ORDER
D.K. Sinha, J.
1. The petitioner has preferred this petition under Section 439(2) of the Code of Criminal Procedure for cancellation of the bail granted to the respondent No. 2 vide order dated 30-8-05 passed in B.P. No. 965/05 in C.P. Case No. 325/02 by the Sessions Judge, Bokaro and also for the re-arrest of the petitioner.
2. The brief fact of the case is that the petitioner/ complainant instituted C.P. Case No. 325/02 alleging, inter alia, that the petitioner had entered into partnership with the respondent No. 2 and several partnership firms were constituted as against partnership deeds time to time executed by them viz. M/s. Akshay Steel, M/s. Vishwanath Transport, M/s. Chandra Transport Agency and so on. The petitioner had invested a huge amount in the aforesaid partnership firms. According to the terms and partnership deed and agreement relating to Akshay Steels, its bank account was opened in Vijaya Bank, Naya More Branch, Bokaro Steel City to be operated under the joint signatures of both the partners but the respondent No. 2 Suresh Kumar Tekriwal withdrew Rs. 17,20,789.00/- through 48 cheques between 3-8-1999 to 28-2-2000. The complaint therefore, was filed for the offence under Section 420/406/468/469/471/34 I.P.C. It is further alleged that during continuation of partnership business in relation to M/s. Akshay Steels and M/s. Vishwanath Steels, dispute arose between the parties and according to the terms No. 19 of the partnership deed, the matter was referred to the Arbitrator Shri B.N. Prasad as the sole Arbitrator who passed award on 20-11-2000 and subsequently Execution Case No. 5/ 2001 was filed for the execution in the Court of Sub-Judge-1, Bokaro which ended in compromise dated 1-4-2002.
3. Learned Counsel pointed out that during the pendency of the claims before the Arbitrator, the business of the firms was continuing and income derived from such business was not included in the claims before the Arbitrator as such the said amount was not included in the Arbitrator’s Award. However, provision was made under Clause 13 of the award that whatever amount would be received which was not included in the arbitration dispute would be deposited in the joint account of both the parties and would be distributed equally. Respondent No. 2 received Rs. 15,26,00000/- and 26,51,00000/- from different activities of the aforesaid partnership firms which was not included in the arbitration dispute but the aforesaid amount was misappropriated by the respondent No. 2 by committing forgery though the petitioner had 50% share therein. The Chief Judicial Magistrate, Bokaro took cognizance of the offence under Sections 420/406/467/469/471/34 I.P.C. vide order dated 17.3.05 in complaint case.
4. The learned Counsel further submitted that the Respondent No. 2 moved this Court in Cr.M.P. No. 378/05 against the cognizance order aforesaid and by ad interim order passed on 17.8.05 this Court observed that for a period of 4 weeks or until further orders, whichever is earlier, the Opposite Parties were directed not to use any coercive measure against the Respondent No. 2 herein pending C.P. Case No. 325/02. It was directed to list the case for final disposal on 31-8-05 within first five cases under the heading for orders.
5. But the respondent No. 2 was granted bail by the Sessions Judge, Bokaro on the misrepresentation/concealment of his learned Counsel, of the true nature and scope of order passed by this Court on 17-8-05 in Cr.M.P. No. 378/05. An impression was given that by the order dated 17-8-05 this Court had given direction that no coercive steps would be taken by the Trial Court against the Respondent No. 2 though the direction was of a limited duration, which was concealed. As a matter of fact direction was made to the Opposite Party-State and not to the Trial Court. In that manner the direction was binding upon the State and not upon the Sessions Judge who released the respondent No. 2 on bail. The Respondent No. 2 was aware of the fact that he was not going to succeed in Cr.M.P. No. 378/05 and for such reason he surrendered before the Court below much prior to the due date fixed in this Court for final hearing and disposal of Cr.M.P. No. 378/05, cunningly to obtain a favourable order, after duping the Court. The Cr. M.P. No. 378/05 was dismissed on 5-10-05 as against the Respondent No. 2.
6. Finally Mr. Ranjan Raj, learned Counsel for the petitioner submitted that the Sessions Judge had no propriety to enter into domain of this Court when the Quashing Petition of the respondent No. 2 was sub judice for final disposal and the State of Jharkhand was directed not to take coercive step against the respondent No. 2 herein for 4 weeks. Therefore, the bail granted to the petitioner by the Sessions Judge, Bokaro is liable to be cancelled by this Court in exercise of the power vested under Section 439(2) of the Code of Criminal Procedure.
