Mahesh Mani Pandey v State of Uttar Pradesh and another
Allahabad High Court
5 July 2013
Criminal Revision No. – 885 of 2013
The Order of the Court was as follows :
1. This criminal revision is directed against the order dated 8.3.2013 passed by Sri Sriprakash, Special Judge, SC/ST, Kanpur Nagar in Crl. Misc. Case No. 1 of 2013 (Sunil Kumar Shukla vs. State of U.P.) whereby on the application of complainant/opposite party no.2 Sunil Kumar Shukla, the bail granted to revisionist Mahesh Mani Pandey in Crime No.1846 of 2011 under Sections 406, 420, 504, 506 I.P.C., P.S. Moolganj, District Kanpur Nagar, vide order dated 3.12.2012 passed by Shri Alakh Narain the then Special Judge, SC/ST, Kanpur Nagar was cancelled.
2. Heard Shri N.I. Jafri, holding brief of Ms. Sufia Saba, learned counsel for revisionist, learned AGA for State and Sri Sarvesh, learned counsel for complainant/opposite party no.2.
3. In brief the facts are that revisionist is an accused in aforesaid criminal case. He filed an application under Section 482 Cr.P.C. No.16182 of 2012 before this Court which was allowed in part vide order dated 10.5.2012 passed by Hon’ble B.K. Narayan, J. The prosecution of the revisionist under Section 138 of Negotiable Instruments Act was quashed but the case was to proceed further in respect of offence under Sections 406, 420, 504, 506 IPC. It was further provided that if the revisionist surrendered before the Trial Court within six weeks, his bail application shall be considered in the light of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 2004 Indlaw ALL 424 as affirmed by Hon’ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC) 2009 Indlaw SC 446. In the meantime, he shall be released on interim bail. The bail application having been rejected by the Magistrate, the same was moved before Sessions Court and vide order dated 17.7.2012, passed by Special Judge, SC/ST, Kanpur Nagar, revisionist was released on interim bail which was extended from time to time and ultimately on 18.8.2012, when Lawyer’s Association, Kanpur was on strike and revisionist who was a practising lawyer, failed to appear in court, his interim bail was rejected. The main bail application was also rejected on 17.9.2012.
4. The orders dated 18.8.2012 and 17.9.2012 passed by Special Judge, SC/ST, Kanpur Nagar were challenged by revisionist before this court by means of an application under Section 482 Cr.P.C. No.33064 of 2012 which was allowed by Hon’ble Sunil Hali,J. with a direction to applicant to appear before Trial Court on 30.10.2012. The operative order reads as follows:-
“In view of the above, I set aside the order of the Trial Court dated 18.8.2012 as well as order dated 17.9.2012 and direct Trial Court to consider bail application of applicant afresh and pass appropriate order in accordance with law. Till 30th October, 2012, non-bailable warrant issued against him will not be given effect to.”
5. On 3.12.2012, revisionist surrendered before the Magistrate concerned and on the same day, his bail application was reheard by Special Judge, SC/ST Act and revisionist was granted bail on the ground that dispute relates to commercial transaction and appears to be of civil nature and accordingly, revisionist was released on bail. An application for cancellation of bail was subsequently filed by complainant mainly on the ground that revisionist had to surrender on or before 30.10.2012, but he did not comply with the order passed by the High Court and therefore, order of High Court automatically came to an end and no notice was issued to complainant and the revisionist had a criminal history.
6. After hearing both the parties, learned Special Judge, SC/ST Act, Sri SriPrakash (Alakh Narain having retired in the meanwhile), allowed bail cancellation application and cancelled the bail granted to revisionist vide order dated 3.12.2012 on the ground that the High Court had given time only up to 30.10.2012 to the revisionist to surrender before the Trial Court and to move an application for bail but the revisionist did not press his bail application but continued getting extension of interim bail and thereafter he absented himself and surrendered on 3.12.2012 but the order passed by the High Court had become infructuous by then. It was also observed that when the revisionist was taken in custody on 3.12.2012, how he could directly appear before Special Judge, concerned and he should have filed a fresh application for bail and the bail was obtained by keeping the court in dark.
