Himanshu Sharma vs The State Of Madhya Pradesh on 20 February, 2024

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Supreme Court of India

Himanshu Sharma vs The State Of Madhya Pradesh on 20 February, 2024

Author: B.R. Gavai

Bench: B.R. Gavai

2024 INSC 139                       IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO(S).              OF 2024
                                 (Arising out of SLP(Crl.) No(s). 786 of 2024)

             HIMANSHU SHARMA                                         ….APPELLANT(S)



                                      VERSUS



             STATE OF MADHYA PRADESH                               ..RESPONDENT(S)

                                                     WITH

                                 CRIMINAL APPEAL NO(S).              OF 2024
                                (Arising out of SLP(Crl.) No(s). 2032 of 2024)



                                                ORDER

1. Leave granted.

2. 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
Signature Not Verified

Digitally signed by
Deepak Singh
Date: 2024.02.23
09:56:27 IST

on applications filed by the State under Section 439(2) of Code of
Reason:

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Criminal Procedure, 1973 (hereinafter being referred to as

‘CrPC’).

3. 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.

4. 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.

5. 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 co­accused

persons. Charge­sheet had been filed by the time the appellants

were granted bail by the learned Single Judge vide order dated 8 th

September, 2022 and 14th September, 2022.

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6. The State preferred applications under Section 439(2) CrPC

seeking cancellation of regular bail granted to the appellants

herein.

7. 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 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.

8. 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

Another1, cancelled the bail granted to the appellants by a

1 (2014)10 SCC 754

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coordinate Single Bench of the Gwalior Bench of the Madhya

Pradesh High Court, in the following manner:­

“7. Police is required to investigate thoroughly and therefore, when
they intend to further investigate the case, those accused are
required to cooperate in this regard. Therefore, in the considered
opinion of this Court, bail application is required to be recalled
and present accused is required to go in custody again.

8. So far as judgment relied upon by the petitioner is concerned in
the judgment of Abdul Basit (supra) itself if new adverse facts
come to the knowledge of the Court, then Court can certainly look
into it for cancellation of bail. Here facts which brought to the
notice of this Court are such glaring in nature that Court finds it a
suitable case for cancellation of bail. Two accused persons are still
absconding, this is the one aspect which is also noted by the
Court.

9. In the cumulative analysis, application for cancellation of bail
preferred by the State Government is hereby allowed and
respondent/accused is directed to surrender before the trial court
immediately within fifteen days from the date of passing of this
order. In case, respondent/accused did not surrender before
himself before the trial Court then trial Court is free to secure his
presence in accordance with law.”

9. The accused are in appeal against the above orders.

10. 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

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examining the merits of the allegations was totally uncalled for

and tantamounts to judicial impropriety/indiscipline.

11. 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. Relevant observations from the above

judgment are reproduced below :­

“14. Under Chapter XXXIII, Section 439(1) empowers the High
Court as well as the Court of Session to direct any accused
person to be released on bail. Section 439(2) empowers the
High Court to direct any person who has been released on bail
under Chapter XXXIII of the Code be arrested and committed
to custody i.e., the power to cancel the bail granted to an
accused person. Generally the grounds for cancellation of bail,
broadly, are, (i) the accused misuses his liberty by indulging
in similar criminal activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with evidence or
witnesses, (iv) threatens witnesses or indulges in similar
activities which would hamper smooth investigation, (v) there
is likelihood of his fleeing to another country, (vi) attempts to
make himself scarce by going underground or becoming
unavailable to the investigating agency, (vii) attempts to place
himself beyond the reach of his surety, etc. These grounds are
illustrative and not exhaustive. Where bail has been granted
under the proviso to Section 167(2) for the default of the
prosecution in not completing the investigation in sixty days
after the defect is cured by the filing of a charge­sheet, the
prosecution may seek to have the bail cancelled on the ground
that there are reasonable grounds to believe that the accused
has committed a non­bailable offence and that it is necessary
to arrest him and commit him to custody. However, in the

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last­mentioned case, one would expect very strong grounds
indeed. (Raghubir Singh v. State of Bihar [(1986) 4 SCC 481)

15. The scope of this power to the High Court under Section
439(2) has been considered by this Court in Gurcharan Singh
v. State (Delhi Admn.) [(1978) 1 SCC 118]

