Sumit Kumar Sharma .... .... … v. 1. The State of Jharkhand 2. Chandra Jyoti Devi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2761 of 2022 ------ Sumit Kumar Sharma .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Chandra Jyoti Devi .... .... .... Opposite Parties
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the State For the O.P. No.2 : Mr. Indrajit Sinha, Advocate Mr. Ajay Kumar Sah, Advocate : Ms. Priya Shrestha, A.P.P. : Mr. Ravi Kumar Singh, Advocate Order No.06 Dated : 02.01.2023 The petitioner is developer and the informant is land owner. The informant registered Sonari P.S. Case No.258 of 2018 corresponding to G.R. No.1297 of 2019 under Sections 406, 420, 467, 471, 341, 323, 506, 34 of the Indian Penal Code principally on the ground that they entered into a development agreement with the informant on 20.10.2009 for construction of multi-story building within specified period of time. 2. On 29.04.2013, the petitioner further entered into another development agreement in which the name of proprietorship firm was changed and inducted one Sumit Kumar Sharma as its partner. The main grievance of the complainant is that in complete breach of the development agreement that the construction will be completed within 24 months with the grace period of 06 months. The construction was not completed even after five years. 3. Earlier the matter was referred to the Mediation Centre, Nyaya Sadan, Civil Court, Jamshedpur while hearing the Bail Petition No.1202 of 2019 wherein the settlement was arrived at between both sides and the petitioner was granted bail in terms of settlement. 4. Subsequent thereto, the terms were not honored by the petitioner and consequently, the complainant moved the learned Court below for cancellation of bail under Section 437(5) of the Cr.P.C. The bail was cancelled by the order dated 05.04.2022. 5. The order cancelling bail was impugned in Cr. Revision No.84 of 2022 and Cr. Revision No.86 of 2022. The petition for cancellation of bail was
Decision
disposed of and the matter remanded back. After remand of the case, the bail was allowed subject to the condition that the construction will be completed within 45 days. Aggrieved by this order, the present petition has been filed. 2 6. It is submitted that such condition for construction of building cannot be imposed while allowing bail petition. It is further submitted that during pendency of instant criminal miscellaneous petition, the bail has been cancelled. Reliance has been placed in the case of Kunal Kumar Tiwari alias Kunal Kumar Versus State of Bihar &Another reported in (2018) 16 SCC 74 wherein it has been held that Clause (c) of Section 437(3) allows Courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase “interest of justice” as used under the Clause (c) of Section 437(3) means “good administration of justice” or “advancing the trial process” and inclusion of broader meaning should be shunned because of purposive interpretation. 7. Lastly, it is submitted that as per para 14 of the counter affidavit, the part of development agreement has been complied by this petitioner and three flats were given. As far as entire amount is concerned, it is a case of frustration of contract for which civil remedy is available. 8. Learned counsel on behalf of informant has vehemently opposed the petition. It is submitted that there was intention to defraud the informant since inception which will be evident from the fact that development agreement was entered in the year 2009 but after lapse of eight years no work was done in pursuance to the agreement. When the informant was constrained to institute the case against the accused persons, the petitioner agreed to complete the work as per the agreement within 07 months in terms of the settlement arrived before the Mediation Centre on 11.12.2019. In terms of this agreement, the bail of the petitioner was allowed. Despite this fact, the petitioner did not comply with the undertaking given before the Mediation Centre. As a result, the bail application was cancelled. It is submitted that condition has not been imposed by the Court but it was the term of settlement which has been incorporated in the bail order. 9. The main point for consideration is whether there has been breach of condition of the bail granted in pursuance of the earlier settlement to warrant cancellation of bail. 10. In order to appreciate the legality of order of cancellation of bail, it shall be desirable to consider the grounds of cancellation of bail. It has been 3 held in the case of Biman Chatterjee v. Sanchita Chatterjee; (2004) 3 SCC 388 “that non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law”. Prakash Kadam v. Ramprasad Vishwanath Gupta; (2011) 6 SCC 189 18. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court. to him. Moreover, 19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail. 11. The present case involves dispute between the land owner informant and the petitioner, who is the developer as the project of construction of multi- storeyed building has not been completed as per the agreement. Rival contentions have been advanced on behalf of both the sides which cannot be considered in the instant petition. The cancellation of bail is governed by settled principles and the Court cannot impose any irrational condition which is not in the interest of justice. The expression interest of justice is intended to mean administration of justice. The imposition of condition of giving an undertaking to hand over the remaining portion of flat within 45 days was unwarranted. Under the circumstance the condition imposed in the impugned order is set aside. This Criminal Miscellaneous Petition is allowed. Anit (Gautam Kumar Choudhary, J.)