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CASE NO.: Appeal (crl.)  529 of 2005

PETITIONER: Nityanand Rai                                             

RESPONDENT: State of Bihar & Anr.                                     

DATE OF JUDGMENT: 11/04/2005

BENCH: N. SANTOSH HEGDE & S.B. SINHA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl)  No. 3280 of 2004)

SANTOSH HEGDE, J.

       Heard learned counsel for the parties.  

       Leave granted.

       By this appeal the appellant challenges an order of the High  Court of Judicature at Patna made in Criminal Miscellaneous No.  29702 of 2003 dated 19-5-2004 by which order the High Court  cancelled  the bail granted to the appellant earlier by itself on              19-9-2003.  Basic facts necessary for the disposal of this appeal are as  follows :-         It is stated  by the prosecution  that the petitioner  is an accused in  Hajipur (T) P.S. Case No. 71 of 1993 which was registered  U/s 302,   307, 120 B of the I.P.C.  and Section 27 of the Arms Act on the basis of  a complaint  given by one Raj Kishore Rai  on 6-3-1993 wherein it is  stated that the appellant  along with   some others had murdered his  brother Ram Davan Rai. Pursuant to the said complaint  so far as the  present appellant is concerned a charge-sheet  was filed only on 11th  July, 2003 nearly 10 years after the   date of alleged incidence.  On  coming to know of the filing of such a charge-sheet  the appellant  moved the Sessions Court at Vaishali for grant of anticipatory bail   which was rejected  by the Sessions Court  as per its order dated 30th of  May, 2003. And being aggrieved by the said order of the Sessions  Court, the petitioner preferred an anticipatory bail application before  the High Court of Patna which also came to be rejected  on 17-7-2003  directing the appellant  to surrender  and seek regular bail. As per the  said direction, it is stated  that the appellant surrendered before the  C.J.M., Vaishali at Hajipur  on 21-7-2003 and  moved  a regular bail  application which was rejected by the learned Sessions Judge on          7-8-2003. Against the said order  of rejection of regular bail, the   appellant preferred a Criminal Miscellaneous  Petition before the High  Court of Patna which by its order dated 19th of September, 2003  granted the bail to the petitioner subject to his furnishing a bond of Rs.  10,000/- with two sureties  of the like amount each to the satisfaction   of the CJM, Hajipur.

However, even before the appellant  could be released from  custody pursuant to the bail granted by the High Court the complainant   in the case moved an application before the  High Court of Patna in Crl.  Misc. No. 29702 of 2003 seeking cancellation of the bail granted to the  appellant alleging that the appellant was an influential man and had

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been manipulating the investigation  for the past ten years and was  ultimately  brought to trial  only because of the change in the hierarchy  of police  i.e. when  an impartial investigating agency  came into  picture.  It was also  urged that the appellant had suppressed material  facts  while  obtaining  the bail from the High Court in as much as the  appellant did not disclose  that in the connected  criminal trial the co- accused have been found guilty of an offence under Section 302 etc.  and   that since the date of the appellant’s surrender  pursuant to the  direction issued by the High Court on 17th of July, 2003, the appellant  and his musclemen have been threatening  the witnesses and preventing  the complainant  from pursuing the case against the appellant. It was  also stated in the said application  for cancellation of bail that two  complaints have already been  filed in the Sadar Police Station, Hajipur  on 10-10-2003 and 13-10-2003 alleging  a threat by the appellant and  his henchmen.

The High Court by the impugned order allowed the said  application for cancellation of bail filed by the complainant on the  ground that there was a threat to the prosecution witnesses by the  appellant and his musclemen and that the appellant had not brought to  the notice of the court that in the connected  trial the two accused have  already been convicted by the  trial court and were sentenced to life  imprisonment. The court  in the impugned order also noticed  that in  the order granting bail  it unfortunately failed to notice that the  appellant was one of the two accused who were described as the active  assailants.          Challenging  the above order of cancellation of bail in this appeal  the appellant contends  that the High Court  while canceling the bail   has not borne in mind  the well settled principles of law in regard to  cancellation of bail and has approached the case as if it was hearing a  bail application  for the first time.  It is also contended  that the basis  of  the alleged threat  which was taken  note of by the High Court,  i.e. the   two complaints  filed by the complainant  dated 10-10-2003 and                13-10-2003 in  Hajipur Police Station could not have been genuine in  as much as on the date  when these two complaints were filed, the  appellant was, as a matter of fact,  in custody and was only released  pursuant to the bail granted by the High Court on 15-11-2003 nearly a  month after the two alleged complaints of threat were lodged,  hence,  no reliance could have been placed on such a  pre planned complaint.   It is also submitted on behalf of the appellant that though the appellant  was included in the First Information Report  filed in the year 1993, the  investigating agency  could not find  any material  against the appellant,  hence no charge-sheet was filed against the appellant for nearly 10  years until the same was done on 11-7-2003, this too  because of the  fact that  that the investigating Police officer was annoyed with the  appellant because of a privilege  motion  brought  against the  said  police officer in the assembly at the instance of the appellant as a  Member of the  Legislative Assembly, in which the said police officer  had  to tender an apology.

