Bails should not be cancelled automatical manner

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Misc. No. M-283 of 2009

Date of decision : 28.1.2010

Harish Puri…. Petitioner
Versus
State of Punjab and another…. Respondents

Present : Mr. H.K. Aurora, Advocate for the petitioner. Mr. Piyush Gupta, Dy. A.G., Punjab.
Mr. R.S. Bains, Advocate for respondent No.2. ***

S.S. SARON, J.

This petition has been filed under Section 439(2) of the Code of Criminal Procedure (“CrPC” – for short) seeking cancellation of anticipatory bail granted to respondent No.2 Gurmail Singh in case FIR No.140 dated 6.7.2008 registered at Police Station Model Town, Hoshiarpur for the offences under Sections 457 and 380 IPC.

Learned counsel appearing for the complainant/petitioner has submitted that respondent No.2 was granted pre-arrest bail by this Court vide order dated 23.9.2008 (Annexure P1). It is submitted that the bail granted vide order dated 18.7.2008 was made absolute subject to the provisions contained in Section 438(2) CrPC. However, despite the said bail being granted subject to the provisions of Section 438(2) CrPC, Gurmail Singh (respondent No.2) went Crl. Misc. No. M-283 of 2009 [2] abroad without taking prior permission of the Court. Therefore, he has violated the condition of bail.

In response, learned State counsel has submitted that the petitioner indeed has violated the condition of bail granted by this Court. However, he has been appearing regularly before the learned trial Court on the dates fixed for hearing. Learned counsel appearing for respondent No.2 has submitted that respondent No.2 had gone abroad under a bona fide mistake as he was told by his counsel that he can go wherever he likes except for the dates when the case is fixed for hearing, he should be present. It is submitted that respondent No.2 has never absented himself from the trial of the case and he has always been present. The charge in the case has been framed by the learned Judicial Magistrate Ist Class, Hoshiarpur on 21.1.2010 and on the said date also respondent No.2 Gurmail Singh was present before the Court. After giving my thoughtful consideration to the matter, it may be noticed that rejection of bail is on one footing but cancellation of bail is a harsh order as it takes away liberty on an individual. Therefore, the cancellation of an order granting bail is not to be lightly resorted to. It is only when to whom a bail is granted tries to interfere with the due course of justice or tampers with the evidence or witnesses, or threatens the witnesses or indulges in similar activities which affect the investigation or trial that a bail is liable to be cancelled. Moreover, Courts generally do not examine the merits of the order granting bail. However, even though Gurmail Singh (respondent No.2) is alleged to have violated the condition of bail it is not shown that he has, in any manner, tampered with the evidence Crl. Misc. No. M-283 of 2009 [3] or threatened witnesses or indulged in similar activities which can be said to have hampered the trial of the case. A perusal of the order framing charge dated 21.1.2010 shows that respondent No.2 along with his co-accused was present before the trial Court when the charge was framed. Therefore, in the facts and circumstances mere violation of the condition of bail cannot be said to be such a circumstance, which would require the bail that has been granted to be cancelled. Besides, respondent No.2 has been candid in stating that he had indeed gone abroad and that it was due to a bona fide mistake.

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In the circumstances, it would be just and expedient that Gurmail Singh (respondent No.2) complies with the conditions of bail in future and it is directed that he shall surrender his passport in the Court of the learned trial Magistrate within a week from today. Besides, he shall also file an undertaking that he shall not leave the country except with the prior permission of the trial Court which shall consider the case for grant of permission for going abroad in case an application in this regard is filed on the basis of material on record. Accordingly, Crl. Misc. petition stands disposed of. (S.S. SARON)

JUDGE

January 28, 2010

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