CRLP/10193/2024 of Amithab Bagchi Vs The State of Telangana on 20 February 2026

ORDER:

This Criminal Petition is filed bY the Petitioner-accused No.2Sseekingtoquashtheimpugnedorderdated22.0T.2024 passedbythelearnedlVAdditionalDistrict&SessionsJudge atKarimnagar(hereinafterreferredasthe.learnedSessions Judge') in CRL'M'P'No' 128 of 2024 in P'R'C'No'69 of 2019 in Crime No.1 of 200g of Karimnagar Rural Police Station, wherein theapplicationfiledbytheprosecutionunderSectiona3g(2)of the Code of Criminal Procedure seeking to cancel the bail againstthepetitioner,wasallowedandthebailgrantedtothe petitioner was cancelled

02- Heard sri B. Narin Kumar, rearned senior counser representing sri G- Jabari, rearned counser for the petitioner and Sri M.Ramachandra Reddy, learned Additional public prosecutc,r for the State. perused the record. 03(a)' Learned senior counser for the petitioner submitted that the petitioner who is arrayed as accused No.2g was produr3ed in crime No.1 0f 200g on 01 .02.2010 and since then he has been in judicial custody. On 1g.1O.2O1Othe learned ll Additional Judicial Magistrate of First Class, Karimnagar granted defaurt bair to the petitioner but he courd not furnish sureties, subsequenfly, charge sheet was fired and numbered as pRc No.6g of 2o1g and on bair apprication fired by the petitioner, the rearned sessions Judge vide orders dated 30'01 '2014 granted bair to the petitioner. The prosecution has filed an apptication seeking cancellation of bail vide .RL.M.P.No 12g of 2014 before the rearned sessions Judge, prior to the furnishing of sureties by the petitioner and the learned Sessions Judge erroneously allowed the same and cancelledthebailofthepetitionervideimpugnedorder.ltis furthersubrnittedthattherearenonewcircumstancesbrought beforethelearnedSessionsJudgeandthereisnoviolationof anyconditionsofthebailorderasthepetitioner-accusedNo.28 stillremainedintheiudicialcustody.Exerciseofpowerunder Section439(2)oftheCodeofCriminalProcedurebytheSame Courtwhichgrantedbail,withoutthepresenceofanynew circumstancesortheviolationofanyoftheconditionsimposed, would be gross violation of Sectio n 362 of the Code' 03(b)' While praying to quash the impugned order passed by the learned Sessions Judge' the learned counsel for the petitioner relied upon a decision in Gurcharan Singh and othersv.State(DethiAdministration)lwhereintheHon,ble Supreme Court at Paragraph No'16 held that: ,,16.....underSection43g(2)ofthenewCode,the High Court or the Court of Sessron may direct any person who has been released oit bait to be anested and committed to custody' tn the old Code' Secfion 4gS(2) was worded in somewhat different language when it said that a High Court or Courf of Session may cause any person who been admitted to bail under subsection (1) to be arrested and may commit him to custody. ln other Words' under Secfion 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody onty by the High Court' Similarly' if a person was '(tgzq 1 scc 110

aclmitted to bail by a Court of Ccturt of Se r h s re s t r c ;::::rr:,W :: ;:;,' r ;- :: ::'J,':; application ft to ,bair, ,o "lr'committinn , ,,[iJ":;'::::;::::ril i ;! ; ! *' t I t ; J, ! ",i i, ;i ; ::,,:; i:::; ::;; "/:::: x: j:" :i^ x ;' ;:"; :; i: : do s, tt must,, ["f"i!i l;::,,:ff ::::r::::,:, Sessrbn cannot cancel a bait which has already been granted by the High Courtunless new circumslances arise duing the progre.ss of the triat after an accused person has been admitted to bail by the High Couft. tf, however, a Court of Sessrbn had admitted an occusEd person to bail, the State has two options. tt may fiove the Sessrbns Judge if certain new circumstances have arisen *nin were not earrier known to the Sfafe and necessarily, therefore, to that Court. The State may as well izpproach 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 Sessacns Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futire for the sfafe to move the Sesstbns Judge again and it is compete nt in taw to move the High Court for cancellation of the bait. This posiffon follows from the subordinafe posifion of the Courtof Session vis-a-vis the High Coutl'"

