Chattisgarh High Court
Deji Vandana Tirki vs State Of Chhattisgarh on 14 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:2226
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 2106 of 2022
1 - Deji Vandana Tirki, W/o Anup Kumar Tirki, Aged About 31 Years, R/o
Pushp Vihar, Ravishankar Nagar, Korba, District- Korba, Chhattisgarh.
Permanent Address- Pipartoli, Police Station- Argodi, District- Ranchi,
Jharkhand
... Petitioner
versus
1 - State of Chhattisgarh Through Police Station Kotwali, Korba, District-
Korba, Chhattisgarh
2 - Nasim Ansari @ Rinku, S/o Samiruddin Ansari, Aged About 28 Years,, R/o
Court Road, Rahmat Nagar, Near Hindalco Office, Lohardaga, Police Station-
Lohardaga, District- Lohardaga, Jharkhand
... Respondent(s)
For Petitioner : Mr. Vivek Mishra, Advocate
For Respondent No.1/ : Mr. Akhilesh Kumar, G.A.
State
For Respondent No.2 : Mr. Vikash Kumar Pandey, Advocate
Hon'ble Smt Justice Rajani Dubey
Order on Board
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14.01.2025
1. The petitioner has filed the instant petition under Section 439 (2) of the
Cr.P.C. praying for cancellation of bail granted to respondent No.2-
Nasim Ansari @ Rinku by an order dated 09.06.2020 passed by this
Court in MCRC No. 1790/2020.
2. The facts of the case as mentioned in the petition are that the First
Information Report was lodged on the basis of written complaint made
by the petitioner/complainant on 25.05.2019 alleging that the petitioner
created a fake facebook profile in the name of Santosh Minj and
contacted her through the said facebook profile. On the pretext of
getting profit on investing in real estate, he obtained a sum of
Rs.18,40,000/- from the petitioner and thereby cheated her. Thereafter,
the accused/ respondent no.2 was arrested on 23/10/2019 by the
Police of police station Kotwali and thereafter the accused preferred
the regular bail application before the learned Session Judge which
was rejected and thereafter, he preferred the bail application bearing
MCRC No. 1790/2020 under section 439 of CrPC before this Court
and this Court vide order dated 09/06/2020 granted bail to the
accused / respondent No.2. After getting bail, the accused has been
misusing the bail granted to him and did not comply the conditions
mentioned in the bail order. Hence, this petition has been filed by the
petitioner for cancellation of the bail granted to the accused/respondent
No.2.
3. Learned counsel for the petitioner submits that the bail granted to the
accused must be cancelled because after furnishing the bail, he did not
appear before the learned trial court on each and every date fixed by
the trial court for the proceedings. The accused is misusing the liberty
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granted by this Court while granting bail to him. In every bail
application, under Section 439 of Cr.P.C., an affidavit and a declaration
are attached to the effect that if the prayer of bail is allowed then the
applicant/ accused will strictly comply the condition imposed by the
High Court however in instant case, the accused is not appearing
before the trial Court. The accused / respondent No.2 is not attending
the proceeding deliberately before the trial Court, despite the relaxation
and normalization after the corona pandemic. The respondent No.2 has
committed fraud and now he is misusing the liberty deliberately granted
by the High Court. The respondent No.2 has not attended the trial
Court proceedings for more than six times. Therefore, the bail granted
to the applicant vide order dated 09.06.2020 by this Court in MCRC
No. 1790/2020 is liable to be cancelled.
4. Learned counsel for the State/respondent No.1 supports the argument
of the learned counsel for the petitioner.
5. Learned counsel for respondent No.2 strongly opposes the prayer
made by the learned counsel for the petitioner and submits that
respondent No.2/accused never misused the liberty granted to him by
this Court. He further submits that the accused was regularly attending
the hearing proceeding before the learned trial Court and as and when
due to some unavoidable reasons, he could not appear before the
learned trial Court then he informed his counsel in this regard and
thereafter, his counsel filed the application for exemption from
appearance of the accused and his applications were allowed by the
learned trial Court. Also, upon perusal of the order-sheets of the
learned trial Court, it is clear that on each and every date, he appeared
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through his counsel before the trial Court. Therefore, the instant petition
is malafide and is liable to be dismissed.
6. Heard counsel for the parties and perused the material available on
record.
7. Upon perusal of the documents, it is evident that the application filed
under Section 439 of Cr.P.C by the accused/respondent No.2 was
allowed by this Court vide order dated 09.06.2020 passed in MCRC
No. 1790/2020 and he was granted regular bail in Crime No. 668/2019
registered at Police Station- Kotwali Korba, District- Korba (C.G.) for
the offence punishable under Sections 419 and 420 of IPC.
8. The petitioner filed order-sheets of learned trial Court and upon perusal
of the order-sheets, it is evident that the learned trial Court framed the
charge under Section 420 of IPC against the accused/respondent No.2
on 18.02.2020 and thereafter the case was fixed for prosecution
evidence. It is also clear from order-sheets that on some dates,
accused did not apper before the Court and application was filed by his
counsel for his exemption from appearance before the Court. Learned
trial Court allowed the said application. Therefore, it is clear that before
the learned trial Court, accused appeared himself or by his counsel on
each and every date and it is also clear from order-sheets that no
adjournment was sought by the accused and case was pending for
prosecution evidence.
