Tara Nagar-A, Jhotwara, Jaipur v. State Of Rajasthan, Through PP

Judgment

2. Versus State Of Rajasthan, Through PP Durgi W/o Shri Omprakash Sanwariya, R/o 210, Gali No. 3, Tata Nagar, Shastri Nagar, Jaipur. ----Respondents For Petitioner(s) : Mr. Himmat Singh Mr. Parikshit Singh For Respondent(s) : Mr. Shriram Dhakar Mr. Mohar Pal Meena HON'BLE MR. JUSTICE ANIL KUMAR UPMAN 28/03/2025 Order

2. Heard. By way of this application under Section 483(3) BNSS, the petitioner-complainant has approached this Court seeking cancellation of anticipatory bail granted to accused-respondent No.2 Durgi by this Court vide order dated 10.07.2024 passed in S.B. Criminal Misc. Bail Application No.7318/2024.

3. Learned counsel for the complainant/petitioner submits that by concealing material important facts from this Court, the accused respondent has obtained benefit of pre-arrest bail in this case. He submits that wrong facts have been submitted before the Court at the time of decision of the bail application of the accused respondent. He contends that at the time of deciding bail [2025:RJ-JP:17640] (2 of 11) [CRLBC-133/2024] application of the accused respondent No.2, it was not apprised to the Court that vide order dated 13.04.2023, learned Addl Sessions Judge No.2, Jaipur Metro has cancelled the beneit of pre-arrest bail granted to the accsued Vinod Sanwaria for non fulfilling the conditions, imposed upon him at the time of granting pre-arrest bail to him. It is also argued that the accused respondent kept on

evading her arrest for two years despite rejection of her first anticipatory bail application by learned Sessions Court. It is thus submitted that bail granted to the accused respondent should be cancelled.

4. Learned Public Prosecutor does not dispute the aforesaid factual position, submitted by the counsel for the petitioner/complainant. He however, submits that in view of the provisions of Section 362 Cr.P.C., the order granting bail cannot be reviewed/cancelled.

5. Per contra, learned counsel for the accused respondent opposes the instant bail cancellation application. He submits that by considering the facts and circumstances in totality and the fact that respondent accused is lady; maximum punishment for the alleged offence is seven years; co-accused Om Prakash and Sunita Sankhla have been granted benefit of regular bail, facility of pre-arrest bail was granted to her. It is also argued that benefit of pre-arrest bail was once granted to the accused Vinod but since he could not comply with the conditions, benefit of anticipatory bail was cancelled. Thus, there is no wrong mentioning of fact because it is on record that benefit of pre-arrest bail was once granted to him which however, later on cancelled for non-complying with the conditions/directions. Therefore, there arises no question for [2025:RJ-JP:17640] (3 of 11) [CRLBC-133/2024] cancellation of bail. It is also argued that that the cancelling the bail passed by this Court tantamounts to review of the order passed by this Court, which as a matter of fact, is barred by Section 362 of the Code.

6. I have heard and considered the submissions advanced at bar and perused the material available on record.

7. While granting bail to the accused respondents, this Court considered the facts and circumstances in their entirety and looking to the fact that the petitioner is female; other co-accused has been granted regular bail, co-accused Vinod has been granted benefit of pre-arrest bail, the application of the accused respondent for anticipatory bail was accepted. Though, benefit of pre-arrest bail granted to the accused Vinod has been cancelled but admittedly, he was granted benefit of pre-arrest bail by learned ASJ No.2 vide order dated 21.01.2022.

8. Event otherwise, law is well settled that the judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as bar to any alteration or review of the cases disposed of by the Court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the Court. Hon’ble Supreme Court in the case of Abdul Basit versus Abdul Kadir reported [2014] 10 SCC 754 has also held that since no express provision for review of order granting bail exists under the Code, a criminal court becomes functus officio and Section 362 of the Code applies barring the review of judgment and order of the Court granting bail to the accused. It was also observed therein that even though [2025:RJ-JP:17640] (4 of 11) [CRLBC-133/2024] the cancellation of bail rides on the satisfaction and discretion of the Court Under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accused during the grant of bail, the Court cannot entertain the Respondent/informant's prayer by sitting in review of its judgment. The relevant paragraphs are reproduced hereinbelow for the sake of ready-reference:- “16. Since the submission made by the parties center round the interpretation to be placed upon Section 362 of the Code, it may be necessary to have a glance at the same. The heading of Section 362 of the Code provides for the "Court not to alter judgment" and the provision operates as a bar for the court to alter or review its decisions once pronounced. It reads as under: Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

17. It is trite that Section 167(2) creates a deeming fiction whereby the release of a person is equated to his release under Chapter XXXIII of the Code. However, an order for release on bail under proviso (a) to Section 167(2) is not an order on merits but an order-on-default of the prosecuting agency. Such an order could be nullified for special reasons after the defect/default has been cured. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled on an application by the prosecuting agency.

18. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court [2025:RJ-JP:17640] (5 of 11) [CRLBC-133/2024] to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody, i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh and Ors. etc. v. State of Bihar, 1987 Cri. LJ 157)

19. The scope of this power to the High Court Under Section 439(2) has been considered by this Court in Gurcharan Singh and Ors. v. State (Delhi Administration), (1978) 1 SCC 118.

20. In Gurcharan Singh case (supra) this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short, "old Code") and elucidated the position of law vis-à-vis powers of the Courts granting and cancelling the bail. This Court observed as under: “16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position Under Section 498, Code of Criminal Procedure of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may [2025:RJ-JP:17640] (6 of 11) [CRLBC-133/2024] order for grant of bail in appropriate cases. Similarly Under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded hi somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody. In other words, Under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code Under Section 489(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIIL by any Court including the Court of Session to custody, if it thinks appropriate to do so, it must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused, person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily,' therefore, to that Court. The State may as well approach the High Court being the superior Court Under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.”

21. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas and Anr., (2001) 6 SCC

318. In the said case, this Court held that the concept of setting [2025:RJ-JP:17640] (7 of 11) [CRLBC-133/2024] aside an unjustified, illegal or perverse order is absolutely different from the cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. In Dr. Narendra K. Amin v. State of Gujarat and Anr., (2008) 13 SCC 584, the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled the bail granted to the Appellant in exercise of power Under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case (supra) has observed that when irrelevant materials have been taken into consideration by the Court granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate Court and that no review would lie Under Section 362 of the Code. In essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same Court.

22. Reverberating the aforesaid principle, this Court in the recent decision in Ranjit Singh v. State of M.P. and Ors., 2013 (12) SCALE 190 has observed that: “20...There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.”

23. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside [2025:RJ-JP:17640] (8 of 11) [CRLBC-133/2024] on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bail and not by the same Court.

24. In the instant case, the Respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the Petitioners herein by gross misrepresentation of facts, misleading the Court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the Petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law.

25. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as bar to any alteration or review of the cases disposed of by the Court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the Court.

26. In Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 a criminal miscellaneous petition was filed by the Petitioner therein in a Writ Petition disposed of by the High Court. The High Court had not only entertained the said petition but also issued directions. In appeal, this Court annulled the judgment and order passed by the High Court on grounds that practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory [2025:RJ-JP:17640] (9 of 11) [CRLBC-133/2024] provision and in substance the abuse of the process of the court as no review of a final order passed by the High Court is contemplated under the Code. This Court has observed as under:

9. There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. 10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error. The reliance of the Respondent on Talab Haji Hussain case is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts Under Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed Under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.

11. The impugned orders of the High Court dated 30-4-1999 and 21-7-1999 which are not referable to any statutory provisions, having been passed apparently in a review petition in a criminal case are without jurisdiction and liable to be quashed. [2025:RJ-JP:17640] (10 of 11) [CRLBC-133/2024]

27. This Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 has extended the bar Under Section 362 as a necessary check on inherent powers of the High Court Under Section 482. This Court has opined that the inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail. This Court has observed as under: 5. Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.

28. This Court in paragraph 30 of its decision in Central Bureau of Investigation v. V. Vijay Sai Reddy, (2013) 7 SCC 452 has cautioned that cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the court of law.

29. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a Court is bound to act within the four corners of the Statute. The statutory exercise of the power stands on a different pedestal than the power of judicial review vested in a Court. The same has been upheld by this Court in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and Ors., (2006) 13 SCC 737, U.P. State Brass-ware Corporation Ltd. and Anr. v. Uday Narain Pandey (2006) 1 SCC 479 and Rashmi Rekha Thatoi and Anr. v. State of Orissa and Ors., (2012) 5 SCC 690. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. [2025:RJ-JP:17640] (11 of 11) [CRLBC-133/2024]

30. In the instant case, the order for bail in the bail application preferred by the accused Petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the accused- Petitioners. Even though the cancellation of bail rides on the satisfaction and discretion of the Court Under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accused-Petitioners during the grant of bail, the High Court could not have entertained the Respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition.

31. Herein, the High Court has assigned an erroneous interpretation to the well settled position of law, assumed expanded jurisdiction onto itself and passed an order in contravention of Section 362 of the Code cancelling the bail granted to the Petitioners herein. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order requires to be set aside.”

9. Thus, in view of the aforesaid factual position and the bar on the review of judgment and order of the Court granting bail to the accused under Section 362 Cr.P.C as also law laid down by Hon’ble Apex Court in the abovereferred case of Abdul Basit (supra), I am not inclined to accept this bail cancellation application, which is dismissed as such. GAUTAM JAIN /733 (ANIL KUMAR UPMAN),J