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1994 Supreme(Pat) 310
PATNA HIGH COURT
S.K.Chattopadhyaya, J.
Mahendra Prasad Singh
Versus
State Of Bihar
Criminal Miscellaneous No. 16754 of 1993 ;
Decided On : SEPTEMBER 15, 1994
Cancellation of bail is a harsh order that interferes with the liberty of the individual and should not be lightly resorted to.
Headnote:
{'KEYWORD': 'Bail Cancellation', 'SUBJECT': 'Criminal Procedure Code, 1973', 'ACT SECTION LIST': ['Section 437(1)', 'Section 437(2)', 'Section 437(5)', 'Section 439(1)', 'Section 439(2)'], 'SUMMARY': 'The court discussed the conditions under which bail granted under Section 437(1), 437(2), 439(1), or 439(2) of the Code of Criminal Procedure, 1973 can be cancelled. It emphasized that cancellation of bail is a harsh order that interferes with the liberty of the individual and should not be lightly resorted to.'}
Fact of the Case:
The petitioner, an informant in a criminal case, filed an application under Section 439(2) of the Code of Criminal Procedure, 1973, seeking cancellation of the bail granted to the accused, Opposite Party No. 2, by the vacation judge. The petitioner alleged that the accused had misused his liberty by threatening witnesses and interfering with the course of investigation.
Finding of the Court:
The court found that the learned vacation judge had carefully considered the case diary and was prima facie satisfied that no case under Sections 364 and 379 of the Indian Penal Code was made out against the accused. The court also noted that the Superintendent of Police had supervised the case and directed the filing of a charge sheet under Sections 341, 323 read with Section 34 of the Indian Penal Code, which indicated that the learned vacation judge's satisfaction was not an error of record.
Issues: 1. Whether the bail granted to the accused should be cancelled due to misuse of liberty, interference with the course of investigation, and threats to witnesses? 2. Whether the learned vacation judge erred in finding that no case under Sections 364 and 379 of the Indian Penal Code was made out against the accused?
Ratio Decidendi: The court held that the bail granted to the accused should not be cancelled as there was no evidence of misuse of liberty, interference with the course of investigation, or threats to witnesses. The court also found that the learned vacation judge had carefully considered the case diary and was prima facie satisfied that no case under Sections 364 and 379 of the Indian Penal Code was made out against the accused.
Final Decision: The court dismissed the application filed by the petitioner, upholding the bail granted to the accused by the learned vacation judge.
S.K.Chattopadhyaya, J.
1. Heard Mr. Singh, on behalf of the petitioner, Mr. Dayal, on behalf of the State and Mr. Shakil Ahmad, on behalf of Opposite Party No. 2 and with their consent this application is disposed of at the admission stage itself.
2. This application under Sec. 439(2) of the Code of Criminal Procedure has been filed by the informant with a prayer to cancel the order of bail given to Opposite Party No. 2 by the learned Vacation Judge, Saran, Chapra by order dated 5-11-1993 in Bail Petition No. 712 of 1993.
3. Pursuant to order dated 28-2-1994, letter of D.I.G., Tirhut Range, Muzaffarpur has been received which is at Flag-P. It appears from the letter dated 9-5-1994 that there is no report of Sri V.D. Ram, the D.I.G. in the office of the D.I.G., Tirhut Range, Muzaffarpur.
4. It is submitted on behalf of the petitioner that from mere perusal of the impugned order it is clear that the learned court below has not properly appreciated the case of the prosecution. It is urged that having found that the Opposite Party No. 2 Ashok Singh with the aid of other accused persons as well as with the help of armed guards overpowered the petitioner and by forcibly confining him brought to the station for no justification, should not have opined that only offence under Secs. 342 and 323, IPC were made out, rather the learned court below should have held that a clear case under Sec. 364 IPC has been made out.
5. A supplementary affidavit has been filed in which it has been stated that after having released on bail the Opposite Party No. 2 went to the village of the informant-petitioner along with his associates and held out all sorts of threats to the petitioner and his family members. It is alleged that opposite party No. 2 also had given threat to three witnesses, namely, Kirshna Singh, Abhay Singh and Prem Chandra Singh. Referring to Annexure-6, it is submitted that on such threat being given, the petitioner lodged a complaint with the Officer-in-charge of Naya Gaon Police Station and Station entry dated 28-11-1993 was made.
6. In the supplementary affidavit as well as in the main petition, the petitioner has also alleged about some dereliction of duties on the part of the Investigating Officer. It is also alleged that the Opposite Party No. 2 is a notorious criminal having many cases against him. In this background, learned Counsel for the petitioner submits that the bail order passed in favour of Opposite Party No. 2 by the learned vacation judge should be cancelled.
7. Mr. Kameshwar Dayal, learned Counsel for the State has firstly raised a preliminary objection regarding the maintainability of this application. Referring to Sub-clause (5) of Sec. 437 of the Code of Criminal Procedure. He has submitted that the petitioner should have moved the learned Sessions Judge at Saran for cancellation of the order of bail inasmuch as, Sec. 437(5) contemplates that any court which has released a person on bail under Sub-section (1) or (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. On merit, Mr. Dayal has submitted that the Police investigated the matter and the case was supervised by the Superintendent of Police and after supervision, the S.P. directed for filing charged-sheet under Secs. 341 and 323 read with Sec. 34 of the Indian Penal Code. He further submits that the learned Sessions Judge before granting bail had gone through the case diary and was prima facie satisfied that no case under Secs. 364 and 379 was made out and as such this Court should not interfere with the impugned order very lightly. Regarding threat to the witnesses as submitted on behalf of the petitioner, Mr. Dayal has contended that mere filing of a sanaha is not sufficient to hold that there was actual threat to the witnesses. He submits that if actually threat was going by the Opposite Party No. 2, he should have given the threat to Anil Singh who was the alleged eyewitness and was accom
