CRM-M--9029-2023

CRM-M--9118-2023 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Date of decision:17.05.202
.2024

1. CRM
CRM-M-9029-2023
....Petitioner

V/s

State of Haryana and another ....Respondents

2. CRM
CRM-M-9118-2023
....Petitioner

V/s

State of Haryana and another ....Respondents

CORAM: HON’BLE MR. JUSTICE SUMEET GOEL

Present: Mr. Sitanshu Sharma, Advocate for the petitioner

(in both the petitions).
Ms. Priyanka Sadar, AAG Haryana
(in both the petitions).
Mr. R.S. Athwal, Advocate for respondent No.2
(in both the petitions).
*****
SUMEET GOEL,
GOEL J.

1. This order will dispose of aforesaid two petitions filed under

Section 439(2) of the Code of Criminal Procedure, 1973 fo

forr cancellation of

anticipatory bail granted to private respondent(s) vide order dated

06.02.2023 passed by learned Additional Sessions Judge, Faridabad in FIR

No.32 dated 04.03.2022 registered for offences punishable under Sections

323, 406, 498-A,

498 506 and 34 of IPC and Section 25 of the Arms Act at

Women Police Station Ballabgarh,

Ballabgarh District Faridabad, Haryana.

2. The petitioner is the father of the victim, whose marriage was

AJAY KUMAR
2024.05.20 12:43
solemnized with the private respondent
I attest to the accuracy and respondent- on
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 2
22.11.2015 according
according to sikh rites and ceremonies at Jalandhar, Punjab. As

per the prime stand of the petitioner (herein), the private respondent(s) along

with their family members used to torment the victim on account of dowry

and hence an FIR ibid got registered by him

him.

3. Vide order dated 06.02.2023 passed by Additional Sessions

Judge, Faridabad, the respondent No.2

No.2- was

granted anticipatory bail; relevant whereof reads as unde

under:

“Heard.
Heard. This court while granting interim pre
pre-arrest bail to thee petitioner
on 17.01.2023, had referred the matter to Mediation and report of
Mediator namely, Ms. Durgesh Bakshi, reveals that despite several efforts
the matter could not be settled by way of mediation. Admittedly, in
compliance of order dated 17.01.202
17.01.2023,
3, the petitioner has already joined
the investigation and apparently custodial interrogation of the petitioner is
not required as present FIR has been lodged by the father. Regarding non
recovery of entire jewellery articles, it may be added here that our Hon'ble
High Court in case titled as Priyanka vs. State of Haryana, bearing CRM-
CRM
M-42197-2020,
2020, decided on 07.01.2021, has held that in view of the law
laid down in Prit Pal Singh vs. State of Punjab and another, 2014(5) RCR
(Crl.) 771, proceedings under Se
Sections
ctions 406 and 498A of the IPC are not
meant for recovery of jewellery and dowry articles and the complainant, if
so chooses, can move Civil Court for recovery of said articles. Moreover,
after taking into account the allegations and counter allegations, it
i
transpires that demand and entrustment of certain articles to the
petitioners is a disputed question of fact, which would be considered when
the evidence is led during trial. Hence, in view of facts detailed above,
without commenting on the merits of the case, order dated 17.01.2023,
passed by this Court, is hereby made absolute
absolute”

3.1 Vide order dated 06.02.2023 passed by Additional Sessions

Judge, Faridabad, the respondent No.2-

No.2 was

granted anticipatory bail; relevant whereof reads as under:

“Heard. Admittedly, in compliance of order dated 24.01.2023, the

petitioner has already joined the investigation and apparently custodial
AJAY KUMAR
2024.05.20 12:43 interrogation of the petitioner is not required. As far as non recovery of
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 3
dowry articles etc.. is concerned, it may be added here that our Hon'ble
High Court in case titled as Priyanka vs. State of Haryana, bearing CRM-
CRM
M-42197-2020,
2020, decided on 07.01.2021, has held that in view of the law
laid down in Prit Pal Singh vs. State of Punjab and another, 2014(5) RCR
(Crl.) 771, proceedings under Sections 406 and 498A of the IPC are not
meant for recovery of jewellery and dowry articles and the complainant, if
so chooses, can move Civil Court for recovery of said articles. Moreover,
demand and entrustment of certain articles to the petitioner is a disputed
question of fact, which would be considered when the evidence is led
during trial. Hence, in view of facts detailed above, without commenting
on the merits of the case, interim bail
bail-order dated 24.01.2023,, passed by
this Court, is hereby made absolute.”
4. The afore-said
said order(s) dated 06.02.2023 have been challenged

by the petitioner (herein)-complainant

(herein) complainant in CRM
CRM-M-9029-2023 & CRM--M-

9118-2023
2023 respectively.

