cancelled.
Consequently, the application for cancellation of bail filed under Section 439 (2) Cr.P.C. is allowed and the order dated 22.4.2015 passed by the Additional Sessions Judge No.4, Jaipur Metropolitan, Jaipur in Criminal Misc.Bail Application No.144/2015 in favour of the respondentaccused is cancelled. The respondent-accused is directed to be taken into
custody and sent to judicial custody.
(PRASHANT KUMAR AGARWAL),J.
teekam (Reserved order)
2 issues framed by the court
Whether the bail order passed by the Court below should be cancelled due to the deliberate concealment of a material fact regarding the dismissal of a prior bail application by the High Court.
Whether a bail order allowed on mere grounds of prolonged investigation is maintainable when the charges are serious and grave.
1 provisions across 1 enactments
Manish Kumar Sharma
State of Rajasthan
Respondent-Accused
Prashant Kumar Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
