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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on : 18.03.2021
Order Passed on : 29.06.2021
CRMP No. 1257 of 2020
Sarita Tandan D/o Shri Ramsakha Tandan, aged about 32
years, R/o Ward No.12, Pragati Nagar, Bhatgaon, P.S.
Bhatgaon, District Balodabazaar-Bhatapara (C.G.)
—- Petitioner
Versus
1. State Of Chhattisgarh Through Superintendent of Police,
District Balodabazaar-Bhatapara (C.G.)
2. Station House Officer, Police Station Bhatgaon, District
Balodabazaar-Bhatapara (C.G.)
3. Ramsai Singh Baghel, S/o Shri Kirtan Singh Baghel, aged
about 44 years, R/o Pragati Nagar, Bhatgaon, District
Balodabazaar – Bhatapara (C.G.)
—- Respondent
For Petitioner : Mr. Anchal Kumar Matre,
Advocate.
For Respondents/State 12 : Mr. Samir Uraon, G.A.
For Respondent/accused -3 : Mr. Raghavendra Pradhan,
Advocate.
Hon’ble Smt. Justice Rajani Dubey
CAV Order
29/06/2021
1. The petitioner has filed this petition under Section
439(2) of the CrPC praying for cancellation of bail which
was granted to accused/respondent No.3 namely Ramsai
Singh Baghel vide order dated 04.08.2020 passed in
MCRC No.3696/2020 by this Court.
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2. Brief facts of the case is that on 09.03.2020, the
prosecutrix/petitioner had lodged an FIR against
accused/respondent No.3 at Police Station – Bhatgaon
under Sections 376, 506 and 496 IPC alleging that he
developed physical relations with her on the pretext of
marriage and ultimately refused to marry her. The
accused/respondent No.3 was arrested and, thereafter,
vide order impugned he was released on regular bail by
this Court.
3. The petitioner filed this petition on the ground that, (i)
immediately after releasing on bail the
accused/respondent No.3 started threatening the
petitioner with malafide intention, which was reported to
respondent No.2 as also respondent No.1-
Superintendent of Police, Balodabazar-Bhatapara, but
they have not taken any action against the accused, (ii)
On 19.08.2020, the petitioner moved a written
complaint against accused/respondent No.3 about
torture and sufferings being done by the accused and
also apprised the police that she is a single lady residing
along with her two minor children at Pragati Nagar,
where accused along with his wife approached her and
threatened that they will throw her out of the town after
raping her, (iii) again on 29.08.2020 and 01.09.2020,
accused/respondent No.3 pelted stones, broke the lock
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of her house with an intention to kill her and also sold
the building material belonging to the petitioner, (iv) the
accused/respondent No.3 is an Advocate by profession
and, therefore, no advocate at Bhatgaon is willing to
help the petitioner for filing the complaint case, and (v)
continuous mischievous act of the accused/respondent
No.3 compelled her to leave Bhatgaon and stay at
district headquarters. He has taken illegal possession of
her house. According to the petitioner, release of
respondent 3 on bail has adversely affected her life,
therefore, the impugned bail order deserves to be
cancelled.
4. Learned counsel for the petitioner has referred to
grounds mentioned in the petition. According to him,
the annexures filed along with the petition clearly shows
that the accused/respondent No.3 threatened the
petitioner right from his release on bail. The accused is
facing trial for the offence punishable under Section 376
IPC. The accused is not only an Advocate but also has
relation with political persons of ruling party, therefore,
none of the advocates are even ready to file a complaint
case against him. Police is also not extending help.
Learned counsel submits that the object of cancellation
of bail is to protect the fair trial and secure justice to the
society by preventing the accused who is set at liberty
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by the bail order from tempering with the evidence in
the heinous crime. Once a person is released on bail in
serious criminal cases where punishment is quite
stringent and deterrent, accused in order to get away
from the clutches of the same indulge in various
activities like tempering with the prosecution witnesses
and threatening the members of aggrieved party. In
support of his submission, learned counsel placed
reliance on the decisions Hon’ble Supreme Court in the
matter of Surya Narain and others Vs. State of U.P.
and others reported in 1999 (CRI.L.J. 496 and
Nityanand Rai Vs. State of Bihar Anr. reported in
2005 (2) Crimes 102 (SC).