5. Learned counsel for the petitioner has argued that the private

respondent(s) ought not to have been granted the concession of anticipatory

bail by the Sessions Court since there were serious allegations against the

said respondent(s). It has been further aargued

rgued that recovery of the dowry

articles/Istridhan was not made and hence the Sessions Court ought to have

dismissed the anticipatory petition(s) filed by the private respondent(s). It

has been further argued that the petitioner had spent huge amount of m
money
oney

on the marriage in question and the FIR reflects high

high-handedness on part of

the private respondent(s). Thus, cancellation of the anticipatory bail granted

to the private respondent(s) is sought for.

6. Learned counsel appearing for the State has su

submitted
bmitted that the

challan (report under Section 173 of Cr.P.C.) has been presented by the

Police in the concerned Court on 12.07.2023. Learned State counsel has

further submitted that, after investigation, no challan was presented under

AJAY KUMAR
2024.05.20 12:43 the Arms Act against
I attest to the accuracy and
against the private respondent(s). It has been further
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 4
submitted by the learned State counsel that the police has not received any

complaint, made by the petitioner, about the private respondent(s) having

extended any threat etc. to the petitioner or having tried

ed to influence

witnesses(s), after being enlarged on anticipatory bail.

7. Learned counsel appearing for respondent No.2 (in both cases)

has argued that the FIR in question is result of a matrimonial discord.

Various conciliation attempts were made betw

between
een the parties but to no avail.

It has been further argued that the allegations pertaining to demand of dowry

are false and the same have been made only to exert pressure upon

respondent No.2 for arriving at a settlement at the terms of the petitioner and
an

his daughter (victim).

8. I have heard learned counsel for parties and have perused the

record.

9. The prime issue that arises for consideration in the present

petition(s)
(s) is as to whether the anticipatory bail granted by the Sessions

Court to private respondent(s) ought to be cancelled in the facts and

circumstances of the case. The analogous legal issue that arises for

consideration is as to what are the factors

factors to be considered for cancellation

of bail earlier granted to an accused.

Relevant Statute
Stat

10. Code of Criminal Procedure, 1973 ((hereinafter

hereinafter referred to as
1973 Code)
“437 When bail may be taken in case of non
non-bailable offence––
[(1) When any person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained without warrant by an officer
in charge of a police station or appears or is brought before a Court other
than the High Court or Court of Session, he may be released on bail, but –
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 5
(i) such person shall not be so released if there appear reas
reasonable
onable
grounds for believing that he has been guilty of an offence punishable with
death or imprisonment for life;
(ii) such person shall not be so released if such offence is a
cognizable offence and he had been previously convicted of an offence
punishable
able with death, imprisonment for life or imprisonment for seven
years or more, or he had been previously convicted on two or more
occasions of [a cognizable offence punishable with imprisonment for three
years or more but not less than seven years]:
Provided
vided that the Court may direct that a person referred to in
clause (i) or clause (ii) be released on bail if such person is under the age
of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person
referred to in clause (ii) be released on bail if it is satisfied that it is just
and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be
required for being identified by witnesses during investiga
investigation
tion shall not be
sufficient ground for refusing to grant bail if he is otherwise entitled to be
released on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court
Court:]
[Provided also that no person shall, if tthe
he offence alleged to have
been committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more, be released on bail by the Court
under this sub-Section
Section without giving an opportunity of hearing to the
Public Prosecutor.]
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
(5) Any court which has released a person on bail under sub
sub-section
section (1),
or sub-section
section (2), may, if it considers it necessary so to do, direct that
such person be arrested and commit him to custody.
439. Special powers of High Court or Court of Session
regarding bail. —
(1) A High Court or Court of Session may direct –
(a) that any person accus
accused
ed of an offence and in custody be
released on bail, and if the offence is of the nature specified in sub
sub-section
ection (3)
of Section 437, may impose any condition which it considers necessary for the
purposes mentioned in that sub-section;
section;
(b) that any condition imposed by a Magistrate when releasing any
AJAY KUMAR
2024.05.20 12:43 person onn bail be set aside or modified:
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 6
Provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Session or which, though not so triable, is
punishable with imprisonment for life, give notice of the application for bail
to the Public Prosecutor unless it is, for reasons to be recorded in writing, of
opinion that it is not practicable to give such notice.
[Provided further that the High Court or the Cou
Court
rt of Session
shall, before granting bail to a person who is accused of an offence triable
under sub-section
section (3) of section 376 or section 376AB or section 376DA or
section 376DB of the Indian Penal Code, give notice of the application for
bail to the Public
ic Prosecutor within a period of fifteen days from the date of
receipt of the notice of such application.]
xxxx xxxx xxxx xxxx
(2) A High Court or Court of Session may direct that any person who
has been released on bail under this Chapter be arres
arrested
ted and commit him
to custody.
The Criminal Procedure Code, 1898 ((hereinafter
hereinafter referred to
as 1898 Code)
“497.(1)
.(1) When any person accused of ör suspected of the commission
of’any non-bailable
bailable offence is arrested or detained without warrant by
an officer in charge of a police-station,
station, or appears or is brought before a
Court, he may be released on bail, but he shall not be so released if there
appear reasonable grounds for believ
believing
ing that he has been guilty of an
“imprisonment”for life;
offence punishable with death or “
Provided that the Court may direct that any person under the age
of sixteen years or any woman or any sick or infirm person accused of
such an offence be released on bail.
xxxx xxxx xxxx xxxx
(5) A High Court Division or Court of Session and, in the case of a
person released by itself, any other Court may cause any person who has
been released under this section to be arrested and may commit him to
custody.”
498.. 1 The amount of every bond executed under this Chapter shall be
fixed with due regard to the circumstances of the case, and shall not be
excessive; and the High Court Division or Court of Session may, in any
case, whether there be an appeal on convi
conviction or not, direct that any
person be admitted to bail, or that the bail required by a police
police-officer
officer or