7. Mr. P.P.N. Roy, learned Counsel appearing on behalf of the Respondent No. 2 submitted that the relief sought for by the petitioner herein for the cancellation of the bail of Respondent No. 2 is devoid of merit and is fit to be rejected. As a matter of fact, the Sessions Judge, Bokaro after taking into consideration of the entire facts and submissions of the Counsel of the Respondent No. 2, Learned A.P.P. as well as learned Counsel for the petitioner passed a reasoned and speaking order and admitted the respondent No. 2 to bail under Section 439 Code of Criminal Procedure in B.P. No. 965/ 05 on 30-8-05. Learned Counsel for the Respondent No. 2 at the time of moving his Bail Petition had not made any misrepresentation or concealment of any fact and had produced all the relevant documents before the Sessions Judge for consideration including the ad-interim order passed by this Court on 17-8-05 in Cr.M.P. No. 378/05 which can be evident from Annexure-O.P. 2/C which is the list of documents filed on behalf of the petitioner (Respondent No. 2) which comprised as many as 22 documents including the Xerox copy of the order dated 17-8-05 in Cr.M.P. No. 378/05 passed by this Court which stands at Sl. No. 22 and a copy of which was received by the learned Counsel for the petitioner herein on 27-8-05 before the Bail Petition of the Respondent No. 2 was moved in the Court of the Sessions Judge, Bokaro and in this manner the allegation of misrepresentation by the learned Counsel in the Lower Court is wild allegation which amounts contempt of the Court.
8. Advancing his argument Mr. Roy submitted that in catena of decisions, the Apex Court of India observed that rejection of Bail Petition when bail is applied for is one thing but cancellation of a bail already granted is quite another. In State of Delhi Administration v. Sanjay Gandhi , the Hon’ble Apex Court held. (Para 20)
It is easier to reject a Bail Application in a non-bailable case than to cancel a bail once granted. That is because cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the Court or by the thrust of law. This Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection.
9. Mr. P. P. N. Roy, further submitted that usual practice is that the Petition for cancellation of bail is moved in the same Court under Section 437(5) Code of Criminal Procedure from where bail was earlier granted, but in the present case, without availing the forum, the petitioner has filed the petition for the cancellation of bail in this Court for the reasons best known to him. He finally submitted that there must be cogent and overwhelming circumstances for an order seeking cancellation of bail but in the present case no circumstance or reasonable cause has been shown by the petitioner so as to warrant the cancellation of the bail of the Respondent No. 2.
10. Having regard to the facts and circumstances of the case, appreciation of the rival contention of the parties, I find that the Respondent No. 2 Suresh Kumar Tekriwal was admitted to bail by the Court of Sessions Judge, Bokaro in B.P. No. 965/ 05 arising out of C.P. Case No. 325/02 on 30-8-05 by speaking order. He had given audience not only to the Public Prosecutor but also to the learned Counsel for the petitioner herein and recorded in the order-, sheet. From the exhibit list filed before the Sessions Judge I find that the copy of the order passed by this Court on 17-8-05 in Cr.M.P. No. 378/05 was given to the learned Counsel for the petitioner on 27-8-05 itself and the impugned order has got bearing, about the ad interim order of this Court dated 17-8-05. The petitioner had surrendered in the Court of the C.J.M., Bokaro and his prayer for bail was rejected under Section 437 Cr.P.C. Thereafter the petitioner preferred his petition under Section 439 Cr.P.C. before the Sessions Judge and he was admitted to bail on merit of the Bail Petition.
11. It is held in Ramesh Kateha v. State of M.P. reported in 1999 Cr. Law Journal 4245 that while considering an application for cancellation of bail the Court ordinarily looks for some supervening circumstances which would reflect that the liberty granted to the accused has been misused. Bail once granted to an accused should not be cancelled in a mechanical manner. It is to be borne in mind that the rejection of bail when applied for stands on a different footing than the cancellation of bail which has been granted earlier. It needs no special emphasis to state that if a bail has been granted illegally or improperly by erroneous and arbitrary exercise of discretion the same is liable to be cancelled even if there is absence of supervening circumstances.
12. In the present case I do not find any illegality or impropriety in the order passed by the Sessions Judge or that it is erroneous and arbitrary or that in his arbitrary exercise or discretion the Sessions Judge admitted the Respondent No. 2 to bail. There being no merit, this petition is dismissed.