5. Learned counsel for the respondents No.1 and 2/State
supported the arguments advanced on behalf of
petitioner and prays for cancellation of bail granted to
accused/respondent No.3.
6. Learned counsel for accused/respondent No.3 submits
that the petitioner is a married lady and she has not
divorced with her husband and, therefore, from the FIR
itself it is clear that she herself was not in a position to
marry during subsistence of her first marriage. The
petitioner has lodged an FIR (annexure R-3/3) against
her husband on 11.12.2020 under Section 294, 323 and
506 IPC. She has also lodged a false FIR against
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respondent No.3 and, immediately after releasing on
bail, the petitioner made a false complaint before police
authority alleging that the accused/respondent No.3
threatened the petitioner for dire consequence just to
get cancel the bail order granted by this Court. Learned
counsel also submits that document filed by him
(Annexure R-3/1 to R-3/3) clearly established that the
petitioner has filed various petitions against her husband
and she is still wife of one Shri Mahboob Ali Faruqi. It is
next submitted that the accused/respondent No.3 never
misused the liberty granted by this Court and, therefore,
the petition may be dismissed. He placed reliance on
the decision of Hon’ble Supreme Court in the matter of
Mehboob Dawood Shaikh Vs. State of
Maharashtra reported in (2004) 2 SCC 362.
7. Heard learned counsel for the parties and perused the
material available on record.
8. The question which falls for consideration, in order to
invoke the jurisdiction of this Court in entertaining the
present application under Section 439(2) of the Cr.P.C., is
whether the petitioner has prima-facie made out any
ground for cancellation of bail under Section 439(2) of
the Cr.P.C.. Section 439 Cr.P.C. confers concurrent
jurisdiction on the Court of Sessions and the High Court.
For facility of reference, Section 439 Cr.P.C., is
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reproduced herein-under :-
“439. Special powers of High Court or Court of
Session regarding bail.—
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody
be released on bail, and if the offence is of the nature
specified in subsection (3) of section 437, may impose
any condition which it considers necessary for the purposes
mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when
releasing an person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall,
before granting bail to a person who is accused of an offence
which is triable exclusively by the Court of Session or which,
though not so triable, is punishable with imprisonment for
life, give notice of the application for bail to the Public
Prosecutor unless it is, for reasons to be recorded in writing,
of opinion that it is not practicable to give such notice.
1[Provided further that the High Court or the Court of
Session shall, before granting bail to a person who is
accused of an offence triable under sub-section (3) of section
376 or section 376AB or section 376DA or section 376DB of
the Indian penal Code (45 of 1860), give notice of the
application for bail to the Public Prosecutor within a period of
fifteen days from the date of receipt of the notice of such
application.]
2[(1A) The presence of the informant or any person
authorised by him shall be obligatory at the time of hearing
of the application for bail to the person under sub-section (3)
of section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code (45 of 1860).]
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter be
arrested and commit him to custody. ”
9. The Hon’ble Supreme Court, in the matter of Abdul
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Basit alias Raju and others Vs. Mohd. Abdul Kadir
Choudhary and another reported in (2014) 10 SCC
754, has considered all its earlier judgments on the
issue and pointed out distinction between review/recall
of order granting bail from cancellation of bail order and
has held that the Court granting bail cannot review its
order on the ground of its being illegal, unjustified or
perverse in view of express bar contained in Section 362
of the Cr.P.C. and held in paragraphs 20, 21, 26 and 27
of the report, which reads thus:-
“20. In the instant case, the respondents herein
had filed the criminal miscellaneous petition
before the High Court seeking cancellation of bail
on grounds that the bail was obtained by the
petitioners herein by gross misrepresentation of
facts, misleading the court and indulging in
fraud. Thus, the petition challenged the legality
of the grant of bail and required the bail order to
be set aside on ground of its being perverse in
law. Such determination would entail eventual
cancellation of bail. The circumstances brought
on record did not reflect any situation where the
bail was misused by the petitioner-accused.
Therefore, the High Court could not have
entertained the said petition and cancelled the
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bail on grounds of it being perverse in law.
21. It is an accepted principle of law that when a
matter has been finally disposed of by a court,
the court is, in the absence of a direct statutory
provision, functus officio and cannot entertain a
fresh prayer for relief in the matter unless and
until the previous order of final disposal has been
set aside or modified to that extent. It is also
settled law that the judgment and order in the
absence of any express provision in the Code for
the same. Section 362 of the Code operates as a
bar to any alteration or review of the cases
disposed of by the court. The singular exception
to the said statutory bar is correction of clerical
or arithmetical error by the court.