AJAY KUMAR
Magistrate be reduced.
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 7
2. A High Court or of Session may cause any person who has been
admitted to bail under sub-section
section (1) to be arrested and may commit him
to custody.”

Relevant Case Law:

Law

11. The precedents, apropos to the matter(s) in issue, are as

follows:

(i) In a case titled as “Gurcharan

Gurcharan Singh and others vs. State
(Delhi Administration), (1978) 1 SCC 118 the Hon’ble
ble Supreme Court has
held as follows:-
follows:
“ 16. Section 439 of the new Code confers special powers on High Court or
Court of Session regarding bail. This was also the position under Section 498
of the old Code. That is to say, even iiff a Magistrate refuses to grant bail to an
accused person, the High Court or the Court of Session may order for grant
of bail in appropriate cases. Similarly under Section 439 (2) of the new Code,
the High Court or the Court of Session may direct any person who has been
released on bail to be arrested and committed to custody. In the old Code,
Section 498(2) was worded in somewhat different language when it said that
a High Court or Court of Session may cau
cause
se any person who been admitted to
bail under sub-section
section (1) to be arrested and may commit him to custody. In
other words, under Section 498 (2) of the old Code, a person who had been
admitted to bail by the High Court could be committed to custody only bbyy the
High Court. Similarly, if a person was admitted to bail by a Court of Session,
it was only the Court of Session that could commit him to custody. This
restriction upon the power of entertainment of an application for committing
a person, already admitted
tted to bail, to custody, is lifted in the new Code
under Section 439(2). Under Section 439 (2) of the new Code a High Court
may commit a person released on bail under Chapter XXXIII by any Court
including the Court of Session to custody, if it thinks appropriate to do so. It
must, however, be made clear that a Court of Session cannot cancel a bail
which has already been granted by the High Court unless new circumstances
arise during the progress of the trial after an accused person has been
admitted to bail by the High Court. If, however, a Court of Session had
admitted an accused person to bail, the State has two options. It may move
the Sessions Judge if certain new circumstances have arisen which were not
earlier known to the State and necessarily, therefore, to that Court. The State
may as well approach the High Court being the superior Court under Section
Secti
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
439(2) to commit the accused to custody. When, however, the state is
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 8
aggrieved by the order of the Sessions Judge granting bail and there are no
new circumstances that have cropped up except those already existed, it is
futile for the State to move the Sessions Judge again and it is competent in
law to move the High Court for cancellation of the bail. This position follows
from the subordinate position of the Court of Session vis
vis-a-vis
vis the High
Court.”

(ii) The Hon’ble Supreme Court in a judgment titled as Himanshu

Sharma vs. State of Madhya Pradesh, 2024(4) SCC 222 has held as under:

“12. Law is well settled by a catena of judgments rendered by this Court that
the considerations for grant of bail and cancellation thereof are entirely
different. Bail granted
nted to an accused can only be cancelled if the Court is
satisfied that after being released on bail, (a) the accused has misused the
liberty granted to him; (b) flouted the conditions of bail order; (c) that the
bail was granted in ignorance of statutory provisions restricting the powers
of the Court to grant bail; (d) or that the bail was procured by
misrepresentation or fraud. In the present case, none of these situations
existed.”

