PARAMJIT SINGH Vs. STATE OF UP AND ANOTHER

JUDGEMENT

(1.) Paramjit Singh along with two others, named Amiruddin and Phakhruddin was arrested and detained by the police of Agra as a sequel to an information lodged with the police registered as Grime No. 198 Police Station Sadar Bazar, Agra. It appears that the police at first registered the crime as one u/Ss. 307 and 304 of the IPC but later on converted it into an offence u/S. 302 of the IPC. Paramjit Singh was enlarged on bail by an order of the learned ADM (J), Agra dated 9 -4 -1971. On an application of the police the learned ADM cancelled the bail of Paramjit Singh on 12 -4 -1971 and issued process u/Ss. 87 and 88 of the CrPC. Thereupon a petition u/Art. 226 of the Constitution was presented by Paramjit Singh before the High Court which was admitted on 19 -4 -1971 and notices were ordered to be issued to the State of UP and the Incharge ADM (J) Agra. Pending the petition an order was also passed by the High Court staying the operation of the order of the learned ADM (J) dated 12 -4 -1971 cancelling the petitioner's bail. An application u/S. 498 of the CrPC was also presented on behalf of Paramjit Singh before the High Court on 21 -5 -1971. On this application for bail an order was passed that the petition u/Art. 226 of the Constitution and the application for bail be connected and heard together if the Hon'ble the Chief Justice so directed. Now according to the directions of the Chief Justice the petition u/Art. 226 of the Constitution and the bail application u/S. 498 of the CrPC have been listed before me for final orders. In the writ petition u/Art. 226 of the Constitution a counter affidavit has been filed stating the various circumstances under which the police applied for the cancellation of the bail resulting the passing of the order by the learned ADM (J) of Agra cancelling the bail. The main point raised in the writ petition was that the order for cancellation of bail having been passed without giving notice to the accused and affording him an opportunity to contest the prayer for cancellation of his bail, the order cancelling the bail was vitiated being in violation of the well established principles of natural justice. In the counter -affidavit filed by an Inspector of Police the fact that no notice was issued by the learned ADM (J) to the accused for affording him an opportunity has not been denied. It is thus clear on the facts emerging out of the affidavit of the parties that the order cancelling the bail was passed by the learned ADM (J) without giving notice to Paramjit Singh, the petitioner.

(2.) No doubt one of the cardinal principles of natural justice is that no order by a Court or Tribunal under a duty to act judicially ought to be passed adversely to a party without affording it an opportunity to be heard but at the same time it cannot be said that it is of universal application in all kind of cases. U/S. 497(5) CrPC a court which releases an accused on bail has also the power to cause his arrest and commit him to custody. There appears to be some tenability in the submission made by the learned Government Advocate that very often the purpose and the object underlying the said provision may be frustrated if the court were to wait for service of notice. The practice of long standing in the High Court has been not to cancel the bail granted by it without first giving a notice to the accused. Such a practice is in conformity with the well established principles of natural justice and ought to be followed by the subordinate courts also. I think it is not necessary in this petition to express any final opinion on the question whether an order cancelling a bail becomes vitiated if that order is passed without giving notice to the accused. I would content myself by observing that normally an opportunity ought to be afforded to an accused released on bail to be heard before his bail is cancelled. Only in abnormal cases and on conditions made out before the court that a peremptory order cancelling the bail and causing an accused to be arrested and detained in custody, ought be passed. What those abnormal conditions and circumstances can be, it is not for me to predicate. Viewed in this light, it cannot be said that the impugned order of the learned ADM (J) Agra, cancelling the bail was without jurisdiction or suffers from any such defect of procedure so as to be condemned as vitiated. It having been brought to the notice of the learned ADM (J) by the police before the order was passed that the offence was one of a more serious nature, if the learned ADM acted on such a report of the police and thought that the bail order be cancelled, it cannot be said that he committed any error of jurisdiction or abused his power. I am, therefore not inclined to set aside the impugned order in exercise of my jurisdiction u/Art. 226 of the Constitution. The writ petition is accordingly dismissed. I make no order for costs.

(3.) Now coming to the substantive application for bail u/S. 498 of the CrPC, an argument was raised by the learned Government Advocate that the applicant cannot come to the High Court u/S. 498 of the CrPC without first questioning the order of the cancellation of bail before the learned Sessions Judge but the learned Government Advocate has not been able to point out to me any provision in the CrPC obliging the accused to approach the learned Sessions Judge. I think the power of the High Court u/S. 498 of the CrPC are wide and unfettered. The High Court in its discretion can exercise those powers even if the accused does not approach the subordinate courts or authority for release first. I do not find any such circumstances in the instant case which would deter me in exercise of my discretion to take recourse to the provisions of S. 498 of the CrPC to afford relief to the applicant for the simple reason that the two accused Aminuddin and Phakharuddin named above who are similarly situated and the case of Paramjit Singh is not in any way different from that of his co -accused, have already been released on bail by this Court. For the reasons given above, I direct that Paramjit Singh be released on bail on furnishing security to the satisfaction of ADM (J) Agra pending the trial. It is made clear that due to a stay order passed by this Court operating Paramjit Singh is not in custody. He need not be required to surrender if within three weeks from the date of to -day's order he furnishes security of the same value and of the same nature as of the two co -accused before the learned ADM (J) Agra.