Court sets aside bail cancellation order, but finds initial bail order also bad in law
Provisions of the Prevention of Corruption Act cannot be dropped on mere filing of the status report by the probe agency, the Delhi High Court has held, saying that the same has to be decided by the trial court at the time of taking cognizance.
Justice Sangita Dhingra Sehgal said so while setting aside the bail cancellation order of a Delhi government official named Pramod Garg.
While Justice Sehgal set aside the order by which his bail was cancelled, she found that the initial order by which he was granted bail five years ago was itself bad in law and granted liberty to the probe agency to consider appropriate remedy under the law.
Setting Aside Bail Cancellation Order Of Concurrent Court
The high court set aside the bail cancellation order while holding that the bail granted by court of Additional Sessions Judge was cancelled by the court of special judge even as both are courts of concurrent jurisdiction.
In the instant case, Garg had moved the high court challenging the November 18, 2014, order by which the bail previously granted to him by the Court of Additional Sessions judge on December 28, 2012, stood cancelled.
Garg had contended that the bail cancellation order was illegal and perverse as the special judge lacks jurisdiction to cancel the bail and that by cancelling the bail, the special judge had used the power of an appellate court which is not permitted under law.
It is to be noted that an FIR was registered in year 2010 against Garg under Sections 420/467/468/471/120-B of IPC read with Section 13(1)(d)/13(2) of the PC Act by the Anti-Corruption Branch of Delhi government.
A status report came to be filed by the probe agency on August 24, 2012, dropping the sections under Prevention of Corruption Act for lack of supporting evidence. The said application was dismissed vide order dated November 22, 2012, by the special judge.
Garg preferred an anticipatory bail application before the court of special judge and the same was dismissed on October 18, 2012.
He was arrested on December 27, 2012, and produced before the court of metropolitan magistrate. He was granted regular bail the next day.
Against this, the Delhi government preferred an application for cancellation of bail under Section 439(2) CrPC before the court of ASJ, but since the ASJ was not competent to deal with cases under the Prevention of Corruption Act, the application was withdrawn. Another application for cancellation of bail was moved before the Court of Special Judge which was allowed on November 18, 2014.
This is the order which came to be challenged before the high court.
Justice Sehgal observed, “It is a settled law that no court can comment upon the functioning of a co-ordinate Bench of the same Court in as much as the same would amount to exercising powers of Court of Appeal/Revision which is legally impermissible. It is only in exceptional circumstances that a Court of concurrent jurisdiction can interfere with an order of bail already granted.”
The court also relied upon case titled Gurcharan Singh & Ors. v State (Delhi Administration) in which the apex court observed: "…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 follows from the subordinate position of the Court of Session vis-a-vis the High Court."
“In the present case, bail granted to the petitioner by the ASJ was cancelled by the Court of Special Judge which in fact is a court exercising concurrent jurisdiction. Hence the Special Judge lacked jurisdiction to cancel the bail granted to the petitioner. An application for cancellation of bail granted by the Court of ASJ can be adjudicated upon only by a Court of superior authority. Hence, the impugned order dated 18.11.2014, being without jurisdiction, is set aside,” she noted.
Initial Bail Also Bad In Law
Interestingly, while setting aside the bail cancellation order, Justice Sehgal found that the initial bail order itself was illegal as the ASJ was not empowered to grant bail in the first place.
“Furthermore so far as order dated 28.11.2012 of the ASJ is concerned, whereby the petitioner was released on bail, the same is also bad in law as initially the FIR in the present case was registered under Sections 420/467/468/471/120-B IPC read with Section 13(1)(d)/13(2) of the PC Act and due to invocation of Section 13(1)(d)/13(2) of the PC Act, the only appropriate forum to grant bail ought to be the Special Court in view of the provisions of Section 4 of the PC Act.
“Provisions of the PC Act cannot be dropped on mere filing of the Status Report by the IO as the same shall be determined by the Trial Court at the time of taking cognizance and summoning the accused/ petitioner,” it said.
The court added that the respondents are at liberty to seek remedy before the appropriate forum as provided under law.