(iii) In a case titled as “The

The State through the Delhi Administration

vs.. Sanjay Gandhi, 1978(2) SCC 411 a three Judges Bench of the Hon’ble

Supreme Court has held as follows:-

follows:

“14. Before we go to the facts of the case, it is necessary to consider

what precisely is the nature of the burden which rests on the prosecution
in an
n application for cancellation of bail. Is it necessary for the
prosecution to prove by an mathematical certainty or even beyond a
reasonable doubt that the witnesses have turned hostile because they are
won over by the accused? We think not. The issue of cancellation of bail
can only arise in criminal cases, but that does not mean that every
incidental matter in a criminal case must be proved beyond a reasonable
doubt like the guilt of the accused. Whether an accused is absconding and
therefore his property
rty can be attached under Section 83 of the Criminal
Procedure Code, whether a search of person or premises was taken as
required by the provisions of Section 100 of the Code, whether a
confession is recorded in strict accordance with the requirements of
Section
ection 164 of the Code and whether a fact was discovered in
consequence of information received from an accused as required by
AJAY KUMAR
2024.05.20 12:43 Section 27 of the Evidence Act are all matters which fall peculiarly within
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 9
the ordinary sweep of criminal trials. But though thee guilt of the accused
in cases which involve the assessment of these facts has to be established
beyond a reasonable doubt, these various facts are not required to be
proved by the same rigorous standard. Indeed, proof of facts by
preponderance of probabilities
ilities as in a civil case is not foreign to criminal
jurisprudence because, in cases where the statute raises a presumption of
guilt as, for example, the Prevention of Corruption Act, the accused is
entitled to rebut that presumption by proving his defenc
defencee by a balance of
probabilities. He does not have to establish his case beyond a reasonable
doubt. The same standard of proof as in a civil case applies to proof of
incidental issues involved in a criminal trial like the cancellation of bail of
an accused.
d. The prosecution, therefore,, can establish its case in an
application for cancellation of bail by showing on a preponderance of
probabilities that the accused has attempted to tamper or has tampered
with its witnesses. Proving by the test of balance of probabilities that the
accused has abused his liberty or that there is a reasonable apprehension
that he will interfere with the course of justice is all that is necessary for
the prosecution to do in order to succeed in an application for
cancellation of bail.”

(iv) In a case titled as “Ranjit

Ranjit Singh vs. State of M.P. and others,

2013(4) RCR (Criminal) 600,

600, the Hon
Hon’ble
ble Supreme Court has held as

follows:-

20. It needs no special emphasis to state that there is distinction between

the parameters for grant of bail and cancellation of bail. There is also a
distinction between the concept of setting aside an unjustified, illegal or
perverse order and cancellation
on of an order of bail on the ground that the
accused has misconducted himself or certain supervening circumstances
warrant such cancellation. If the order granting bail is a perverse one or
passed on irrelevant materials, it can be annulled by the superio
superiorr 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 Judg
Judgee 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

AJAY KUMAR
had enlarged the accused on bail on the strength of the order passed in
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
M.Cr.C. No. 701 of 2013 remaining oblivious of the parameters for grant
 CRM-M--9029-2023
CRM-M--9118-2023 10
of bail under Section 439 Criminal Procedure Code. It is well se
settled
ttled 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.”

(v) In a case titled as “Neeru

Neeru Yadav vs. State of U.P., 2014(16)

SCC 508,, the Hon’ble

Hon ble Supreme Court has held as follows:
follows:-

“13. We have referred to certain principles to be kept in mind while

granting bail, as has been laid down by this Court from time to time. It is
well settled in law that cancellation of bail after it is granted because the
accused has misconducted himself or of some supervening circumstances
warranting such cancellation have occurred is in a different compartment
altogether than an order granting bail w
which
hich is unjustified, illegal and
perverse. If in a case, the relevant factors which should have been taken
into consideration while dealing with the application for bail and have not
been taken note of bail or it is founded on irrelevant considerations,
indisputably
disputably the superior court can set aside the order of such a grant of
bail. Such a case belongs to a different category and is in a separate
realm. While dealing with a case of second nature, the Court does not
dwell upon the violation of conditions by the accused or the supervening
circumstances that have happened subsequently. It, on the contrary, delves
into the justifiability and the soundness of the order passed by the
Court.”

