ORDER
Dipak Misra, J.
1. Individual liberty is a priceless treasure and no one would like to lose it for all the wealth in the world. In the drama of life liberty plays a highly significant role and no protagonist would like to abdicate it even for attaining longevity till eternity. Life without liberty is a body without a soul. But the core question that arises for consideration in this application for cancellation of bail is whether the adroit efforts an ingenious attempts of an accused, to obtain liberty, be ignored at the cost of impropriety. To elaborate whether an accused should be conferred allowances to make false declaration and get the concession of bail and whether he should be exonerated solely on the foundation that he has enjoyed liberty for some length of time.
2. The essential facts which require to be stated for disposal of this application for cancellation of bail are that the respondent No. 2, Brijkishore Kateha, an accused in Crime No. 62/ 96 instituted for offences punishable under Sections 147, 148, 149, 307 and 302 of the Indian Penal Code (in short ‘the IPC) which has eventually given rise to the Sessions Trial No. 103/96 before the learned Sessions Judge, Panna, moved an application before this Court forming thesubject-matter of M.Cr.C. No. 6495/96 which was rejected by order dated 12-2-1997 by Rajeev Gupta, J. Thereafter, the second bail application was filed by the respondent No. 2 along with some other accused persons which formed the subject-matter of M.Cr.C. No. 7712/97. The matter was placed before the learned Judge who had rejected the earlier application. As the learned Judge directed, the matter to be placed before the regular Bench, it came to be listed before S. P. Khare, J. who by order dated 4-3-98 rejected the prayer for bail. It is to be noted that the said bail application was heard along with M.Cr.C. Nos. 7669/97, 7718/97, 7720/97 and 491/98. Though the second application for bail had not met with success the respondent No. 2 with unsurpassable will and indomitable aspiration made his third journey to this Court in M.Cr.C. No. 2186/98. In the said application for bail it was mentioned that it was the second bail application filed by the accused. It was also set forth therein that his previous bail application forming subject-matter of M.Cr.C. No. 6496/97 was rejected on 12-2-97. As the prayer in the aforesaid application was negatived by Rajeev Gupta, J. the matter was placed before him. The learned Judge by order dated 3-4-98 directed that the matter should be placed before another Bench. The order passed by the learned Judge and brought to the notice of Hon’ble The Chief Justice who directed the matter to be placed before me. Under these circumstances the bail application filed by the respondent No. 2 came to be heard by me. On consideration of the circumstances and taking note of the fact that one Durga Prasad Pandey had been released on bail in M.Cr.C. No. 5809/97 this Court admitted the respondent No. 2 to bail on certain conditions.
3. After the respondent No. 2 was enlarged on bail the present applicants have moved this Court for cancellation of the order passed by this Court enlarging the said accused on bail. It is averred in the petition that the petitioner No. 1 is the informant and petitioner No. 2 is the brother of the deceased- Ramkrishna Tiwari. It has been put forth in the petition that the respondent. No. 2 on deliberate suppression of material fact has obtained the order of bail which deserves to be cancelled. It is also putforth that on earlier occasion the learned Judge had rejected the bail application of the respondent No. 2, though it was contended that he was similarly placed as Durga Prasad Pandey.
4. A reply has been filed by the respondent No. 2 contending, inter alia, that the accused was in Jail and on his instruction the bail application was moved by his brother-in-law and it was not disclosed to the counsel that earlier another application was moved and dismissed on 4-3-98 Explanation has been offered that the accused-respondent had not deliberately suppressed the fact and the mistake had crept in due to inadvertence. Quite apart from this other grounds taken in the application for cancellation of bail have been refuted and the depositions of certain witnesses during trial have been highlighted.
5. Mr. S. K. Dwivedi, learned counsel for the appellants, has raised a singular contention that the order of bail having been obtained by misrepresentation of an essential fact amounts to abuse of the process of the Court and on that count alone bail granted in favour of the respondent No. 2 should be cancelled.
Mr. Rajendra Singh, learned senior counsel appearing for respondent No. 2, has fairly submitted that due to inadvertence the omission had occurred and the learned counsel, Mr. Ramesh Tamrakar, who had moved the application for bail was not at fault. Mr. Singh has also can-vassed that though logically the ultimate result might not have been different and Court might have granted bail but the propriety has to be given its due priority.
Mr. Manoj Naidu, learned Panel Lawyer for the State, has contended that the conduct of the accused respondent No. 2 is reprehensible and he is not entitled to enjoy the liberty granted in his favour.