7. Shri N.I. Jafri submitted that bail application was earlier rejected by the Magistrate and thereafter, bail application was filed before Sessions Judge which was dismissed on 17.9.2012. The order dated 17.9.2012 was set aside by the High Court and therefore, the bail application dismissed on 17.9.2012 got revived and there was no necessity for moving any fresh bail application. It was further submitted that order dated 30.10.2012 passed by this Court on the application under Section 482 Cr.P.C. was an absolute order and was not a conditional order. The order directing setting aside the orders dated 18.8.2012 and 17.9.2012 were not contingent on any subsequent event. Simply, the revisionist was directed to appear before the Trial Court on 30.10.2012, and if the revisionist did not appear within specified time, his right to get his bail application decided on merits was not extinguished.
8. Learned AGA supported the impugned order. Sri Sarvesh, learned counsel appearing for complainant/opposite party no.2 submitted that revisionist was in the habit of misleading the court repeatedly. Despite directions by this court, he did not appear before the Lower Court on 30.10.2012. The revisionist is an Advocate but was barred from practice for 10 years by the Bar Council of U.P. The order cancelling the bail is an interlocutory order and revision is not maintainable. It was further submitted that revisionist was not in custody when his bail application was allowed.
9. As far as maintainability of revision is concerned, an order cancelling the bail of an accused who is already on bail, adversely effects, in the worst possible manner, his right to life and liberty and, therefore, such an order cannot be said to be an interlocutory order and as such there is no bar in entertaining this revision.
10. As far as merits are concerned, undoubtedly, revisionist did not surrender before Trial Court on 30.10.2012, as directed by the High Court but the order dated 3.10.2012 passed by this Court on the application under Section 482Cr.P.C. was not a contingent order. The order dated 17.9.2012 rejecting bail application of revisionist had been set aside and it was directed that after surrendering before the Trial Court, the revisionist may make a prayer for hearing of his bail application. When order dated 17.9.2012 rejecting bail application was set aside, the bail application stood revived and there was no necessity for filing any fresh bail application.
11. The bail application of an accused cannot be rejected on the ground that he did not surrender before the Magistrate concerned within the time stipulated by the High Court. The bail application has to be decided on merits of the case. If on merits, an accused is entitled to bail, he cannot be refused bail on the ground that he did not surrender within the stipulated period.
12. Considerations for grant of bail are entirely different from the considerations for cancellation of bail. Very cogent and overwhelming grounds are required to cancel the bail already granted as held by Apex Court in Mahant Chand Nath Yogi and another vs. State of Haryana 2003 (1) JIC 633 (SC) 2002 Indlaw SC 1179. The bail of an accused can be cancelled only on the ground of misuse of bail or if the order of bail was obtained by misrepresentation of facts or fraud.
13. In the instant case, the order of High court was on record. On 3.12.2012, the revisionist surrendered before the Magistrate concerned and only thereafter his application for bail was allowed by Sri Alakh Narain, the then Special Judge,SC/ST Act. Subsequent Presiding Officer, Sri SriPrakash could have cancelled the bail only if any ground of cancellation of bail like misuse of bail or fraud etc were made out. The subsequent Presiding Officer cannot sit over an order passed by his predecessor like he was hearing an appeal. The conduct of learned Additional Sessions Judge, cannot be appreciated.
14. The bail granted to the revisionist could not have been cancelled on the ground that on 3.12.2012, the order of High Court dated 30.10.2012 had already come to an end as order dated 30.10.2012 was not a conditional order. The order rejecting application for bail having been set aside, learned Additional Sessions Judge was bound to decide the application for bail on merits and did not commit any illegality in granting bail to the revisionist vide order dated 3.12.2012.
15. On the other hand, Shri SriPrakash without any reasonable or sufficient cause cancelled the bail granted to revisionist by his predecessor, whereas no ground for cancellation of bail was made out. The order cancelling the bail of revisionist is manifestly illegal and is liable to be set aside. Criminal revision is allowed. The impugned order dated 8.3.2013 passed by Special Judge, SC/ST Act, Kanpur Nagar in Misc. Criminal Case No.1 of 2013 cancelling the bail of revisionist Mahesh Mani Pandey, is quashed.
Revision allowed