26. In the instant case, the order for bail in the bail
application preferred by the accused-petitioners
herein finally disposes of the issue in
consideration and grants relief of bail to the
applicants therein. Since, no express provision
for review of order granting bail exists under the
Code, the High Court becomes functus officio
and Section 362 of the Code applies herein
barring the review of judgment and order of the
Court granting bail to the petitioner-accused.
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Even though the cancellation of bail rides on the
satisfaction and discretion of the Court under
Section 439(2) of the Code, it does not vest the
power of review in the court which granted bail.
Even in the light of fact of misrepresentation by
the petitioner-accused during the grant of bail,
the High Court could not have entertained the
respondent/informant’s prayer by setting in
review of its judgment by entertaining
miscellaneous petition.
27. Herein, the High Court has assigned an
erroneous interpretation to the well settled
position of law, assumed expanded jurisdiction
into itself and passed an order in contravention
of Section 362 of the Code cancelling the bail
granted to the petitioners herein. Therefore, in
our considered opinion, the High Court is not
justified in reviewing its earlier order of grant of
bail and thus, the impugned judgment and order
required to be set aside.”
10. Further, on the issue with regard to rejection of bail and
cancellation of bail already granted, the Hon’ble
Supreme Court, in the matter of Dolat Ram and others
Vs. State of Haryana reported in (1995) 1 SCC 349,
has held in para 4, which reads as under:-
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“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 dealth 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
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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.
11. The Hon’ble Supreme Court in the matter of Hazari Lal
Das Vs. State of West Bengal and Another reported
in (2009) 10 SCC 652 held in para 7, which reads thus:-
“7. There is nothing on record that there has been
interference or attempt to interfere with the due
course of administration of justice by the
appellant. It also does not appear from the
record that the concession granted to him has
been abused in any manner. No supervening
circumstances have surfaced nor shown
justifying cancellation of anticipatory bail. The
judicial discretion exercised by the Sessions
Judge in granting the anticipatory bail has been
interfered with by the High Court in the absence
of cogent and convincing circumstances. We
are, thus, satisfied that the impugned order
cannot be sustained.”
12. It is clear from documents (Annexure R-3/1 to R-3/3) filed
by accused/respondent No.3 that the petitioner has filed
various complaints against her husband also. In the
present case, cancellation of bail is claimed mainly on
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the ground that just after releasing on bail, the
accused/respondent No.3 threatened the petitioner of
dire consequences. The petitioner has not come before
this Court with incriminating evidence to substantiate
her ground. Bail granted earlier cannot be cancelled on
the basis of mere allegations unless truthfulness of the
allegation is established. The Apex Court had an
occasion to deal with this aspect in the matter of
Mehboob (supra). In that case also there was an
allegation in respect of threats. Referring to this aspect,
Their Lordships observed in para 11 of the report that
mere assertion of alleged threat to witnesses should not
be utilized as a ground for cancellation of bail, routinely.
Otherwise, there is ample scope for making such
allegation to nullify the bail granted. The Court before
which such allegations are made should in each case
carefully weigh the acceptability of the allegations and
pass orders as circumstances warranting law. Such
matters should be dealt with expeditiously so that actual
interference with the ordinary and normal course of
justice is nipped in the bud and an irretrievable stage is
not reached.
13. In the facts of the present case, applying the statement
of law by their Lordships of Hon’ble Supreme Court in
Hazari (Supra) and Mehboob (supra) and in the
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absence of other circumstances to substantiate the
allegations regarding threats, mere allegations of the
petitioner regarding solitary instance cannot be treated
as sufficient to warrant cancellation of bail granted
earlier. Before considering cancellation of bail it has to
be borne in mind that a citizen cannot be deprived of his
liberty without sufficient justification. Such a justification
is not available in the present case. The petitioner has
miserably failed to make out a strong case for
cancellation of bail. In this view of the matter, the
petition being devoid of substance, deserves to be
dismissed. As such, the petition filed under Section 439
(2) of Cr.P.C. is dismissed.
Sd/-
(Rajani Dubey)
JUDGE
PKD