RAJASTHAN HIGH COURT
Prashant Kumar Agarwal, J.
Dr. Prashant Jain —Petitioner
versus
State of Rajasthan —Respondent
S.B. Cri Misc. (Cancellation of bail) Appl. No. 7643 of 2011
Decided on 18.4.2013

IMPORTANT POINTS
(1) In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. There is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail.
(2) Complainant can always question the order granting bail if the said order is not validly passed.

Headnote:Criminal Procedure Code, 1973—Section 439(2) —Petition by complainant for cancellation of anticipatory bail granted by Sessions Court in favour of respondent No.2 in a case registered under Sections 420, 467, 468 and 471 r/w 120B IPC—Complainant had locus standi to question the order of bail if order was not validly passed—In considering such petition court has to consider gravity and nature of offence, prima facie case against accused, position and standing of accused—There was no absolute rule that once bail was granted then it could only be concelled if there was likelihood of misuse of bail—Respondent failed to appear before Investigating Officer for investigation and even did not furnish, requisite bail bonds—Respondents absconded and could not be arrested in present case and in several other cases—Bail was liable to be cancelled.

       Held: From the material available on record following facts relevant for the disposal of the present application clearly emerge:

        (1) The respondents failed to appear before the investigating agency for investigation and even did not furnish requisite bail bonds as directed by the learned Sessions Judge while enlarging them on bail under Section 438 Cr.P.C. and thus, violated the condition imposed by him. The respondents failed to appear despite the fact that notices for their appearance were issued by the investigating officer on 15.6.2011, 6.7.2011, 8.7.2011 and 12.7.2011. It was found that the respondents are continuously absent from their respective residences and other possible places of their presence .

        (2) They absconded and could not be arrested in the present case as well as in several other cases which are pending against them and ultimately they were declared absconders and standing warrants were issued for their arrest. Even prize was also announced to be awarded if some person facilitates the arrest of respondent.

        (3) The investigation in the present case is almost complete except that interrogation of the respondents could not be made due to their absence and as a result thereof investigation had been kept pending against them although charge-sheet against co-accused Shri Ramesh Kumar has already been filed in the Court concerned.

        (4) As many as 30 FIRs were registered against the Anand Bhawan Housing Society Limited and its officials at various police stations of Jaipur from time to time and in some of which after investigation either charge-sheets or negative final reports were submitted whereas some are still under investigation mainly by the reason that respondents are not cooperating with the investigation.

        (5) Respondent-Shri Hanuman Sahay has been declared absconder in as many as six cases including the present one. Special teams of competent police officers were constituted to arrest the respondents in the cases which are pending investigation, but they could not be arrested despite best efforts made by them.

        (6) No civil suit is pending or was ever pending between the parties in respect of the plots in dispute and it was wrongly stated before the learned Sessions Judge that such suit is pending between the parties. (Para 8)

       If in the light of prevalent legal position, the facts and circumstances of the present case are considered, the application filed by the complainant-petitioner is liable to be allowed and the order of bail dated 20.5.2011 passed by the learned Sessions Judge, .Jaipur Metropolitan in respect of FIR No.170/2010 registered at Police Station Shyam Nagar, Jaipur City (South) requires to be cancelled as it is very clear that the same has been obtained by concealment of material and relevant facts and it has been passed taking into consideration irrelevant and false facts. There is another reason for cancellation of the aforesaid order as the respondents have misused the liberty provided to them by way of grant of anticipatory bail as they failed to appear before the investigating officer at their own and also despite issuance of notice to them by the investigating officer several times rather they absconded and failed to furnish bail bonds in compliance of the order dated 20.5.2011. While allowing the application filed by the respondents under Section 438 Cr.P.C., learned Sessions Judge apart from others imposed a condition that the respondents would make them available for investigation when and where the investigating agency calls upon them. It is clear that the respondents utterly failed to comply the aforesaid condition and, therefore, misused the liberty provided to them. From the reading of impugned order dated 20.5.2011, it is revealed that this fact was also taken into consideration by the Court that civil suit regarding disputed property is pending between the parties. Learned counsel for the respondents could not dispute the statement made on behalf of the petitioner before this Court that no such suit is pending or was ever pending between the parties. This shows that a false statement regarding pendency of civil suit was made before the learned Sessions Judge to obtain the order of anticipatory bail and relying on the same the order was passed. It is well settled that if an order of bail has been granted taking into consideration some wrong and irrelevant fact the same is liable to be cancelled. From the perusal of order it is clear that fact of pendency of several other criminal cases of the like nature was not brought to the knowledge of the learned Judge rather it was concealed with the connivance of the prosecution and, therefore, the order was passed without considering a material fact as pendency of other criminal cases and criminal antecedent of an accused is a relevant factor while considering an application for grant of bail more particularly in an application under Section 438 Cr.P.C. for grant of anticipatory bail.

       Consequently, the application filed under Section 439 (2) Cr.P.C. is allowed and the impugned order dated 20.5.2011 is set aside and cancelled and the respondents are directed to surrender before the concerned IO./SHO. (Paras 18 & 19)

       Result: Petition allowed.