03(c). Further, he relied upon a decision in the case of Abdul Basit v. Mohd- Abdul Kadir Choudhaff wherein the Hon'ble Supreme Court at paragraph Nos.19, 21 and 26 held that: "19. Therefore, the concept of setting aside an unjustified, illegal or peruerse order is different from the concept of cancellation of a bait on the ground of accused's misconduct or new adverse facts having surtaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bait can only be sef asrde on grounds of being illegal or contrary to law by the Court superior to the Court which granted the bait and not by the same Court. 21 . lt 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 enteftain a fresh prayer for relief in the mafter unless and untit the previous order of final disposal has been sef aside or modified to that extent. lt rb a/so seft/ed taw that the judgment and order granting bail cannot be reviewed by the Court passrng such judgment and order in absence of any express provision in the Code for the same. Secfion 362 of the Code operates as bar to any alteration or review of fhe cases disposed of by the Court. The singular exception to the said statutory bar is correction of clerical or aithmetical error by the Court. '? 1zor11 ro scc zsl

26. ln the instant case, the order for bail in the bail application preferred by the accused-petitioners hercin finally disposes of the issue in consideration ancl grants relief of bail to the applicants therein. Since, no express provision for review of order gra,tting ball exists under the Code, the High Court becomes functus officio and Secfion 362 of the Code applies herein baning the review of judgment and order of the Court granting bail to the accused- petilioners. Even though the cancellation of bail rides on t,\e satisfaction and discretion of the Coud under Seclion 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 accused- petiticners during the grant of bail, the High Court coulcr not have enteftained the respondent/infomant's praye'r by sifting in review of its judgment by enten'aining miscellaneous petition." 03(d). Further, he relied upon a decision in the case of Javed Gulam Nabi Shaik v. Sfafe of Maharashfra3 wherein it was held at Paragraph Nos.19, 20 and 21that: "19. lf the State or any prosecuting agency including the co'Lrt concemed has no wherewithal to provide or protect the fundamental right of an accused to have a speedt, trial as enshined under Afticle 21 of the Constilution then the Sfale or any other prosecuting agency should not oppose the plea for bail on the ground that the cime committed is senbus. Atticle 21 " 2024 ScC onlino SC 1693

!}. of the Constitution applies irrespective of the nature of the crime' 20- We may hasten to add that the petitioner is sfill an accused; not a convict' The over-arching postulate of criminatiurisprudence that an accused is presumed to be innocent until proven guitty cannot be brushed aside tightly' howsoever stringent the penal law may be.

21. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded' the ight of the accused to have a speedy triat coutd be said to have been infringed thereby violating Articte 21 of the Constittttion'"

04. On the other hand' learned Additional Public ProsecutorappearingfortheStatefiledcountersubmittingthat thepetitioner-accusedNo.2Sisapolitburomemberofthe banned cPl (Maoists) and operating pan-lndia and that if the petitioner is released on bail, he is likely to re-join the Maoist organization and to go underground as a full time terrorisuextremist and likely to evade to face the trial and that the accused is a dangerous criminal and planning to commit further acts of violence and sabotage and it is possible that he will destroy evidence and will threaten witnesses and will tamper with the evidence and that he was already convicted and sent enced to undergo Rigorous lmprisonment fOf Life and

eight years of imprisonment in two cases vide crime No.166 0f 2009 of Chutia, Ranchi District and Crime No'Rccrt /2011/NIA/GAW, Nationar rnvestigating Agency, respecti,rely. Hence, while praying to dismiss this Criminal Petition, the rearned Additionar pubric prosecutor for the state relied upon a decision in the case of Ajwar v. Waseem and anothera wherein it was held by the Hon,ble Supreme Court at Paragraph No.27 that: "27' rt is equa'y we, settted that bait once granted, ought not to be cancetted in a mechanical manner. However' an unreasoned or peruerse order of bait is alway:; open to interference by the supeior Court. tf there are serious attegations agarnsl the accused, even i,F he has not misused the bait granted to him, such an order can be cancelled by the sarne Court that has granted the bait. Bait canalso be revoked by a superior Court if it transpires that the courts O;r^, have ignored the rerevant materiar avairabre on record or not looked into the gravity of the offence or the impact <>n the society resutting in such an order.,, 05' This court has carefury considered the rivar submissions and perused the material available on record. tt is nOt in dispUte that bail was granted to the petitioner bv the learnedSer;sionsJudgebyorderdated30.01.2024. o lzoz+15 s.c.R. a'75'.2oz4 tNSC 438 The

