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Sarita Tandan vs State Of Chhattisgarh on 29 June, 2021

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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

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