2009 JTR(SC) 1549
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2009(6) Supreme 564
SUPREME COURT OF INDIA
Tarun Chatterjee and R.M. Lodha,JJ.
Hazari Lal Das —Appellant
versus
State of West Bengal & Anr —Respondents
Criminal Appeal No. 1732 OF 2009
(Arising out of S.L.P.(Crl.) No.8565/2008)
Decided on 08-09-2009
IMPORTANT POINT
Bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.438
INDIAN PENAL CODE : S.403, S.34, S.467, S.420, S.409
(A) The impugned order pertains to a criminal matter registered under Sections 403, 409, 420, 467, and 34 of the Indian Penal Code, read with the framework of the Code of Criminal Procedure, 1973. Section 403 addresses dishonest misappropriation of property, Section 409 covers criminal breach of trust by public servants or bankers, Section 420 pertains to cheating and dishonestly inducing delivery of property, Section 467 deals with forgery of valuable security, and Section 34 addresses common intention in criminal acts. The application for anticipatory bail was entertained under Section 438 of the Code of Criminal Procedure, which empowers a Sessions Judge to grant bail to an accused person apprehending arrest of an offence not punishable with death, life imprisonment, or imprisonment for a term exceeding seven years, subject to conditions deemed fit by the court.
(B) Key legal principles include that the grant of anticipatory bail is a judicial discretion which should not be exercised mechanically. The court must consider the nature and gravity of the accusation, the antecedents of the accused, the possibility of the accused fleeing from justice, and the likelihood of the accused tampering with evidence or influencing witnesses. Once bail is granted, it should not be cancelled except on cogent and convincing grounds, such as interference with the due course of justice, abuse of the concession, or the emergence of supervening circumstances rendering bail inconducive to a fair trial. The principles enunciated in Dolat Ram And Ors. vs. State of Haryana were found instructive.
Facts of the case:
A First Information Report was lodged under Sections 403, 409, 420, 467/34 IPC at Police Station Gosaba, District 24 Parganas (South), based on a complaint by the Secretary of Sambhunagar High School. It was alleged that the appellant, who was the Headmaster of the school, opened a bank account jointly with his servant, deposited a cheque of Rs.6,00,000/- coming from the Sports and Youth Services wing of the Government of West Bengal with an intention to misappropriate the amount, and submitted a forged copy of the minutes of a meeting of the Managing Committee. An application for anticipatory bail was filed before the Sessions Judge, Alipore, who granted bail on certain conditions. The High Court cancelled the anticipatory bail, a decision stayed later by this Court. The present appeal challenges the cancellation of anticipatory bail.
Findings of Court:
The court noted that there was no material on record indicating any interference with the due course of administration of justice or any abuse of the concession granted to the accused. It was observed that no supervening circumstances justifying the cancellation of anticipatory bail had surfaced. The court held that the High Court failed to consider the relevant factors distinguishing the grant of bail from its cancellation and unjustifiably interfered with the judicial discretion of the Sessions Judge.
Issues:
Whether the High Court was justified in cancelling the anticipatory bail granted by the Sessions Judge in the absence of cogent and convincing circumstances? Whether the considerations relevant for rejecting bail at the initial stage were improperly applied to the decision on cancellation of bail?
Ratio Decidendi:
The anticipatory bail granted by the Sessions Judge must be allowed to continue because the High Court did not apply its mind to the relevant principles governing cancellation of bail and the appellant had not committed any act justifying such interference. The grant of bail is a judicial discretion which should be respected in the absence of cogent grounds for cancellation.
Result:
The appeal is allowed. The impugned order dated September 18, 2008 setting aside the anticipatory bail is set aside. The appellant shall attend the Gosaba Police Station once a week as directed by the Sessions Judge and cooperate with the Investigating Officer.
(A) The impugned order pertains to a criminal matter registered under Sections 403, 409, 420, 467, and 34 of the Indian Penal Code, read with the framework of the Code of Criminal Procedure, 1973. Section 403 addresses dishonest misappropriation of property, Section 409 covers criminal breach of trust by public servants or bankers, Section 420 pertains to cheating and dishonestly inducing delivery of property, Section 467 deals with forgery of valuable security, and Section 34 addresses common intention in criminal acts. The application for anticipatory bail was entertained under Section 438 of the Code of Criminal Procedure, which empowers a Sessions Judge to grant bail to an accused person apprehending arrest of an offence not punishable with death, life imprisonment, or imprisonment for a term exceeding seven years, subject to conditions deemed fit by the court.
(B) Key legal principles include that the grant of anticipatory bail is a judicial discretion which should not be exercised mechanically. The court must consider the nature and gravity of the accusation, the antecedents of the accused, the possibility of the accused fleeing from justice, and the likelihood of the accused tampering with evidence or influencing witnesses. Once bail is granted, it should not be cancelled except on cogent and convincing grounds, such as interference with the due course of justice, abuse of the concession, or the emergence of supervening circumstances rendering bail inconducive to a fair trial. The principles enunciated in Dolat Ram And Ors. vs. State of Haryana were found instructive.
