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TMI Blog2013 (9) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... urts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned single Judge while dealing with second application u/s 438 Code of Criminal Procedure was not at all warranted under any circumstance as it was neither in consonance with the language employed in Section 438 Code of Criminal Procedure nor in accord with the established principles of law relating to grant of anticipatory bail. We may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal dilemma in the mind of the learned Additional Sessions Judge. We are pained to say that passing of these kind of orders has become quite frequent and the sagacious saying, A stitch in time saves nine may be an apposite reminder now. We painfully part with the case by saying so. The appeal is disposed of in terms of the modification in the order passed by the learned single Judge and the observations made hereinabove. - Anil R. Dave And Dipak Misra, JJ. For the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection that the Petitioner shall surrender before the Competent Court and shall apply for regular bail and the same shall be considered upon furnishing necessary bail bond. 5. After the said order came to be passed, the Appellant moved two applications, one under Section 44(2) and the other under Section 439 Code of Criminal Procedure before the learned Sessions Judge, Guna, who transferred the applications to the learned Additional Sessions Judge for consideration. The learned Additional Sessions Judge, Guna, admitted the Appellant to bail on imposition of certain conditions. We shall refer to the said order in detail when we deal with the legal propriety of the same and the cancellation of the same by the High Court by the impugned order. 6. At this juncture, it is apposite to note that the wife of the deceased filed S.L.P. (Crl.) No. 2055 of 2013 assailing the order dated 1.2.2013 passed by the learned single Judge in M.Cr.C. No. 701 of 2013. This Court allowed the application for permission to file the special leave and thereafter observed as follows: Although, we are of the view that this special leave petition has no substance, since the order under challenge merely directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 6.3.2013 made certain observations. 11. At this stage, we may sit in a time machine and take note of certain proceedings and the orders passed therein as they have been emphatically stressed upon by Mr. Anupam Lal Das, learned Counsel for the Appellant. An application for cancellation of bail was filed before the learned 1st Additional Sessions Judge, Guna by Dinesh Raghuvanshi, the informant, who, on 2.4.2013, withdrew the application as by that time the Division Bench had already set aside the order granting bail. It is also necessary to state that the Additional Public Prosecutor, Guna, had also filed application for cancellation of bail on 11.2.2013. An assertion has been made by learned Counsel for the Appellant that the same has been withdrawn when the High Court was moved for cancellation of the order granting bail. We have referred to these events, as the learned Counsel has endeavoured hard to impress upon us that there has been suppression of facts by the informant as well as the State, but we have no scintilla of doubt that the non-reference to the said facts or non-mentioning of the same has, in fact, no impact on the merits of the impugned order passed by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Respondent No. 1 are cancelled. It is directed that Respondent No. 1 shall surrender before the learned First ASJ, Guna, and he shall be taken into custody forthwith. 14. We have heard Mr. Anupam Lal Das, learned Counsel appearing for the Appellant, Mr. Surendra Singh, learned senior counsel appearing for Respondent Nos. 2 and 3, and the learned Counsel for the State. 15. First, we shall deal with the order passed by the High Court in M.Cr.C. No. 701 of 2013. We have already reproduced the same. The said order was the subject-matter of challenge in Special Leave Petition (Crl.) No. 2055 of 2013 and this Court has observed that the order under challenge was a mere direction to the accused to surrender and pray for bail. Thus, this is the interpretation placed by this Court on that order. It is apt to mention here that prior to passing of the said order the learned Additional Sessions Judge had allowed the application for grant of regular bail. The Division Bench entertaining an application under Section 482 Code of Criminal Procedure had modified the order dated 1.2.2013 passed in M.Cr.C. No. 701 of 2013 and on that basis had cancelled the order granting bail in favour of the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere that number of times the learned Additional Sessions Judge has referred to the order passed by the High Court and at one stage he has stated as follows: ...the applicant had submitted a bail application being No. 154/2012 Under Section 438 Code of Criminal Procedure before the Ld. Session Judge. The said application was rejected on 14.09.2012 by the Ld. First Additional Session Judge Shri R.P. Mankalia and being aggrieved with the said order, the applicant filed a petition being application No. M.C.R.C. No. 701/13 Under Section 438 Code of Criminal Procedure before the Hon'ble High Court of Madhya Pradesh at Gwalior Bench. In this matter, the Hon'ble High Court passed its judgment and order dated 01.02.2013 with the directions that the applicant will surrender himself before the competent court and the applicant will submit his application for regular bail and the concerned court will accept the application and bail bonds of the applicant. Therefore the Hon'ble High Court has issued the directions for the Competent Court in favour of the applicant. 18. After so stating the learned trial Judge has referred to the submissions, application for remand for further invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in M.Cr.C. No. 701 of 2013 remaining oblivious of the parameters for grant of bail under Section 439 Code of Criminal Procedure. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course. 21. In Chaman Lal v. State of U.P. (2004) 7 SCC 525, this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are: ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 25. We repeat at the cost of repetition that the aforesaid aspects have not been kept in view by the learned Additional Sessions Judge and, therefore, we are obliged in law to set aside the order passed by him and we so do. In view of the extinction of the order granting bail, the Appellant shall surrender forthwith to custody failing which he shall be taken to custody as per law. Liberty is granted to the Appellant to move an application for grant of regular bail. Needless to say, on such application being moved, the same shall be considered on its own merits regard being had to the parameters which have been laid down in aforestated authorities. 26. We may hasten to add that because of our above direction the judgment of the High Court is required to be modified as the learned single Judge has cancelled the bail by taking certain other aspects into consideration. We may clearly state that it would have been appropriate on the part of the High Court to set aside the order of granting bail by the learned Additional Sessions Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying concepts under Section 438 of the Code, the nature of orders to be passed while conferring the said privilege, the conditions that are imposable and the discretions to be used by the courts. On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitri Agarwal there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the Petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia and the principles culled out in Savitri Agarwal. In the said case it has also been observed thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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