MD EKHALAQUE ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 8.11.2000 passed in Araria P.S. Case No. 313 of 2000. By the said order, learned Chief Judicial Magistrate, Araria has cancelled the bail bond of the petitioner and directed for issuance of non-bailable warrant of arrest against the petitioner and show cause to the bailors as to why the bail bond amount be not forfeited. Short fact of the case is that earlier the petitioner was granted bail by order dated 21.10.2000 passed by the Incharge Court i.e. Additional Chief Judicial Magistrate, Araria in Araria P.S. Case No. 313 of 2000. After noticing the fact that petitioner was granted bail, a petition was filed on behalf of the informant in the Court of learned Chief Judicial Magistrate, Araria disclosing therein that the petitioner, by way of suppression of fact, had obtained the order from the Incharge court. It was disclosed in the petition for cancellation of bail that initially, the petitioner had filed an anticipatory bail petition in the Court of Vacation Judge (Additional Sessions Judge-I, Araria). In the said anticipatory bail application, hearing was deferred to 12.10.2000. Again on 12.10.2000, the case was adjourned to 1.11.2000 for hearing. In the meanwhile, the Public Prosecutor was directed to produce the case diary. After the order dated 12.10.2000, the petitioner filed surrender-cum-bail petition before the Incharge Court and on the same date, he was granted bail. It was disclosed by the informant in the petition for cancellation, of bail that in the surrender-cum-bail petition, a false certificate was granted to the extent that no bail petition was earlier filed before any other court. It was alleged that purposely this false certificate was issued and thereafter, the petitioner was granted bail. A petition for cancellation was filed on 8.11.2000 and on the same date, by the impugned order, the learned Chief Judicial Magistrate cancelled the bail bond of the petitioner.

(2.) Aggrieved with the order of cancellation of bail, the petitioner approached this Court by filing the present petition. Before this Court, it was submitted on 11.4.2002 that the petitioner has also preferred a quashing application vide Cr. Misc. No. 6262 of 2001 against the order of cognizance. Accordingly, vide order dated 11.4.2002, it was directed to list the case after disposal of Cr. Misc. No. 6262 of 2001. In the present case, earlier by order dated 4.12.2000, the impugned order i.e. order dated 8.11.2000 was directed to remain stayed and order of stay is still continuing. After disposal of Cr. Misc. No. 6262 of 2001, the present matter has been listed for hearing under the heading for admission.

(3.) Learned Counsel appearing on behalf of the petitioner, while challenging the impugned order, has raised several grounds. Learned Counsel for the petitioner has emphasized that the petition for cancellation of bail was filed on 8.11.2000 and on the same date, without granting any opportunity to the petitioner, the learned Chief Judicial Magistrate has cancelled the bail bond of the petitioner. It was submitted that it was contrary to the principle of natural justice. In support of his stand, Learned Counsel for the petitioner has relied on a judgment of Apex Court Rajendra Prasad Arya vs. State of Bihar, 2000 AIR(SC) 3536. It was submitted that the Supreme Court has already held that in case of recalling earlier order on whatever ground may be it is must to provide opportunity to the other side. In the present case, even from the impugned order, it is evident that no opportunity was given. Learned Counsel for the petitioner has also relied on a judgment of Supreme Court Gurucharan Singh & Anr. vs. Delhi Administration, 1978 AIR(SC) 179. Learned Counsel for the petitioner has specifically referred to para-graph-24 of the said judgment. It was submitted that in case of cancellation of bail, there are certain specified procedure and without adopting such procedure, bail bond cannot be cancelled. In similar circumstances, Learned Counsel has also referred to a case law Mohan Singh vs. Union Territory, Chandigarh, 1978 AIR(SC) 1095. On the aforesaid grounds, it was submitted that the learned Chief Judicial Magistrate has committed serious error while canceling the bail bond of the petitioner.