Facts of the case:
A First Information Report was lodged under Sections 403, 409, 420, 467/34 IPC at Police Station Gosaba, District 24 Parganas (South), based on a complaint by the Secretary of Sambhunagar High School. It was alleged that the appellant, who was the Headmaster of the school, opened a bank account jointly with his servant, deposited a cheque of Rs.6,00,000/- coming from the Sports and Youth Services wing of the Government of West Bengal with an intention to misappropriate the amount, and submitted a forged copy of the minutes of a meeting of the Managing Committee. An application for anticipatory bail was filed before the Sessions Judge, Alipore, who granted bail on certain conditions. The High Court cancelled the anticipatory bail, a decision stayed later by this Court. The present appeal challenges the cancellation of anticipatory bail.
Findings of Court:
The court noted that there was no material on record indicating any interference with the due course of administration of justice or any abuse of the concession granted to the accused. It was observed that no supervening circumstances justifying the cancellation of anticipatory bail had surfaced. The court held that the High Court failed to consider the relevant factors distinguishing the grant of bail from its cancellation and unjustifiably interfered with the judicial discretion of the Sessions Judge.
Issues:
Whether the High Court was justified in cancelling the anticipatory bail granted by the Sessions Judge in the absence of cogent and convincing circumstances? Whether the considerations relevant for rejecting bail at the initial stage were improperly applied to the decision on cancellation of bail?
Ratio Decidendi:
The anticipatory bail granted by the Sessions Judge must be allowed to continue because the High Court did not apply its mind to the relevant principles governing cancellation of bail and the appellant had not committed any act justifying such interference. The grant of bail is a judicial discretion which should be respected in the absence of cogent grounds for cancellation.
Result:
The appeal is allowed. The impugned order dated September 18, 2008 setting aside the anticipatory bail is set aside. The appellant shall attend the Gosaba Police Station once a week as directed by the Sessions Judge and cooperate with the Investigating Officer.
For the Appellants : Ambika Ray, Zaki Ahmad Khan, M. Khairati, Irshad Ahmad, Advs., for the Appellants.
For the Respondents:Tara Chandra Sharma, Ms. Neelam Sharma, Ms. Pankhuri Shrivastava, Jitendra Mohapatra, Shibashish Pattanaik, Merusagar Samantaray, Advs., for the Respondents.
ORDER
R.M. Lodha, J.
1. Leave granted.
2. On the basis of the complaint made by Jayanta Naskar, Secretary, Sambhunagar High School, P.O. Sambhunagar, a First Information Report being FIR No.50/2008 was lodged on May 30, 2008 under Sections 403, 409, 420, 467/34 IPC, at Police Station Gosaba, District 24 Parganas (South). It is alleged that appellant who is Headmaster of Sambhunagar High School opened a bank account No. 0855010083094 with the U.B.I., Lalbazar Branch, Kolkata on April 30, 2008; that the appellant introduced his servant Gour Dhara as a secretary of the school; that the said account was opened jointly with his servant and that he deposited a cheque of Rs.6,00,000/- which had come to the school from Sports and Youth Services (Sports Wing), Government of West Bengal, with an intention to misappropriate the said amount. It is also alleged that the said account was opened by the appellant without any resolution of the Managing Committee of the school and that he submitted false and forged copy of the minutes of the meeting No.15 dated April 26, 2008 with the seal of the Headmaster, Sambhunagar High School.
3. The appellant made an application for anticipatory bail under Section 438 of Code of Criminal Procedure, 1973 before the Sessions Judge, Alipore, District 24 Parganas (South).
4. Learned Sessions Judge (I/C) after hearing the counsel for the appellant and the Public Prosecutor enlarged the appellant on anticipatory bail vide Order dated July 3, 2008. It was ordered that in the event of arrest, the appellant shall be released on anticipatory bail of Rs.5,000/- with two sureties of Rs.2,500/- each; one of such surety shall be local. The Sessions Judge (I/C) also put a condition that the appellant shall attend the police station once in a week for eight weeks. He also imposed usual conditions as laid down in Section 438 (2) Cr.P.C.
5. The complainant - Jayant Naskar approached the High Court for cancellation of anticipatory bail granted by the Sessions Judge (I/C) to the appellant. By the impugned order dated September 18, 2008, the High Court cancelled the anticipatory bail granted by the Sessions Judge (I/C).
6. On December 12, 2008 this Court while issuing notice stayed the operation of the impugned order. The order of Sessions Judge (I/C) granting anticipatory bail, thus, has remained operative.
7. We heard the learned counsel for the parties and perused the order of the High Court.
8. Although the High Court did notice in the impugned order that the considerations which should be in the mind of the court while considering the prayer for grant of bail are not the same for the purpose of cancellation of bail, yet we find that these considerations were not kept in mind and the order of the Sessions Judge granting anticipatory bail was set aside.
9. In Dolat Ram And Ors. vs. State of Haryana,1 (1995) 1 SCC 349, this Court held:
“4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be consid ered and dealt with on different basis. a Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court,on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.”
10. There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. The judicial discretion exercised by the Sessions Judge in granting the anticipatory bail has been interfered with by the High Court in the absence of cogent and convincing circumstances. We are, thus, satisfied that the impugned order cannot be sustained.
11. Accordingly, appeal must succeed and is allowed. The impugned order dated September 18, 2008 is set aside. The appellant shall attend Gosaba Police Station once in a week as directed by Sessions Judge until completion of investigation. He is also directed to fully cooperate with the Investigating Officer and produce the entire record available with him.
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