1 2025:CGHC:4257 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 212 of 2020 1 - Mohammad Saeed, S/o Qurban Ali, Aged About 27 Years, R/o Behind Haidari Masjid, Mominpara, Raipur Tahsil & District Raipur Chhattisgarh. ... Petitioner versus 1 - State of Chhattisgarh Through Station House Officer, Police Station City Kotwali, District Raipur Chhattisgarh. 2 - Najaf Ali S/o Late Hasan Aged About 62 Years R/o Hotel Aashiyana, Baijnathpara, Raipur, Tahsil & District Raipur Chhattisgarh. 3 - Zoheb Hasan, S/o Najaf Ali, Aged About 32 Years, R/o Hotel Aashiyana, Baijnathpara, Raipur, Tahsil & District Raipur Chhattisgarh. ... Respondents For Petitioner : Mr. Navin Shukla, Advocate For Respondent No.1/ State : Mr. Devesh G. Kela, P.L. For Respondents No. 2 & 3 : None though served Hon'ble Smt Justice Rajani Dubey Order on Board 23.01.2025 2 1. The petitioner has filed the instant petition under Section 439 (2) of the Cr.P.C. praying for cancellation of bail granted to respondents No.2 and 3 by an order dated 29.11.2019 passed by this Court in MCRC No. 7422 of 2019. 2. The facts of the case, as mentioned in the petition, are that the complainant/ petitioner lodged a report in the police station alleging therein that on 15.04.2015, he had borrowed Rs. 50 lacs from the accused persons and had also given some cheques as security. The complainant has repaid the entire borrowed amount along with interest but the accused persons still asking for money, threatened him and also they are not returning the cheques. Based on the report, FIR bearing Crime No. 0444/2019 was registered against respondents No. 2 and 3/accused for the offence under Section 384 of IPC and Section 4 of Chhattisgarh Protection of Debtors Act. Thereafter, the respondents No. 2 and 3 moved an application for grant of bail under Section 439 of Cr.P.C. before this Court and this Court vide order dated 29.11.2019 passed in MCRC No. 7422 of 2019 allowed the said application and granted bail to respondents No. 2 and 3. 3. Learned counsel for the petitioner submits that the petitioner/objector filed the vakalatnama dated 28.11.2019 for objecting the bail application filed by respondents No. 2 and 3 and thereafter, the matter was listed for final hearing on 29.11.2019. On the said date of hearing, the name of counsel for the objector/petitioner was not appeared in the cause list, due to which complainant/petitioner could not get the chance to object that bail application on the ground of antecedents against respondents No. 2 & 3. Copies of the cause list dated 29.11.2019, 3 Vakalatnama and High Court Status Report dated 03.12.2019 are collectively annexed as Annexure-P/3. He further submits that vide order dated 29.11.2019, while considering the medical report dated 28.11.2019, this Court has granted bail to respondents No. 2 & 3 and did not consider the case on merit. The objector/petitioner was not given a proper opportunity of hearing to produce the relevant document with regard to the antecedent against the respondents No. 2 & 3. Hence, a proper opportunity of hearing may be provided to the objector/petitioner before granting the benefit of bail to the respondents No. 2 & 3. It is evident that objector/petitioner was not heard before granting the benefit of bail to respondents No. 2 & 3, therefore, the impugned order is liable to be modified and bail granted by this Court in MCRC No.7422/2019 vide order dated 29.11.2019 is liable to be cancelled. 4. Learned counsel for the State /respondent No.1 supports the argument advanced by learned counsel for the petitioner. 5. Despite service of notice, none appeared on behalf respondents No. 2 and 3. 6. Heard counsel for the parties and perused the material placed on record. 7. It is clear from the order dated 29.11.2019 passed in MCRC No. 7422/2019 that this Court after hearing the arguments advanced by both the parties and also perusing the medical report dated 28.11.2019 submitted by Central Jail, Raipur, allowed the bail application filed by the accused. 4 8. Petitioner filed this petition under Section 439(2) of Cr.P.C. on the ground that at the time of hearing of the bail application of respondents No. 2 and 3, he was not given a proper opportunity of hearing. 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.” 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 5 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. 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 6 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. 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 7 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 whether 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 8 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 documents available on record, provisions contained in Section 439(2) of Cr.P.C., this Court finds that no grounds are made out to cancel the order granting bail to respondents No.2 & 3/accused. However, it is made clear that the accused shall adhere to the conditions imposed while they are 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