16.In Gurcharan Singh case [(1978) 1 SCC 118] this Court has
succinctly explained the provision regarding cancellation of
bail under the Code, culled out the differences from the Code
of Criminal Procedure, 1898 (for short “the old Code”) and
elucidated the position of law vis­à­vis powers of the courts
granting and cancelling the bail. This Court observed as
under:

“16. Section 439 of the new Code confers special
powers on the High Court or Court of Session
regarding bail. This was also the position under
Section 498 CrPC of the old Code. That is to say,
even if 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 cause any person who has
been admitted to bail under sub­section (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 by 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 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

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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 439(2) to commit the accused to
custody. When, however, the State is 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 vis­à­vis the High
Court.”
(emphasis supplied)

17. In this context, it is profitable to render reliance upon the
decision of this Court in Puran v. Rambilas [(2001) 6 SCC
338]. In the said case, this Court held (SCC p. 345, para 11)
that the concept of setting aside an unjustified, illegal or
perverse order is absolutely different from cancelling an order
of bail on the ground that the accused has misconducted
himself or because of some supervening circumstances
warranting such cancellation.
In Narendra K. Amin v. State of
Gujarat [(2008) 13 SCC 584] , the three­Judge Bench of this
Court has reiterated the aforesaid principle and further drawn
the distinction between the two in respect of relief available in
review or appeal. In this case, the High Court had cancelled
the bail granted to the appellant in exercise of power under
Section 439(2) of the Code. In appeal, it was contended before
this Court that the High Court had erred by not appreciating
the distinction between the parameters for grant of bail and
cancellation of bail.
The Bench while affirming the principle
laid down in Puran case [(2001) 6 SCC 338] has observed that
when irrelevant materials have been taken into consideration
by the court granting order of bail, the same makes the said
order vulnerable and subject to scrutiny by the appellate court
and that no review would lie under Section 362 of the Code. In
essence, this Court has opined that if the order of grant of bail
is perverse, the same can be set at naught only by the

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superior court and has left no room for a review by the same
court.

18. Reverberating the aforesaid principle, this Court in the
recent decision in Ranjit Singh v. State of M.P. [(2013) 16 SCC
797] has observed that:

“19. … There is also a distinction between the concept
of setting aside an unjustified, illegal or perverse
order and cancellation 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 superior court.”

19. Therefore, the concept of setting aside an unjustified, illegal
or perverse order is different from the concept of cancellation
of a bail on the ground of accused’s misconduct or new
adverse facts having surfaced after the grant of bail which
require such cancellation and a perusal of the aforesaid
decisions would present before us that an order granting bail
can only be set aside on grounds of being illegal or contrary to
law by the court superior to the court which granted the bail
and not by the same court.

20. In the instant case, the respondents herein had filed the
criminal miscellaneous petition before the High Court seeking
cancellation of bail on grounds that the bail was obtained by
the petitioners herein by gross misrepresentation of facts,
misleading the court and indulging in fraud. Thus, the
petition challenged the legality of the grant of bail and
required the bail order to be set aside on ground of it being
perverse in law. Such determination would entail eventual
cancellation of bail. The circumstances brought on record did
not reflect any situation where the bail was misused by the
petitioner­accused. Therefore, the High Court could not have
entertained the said petition and cancelled the bail on
grounds of it being perverse in law.

21. It is an accepted principle of law that when a matter has
been finally disposed of by a court, the court is, in the absence
of a direct statutory provision, functus officio and cannot
entertain a fresh prayer for relief in the matter unless and
until the previous order of final disposal has been set aside or
modified to that extent. It is also settled law that the judgment

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and order granting bail cannot be reviewed by the court
passing such judgment and order in the absence of any
express provision in the Code for the same. Section 362 of the
Code operates as a bar to any alteration or review of the cases
disposed of by the court. The singular exception to the said
statutory bar is correction of clerical or arithmetical error by
the court.”

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 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.

13. 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.

14. 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

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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 8 th 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.

15. 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 8 th

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.

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16. The appeals are accordingly allowed.

17. Pending application(s), if any, shall stand disposed of.

…………………………J.
(B.R. GAVAI)

………………………….J.
(SANDEEP MEHTA)
New Delhi;

20th February, 2024

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