Rai Vs. State of Bihar & Anr  Insc 238 (11 April 2005)
Hegde & S.B. Sinha
out of SLP (Crl) No. 3280 of 2004) SANTOSH HEGDE, J.
learned counsel for the parties.
this appeal the appellant challenges an order of the High Court of Judicature
at Patna made in Criminal Miscellaneous No.
29702 of 2003 dated 19-5-2004 by which order the High Court
cancelled the bail granted to the appellant earlier by itself on 19-9-2003. Basic facts necessary for the disposal of this
appeal are as follows :-
stated by the prosecution that the petitioner is an accused in Hajipur (T) P.S.
Case No. 71 of 1993 which was registered U/s 302, 307, 120 B of the I.P.C. and
Section 27 of the Arms Act on the basis of a complaint given by one Raj Kishore
Rai on 6-3-1993 wherein it is stated that the appellant along with some others
had murdered his brother Ram Davan Rai. Pursuant to the said complaint so far
as the present appellant is concerned a charge-sheet was filed only on 11th July, 2003 nearly 10 years after the date of
alleged incidence. On coming to know of the filing of such a charge-sheet the
appellant moved the Sessions Court at Vaishali for grant of anticipatory bail
which was rejected by the Sessions Court as per its order dated 30th of May,
2003. And being aggrieved by the said order of the Sessions Court, the
petitioner preferred an anticipatory bail application before the High Court of Patna
which also came to be rejected on 17-7-2003 directing the appellant to
surrender and seek regular bail. As per the said direction, it is stated that
the appellant surrendered before the C.J.M., Vaishali at Hajipur on 21-7-2003 and moved a regular bail application which was
rejected by the learned Sessions Judge on 7-8-2003. Against the said order of
rejection of regular bail, the appellant preferred a Criminal Miscellaneous
Petition before the High Court of Patna which by its order dated 19th of
September, 2003 granted the bail to the petitioner subject to his furnishing a bond
of Rs. 10,000/- with two sureties of the like amount each to the satisfaction
of the CJM, Hajipur.
even before the appellant could be released from custody pursuant to the bail
granted by the High Court the complainant in the case moved an application
before the High Court of Patna in Crl. Misc. No. 29702 of 2003 seeking
cancellation of the bail granted to the appellant alleging that the appellant
was an influential man and had been manipulating the investigation for the past
ten years and was ultimately brought to trial only because of the change in the
hierarchy of police i.e. when an impartial investigating agency came into
picture. It was also urged that the appellant had suppressed material facts
while obtaining the bail from the High Court in as much as the appellant did
not disclose that in the connected criminal trial the co- accused have been
found guilty of an offence under Section 302 etc. and that since the date of
the appellant's surrender pursuant to the direction issued by the High Court on
17th of July, 2003, the appellant and his musclemen have been threatening the
witnesses and preventing the complainant from pursuing the case against the
appellant. It was also stated in the said application for cancellation of bail
that two complaints have already been filed in the Sadar Police Station, Hajipur
on 10-10-2003 and 13-10-2003 alleging a threat by the appellant and his henchmen.
High Court by the impugned order allowed the said application for cancellation
of bail filed by the complainant on the ground that there was a threat to the
prosecution witnesses by the appellant and his musclemen and that the appellant
had not brought to the notice of the court that in the connected trial the two
accused have already been convicted by the trial court and were sentenced to
life imprisonment. The court in the impugned order also noticed that in the
order granting bail it unfortunately failed to notice that the appellant was
one of the two accused who were described as the active assailants.
the above order of cancellation of bail in this appeal the appellant contends
that the High Court while canceling the bail has not borne in mind the well
settled principles of law in regard to cancellation of bail and has approached
the case as if it was hearing a bail application for the first time. It is also
contended that the basis of the alleged threat which was taken note of by the
High Court, i.e. the two complaints filed by the complainant dated 10-10-2003
and 13-10-2003 in Hajipur Police Station could not have been genuine in as much
as on the date when these two complaints were filed, the appellant was, as a
matter of fact, in custody and was only released pursuant to the bail granted
by the High Court on 15-11-2003 nearly a month after the two alleged complaints
of threat were lodged, hence, no reliance could have been placed on such a pre
also submitted on behalf of the appellant that though the appellant was
included in the First Information Report filed in the year 1993, the
investigating agency could not find any material against the appellant, hence
no charge-sheet was filed against the appellant for nearly 10 years until the
same was done on 11-7-2003, this too because of the fact that that the investigating
Police officer was annoyed with the appellant because of a privilege motion
brought against the said police officer in the assembly at the instance of the
appellant as a Member of the Legislative Assembly, in which the said police
officer had to tender an apology.
counsel for the State as well as for the complainant in rebuttal submitted that
the appellant being a very influential person has managed with the
investigating agency to keep himself out of the trial all these years and
because of the efforts of a good police officer he has at last been charged for
a heinous crime and if he is let out on bail there is every possibility of his
interfering with the fair trial, therefore, the High Court was justified in
canceling the bail. It is also pointed out that since the Sessions court in the
connected trial has convicted two persons for life imprisonment and in the
evidence adduced in that trial found material against the appellant of his
involvement in the crime.
is not a fit case in which the appellant should be granted bail.
considered the argument advanced on behalf of the appellant and respondent, we
think the High Court was not justified in considering the application for
cancellation of bail as if it was an application for grant of bail.
