- 1 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL PETITION NO. 2858 OF 2025 (439(2)(Cr.PC)/483(3)(BNSS)) BETWEEN: MR. NANJUNDARAO S/O ASHWATHANARAYANA RAO AGED ABOUT 51 YEARS PERMANENTLY RESIDING AT NO.1082, 16tH CROSS, 2ND STAGE NEAR KAVERI CIRCLE, HEBBAL MYSURU 570 017 PRESENTLY IN DUBAI …PETITIONER (BY SRI. VARUN S., ADV.) AND: MR.SRIHARI PATHAK S/O JAYARAM PATHAK AGED ABOUT 40 YEARS R/ AT NO.2992/1, 3RD MAIN V V MOHALLA MYSURU 570 022 …RESPONDENT (BY SRI.RAJATH, HCGP) THIS CRL.P. IS FILED UNDER SECTION 439(2) CR.PC (FILED U/S 483(3) OF BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING TO CANCEL THE BAIL GRANTED TO THE RESPONDENT BY ORDER DATED 1ST FEBRUARY 2025 PASSED BY THIS HON’BLE COURT IN CRL.P No.13016/2024 AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 CORAM: HON'BLE MR. JUSTICE S RACHAIAH ORAL ORDER 1. The petitioner is the complainant seeking cancellation of the bail granted by this Court dated 01.02.2025 in Crime No. 27/2017. Factual matrix of the case: 2. The complainant is stated to have entered into an agreement of sale of a flat with the respondent company, namely, Pathak Developer’s Private Limited. According to the complainant, he made a partial payment towards the purchase of the said flat. Prior to the completion of the contract, the accused had sold the said flat to some other person and thereafter, the accused issued a notice to make further payment to get the sale deed executed. 3. The complainant having learnt that he had been cheated by the accused, lodged a complaint before the respondent police. The respondent police after registering the case, conducted the investigation. - 3 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 4. Heard Sri.Varun, learned counsel for the petitioner and Sri.Rajesh, learned High Court Government Pleader for the respondent - State. 5. It is the submission of learned counsel for the petitioner/ complainant that the respondent, who is the accused in this case, had been secured via proclamation and NBW. The respondent is a permanent resident of Maharastra and there may be chances of absconding from the case. 6. It is further submitted that the accused has committed fraud against several prospective buyers. Therefore, the bail granted by this Court has to be cancelled and the petitioner be taken to custody for the purpose of securing the ends of justice. Making such submissions, he prays to cancel the bail. 7. Per contra, the learned High Court Government Pleader submitted that to cancel the bail, there must be a violation of conditions. Unless, conditions are not violated, the bail cannot be cancelled as a matter of routine. 8. Having heard the learned counsels for the respective parties, it appears from the record that, this Court after - 4 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 considering the materials on record, granted bail to the petitioner by imposing suitable conditions. 9. It is relevant to refer the judgment of the Hon'ble Supreme Court in the case of HIMANSHU SHARMA V. STATE OF MADHYA PRADESH1 paragraphs No.10 and 11 read as under: “10. While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court's judgment in Abdul Basit [Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 : (2015) 1 SCC (Cri) 257] . 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 362CrPC. Relevant observations from the above judgment are reproduced below : (Abdul Basit case [Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 : (2015) 1 SCC (Cri) 257] , SCC pp. 761-64, paras 14-21) “14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of 1 (2024) 4 SCC 222 - 5 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 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 charge-sheet, 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 non- bailable offence and that it is necessary to arrest - 6 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 him and commit him to custody. However, in the last-mentioned case, one would expect very strong grounds indeed. (Raghubir Singh v. State of Bihar [Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : 1986 SCC (Cri) 511] ) 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 (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] 16. In Gurcharan Singh case [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] 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 vis- à-vis powers of the courts granting and cancelling the bail. This Court observed as under : (SCC pp. 123-24, para 16) 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 498CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail - 7 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 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 sub-section (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 - 8 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 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 which has already been granted [State (UT of Delhi) v. Gurcharan Singh, 1977 SCC OnLine Del 103] 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 - 9 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 follows from the subordinate position of the Court of Session vis-à-vis the High Court.’ 17. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] . 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 [Narendra K. Amin v. State of Gujarat, (2008) 13 SCC 584 : (2009) 3 SCC (Cri) 813] , the three-Judge 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 [State of Gujarat v. Narendra K. Amin, 2008 SCC OnLine Guj 682] 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 - 10 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 affirming the principle laid down in Puran case [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] 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 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. [Ranjit Singh v. State of M.P., (2013) 16 SCC 797 : (2014) 6 SCC (Cri) 405] has observed that : (SCC p. 806, para 19) ‘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.’ - 11 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 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 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. - 12 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 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 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.” 11. 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; - 13 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 (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. (emphasis in original) 10. On careful reading of the dictum of the Hon'ble Supreme Court, it appears that the law is well settled that the consideration for the grant of bail and cancellation thereof are entirely different. Bail granted to an accused can 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 the bail order c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail or d) that the bail was procured by misrepresentation or fraud. 11. In the present case, the complainant has not made out above such grounds to cancel the bail. Therefore, the petition filed by the complainant is deserves to be rejected. Ordered accordingly. - 14 - HC-KAR NC: 2025:KHC:24113 CRL.P No. 2858 of 2025 12. Hence, I proceed to pass the following: ORDER The Criminal Petition stands rejected. Sd/- (S RACHAIAH) JUDGE RSP/UN List No.: 19 Sl No.: 1