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Cancellation of bail on re-appreciation of facts would amount to review of earlier order: Himachal Pradesh High Court

Cancellation of bail for breach of a condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail. The single-judge bench consisting of J. Vivek Singh Thakur adjudged on the matters of breach of bail conditions and the power of Trial Court in the case of Virender Kumar v. State of H.P. &Anr. [Cr. Revision No. 161 of 2019].  

The Petitioner was accused and registered in Women Police Station Mandi under Section 498-A, 323, 506 and 34 of the Indian Penal Code. He later preferred an application under Section 438 Crpc wherein he was directed to be enlarged on bail on furnishing personal and surety bonds and was also directed to surrender his passport before the Investigating Officer. These orders were made absolute by the Sessions Judge and the Petitioner was not allowed to leave the country. His previous application for release of passport was dismissed by the trial court on the grounds that such a request should have been made to the Sessions Judge and the trial court now, did not have the power to dilute the conditions imposed at the time of granting bail.

The counsel for the petitioner argued that for earning a livelihood, the petitioner was required to go out of India frequently since he was in Merchant Navy. That his fundamental right to earn a livelihood (Article 21) had been affected and he should be given his passport as held in Gian Singh v. State of Rajasthan [(1999) 5 SCC 694].

The High Court held that based on various previous cases, such as Sunil K. Sinha v. State of Bihar [AIR 1999 SC 1533] and Hazari Lal Gupta v. Rameshwar Prasad and Anr. [AIR 1972 SC 494], the Court was empowered to impose such restrictions and the release of passport so surrendered depended upon the facts and circumstances of each case on its own merit by “balancing the individual interest of accused and the complainant and also the larger interest of the public to ensure the presence of an accused before the Court during the trial”. The HC observed that the 3rd condition of bail enabled the petitioner to seek the permission of the Investigating Officer or Court to leave the country and the natural corollary thereof would be the entitlement of the petitioner to have his passport released.

Upon the issue of the power of the Trial Court, the HC held that “condition No.3 may be taken as a condition empowering the trial Court to consider the case of the petitioner for permission to leave India, but, here also, it is not clear that ‘Court’ referred in the said condition means the Court granting the bail or also includes the trial Court. Therefore, the trial Court has rightly rejected the application filed by petitioner for alteration of condition imposed in order granting the bail to him”. The HC directed the petitioner to seek the Sessions Court for the release of passport and stated that “Cancellation of bail on re-appreciation of same facts by the same Court would amount to review of earlier order, but, cancellation of bail for breach of condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail, rather it would be in consonance with and in continuation to the previous order wherein cancellation of bail on breach of condition is inherent, for the reason that bail is granted subject to certain condition(s), breach whereof would entail cancellation of the bail Similarly, modification of condition(s) imposed at the time of granting bail, after taking into consideration new, additional or other facts, not considered earlier, also does not amount to review of previous order, particularly when order itself contains the condition that conditions, so imposed, may be varied, modified and/or altered suitably as and when it would be deemed fit by the Court in the facts and circumstances of the case”

The petition has been disposed of.

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Judgement reviewed by -Sarita Kumari

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