(vi) In a case titled as “Jagjeet

Jagjeet Singh & Ors. vs. Ashish Mishra @

Monu & Anr., 2022(9) SCC 321, a three Judges Bench of the Hon’ble

Supreme Court has held as follows:-

follows:

“29. Ordinarily, this Court would be slow in interfering with any order
wherein bail has been granted by the Court below. However, if it is found that
such an order is illegal or perverse, or is founded upon irrelevant materials
adding vulnerability to the order granting bail, an appellate Court will be
well within its ambit in setting aside the same and cancelling the bail. This
position of law has been consistently
ently reiterated, including in the case
of Kanwar Singh Meena v. State of Rajasthan
Rajasthan,, wherein this Court set aside
the bail granted to the accused on the premise that relevant considerations
and prima facie
cie material against the accused were ignored. It was held that:
“10….Each criminal case presents its own peculiar factual scenario and,
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
therefore, certain grounds peculiar to a particular case may have to be taken
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 11
into account by the court. The court has to only opine as to whether there is
prima facie case against the accused. The court must not undertake
meticulous examination of the evidence collected by the police and comment
on the same. Such assessment of evidence and premature comments are likely
to deprive the accused of a fair trial.…The High Court or the Sessions Court
can cancel the bail even in cases where the order granting bail suffers from
serious infirmities resulting in miscarriage of justice. If the court granting
bail ignores relevant materials
erials indicating prima facie involvement of the
accused or takes into account irrelevant material, which has no relevance to
the question of grant of bail to the accused, the High Court or the Sessions
Court would be justified in cancelling the bail. Such orders are against the
well recognised principles underlying the power to grant bail. Such orders
are legally infirm and vulnerable leading to miscarriage of justice and
absence of supervening circumstances such as the propensity of the accused
to tamper with the evidence, to flee from justice, etc. would not deter the court
from cancelling the bail. The High Court or the Sessions Court is bound to
cancel such bail orders particularly when they are passed releasing the
accused involved in heinous crimes bbecause
ecause they ultimately result in
weakening the prosecution case and have adverse impact on the society.
Needless to say that though the powers of this Court are much wider, this
Court is equally guided by the above principles in the matter of grant or
cancellation of bail.”
Analysis (re law)

12. The concept of “cancellation

cancellation of bail
bail” is statutorily manifested

in terms of Section 439 (2) of 1973 Code. This concept was embodied in the

earlier statute i.e. 1898 Code as well albeit with difference(s). The ratio

decidendi of judgment in case of Gurcharan Singh (supra) makes it clear

that, in the 1898 Code,

Code the bail granted by the High Court could be cancelled

only by it & bail granted by a Sessions Court could be cancelled by such

Sessions
essions Court only. However,
However Section 439(2) of 1973 Code has vested

power to cancel bail which has been granted “under this chapter” upon both

the High Court as also the Sessions Court. The words “under
under this Chapter”
Chapter

relates to Chapter XXXIII of Cr.P.C. of 1973 & hence the unequivocal result
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 12
thereof is that the High Court as also the Sessions Court have requisite

powers to cancel “any bail”” granted by “any Court” by way of powers

vested under this Chapter. In other words; the High Court is well

empowered to cancel a bail granted by itself or by a Sessions Court or by the

Court of a Magistrate while the Sessions Court is empowered to cancel a bail

granted by High Court or by itself or by a Magistrate. However, a Sessions

Court can cancel bail granted by High Court only on account of

supervening/new circumstances or on account of misconduct of such

accused or on account of violation of any condition(s) imposed by the High

Court while granting bail. The Magistrate can, of course, cancel bail granted

by him but he cannot cancel a bail granted by High Court or Sessions Court

except when such accused has violated/

violated/contravened any condition(s)

imposed upon by such High Court or Sessions Court while granting bail to

such accused. This position, is indubitable, aass a Magistrate has been vested

with powers for cancellation of bail only in terms of Section 437(5) of 1973

Code whereas the High Court and Sessions Court have been vested with

powers under Section 439 of Cr.P.C., of 1973 to cancel “any bail granted

under Chapter XXXIII of 1973 Code”.

Code”

12.1 Section 439(2) of Cr.P.C., 1973 deals with “any person who

has been released on bail under this Chapter” i.e. Chapter XXXIII of 1973

Code, which engirths

engirth in itself, Section 438 of the Code (provision

envisaging anticipatory
anticipat bail/pre-arrest
arrest bail) as well. Hence such power

operates in realm of all kinds of bails, whether regular bail or anticipatory

bail. Ergo,
Ergo there is no conceptual difference between cancellation of regular

bail and cancellation of anticipatory bail exce

except
pt that a Magistrate will not
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 13
have statutory power to cancel an anticipatory bail granted by High Court or

Sessions Court.