Consideration of an application for grant of bail stands on a different footing
than one for cancellation of bail.
for cancellation of bail should be those which arose after the grant of bail
and should be referable to the conduct of the accused while on bail, such is
not the case made out in application for cancellation of bail. Of course, the
complainant had alleged in the petition for cancellation of bail that the
witnesses in the case had received threats from the appellant and his henchmen,
this is supported by two complaints filed by him before the police dated 10-10-2003 and 13-10-2003. But
as contended by the learned counsel for the appellant these two complaints
cannot be accepted ex-facie because on the dates mentioned in those complaints
the appellant was still in jail and was not yet released on bail though the
High Court had granted him bail, therefore, the question of the appellant
administering threats to the witnesses as alleged by the complainant cannot be
accepted. The next ground on which the High Court considered it appropriate to
cancel the bail is the fact that the appellant had not brought to its notice
that in the connected trial, two of the co-accused had been convicted for an
offence punishable under Section 302. This fact has been denied by the
appellant before us by pointing out from his bail application wherein para 10
he had specifically mentioned about the conviction of the two accused persons.
Be that as it may, it was the duty of the prosecution to have brought this fact
to the notice of the High Court and the appellant cannot be held guilty of
suppression of that fact. The 3rd ground on which the bail was cancelled is an
error committed by the court itself in not noticing the fact that in the
judgment of the trial court in the connected matter the trial court found
material as to the participation of the accused in the offence. We are of the
opinion that this also cannot be a ground for canceling the bail already
granted which was not challenged by any person be it the prosecution or the
complainant. The factum that the learned Sessions Judge in the judgment
convicting the two co-accused expressed certain views as to the involvement of
the appellant in this crime cannot be a ground to cancel the bail. As contended
by the learned counsel for the appellant if really there was such material
against the appellant before the Sessions court in that trial the procedure
contemplated under Section 319 of Cr.PC could have been invoked either by the
complainant or the court itself which having not been done, at this stage that
observation of the learned Sessions Judge or the evidence given by the
witnesses in that trial in which appellant was not an accused can be construed
as material sufficient to cancel the bail.
counsel for the respondent then pointed out that the appellant was absconding
since the date of incident, hence, investigation as against him could not be
concluded for the last many years, and if he is released there is a possibility
of he again absconding.
argument, in our opinion, runs counter to the material on record.
the filing of the complaint in the year 1993, 7 earlier charge- sheets were
filed against various accused mentioned in the complaint and in all these
charge-sheets, last of which was on 31.3.2003, the appellant's name was shown
in Col.No.2 as an accused against whom investigation was still being conducted.
In the said charge-sheets, he was not shown as an absconder. That apart there
is material on record to show that the appellant has been elected to the
Legislative Assembly in the year 2000 and again in the year 2005, and has been
attending the Assembly proceedings till he surrendered in the year 2003. If
that be so, the allegation of abscondence in past or the likelihood of abscondence
in future cannot be accepted. As a matter of fact that for nearly 10 years and
after filing 7 charge-sheets, the investigation did not find sufficient
material to include the appellant as an accused in those 7 charge-sheets is an
indicator of the fact that for all these years the investigation agency could
not find material against the appellant.
we are satisfied that the cancellation of bail by the impugned order, by the
High Court is unsustainable. However, taking into consideration the
apprehension of the complainant that the appellant by using his power as member
of the Legislative Assembly might interfere in the trial or try to influence
the witnesses in the case, we feel it appropriate to direct the appellant not
to enter the territorial jurisdiction of Hajipur Sub Division of District Vaishali
except for the purpose of attending the trial. If for any reason it becomes
imperative for the appellant to visit Hajipur then he shall do so after
informing the investigating agency in the case. This condition shall be in
addition to the conditions imposed by the High Court for granting bail as per
its order dated 19-9-2003.
the reasons stated above, we allow this appeal, set aside the impugned order of
the High Court and restore that of the High Court dated 19-9-2003 granting bail to the appellant.
make it clear that whatever conclusion we have expressed in this order of ours
is purely prima facie and for the limited purpose of finding out whether the
impugned order of the High Court is sustainable or not. The trial court shall
not be in any manner be influenced by these observations of ours or that of the
High Court made in the course of the order granting bail or order canceling