It is quite significant to note that in a major development, we saw how none other than the Apex Court itself in a very learned, laudable, landmark, latest and logical judgment titled Himanshu Sharma vs State of Madhya Pradesh in Criminal Appeal No(s). of 2024 (Arising out of SLP(Crl.) No(s). 786 With 2032 of 2024) and cited in Neutral Citation No.: 2024 INSC 139 that was pronounced as recently as on February 20, 2024 has minced just no words to hold in no uncertain terms that the bail cancellation plea in the High Court has to be listed before the same judge who granted bail. To put it differently, we thus see that the Apex Court took strong exception to the Gwalior Bench of the Madhya Pradesh High Court listing a bail cancellation application before a Judge who was different from the one who had granted the bail to the two accused. What is worst is that the Apex Court noted that cancelling the bail granted to the accused by another Single Judge of the same High Court and that too by examining the merits of the allegations tantamount to judicial impropriety/indiscipline.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Apex Court Bench comprising of Hon’ble Mr Justice BR Gavai and Hon’ble Mr Justice Sandeep Mehta sets the ball in motion by first and foremost putting forth in para 1 that, “Leave granted.”
To put things in perspective, the Bench envisages in para 2 that, “The instant appeals are directed against the orders of even date, i.e. 12th December, 2023 passed by the learned Single Judge of High Court of Madhya Pradesh Bench at Gwalior in Miscellaneous Criminal Case Nos. 43154 of 2023 and 43149 of 2023, whereby the bail granted to the appellants was cancelled on applications filed by the State under Section 439(2) of Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’).”
As we see, the Bench then discloses in para 3 that, “The appellants herein were arrested in connection with the FIR being Crime No. 21/2022 registered at P.S. Dinara District, Shivpuri for offences punishable under Sections 419, 420, 467, 468, 470 and 471 of the Indian Penal Code, 1960 (hereinafter being referred to as ‘IPC’) and Section 25/27 of the Arms Act.”
Simply put, the Bench observes in para 4 that, “Learned Single Judge sitting at Gwalior Bench of High Court of Madhya Pradesh accepted the bail applications being Miscellaneous Criminal Case Nos. 42299/2022 and 44360/2022 preferred by the appellants under Section 439 CrPC vide orders dated 8th September, 2022 and 14th November, 2022.”
Quite revealingly, the Bench then discloses in para 5 that, “It may be stated here that the appellants herein were not apprehended at the time of registration of the FIR and were not named therein. They were implicated in the case solely on the basis of confessional statements made by the co-accused persons. Chargesheet had been filed by the time the appellants were granted bail by the learned Single Judge vide order dated 8th September, 2022 and 14th September, 2022.”
As things stands, the Bench then points out in para 6 that, “The State preferred applications under Section 439(2) CrPC seeking cancellation of regular bail granted to the appellants herein.”
It cannot be glossed over that the Bench then lays bare in para 7 that, “Surprisingly, the applications for cancellation of bail came to be listed before learned Single Judge of the Gwalior Bench of High Court of Madhya Pradesh (other than the learned Single Judge who had granted bail to the accused) who accepted the same vide impugned orders of the same date, i.e. 12th December, 2023 adverting to the merits of the case and by observing that the independent role of the accused may vary but collectively their role appears to be challenging and has wider ramifications in respect of national security and cyber crime. The Aadhar cards and some copies recovered from the accused could be used in NDPS offences, terrorism related activities, cyber frauds, kidnapping, ransom purposes and for offences of grievous denominations.”
Briefly stated, the Bench puts forth in para 8 that, “Accordingly, the learned Single Judge after referring to the judgment rendered by this Court in the case of Abdul Basit @ Raju and Others v. Mohd. Abdul Kadir Chaudhary and Another (2014)10 SCC 754, cancelled the bail granted to the appellants by a coordinate Single Bench of the Gwalior Bench of the Madhya Pradesh High Court.”
Needless to say, the Bench then states in para 9 that, “The accused are in appeal against the above orders.”
It is worth noting that the Bench notes in para 10 that, “Having heard and considered the submissions advanced by learned counsel for the parties and after going through the impugned orders dated 12th December, 2023 and so also the orders granting bail dated 8th September, 2022 and 14th September, 2022, we are of the firm opinion that the exercise of jurisdiction by the learned Single Judge of High Court of Madhya Pradesh in cancelling the bail granted to the appellants by another Single Judge of the same High Court and that too, by examining the merits of the allegations was totally uncalled for and tantamounts to judicial impropriety/indiscipline.”
To put it briefly, the Bench points out in para 11 that, “While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court’s judgment in the case of Abdul Basit (supra). However, we are compelled to note that the ratio of the above judgment favours the case of the appellants. That apart, the judgment deals with the powers of the High Court to review its own order within the limited scope of Section 362 CrPC.”
Be it noted, the Bench notes in para 12 that, “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 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.”
Quite intriguingly, the Bench taking potshots at the listing of application of bail pointed out in para 13 that, “We fail to understand how the application seeking cancellation of bail came to be listed before a Single Judge other than the learned Single Judge who had granted bail to the appellants.”
Most significantly, the Bench mandates in para 14 propounding that, “Under normal circumstances, the application for cancellation of bail filed on merits as opposed to violation of the conditions of the bail order should have been placed before the same learned Single Judge who had granted bail to the accused. The learned Single Judge, while passing the impugned orders dated 12th December, 2023 has virtually reviewed the orders granting bail to the appellants dated 8th September, 2022 and 14th September, 2022 by another Single Judge of the same High Court. We feel that such exercise of jurisdiction tantamounted to gross impropriety.”
Quite significantly, the Bench then expounds and directs in para 15 that, “It may further be noted that the learned Single Judge while cancelling the bail granted to the appellants did not even consider the fact that charges had been framed against the appellants on 28th May, 2022 and the trial had commenced and thus there could not have been any requirement of the appellants for further investigation as observed in para 7 of the impugned order. This Court is informed that by now, seven witnesses have been examined at the trial. Thus, we are of the considered opinion that the impugned orders dated 12th December, 2023 whereby the bail granted to the appellants by the learned Single Judge of High Court of Madhya Pradesh vide orders dated 8th September, 2022 and 14th September, 2022 was cancelled are grossly illegal and do not stand to scrutiny. Resultantly, the same are hereby quashed and set aside.”
What’s more, the Bench then directs in para 16 that, “The appeals are accordingly allowed.”
Finally, the Bench then concludes by holding in para 17 that, “Pending application(s), if any, shall stand disposed of.”
In sum, we thus see that the Apex Court has left no stone unturned to make it indubitably clear that one Single Judge Bench of the High Court cannot cancel the bail granted by another Single Judge Bench of the same High Court and that too by examining the merits of the allegations. It was also made absolutely clear by the top court without mincing any words that doing so tantamount to judicial impropriety/indiscipline. It thus definitely merits no reiteration that Judges must refrain from doing so. It was also made clear by the Supreme Court that bail cancellation plea in the High Court has to be listed before the same Judge who granted bail. There can definitely be just no denying or disputing it!
Sanjeev Sirohi