Gourendra Narain Chaudhary v. The State of Bihar

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 2 22-07-2013 Heard learned senior counsel for the petitioner and learned counsel appearing for the State. On 6.9.2006, Complaint Case No. 1274 of 2006 was filed against the petitioner and others in the court of the learned Chief Judicial Magistrate, Banka. The said complaint was referred to police under Section 156(3) of the Code of Criminal Procedure for investigation pursuant to which Sambhuganj P.S. Case No. 87 of 2006 dated 24.12.2006 was registered for the offences punishable under Sections 406, 467, 468, 420 and 120B of the Indian Penal Code. In the said case, on the basis of a compromise petition, prayer for bail of the petitioner was allowed by the learned Chief Judicial Magistrate, Banka vide order dated 23rd 2 Patna High Court Cr.Misc. No.30192 of 2013 (2) dt.22-07-2013 October, 2008. The case is still under investigation. On 2nd January, 2013, the informant filed a petition in the court of the learned Chief Judicial Magistrate, Banka praying therein to call for a report from the police regarding progress of the case. On the same day, he also filed another petition for cancellation of bail of the petitioner. The learned Chief Judicial Magistrate, Banka vide order dated 2nd January, 2013, issued notice to the petitioner fixing 24.1.2013 as the next date for hearing on the point of cancellation of bail. The notice issued against the petitioner was never served upon him. On 5th February 2013, the process server reported that the petitioner could not be located on the given address. However, the learned Chief Judicial Magistrate, Banka vide order dated 14th February, 2013, cancelled the bail bonds of the petitioner and issued non-bailable warrant of arrest against him. The petitioner filed a revision application before the learned Sessions Judge, Bhagalpur against the order dated 14th February, 2013, passed by the learned Chief Judicial Magistrate. The learned Sessions Judge, Bhagalpur vide his order dated 3rd May, 2013, passed in Cr. Revision No. 97 of 2013 dismissed the application filed on behalf of the petitioner. Feeling aggrieved by the aforesaid order dated 3rd May, 2013, the petitioner has filed the present application under 3 Patna High Court Cr.Misc. No.30192 of 2013 (2) dt.22-07-2013 Section 482 of the Code of Criminal Procedure. Mr. Bibhuti Pandey, learned senior counsel for the petitioner, submitted that in absence of service of notice upon the petitioner cancellation of his bail by the learned Chief Judicial Magistrate is palpably bad. He further submitted that the revisional court has not appreciated the legal position and has wrongly held the revision application to be not maintainable. Be that as it may, it is not in dispute that the case is still under investigation. In case of Free Legal Aid Committee vs. State, since reported in AIR 1982 SC 1463, the Hon’ble Apex Court has held that once an accused is enlarged on bail in course of investigation, he is not required to appear before the court till charge sheet is filed and process is issued by the court. In that view of the matter, the petitioner was not supposed to do any pairvi in course of investigation of the case. However, if an application for cancellation of bail was filed before the court, it was incumbent upon the court to proceed with the matter only after service of notice upon the petitioner. Learned senior counsel while arguing the case has drawn my attention towards the report submitted by the process server as contained in Annexure-5 to the present application. On perusal of the same, I find that the process server has reported to 4 Patna High Court Cr.Misc. No.30192 of 2013 (2) dt.22-07-2013 the court that on the given address he could not find the petitioner and on inquiry the local witnesses told that Aliganj Muhalla is spread over several roads and lanes and thus, on such a vague address the noticee could not be located. In that view of the matter, the learned Chief Judicial Magistrate, Banka was factually incorrect in recording due service of notice upon the petitioner in his order dated 14th February,

2013. It is well settled that rejection and cancellation of bail are to be considered on different basis. The power granted to a Magistrate to cancel the bail granted to the accused under Section 437(5) is not to be exercised in a casual manner. A bail already granted to an accused can be cancelled only on very cogent and extraordinary circumstances. There is nothing on record to show that the petitioner was tampering with evidence or his presence was required for further investigation. There is also nothing on record to show that the petitioner made any attempt to evade the course of justice or abuse the concession granted to him in any manner. In that view of the matter, the order impugned cannot be sustained. Accordingly, the application is allowed. The order dated 14.2.2013 passed by the learned Chief Judicial Magistrate, 5 Patna High Court Cr.Misc. No.30192 of 2013 (2) dt.22-07-2013 Banka in Sambhuganj P.S. Case No. 87 of 2006 corresponding to G.R. No. 1567 of 2006 and the order dated 3.5.2013 passed in Cr. Revision No. 97 of 2013 by the learned Sessions Judge, Bhagalpur are set aside. As a result, the petitioner shall be presumed to continue on the same bail bonds. However, the petitioner is directed to appear before the learned Chief Judicial Magistrate within four weeks from today in order to respond to the notice sent by the court. It is made clear that no separate notice is required to be issued to the petitioner for hearing on the point of cancellation of bail. In case, the petitioner fails to appear before the court within the stipulated period of four weeks, the learned Chief Judicial Magistrate, Bhagalpur shall be free to proceed with the application for cancellation of bail in absence of the petitioner. However, while dealing with the application for cancellation of bail, the learned Chief Judicial Magistrate must keep into consideration the observations made hereinabove. Let this order be communicated to the court below through fax at the cost of the petitioner. Sanjeet (Ashwani Kumar Singh, J)