9. Section 439(2) of Cr.P.C. provides as under:-
“(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested
and commit him to custody.”
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10. In the matter of Chandra Kumar Jain Vs. State of Chhattitgarh and
another & other connected matters vide order dated 25.06.2021
passed in CRMP No. 1686 of 2019, this Court held in paras 26, 27 and
30 as under:-
“26. The Hon’ble Supreme Court, in the matter of Abdul Basit
alias Raju and others Vs. Mohd. Abdul Kadir Choudhary
and another reported in (2014) 10 SCC 754, has considered all
its earlier judgments on the issue and pointed out distinction
between review/recall of order granting bail from cancellation of
bail order and have held that the Court granting bail cannot
review its order on the ground of its being illegal, unjustified or
perverse in view of express bar contained in Section 362 of the
Cr.P.C. and held in paragraphs 20, 21, 26 and 27 of the report,
which reads thus:-
“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 its 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 petitioner-accused. Therefore, the High
Court could not have entertained the said petition and
cancelled the bail on grounds of it being perverse in law.
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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 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.
26. In the instant case, the order for bail in the bail
application preferred by the accused- petitioners herein
finally disposes of the issue in consideration and grants
relief of bail to the applicants therein. Since, no express
provision for review of order granting bail exists under the
Code, the High Court becomes functus officio and Section
362 of the Code applies herein barring the review of
judgment and order of the Court granting bail to the
petitioner-accused. Even though the cancellation of bail
rides on the satisfaction and discretion of the Court under
Section 439(2) of the Code, it does not vest the power of
review in the court which granted bail. Even in the light of
fact of misrepresentation by the petitioner-accused during
the grant of bail, the High Court could not have entertained
the respondent/informant’s prayer by setting in review of its
judgment by entertaining miscellaneous petition.
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27. Herein, the High Court has assigned an erroneous
interpretation to the well settled position of law, assumed
expanded jurisdiction into itself and passed an order in
contravention of Section 362 of the Code cancelling the bail
granted to the petitioners herein. Therefore, in our
considered opinion, the High Court is not justified in
reviewing its earlier order of grant of bail and thus, the
impugned judgment and order required to be set aside.
27.” Further, on On the issue De with regard to rejection of bail and
cancellation of ball already granted, the Hon’ble Supreme Court, in
the matter of Dolat Ram and others Vs. State of Haryana reported
in (1995) 1 SCC 349 has held in para 4, which reads as under:-
“4. Rejection of bail in a non-bailable case at the initial
stage and the cancellation of bail so granted, have to be
considered and dealt with on different basis. Very cogent
and overwhelming circumstances are necessary for an
order directing the cancellation of the bail, already granted.
Generally speaking. the grounds for cancellation of bail,
broadly (illustrative and not exhaustive) are interference or
attempt to interfere with the due course of administration of
justice or evasion or attempt to evade the due course of
justice or abuse of the concession granted to the accused
in any manner. The satisfaction of the court, on the basis of
material placed on the record of the possibility of the
accused absconding is yet another reason justifying the
cancellation of bail. However, bail once granted should not
be cancelled in a mechanical manner without considering
8whether any supervening circumstances have rendered it
no longer conducive to a fair trial to allow the accused to
retain his freedom by enjoying the concession of bail
during the trial. These principles, it appears, were lost sight
of by the High Court when it decided to cancel the bail,
already granted. The High Court it appears to us
overlooked the distinction of the factors relevant for
rejecting bail in a non-bailable case in the first instance
and the cancellation of bail already granted.
30. The Hon’ble Supreme Court in the matter of Hazari Lal Das
Vs. State of West Bengal and Another reported in (2009) 10
SCC 652 held in para 7, which reads thus:-
“7 There is nothing on record that there has been
interference or attempt to interfere with the due course of
administration of justice by the appellant. It also does not
appear from the record that the concession granted to him
has been abused in any manner No supervening
circumstances have surfaced nor shown justifying
cancellation of anticipatory bail. The judicial discretion
exercised by the Sessions Judge in granting the
anticipatory bail has been interfered with by the High Court
in the absence of cogent and convincing circumstances.
We are, thus, satisfied that the Impugned order cannot be
sustained.”
11. Applying the law laid down by Hon’ble Supreme Court in the matter
referred to above, having perused the entire order-sheets of the
learned trial Court, provisions contained in Section 439(2) of Cr.P.C.,
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this Court finds that no grounds are made out to cancel the order
granting bail to respondents No.2 /accused. However, it is made clear
that the accused shall adhere to the conditions imposed while he is
enlarged on bail and shall not violate any of the conditions.
12. With the above observations, the petition is dismissed.
Sd/-
(Rajani Dubey)
JUDGE
Ruchi
RUCHI YADAV Digitally signed by RUCHI YADAV
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