Learned counsel for the State as well as for the complainant  in  rebuttal submitted that the appellant being a very influential person has  managed with the investigating agency to keep himself out of the trial  all these years and because of the efforts of a good police officer he has  at last been charged for a heinous crime and if he is let out on bail there  is every possibility of his interfering  with the fair trial, therefore, the  High Court was justified in canceling the bail. It is also pointed out that  since the Sessions court in the connected trial has convicted  two  persons for life imprisonment and in the evidence adduced in that trial  found material against the appellant of his involvement in the crime.   This is not a fit case in which the appellant should be granted bail.

Having considered the argument advanced on behalf of the  appellant and respondent, we think  the High Court was not justified in  considering the application for cancellation of bail as if it was an

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application for grant of bail.  Consideration of an application for grant  of bail stands on a different footing  than one for cancellation of bail.   Grounds for cancellation  of bail should be those which arose after the  grant of bail and should be referable to the conduct of the accused  while on bail, such is not the case made out in  application for  cancellation of bail.  Of course, the complainant had alleged in the  petition for cancellation  of bail that the witnesses  in the case had  received  threats  from the appellant and his henchmen, this is  supported by two complaints  filed by him before the police  dated     10-10-2003 and 13-10-2003. But as contended by the learned counsel  for the appellant these two complaints  cannot be accepted ex-facie  because on the dates mentioned in those complaints the appellant  was  still in jail and was not yet released on bail though the High Court had  granted him bail, therefore, the question of the appellant administering   threats to the witnesses as alleged by the complainant  cannot be  accepted.  The next ground on which the High Court considered it  appropriate to cancel the bail is the fact that the appellant had not  brought  to its notice that in the connected trial,  two of the co-accused  had been convicted for an offence punishable under Section 302.  This  fact has been denied  by the appellant before us by pointing out  from  his bail application wherein  para 10 he had specifically mentioned  about the conviction of the two accused persons.  Be that as it may, it  was the duty of the prosecution  to have brought this fact to the notice  of the High Court and the appellant cannot be held guilty of  suppression of that fact.  The 3rd ground  on which the bail was  cancelled is an error committed by the court itself in not noticing  the  fact that in the judgment of the trial court in the connected matter the  trial court found material as to the participation of the accused in the  offence. We are of  the opinion that this also cannot be a ground for  canceling  the bail already granted which was not challenged  by any  person be it the prosecution or the complainant. The factum that the  learned Sessions Judge  in the judgment convicting the  two co-accused   expressed certain views as to the involvement  of the appellant in this  crime cannot be a ground to cancel the bail.  As contended  by the  learned counsel for the appellant if really  there was such material  against the appellant before the Sessions court  in that  trial  the  procedure  contemplated under Section 319 of Cr.PC could have been  invoked either by the complainant  or the court itself which having not  been done,  at this stage that observation of the learned Sessions Judge   or the evidence given  by the witnesses  in that trial in which appellant  was not an accused can be construed as material sufficient to cancel the  bail.

Learned counsel for the respondent then pointed out that the  appellant was absconding since the date of incident, hence,  investigation as against him could not be concluded for the last many  years, and if he is released there is a possibility of he again absconding.  This argument, in our opinion, runs counter to the material on record.  Since the filing of the complaint in the year 1993, 7 earlier charge- sheets were filed against various accused mentioned in the complaint  and in all these charge-sheets, last of which was on 31.3.2003, the  appellant’s name was shown in Col.No.2 as an accused against whom  investigation was still being conducted. In the said charge-sheets, he  was not shown as an absconder. That apart there is material on record  to show that the appellant has been elected to the Legislative Assembly  in the year 2000 and again in the year 2005, and has been attending the  Assembly proceedings till he surrendered in the year 2003. If that be  so, the allegation of abscondence in past or the likelihood of  abscondence in future cannot be accepted. As a matter of fact that for  nearly 10 years and after filing 7 charge-sheets, the investigation did  not find sufficient material to include the appellant as an accused in  those 7 charge-sheets is an indicator of the fact that for all these years  the investigation agency could not find material against the appellant.    

Therefore, we are satisfied that the cancellation of bail by the

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impugned order, by the High Court is unsustainable. However, taking  into consideration the apprehension of the complainant that the  appellant by using  his power as member of the Legislative Assembly  might interfere in the trial or try to influence  the witnesses in the case,    we feel it appropriate  to direct the appellant not to enter the territorial  jurisdiction  of Hajipur Sub Division of District Vaishali except for the  purpose of attending the trial. If for any reason it becomes imperative  for the appellant to visit Hajipur then he shall do so after informing the  investigating agency in the case. This condition shall be in addition  to  the conditions imposed by the High Court for granting bail as per its  order dated 19-9-2003.  

For the reasons stated above, we allow this appeal, set aside the  impugned order of the High Court and restore that of the High Court  dated 19-9-2003 granting bail to the appellant.  

We make it clear  that whatever conclusion  we have expressed   in this order of ours is purely  prima facie and for the limited purpose of  finding out  whether the impugned order of the High Court is  sustainable or not. The trial court shall not be in any manner be  influenced  by these observations  of ours or that of the High Court  made in the course of the order granting  bail or order canceling bail.   Appeal allowed.