Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A.No.9041 of 2016 Jahangir Sk. @ Md. Jahangir. … … ...Petitioner -Versus- The State of Jharkhand. … … … ...Opp. Party --------- CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner: Mr. Kripa Shankar Nanda, Advocate. For the State: A.P.P. --------- C.A.V. on 14.07.2017 : Pronounced on 28 .07.2017 -------- Dr. S.N.Pathak,J.
Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is an accused in a case registered under Sections 363/323/313/366A/376/379/34 of the Indian Penal Code and under Section 4 of POCSO Act. On 18.04.2017 a complaint against one Jahangir SK. @ Md. Jahangir, who has been granted bail in B.A.No.9041/2016, was made before the Registrar General regarding threatening given to Latifa Khatoon. The case was listed before this Court on 28.04.2017. After going through the contents of the letter/complaint dated 18.04.2017 written before the Registrar General of this Court, this Court observed: “ Be that as it may, let the allegations made in the letter/complaint be verified and properly inquired by the Registrar General of this Court. Petitioner is directed to cooperate in investigation and appear in person along with his counsel on the next date to state before this Court the correct facts regarding the allegations made in complaint /letter dated 18.04.2017. It is made clear that if the incident is found to be true subject to inquiry of the Registrar General, this Court will proceed in the matter for cancellation of bail bonds.” The Registrar General was directed to enquire into the matter and submit a report along with B.A.No.9041/2016. In view of the direction, matter was inquired and a report dated 06.06.2017 was brought on record. The findings of the enquiry report reads as under: “ So after recording the statement of the witnesses and on conclusion of inquiry undersigned finds that the allegation regarding threatening made to the complainant Latifa Khatoon by accused Jahangir SK. is found true.” After hearing the Counsel for the petitioner as well as A.P.P. this Court is of the view that the petitioner does not deserve to 2. be kept on bail as the matter was inquired by the Judicial Officer on the direction of this Court and the allegations were found to be true. This Court has opined on 28.04.2017 that if the incident is found to be true subject to inquiry of the Registrar General, this Court will proceed in the matter for cancellation of bail bonds. Section 439 (2) indicates that it is a power conferred on the said courts. Suo motu power of High Court- Power can be invoked either at instance of State or any aggrieved party- Any members of public whether he belongs to any particular profession or otherwise can move High Court to exercise power. Sub-section 439(2) indicates that it is a power conferred on the said courts. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact, the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or even a public prosecutor moves for it by a petition. The power vested in the High Court under Section 439(2) can be invoked either by the State or by any aggrieved party. The said power can be exercised suo motu by the High Court. The Hon'ble Apex Court in case of “ R. Rathinam Vrs. State by DSP, District Crime Branch Madurai District, Madurai & Anr.”, reported in 2000(1) Crimes 211 (SC) has held:
“7. The frame of sub-section indicates that it is a power conferred on the said courts. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or even a public prosecutor moves for it by a petition.”
“8. It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such 3. petition, after making such considerations it is open for the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law.” In the instant case this Court has observed that on inquiry if the allegations are found to be true, the Court will proceed for cancellation of bail bonds. As the inquiry has been found to be true, the Court in its inherent jurisdiction has exercised the power under Section 439(2) of the Cr.P.C. and orders for cancellation of bail already granted to the petitioner in B.A.No. 9041/2016. The Hon'ble Apex Court further in case of “Panchanan Mishra Vrs. Digambar Mishra & Ors.”, reported in (2005) 3 SCC143has held:
“13. We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.
“18. Looking into the gravity of the crime, apprehension of tampering with the evidence and threats to the life of the complainant and other witnesses given by the accused, we are of the opinion that the High Court did not take into proper account the grave apprehension of the prosecution that there was a likelihood of the accused persons tampering with the prosecution witnesses. In the peculiar nature of the case revealed from the allegations and the position of the accused in relation to the eyewitnesses it was incumbent upon the High Court to give proper weight to the serious apprehension of the complainant which was urged before it in resisting the application for bail. The High Court, in our opinion, had failed to properly appreciate the entire position. Therefore, this Court 4. will be justified under Article 136 of the Constitution in interfering with the discretion exercised by the High Court in granting the bail to the accused persons. The High Court has not bestowed its attention on these above factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. The case on hand is one such which would justify our interference under Article 136 of the Constitution with a discretion exercised by the High Court in granting bail to the respondents in this case. The appeals are allowed and the order passed by the High Court in granting bail in Criminal Appeals Nos. 50 and 62 of 2004 stands set aside and cancelled and the Police Authorities are at liberty to rearrest the accused and proceed further in accordance with law. Any observation made by us in this order in cancelling the bail will not prejudice the High Court in considering the appeal filed by the accused on its own merits and dispose of the same in accordance with law.” Since the bail granted to the petitioner stands cancelled, the trial court is at liberty to issue warrant of arrest with direction to the police authorities to re-arrest the accused and proceed in accordance with law. [Dr. S.N.Pathak,J.] P.K.S.