MD. ABDUL KADIR CHOUDHURY Vs. ABDUL BASIT @ RAJU

JUDGEMENT

(1.) This batch of three criminal miscellaneous applications, involving the same question of law and virtually of the same facts, were heard together on 12-6-2013 and are now being disposed of by this common order. In Criminal Miscellaneous Case No. 228 of 2013, the petitioner is questioning the legality of the order dated 12-3-2013 passed by me in Bail Application No. 593 of 20131. granting bail to the three accused-respondents, namely, (i) Md. Nazrul Islam, (ii) Ainul Gaque and (iii) Md. Sadudding, who were detained in custody in connection with Badarpur PS Case No. 126 of 2012 U/s 365/120-B/302/201 IPC and Section 25(1- B)(a)/27(3), Arms Act corresponding to Sessions Case No. 182/2012. It may be noted that on the basis of this order, the co-accused, namely, (i) Abdul Basit @ Raju, (ii) Kamal Hussain and (iii) Sanjib Suklabaidya were released on bail by my order dated 20-3-2013 in Bail Application No. 654 of 2013. Similarly, another set of co-accused, namely, (i) Samin Uddin @ Samim Uddin, (ii) Mumim Uddin @ Mumin Uddin and (iii) Yasin Ali were also released on bail by my order dated 20302013 in Bail Application No. 664 of 2013. The validity of the last two bail orders are also under challenge in the remaining miscellaneous applications.

(2.) The contention of Mr. S.K. Medhi, the learned counsel for the petitioners herein is that the direction of the learned Sessions Judge, Karimganj in Sessions Case No. 182 of 2012 to the police to conduct further investigation of the case under Section 173(8) CrPC is not tantamount to re-investigation or fresh investigation of the case and did not render the charge-sheet submitted by the police in Badarpur PS Case No. 126 of 2012 infructuous and could not have entitled the respondents to avail of default bail U/s 167(2)(a)(i) CrPC on the ground that charge-sheet was not submitted within 90 days. According to the learned counsel, the further investigation ordered by the learned Sessions Judge, Karimganj is in continuation of the investigation started by the Badarpur Police Station on the basis of Badarpur P.S. Case No. 126/12, for which charge-sheet has been submitted, the same cannot be treated as re-investigation or fresh investigation of the case. Drawing my attention to the decision of the Apex Court in Vipul Shital Prasad Agarwal v. State of Gujarat, 2013 1 SCC 197, the learned counsel further submits that the direction for further investigation on the first charge-sheet does not amount to quashment, rejection or abandonment of the first charge-sheet, and the accused in such a case cannot, therefore, seek bail on the ground of failure to file charge sheet within 90 days. It is also the contention of the learned counsel that this Court was misled and fraud practiced upon it by 1. suppression of the true legal position so enunciated by the three-Judge Bench of the Apex Court in the above case in order to obtain bail order by the accused therein, who had succeeded so. As the bail order was obtained by the accused therein by practicing fraud upon this Court by misrepresentation of facts and of law, argues the learned counsel for the petitioners, it is a fit case, on the authority of the Apex Court in Chengalvaraya Naidu v. Jagannath, 1994 1 SCC 1 and Indian Bank v. Satyam Fibres (India) (P) Ltd, 1996 5 SCC 550, for cancelling the bail granted to the accused therein. He also relies on the decisions of the Apex Court in Indian Bank v. Satyam Fibres (India) Ltd., 1996 5 SCC 550 and Prakash Kadam and others v. Ramprasad Vishwanath Gupta and another, 2011 6 SCC 189 to fortify his submissions. Mr. M. Biswas, the learned counsel for the accused-respondents supports the bail orders and submits that there is no provision under the law for cancelling the bail already granted except on the ground of misuse or likelihood of the bail. According to the learned counsel, if the contention of the learned counsel for the applicants is accepted, the order cancelling the bail will amount to reviewing an order which is barred by Section 362, CrPC. He also submits that when similarly situated co-accused (Abdul Basit, s/o Rashid Ali) was granted bail by this Court in Bail Appln. No. 3478/12, there is absolutely no reason to cancel the bail of the petitioners. He, therefore, submits that no substantial ground has been made out by the applicants for cancellation fof the bail granted to the accused-respondents.

(3.) Section 439(2), CrPC says that a High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. Though no parameters for cancellation of bail already granted are adumberated in Section 439(2), this power should be exercised with caution and circumspection as cancellation of bail jeopardize the personal liberty of the person. In other words, cancellation of bail should not be done in a routine manner. It is well-settled that the consideration applicable to the grant of bail and considerations for cancellation such an order are independent and do not overlap each other. Normally, while considering an application for cancellation of bail, the Court ordinarily looks for some supervening circumstances which would reflect that the 1. liberty granted to the accused has been misused. In other words, cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances, it would not longer be conducive to a fair trial to allow the accused to retain his freedom during the trial.