6. It is well settled in law 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. If the High Court comes to the conclusion that the lower Court has exercised judicial discretion wrongly it can exercise the power under Section 439(2) of the Code. Impropriety in its ambit and sweep would engulf many an aspect. If in a given case the lower Court has granted bail without calling for the case diary or has exercised the discretion in a second bail petition in absence of any changed circumstances whatsoever, the superior Court would be justified to cancel the order of bail granted in favour of the accused. All these relate to exercise of jurisdiction as far as exercise of discretion by a lower Court is concerned. It is well settled in law that the bail granted by a Bench cannot be cancelled by another Bench as that is inconsistent with the judicial discipline. These are the aspects which relate to the function of the Courts. But in the case at hand the question that arises for consideration is whether the conduct of the accused-seeking concession of bail, being fully aware that he had moved the Court for the second time to be admitted to bail but the same had not met with success, is justified in making an attempt on the self-same ground without mentioning about the previous bail application. In the bail petition it was conveniently setfotth that the petitioner was moving for the second occasion. In fact, there is reference only to the rejection order passed in M.Cr.C. No. 6495/96. Because of this exposition of fact situation the Registry was misled and ultimately the matter was directed to be listed before this Bench. It is the duty of the litigant to approach the Courts with clean hands. It is obligatory on the part of the every litigant as well as every officer of the Court to preserve the dignity of the Court and respect the majesty of law. In all circumstances the supremacy of law has to prevail. Law is a great leveller. It cannot be countenanced that due to deprivation of liberty someone can make a false statement in a Court of law and obtain the benefit. This is nothing but a fraud on the Court.
It has been observed by Chief Justice Edward Coke “Fraud-avoids all judicial acts ecclesiastical or temporal”. In this context, I may profitably refer to the decision rendered in the case of S. P. Chengalvaraya Naidu v. Jagannath AIR 1994 SC 853 wherein the Apex Court has held as under:-
The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
At this juncture I may hasten to add that this Court is conscious that by cancellation of order of bail the liberty of the accused-respondent would be curtailed but every litigant is required to bear in mind that every right is controlled, curtailed and regulated by the procedure established by law. The command of law has to be respected. That it is not only the mandate of law but is also the edict of ethicality. It should be uppermost in everyone’s mind that liberty has to be achieved only by rule of law. Everyone is required to frame the shape of his mind in tune with the law of the country which draws its vitality from life and adds energy to life. The term “law” is not based on mere “formality” but is founded on “moral conduct”. Its essence does not lie in the etymological whirlpool. Its ‘elan vital’ is founded on the bedrock of collective response to it. It is to be remembered that law governs liberty and on one in his enthusiasm can degrade the majesty of law to achieve his individual liberty. In this context I may profitably quote a passage from Edmond Burke :-
Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love of justice is above rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.
In the present case, the respondent No. 2 has exhibited uncontrolled enthusiasm, unrestrained proclivity and ungoverned passion to achieve the priceless treasure of liberty The consequence: he has to pay the price for it. The litigants must remember, to quote, Chief Justice Burger “It is not a laboratory where small boys can play.” 7. In view of the exposition of fact situation it is clear as noon day that the respondent No. 2 i was not only a catalyst but the real protagonist in 1 misleading the Court. Impropriety has to be conidemned. Falsehood has no acceptance in a Court of law. It is abominable. It can only lead to one legitimate conclusion that the order of bail which has been obtained by adopting a process contrary to the accepted norms has to be cancelled and accordingly I direct cancellation of order of bail passed by this Court in M.Cr.C. No. 2186/98. The respondent shall surrender forthwith. If he fails to surrender the Superintendent of Police, Panna shall take him to custody and submit due intimation thereof to the Registry of this Court.
In the present case, the respondent No. 2 has exhibited uncontrolled enthusiasm, unrestrained proclivity and ungoverned passion to achieve the priceless treasure of liberty The consequence: he has to pay the price for it. The litigants must remember, to quote, Chief Justice Burger “It is not a laboratory where small boys can play.
7. In view of the exposition of fact situation it is clear as noon day that the respondent No. 2 was not only a catalyst but the real protagonist in misleading the Court. Impropriety has to be condemned. Falsehood has no acceptance in a Court of law. It is abominable. It can only lead to one legitimate conclusion that the order of bail which has been obtained by adopting a process contrary to the accepted norms has to be cancelled and accordingly I direct cancellation of order of bail passed by this Court in M.Cr.C. No. 2186/98. The respondent shall surrender forthwith. If he fails to surrender the Superintendent of Police, Panna shall take him to custody and submit due intimation thereof to the Registry of this Court.
8. The application is accordingly allowed.