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1983 Supreme(All) 220
IN THE HIGH COURT OF ALLAHABAD
R. B. Lal
VIRENDRA SINGH - Appellant
Versus
AVDHESH KUMAR - Respondents
Criminal Misc. Case 2296 Of 1983
Decided On : 09/08/1983
A.C.CHATURVEDI, A.D.Giri, S.S.TEWARI
The Sessions Court cannot cancel bail granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 439(2) - CANCELLATION OF BAIL - POWER OF HIGH COURT - SCOPE AND EXERCISE - SESSIONS COURT CANNOT CANCEL BAIL GRANTED BY HIGH COURT UNLESS NEW CIRCUMSTANCES ARISE - SESSIONS COURT MAY ENTERTAIN AND CONSIDER BAIL APPLICATION OF ACCUSED WHOSE BAIL HAS BEEN REJECTED BY HIGH COURT, PROVIDED NEW SUBSTANTIAL GROUNDS FOR BAIL HAVE ARISEN SINCE LAST ORDER OF REJECTION OF BAIL AND A REASONABLY LONG INTERVAL HAS ALSO ELAPSED - DELAY IN TRIAL OF CASE DUE TO REASONS BEYOND CONTROL OF ACCUSED AND COMPLAINANT - ACCUSED ENTITLED TO BAIL - GRANT OF BAIL BY SESSIONS COURT IN SUCH CIRCUMSTANCES NOT JUSTIFIED - ORDER OF BAIL SET ASIDE - SESSIONS JUDGE DIRECTED TO TAKE STEPS FOR EARLY CONCLUSION OF PART-HEARD SESSIONS TRIAL.
Fact of the Case:
Accused, facing trial for an offence under Section 302 IPC, surrendered in court on 19-11-1981. Their bail applications were rejected twice by the Sessions Judge and once by the High Court. On 8-3-1983, they moved a bail application before the Additional Sessions Judge, who allowed the same on 17-3-1983, observing that the accused had been in jail for more than one year and there had been no progress in the trial of the case except the framing of charge. The complainant filed an application for cancellation of bail, contending that the accused had not mentioned in their bail application that their bail application had been rejected by the High Court by order dated 4-11-1982, and that there was danger to the life of the witnesses if the accused came out of jail.
Finding of the Court:
The High Court held that the Additional Sessions Judge erred in allowing the bail application without considering the fact that the accused's bail application had been rejected by the High Court a few months earlier. The court observed that the accused had no case for bail on merits, and that the delay in the conclusion of the trial was not undue, as a substantial portion of the period was due to the court of the Additional Sessions Judge remaining without a Presiding Officer. The court also held that the grant of bail was against propriety and judicial decorum, and that the proper course for the Additional Sessions Judge would have been to direct the accused to approach the High Court.
Issues: 1. Whether the Sessions Court can cancel bail granted by the High Court? 2. Whether the Sessions Court can entertain and consider a bail application of an accused whose bail has been rejected by the High Court? 3. Whether the accused were entitled to bail in the present case?
Ratio Decidendi: 1. The High Court has wide and overriding power under Section 439(2) Cr.P.C. to cancel bail granted by the Sessions Court, even if no new circumstances have come into existence. 2. The Sessions Court may entertain and consider a bail application of an accused whose bail has been rejected by the High Court, provided new substantial grounds for bail have arisen since the last order of rejection of bail and a reasonably long interval has also elapsed. 3. The accused were not entitled to bail in the present case, as they had no case for bail on merits, the delay in the conclusion of the trial was not undue, and the grant of bail was against propriety and judicial decorum.
Final Decision: The application for cancellation of bail was allowed, the order of bail dated 17-3-1983 passed by the Additional Sessions Judge was set aside, and the bail of the accused was cancelled. The Sessions Judge was directed to take steps for an early conclusion of the part-heard sessions trial.
( 1 ) THIS is an application under Section 439 (2) Cr. P. C. for cancellation of bail granted to Avadesh Kumar and Anurudha Kumar, opposite parties Nos. 1 and 2 by JInd Additional Sessions Judge, Etawah, by his order, dated 17-3-83.
( 2 ) OPPOSITE parties Nos. 1 and 2 are facing trial for an offence under Section 302 I. P. C. of police station, Bakewar, District Etawah. They surrendered in Court on 19-11-81. They twice moved the learned Sessions Judge, Etawah, for granting bail to them but their bail applications were rejected. Then they approached this Court for grant of bail but their bail application was rejected on merits on 4-11-82. Thereafter, the opposite parties Nos. 1 and 2 moved bail application before the Second Additional Sessions Judge, Etawah, on 8-3-83 (Annexure 1 to the bail cancellation application ). The complainant applicant opposed the bail application and filed a reply (Annexure II to the bail cancellation-application ). The JInd Additional Sessions Judge allowed this bail application by the impugned order dated 17-3-83. The complainant requested the JInd Additional Sessions Judge to stay the operation of the order dated 17-3-83 to enable him to approach this Court. A weeks time was allowed. The complainant filed the present application in this Court and obtained stay of the operation of the bail order dated 17-3-83.
( 3 ) THE opposite parties Nos. 1 and 2 have opposed the application for cancellation of bail and have filed a counter affidavit.
( 4 ) IN the bail application dated 8-3-83, the accused said that they were in jail for more than one and a half years and there had been no progress in the trial of the case except the framing of charge and therefore, in view of the Supreme Court pronouncement that speedy trial was fundamental right of accused enshrined in Article 21 of the Constitution, they were entitled to grant of bail. Reference was made to Supreme Court cases or Hussainara Khatoon v. State of Bihar1 and Kadra Pehadiyu and others v. State of Bihar2. In the reply (Annexure II), the complainant pointed out that the accused had not mentioned in their bail application that their bail application had been rejected by the High Court by order dated 4-11-82. He explained the reasons for delay and contended that delay was due to the own conduct of the accused. He also averred in paragraph 5 that if the accused came out of jail there would be danger to the life of the witnesses. The lind Additional Sessions Judge observed that the ground taken up in the bail application dated 8. 3. 83 was a new ground, which was not taken up earlier. The Supreme Court had held that the period of confinement in jail should not be more than a year. In the instant case the accused were in jail for more than one year. He, therefore, allowed bail to the accused.
( 5 ) THE contention of the learned counsel for the applicant is that after rejection of the bail application of the opposite parties Nos. 1 and 2 by the High Court, the lind Additional Sessions Judge could not allow their bail application and he should have directed them to approach the High Court for bail on the alleged new ground. Judicial propriety and decorum also required that the Sessions Judge did not proceed to allow the bail application. The complainant was along anxious for an early conclusion of the trial. The accused had themselves delayed the trial by telling the Sessions Judge that they had no faith in him and the Sessions trial should be transferred to some other court. The date was changed from 22-3-83 to 15-4-83 at the request of the counsel for defence. If the court was without a Presiding Officer for some time, it was beyond the control of the complainant. The Additional Sessions Judge had mi construed the observations of the Supreme Court made in the cases of Hussainara Khatoon and Kadra Pehadiya. (supra) The order of bail, therefore, deserves to be set aside. In reply the learned counsel for the opposite parties Nos. 1 and 2 has ur
