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2011 (3) TMI 742

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..... ed counsel for the opposite party-Union of India. 2. The petitioner has challenged the order impugned dated 3rd of March, 2011, passed by the learned Sessions Judge, Lucknow in Criminal Misc. Case No. 36 of 2011, whereby the petitioner s bail has been cancelled. 3. It is not in dispute that the petitioner was granted bail on 13th of January, 2011 on the ground that the prosecution had not collected any evidence to connect him with the crime. He is implicated in the case mainly on the ground that the house in which Pan Masala/Gutkha factory was running, is owned by the petitioner. The court below in granting bail held that there is no prima facie, evidence to connect the petitioner with the crime. Thereafter, the respondent-Union of India moved an application for cancellation of bail of the petitioner under Section 439(2) of the Code of Criminal Procedure mainly on the ground that the petitioner has been found to be in constant touch with co-accused Vishnu Kant Sharma on mobile telephone which was suppressed by the petitioner from the department. Accordingly, it is stated that the petitioner did not cooperate in the investigation by way of misleading the Officer not disclosing a .....

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..... the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under sub-section (2) of Section 167 failing which the accused could be enlarged on bail From experience this was found to be insufficient particularly in complex case and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time frame. The deeming fic .....

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..... cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already .....

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..... mits that the inquiry by the Officer of the department is a judicial proceeding as is provided under Section 14 of the Central Excise Act, 1944. The Section 14 of the said Act is extracted herebelow:- 14. Power to summon persons to give evidence and produce documents in inquiries under this Act. - (1) Any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Pro .....

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..... er has committed fraud by producing the document which is not in existence only just to get the benefit of bail and since the document is based on fraud, the benefit provided on the basis of fraudulent document, on the event of disclosure of fraud, must be ended as fraud vitiates everything. He further cited the decision of Hon ble Supreme Court rendered in the case of A.V. Papayya Sastry and Others v. Govt. of A.P. and Others, reported in (2007) 4 Supreme Court Cases 221. The relevant paragraphs 26 and 29 are reproduced hereunder:- 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants. 29. The Court proceeded to state: A litigant, who approaches the court, is bound to prod .....

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