12.2. At this juncture, it would be profitable to consider an issue

often springing up before Courts. Petition(s) labelled as plea(s) for

“cancellation
cancellation of bail” are filed in Court(s), more often than not, whether

such applicant is actually seeking “cancellation

cancellation of bail” on account of the

accused misusing the grant of bail or on account of any supervening

developments disentitling such accused to remain on bail OR where the plea

raised is that, the bail ought not to have been granted at all vide the

impugned order, in the factual conspectus of such case. The 1973 Code

neither stipulates the words “cancellation

“cancellation of bail” nor “setting-aside
aside of a

bail order” but only stipulates the words ““any

any person who has been released

on bail be arrested and committed to custody”

custody”. There is no gainsaying that

there is a foundational difference between ““cancellation of bail” and

“setting-aside
aside of a bail order”;
order ; a difference which, by way of simile,, can be

said to be as stark as between chalk and cheese. T

The Hon’ble
’ble Supreme

Court in cases of Ranjit Singh (supra) and Neeru Yadav (supra) has

incontestably articulated that “cancellation

cancellation of bail” is sought for on account

of supervening circumstances/subsequent developments/misconduct of

accused etc. whereas “setting-aside

“ aside of a bail order” is soughtt for by laying

challenge to the said bail order on ground of it being perverse or based on

irrelevant material(s). The parameters for consideration of the two are,

accordingly, different and contrastive.

13. The next aspect that craves attention is as to what are the factors

relevant for considering of a plea for “cancellation

“cancellation of bail” or “setting-aside
aside
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 14
of a bail order.”At
order. the very outset; it deserves to be noted that
that, it is too far

well settled a principle to be ratiocinated upon, that consideration(s) for

grant of bail vis.-a-vis. cancellation/setting

cancellation/setting-aside
aside thereof are entirely

different.

14. In a plea seeking “cancellation

cancellation of bail”
bail”;; such applicant ought to

show, primarily, subsequent supervening circumstances such as accused

accus

having endeavored to influence/intimidate witness(s) or accused having

violated bail condition(s) or accused having committed another offence(s) or

accused having secured bail by misrepresenting/concealing material fact(s)

or bail having been granted in ignorance/violation of statutory provisions

and factors of akin nature. The Hon’ble Supreme Court in the case of

Himanshu Sharma (supra) has delineated the nature and kind of such

factors as have been stated by this Court hereinabove.

14.1. Further, the Hon’ble Supreme Court in the case of Sanjay

Gandhi (supra) has enounced regarding the nature and degree of burden

upon the applicant (seeking cancellation of bail). The plea of such an

applicant has to be tested on the anvil of preponderance of probabilities

ies &

such an applicant is not required to prove, beyond reasonable doubt, the facts

pleaded by him in support of such a plea.

15. In a plea seeking “setting-aside

aside of a bail order”
order”;; the factors

required to be considered are as to whether bail has been granted on relevant

consideration(s); grounds required to be evaluated for grant of bail have

been duly factored into the order granting bail and other factors of akin

nature. The Hon’ble

Hon Supreme Court in the case of Jagjit Singh (supra) has

held that the High Court or Sessions Court can set

set-aside
aside an order granting
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 15
bail passed by an inferior Court if such order is based on irrelevant

considerations, order granting bail has resulted in miscarriage of justice etc.

It goes without saying that the High Court or Sessions Court; while dealing a

plea for setting-aside

setting aside a bail order; sits in a jurisdiction, which is akin to

appellate jurisdiction & hence it can look into the veracity and proprie
propriety
ty of

the order (granting bail) from all the perspectives

perspectives. However, a Court while

dealing with such a plea, ought not to substitute its own opinion with the one

expressed in the impugned order.

16. It would not be pragmatic to even attempt to lay-down

down

exhaustive
haustive parameters in this regard as every case, especially a criminal

case, is sui generis. Such a quixotic attempt ought to be avoided as no

inexorable formulae can be laid down in this regard.

17. As an epilogue to above discussion, the following principles

emerge:

I. (i) There is a conceptual distinction, between “cancellation

cancellation of
bail”& “setting-aside
“ of a bail order”.. In a plea seeking “cancellation
cancellation of
bail”; the factors required to be considered are akin to supervening
circumstances/events or mis-conduct
m conduct of accused whereas in a plea
seeking“setting-aside
aside of a bail order
order”; the factors required to be
considered are akin to the order in question being unjustified or illegal or not
based on relevant consideration(s). In other words, a plea seeking “setting
setting
aside of a bail order” is more in the nature of laying challenge to an order
granting bail before a superior Court upon merits thereof
thereof.
(ii) It would be pragmatic as also desirable
desirable, for the cause of ease and
clarity, that a plea filed under Section 439 of Cr.P.C., 1973 clearly states as
to whether the plea is for“cancellation
“cancellation of bail” or for “setting aside of a bail
order.” or on both accounts.
II. Plea seeking cancellation of Regular Bail
Bail.
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 16
(i) A High Court has power to cancel regular bail granted by itself
or by a Sessions Court or by a Magistrate’s Court.
(ii) A Sessions Court has a power to cancel regular bail granted by
High Court or by itself or by a Magistrate’s Court. However, the
Sessions Court can cancel
cancel regular bail granted by High Court only
where the accused has violated any condition(s) imposed by the High
Court (while granting bail) or on account of such accused having
misused liberty granted to him by trying to influence witness(s) or
having tried to delay trial by absenting himself or having committed
another offence(s) while on bail and other factors of akin nature. In
other words, a Sessions Court can cancel bail granted to an accused by
High Court only on account of such like supervening/subseq
supervening/subsequent
uent
events but cannot adjudicate upon veracity of the High Court order
(whereby bail was granted to such accused.)
(iii) A Magistrate does have the power to cancel a regular bail
granted by him in terms of Section 437(5) of Cr.P.C. 1973. However,
a Magistrate
Magistrate does not have the power to cancel regular bail granted by
the High Court or Sessions Court except in a situation wherein the
accused has violated any condition(s) imposed upon him when
granted such bail by the High Court or the Sessions Court.
(iv) In case cancellation of a regular bail granted by the Sessions
Court is sought for;
for such plea ought to be ordinarily filed before the
Sessions Court itself. However, since there is concurrent jurisdiction
of the High Court as also Sessions Court in tterms
erms of Section 439(2) of
Cr.P.C. 1973, the filing of such a plea straight away before the High
Court is not ipso facto barred. At the same time, it would be
expedient that such a plea (filed straight away before the High Court)
must show cogent reason(s) for not approaching the Sessions Court in
the first instance.
(v) The factors for consideration in a plea for cancellation of a
regular bail are whether the accused has misused liberty granted to
him by trying to influence witness(s) or has tried to de
delay
lay trial or has
committed another offence(s) while on bail, whether the accused has
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and flouted the cancellation of bail, whether bail was procured by
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 17
misrepresentation or fraud or concealing relevant material and similar
factors of akin nature. There is no gainsaying that above factors are
only illustrative in nature as it is not axiomatic to exhaustively
enumerate them.
(vi) Where such plea raises ground(s) that bail has been granted on
account of misrepresentation of facts or a fraud having been played on
Court which has granted bail or concealment of material/relevant
facts; it would be expedient that such plea be filed, in the first instance
itself, before the Court which had granted bail in question.
(viii) The degree and nature of proof required to be shown by an
applicant (seeking cancellation of regular bail) is that of
preponderance of probabilities
probabilit and not one of being beyond
reasonable doubt.
III. Plea seeking setting-aside
setting aside of regular bail order
order.
(i) A plea seeking“setting-aside
aside of a bail order” has to be
essentially filed in the Court,
Court superior to the one which has granted
bail.
(ii) In case setting-aside
aside of a bail order granted by the Magistrate’s
Magistrate
Court is sought for, such plea ought to be ordinarily filed before the
Sessions Court. However,
However, since there is concurrent jurisdiction of the
High Court as also Sessions Court in terms of Section 439(2) of
Cr.P.C. 1973, the filing of such a plea straight away before the High
Court is not ipso facto barred. At the same time, it would be
expedient that such a plea (filed straight away before the High Court)
expedient
must show cogent reason(s) for not approaching the Sessions Court in
the first instance.
(iii) For setting-aside
aside a bail order passed by a Sessions Court; such
plea, but of-course,
of course, will have to be filed before the High Court.
IV. Plea seeking cancellation of anticipatory bail/pre
bail/pre-arrest order
(i) A High Court has power to cancel an anticipatory bail granted
by it or by a Sessions Court.
(ii) A Sessions Court has power to cancel an anticipatory bail
granted by High Court or earlier granted by it. However, the
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
Sessions Court can cancel anticipatory bail granted by High
 CRM-M--9029-2023
CRM-M--9118-2023 18
Court only where the accused has violated any condition(s)
imposed by the High Court (while granting such bail) or on
account of such accused having misused liberty granted to him
by trying to influence witness(s) or having tried to delay ttrial
rial by
absenting himself or having committed another offence(s) while
on bail and other factors of akin nature. In other words, a
Sessions Court can cancel anticipatory bail granted to an
accused by High Court only on account of such likes
supervening/subsequent
bsequent events but cannot adjudicate upon
veracity of the High Court order (whereby such bail was
granted to such accused.)
(iii) In case cancellation of an anticipatory bail granted by Sessions
Court is sought for; such plea ought to be filed ordinarily before
Sessions Court itself. However, since there is concurrent
jurisdiction of the High Court as also Sessions Court in terms of
Section 439(2) of Cr.P.C. of 1973, the filing of such a plea
straight away before the High Court is not barred. At the same
time, it would be expedient that such a plea (straight away filed
before High Court) must show cogent reasons for not
approaching the Sessions Court in first instance.
(iv) The factors for consideration in a plea for cancellation of an
anticipatory bail are whether the accused has misused liberty
granted to him by trying to influence witness(s) or has tried to
delay trial or has committed another offence(s) while on bail,
whether accused has flouted the cancellation of bail, whether
bail was procured by misrepresentation
presentation or fraud or concealing
relevant material, and similar factors of akin nature. There is no
gainsaying that above factors are only illustrative in nature as it
is not axiomatic to exhaustively enumerate them.
(v) Where such plea raises ground(s) that bail has been granted on
account of misrepresentation of facts or a fraud having been
played on Court which has granted bail or concealment of
material/relevant facts; it would be expedient that such plea be
AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 19
filed, in the first instance itself, before the Court which had
granted bail in question.
(vi) The degree and nature of proof required to be shown by an
applicant (seeking cancellation of an anticipatory bail)) is that of
preponderance of probabilities and not one of being beyond
reasonable doubt.
V. Plea
ea seeking setting aside of an anticipatory bail/pre
bail/pre-arrest
arrest bail order
(i) A plea seeking setting aside of an anticipatory bail/pre
bail/pre-arrest
arrest
bail order by a Sessions Court has to be essentially filed before
High Court.
(ii) The factor, required to be considered in a plea seeking
cancellation of an anticipatory/pre
anticipatory/pre-arrest bail order; is as to
whether the impugned order (granting anticipatory bail/pre-
bail/pre
arrest bail) has objectively dealt with nature and gravity of
allegations against
inst accused, role of accused in the crime(s)
alleged, need for custodial interrogation, likelihood of accused
influencing the investigation/witnesses, likelihood of the
accused absconding from process of justice etc.
VI. Where
here a plea made under Section 439(2) of Cr.P.C. 1973 raises
raise

