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1987 Supreme(All) 573
IN THE HIGH COURT OF ALLAHABAD
S. I. Jafri
KAMLA SHANKER SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cri. Misc. 9479 Of 1987
Decided On : 12/14/1987
A Sessions Judge has the power to entertain bail applications even after the rejection of the bail application by the High Court, but this power should be exercised only in exceptional circumstances.
Headnote:
BAIL - CANCELLATION - SECTION 439, 482, 399/401 CR. P. C. - ORDER OF CANCELLATION OF BAIL PASSED BY THE INCHARGE SESSIONS JUDGE - HELD TO BE VALID - APPLICANTS HAD OBTAINED BAIL BY PLAYING FRAUD UPON THE COURT BY WITHHOLDING THE FACTUM OF REJECTION OF THEIR BAIL APPLICATION BY THE HIGH COURT.
Fact of the Case:
The applicants, accused of murder, were granted bail by the Incharge Sessions Judge on the ground of undue delay in the trial. However, the bail was later cancelled by the same judge upon discovering that the applicants had deliberately suppressed the fact that their bail application had been rejected by the High Court.
Finding of the Court:
The court held that the Incharge Sessions Judge was justified in cancelling the bail of the applicants as they had obtained the bail order by practicing fraud upon the court. The court also held that the Sessions Judge has the power to entertain bail applications even after the rejection of the bail application by the High Court, but this power should be exercised only in exceptional circumstances.
Issues: 1. Whether the Incharge Sessions Judge was justified in cancelling the bail of the applicants? 2. Whether the Sessions Judge has the power to entertain bail applications even after the rejection of the bail application by the High Court?
Ratio Decidendi: 1. The court held that the Incharge Sessions Judge was justified in cancelling the bail of the applicants as they had obtained the bail order by practicing fraud upon the court. The court relied on section 44 of the Evidence Act, which allows a party to a suit to show that a judgment or order was obtained by fraud or collusion. 2. The court held that the Sessions Judge has the power to entertain bail applications even after the rejection of the bail application by the High Court, but this power should be exercised only in exceptional circumstances.
Final Decision: The court rejected the applicants' bail application and vacated the stay order passed earlier.
( 1 ) KAMLA Shanker Singh and Ram Naresh Singh applicants have preferred the above mentioned application under section 439 read with sections 482, 399/40 1 Cr. P. C.
( 2 ) A few facts bearing upon this case are that accused Kamla Shanker Singh, Ram Naresh Singh, Uma Shanker Singh and Rama Shanker Singh, all inhabitants of village Manikpur, Police Station Handia District Allahabad, have been committed to the Court of Sessions for the murder of one Dhan Bahadur Singh, Block Pramukh of Handia Block, Allahabad on 17/9/1987 at about 6. 30 a. m. near Lakasha Garhi Market, P. S. Handia, District Allahabad.
( 3 ) THE charges against the accused have also been framed by 6th Additional Sessions Judge, Allahabad on 4/8/1987. However, no evidence could be recorded so far and at present, the trial is pending in the court of 6th Additional District and Sessions Judge, Allahabad. Here it is worthy of mention that according to the explanation furnished by Shri S. M. Pandey, IX Additional Sessions Judge, Allahabad, all the accused have absconded and they have not put in appearance tm 26/10/1981 before the Court of 7th Additional Sessions Judge. The next date fixed for appearance of the accused in the court of 6th Additional Sessions Judge, Allahabad was 10/11/1987.
( 4 ) IN the instant murder case, one Jagadhar Singh complainant lodged a report of the occurrence at Police Station Handia at 12. 30 p. m. on 17/9/1981 the same day in which all the four accused enumerated above, were nominated as assailants of the deceased Dhan Bahadur Singh. In the first instance, accused persons moved their application for bail before the Sessions Judge and after rejection of their bail application; the accused persons filed their bail applications in the High Court. The bail application of accused Uma Shanker was the first to be rejected on 29/4/1987 by Hon. RP. Shukla, J. on merits. Subsequently, the application for bail preferred on behalf of Kamla Shanker Singh and Ram Naresh Singh applicants was rejected by this Court on 13. 5. 1987 after hearing both the parties on merits. Lastly the bail application of Rama Shanker Singh was rejected by Hon. R. S. Dhawan J. on 5/6/1987.
( 5 ) KAMLA Shanker Singh and Ram Naresh Singh applicants and co-accused Uma Shanker Singh and Rama Shanker Singh filed a joint second bail application on 29/7/1987 in the court of Incharge Sessions Judge, Allahabad, although on that date, the trial of the accused persons was pending in the court of 8th Additional Sessions Judge, Allahabad. The learned incharge Sessions Judge after hearing the learned counsel for the accused and also the learned counsel for the State, granted bail to all the aforesaid four accused persons on 31. 8. 1987 on the sole ground that there had been undue delay in the trial of the applicants and that the applicants were in jail for the last 10 months and consequently, all the four accused persons were released on bail from jail on 4. 8. 1987.
( 6 ) COMPLAINANT Jagadhar Singh filed an application for cancellation of the bail grant ed to the accused persons in the court of Incharge Sessions Judge, Allahabad on 10. 8. 1987, stating therein that the applicants had deliberately suppressed and withheld the factum of rejection of their bail by the High Court in their bail application. The complainant had also ankles the certified copies of the orders refusing bail to the accused by the High Court. Thereupon, the learned Incharge Sessions Judge immediately issued notices to the accused persons to show came as to why their bail be not cancelled but the service of notices could not be effected upon the accused personally. However, notices were served on Sri Ejazuddin, advocate one of the counsel for the accused persons.
( 7 ) THE aforesaid application for cancellation of bail filed by Jagadhar Singh was taken up by Sri Brahma Singh 1st Additional Sessions Judge, Allahabad on 14. 8. 1987 in the capacity of Incharge Sessions Judge. The Incharge Sessions Judge