'tt petitionerhadnotfurnishedSuretiesandWaScontinuingin judicialcustody.Theprosecutionfiledanapplicationseeking cancellation of bail' The impugned order dated 22'07 '2024 cancelling bail was passed by the same Court which granted bail

06. The settled legal Position is that cancellation of bail stands on a different footing from setting aside an illegal bail order. cancellation of bail shall be founded on any violation of bailconditions,ormisuseofliberty'orinterferencewith investigationortrial,orlikelihoodofabsconding,oremergence of new adverse circumstances after grant of bail' oT.Further,onceaCourtgrantsbaitandfinally disposes of the bail application, in the absence of statutory provision for review, the Court becomes functus officio' Section 362 0f the code of criminal Procedure bars alteration or review of such final order except for clerical or arithmetical errors. ln the present case, a perusal of the impugned order does not disctose any supervening circumstances arising after grant of bail, or violation of any bail condition by the petitioner, or materiar showing misuse of riberty, ffrore particurarry when the petitioner was still in custody for want of sureties. 0g' 't is to be noted that the grounds urged by the prosecution in the apprication for canceration of bair rerate mainry to the seriousness of the ailegations, antecedents of the petitioner' and the possibility of his future conduct. These are a, matters which were avairabre, or courd have been considered, at the time of granting bair. rn the absence of any new or supervening circumstances, the proper course open to the prosecution, if aggrieved by the order granting bair, was to approach th' superior court, but not to seek canceration of bair before the siame court on the very same set of facts. rt is arso well setfled that bair granted can be set aside by a superior court if it is found that the courts betow have ignored rerevant material avairabre on record, or have faired to consider the gravity of ther offence or the impact of the offence on society, resulting in the grant of bail. 09.1'ltheaboveviewofthematter'theimpugnedorder which is in effect' appears to be passed mechanically which amountstore-appreciationoftheearlierbailorderandoperates ^'- l- rt-?

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aSareviewoftheordergrantingbail,whichisimpermissibletn law. Though the allegations against the petitioner are serious in nature, gravity of the offence' by itself' cannot be a ground to cancel bail once it has been granted' in the absence of any supervening circumstances' subsequent conduct of the accused, o[ emergence of new material warranting such cancellation'moreparticularly,cancellationofbailbythevery same Court and Judge who granted bail' amounts to an illegalityandmaterialirregularity.lnviewoftheabove discussion, this court is of the considered opinion that the learned sessions Judge was not justified in invoking powers under section 439(2) of the code of criminal Procedure in the absenceofsuperveningcircumstancesand,therefore,the impugned order is liable to be set aside'

10. Accordingly, this criminal Petition is allowed and the impugned order dated 22.07.2024 passed by the learned lv Additional District & Sessions Judge at Karimnagar, is hereby set aside. However, it is made clear that, if the prosecution is aggrieved by the order granting bail, the proper course open to it is to approach the superior court and liberty is accordingly

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granted to the prosecution to avail such remedy, in accordance with law. As ia sequel, pending miscellaneous applications, if any, shall stand closed. o.'rfP';IaiS{HH ,/ //TRUE COPYII One Fair Copy t< irj.,Xi.t?[3[,:,l To, SECTION OFFICER SRIDEVI 1 The lV Additionat District e

2. The Statir oistrici..cnHo,."_cilj;;ii*,;,;"",j:n j,:1X;,,:L[il,fl ll*Xi,,n,r,.

3. Two CCs to the public prosecrtnr Lr;^r- n_

- -'-r';vrl, Ad Hyderabad. loUTi "- ' r''roecutor' High Court for the State of Telangana at I iii_.BJ:. riri G.'Jabari, Advocate [opUc]

6. The Under Sr:cretary, Union Rnairs, w-ew t)elhi ' ' v! "v'| ' of lndia Ministry of Law, Justice and company : ${::ff,"f"',:? l#; t,ffi fl,,? ":,e s A s s o c i a 1,."^,1 -! p,., y, H is h c o u rt ro r t h e

8. _ Two CD Copres Kam/pSI ;[i,r'r""'' nrgn uourt Buildings at Hyderabad. ' 's" s @ ,

HIGH COURT DATED:2010212026

ORDER

CRLP.No.10193 ot 2024 LOWING THE ItE S

o 1',k' z I o ? 5 ft8 m26 * * CRIMINAL PETITION

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