grounds regarding “cancellation

“ of bail”” as also for “setting
setting aside of bail

order”, such plea has to be essentially made before the superior Court.

Analysis re facts

18. Now this Court reverts to the facts of the present case to
ratiocinate thereupon.
18.1. The averments made in the petition(s) as also the arguments

raised by learned counsel for the petitioner, indubitably, shows that

petition(s) has been filed for setting-aside

setting aside of the anticipatory bail order(s)
order

granted
ed to the private respondent(s) vide order dated 06.02.202
06.02.2023 passed by

the learned Additional Sessions Judge, Faridabad. It is worthwhile to note

not

herein that it is neither the stand of the petitioner nor of the State that the
AJAY KUMAR
2024.05.20 12:43
private respondent(s) has misused
I attest to the accuracy and
integrity of this document
misused the concession of anticipatory bail granted
 CRM-M--9029-2023
CRM-M--9118-2023 20
by the Sessions Court by threatening/intimidating the witness(s) or by trying

to influence the investigation/trial etc. The impugned order(s) was passed on

06.02.2023 whereinafter challan (report under Section 173 of Cr.P.C., 1973)

was filed on 12.07.2023 and trial is underway. The sole plank of argument

raised on behalf of the petitioner is that the complete recovery of ddowry

owry

articles/Istridhan has not been made and hence the Sessions Court ought not

to have granted the anticipatory bail to the private respondent(s). It is trite

law that non-recovery

n recovery of dowry articles/Istridhan cannot, by itself, be a

ground for declining a plea for grant of anticipatory bail to the husband or

his relatives. The factum, as to what were the dowry articles/Istridhan in

question and whether complete recovery thereof has been made or not, is

essentially required
require to be gone into during the cou
course
rse of trial. This issue

cannot be delved into at the stage of consideration of a plea for grant of

anticipatory bail in a meticulous manner. The order(s) passed by Sessions

Court is a well-reasoned
well reasoned speaking order and cannot be said to be suffering

from vice
ice of non-application
non application of judicial mind. This Court, keeping in view

the entirety of the facts and circumstances of the case(s) in hand, does not

find any good ground to hold that the Sessions Court, while passing the

impugned order, has overstepped its jurisdiction

jurisdiction or has not exercised the

same in right perspective. Therefore, the petition(s) in hand deserves

deserve

rejection.

Decision

19. As a sequel to the above discussion

discussion,, both the petitions filed

under Section 439(2)

43 (2) of Cr.P.C. of 1973, seeking setting
setting-aside
aside of

AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document
 CRM-M--9029-2023
CRM-M--9118-2023 21
anticipatory bail orders dated 06.02.202
06.02.2023 passed by learned Additional

Sessions Judge, Faridabad, are dismissed.

20. It, indubitably, goes without saying that nnothing

othing said

hereinabove shall be construed as an expression of opinion on the merits of

the case.

(SUMEET GOEL)
JUDGE

May 17,, 2024

202
Ajay

Whether speaking/reasoned: Yes

Whether reportable: Yes

AJAY KUMAR
2024.05.20 12:43
I attest to the accuracy and
integrity of this document