1 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/ State : Mr. Akhilesh Kumar, G.A. For Respondent No.2 : Mr. Vikash Kumar Pandey, Advocate Hon'ble Smt Justice Rajani Dubey Order on Board 2 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 3 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 4 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.” 5 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. 6 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. 7 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 8 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 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., 9 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