24 September 2013
agree with expert.
read the judgment
Rajasthan High Court
Sandeep Batra vs State on 20 January, 2012
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
O R D E R
S.B. CR. MISC. BAIL CANCELLATION APPL. No.2975/2009
Sandeep Bhatra vs. State of Rajasthan & Anr.
Date of Order: 20th January, 2012
HON'BLE MR JUSTICE RAGHUVENDRA S. RATHORE
Mr. Ajay Kumar Jain, for the applicant.
Mr. Javed Choudhary, Public Prosecutor.
Mr. Amit Desai, Sr. Advocate with
Mr. S.S. Hora, for respondent No.2.
By the Court:
A short but an important question comes up for consideration in this case, as to when the order of granting anticipatory bail becomes operative.
2. The grievance of the informant petitioner is that the accused respondent No.2 has violated the condition imposed by the High Court while granting anticipatory bail on 27.03.2009, which has compelled him to file this application for cancellation of bail under Section 439(2) Cr.P.C. with the prayer that the aforesaid order of anticipatory bail be cancelled.
3. The accused respondent No.2 had preferred an application for anticipatory bail (1809/2009) in FIR (43/2009) registered at Police Station Jyoti Nagar, Jaipur City, Jaipur for the offences under Section 420 and 467 IPC. The anticipatory bail application was considered and decided by the High Court, in presence of the counsel for the informant petitioner, on 27.03.2009 and after holding that the petitioner is entitled for the benefit of anticipatory bail, it was ordered as under:- Accordingly, it is directed that in the event of his arrest in connection with F.I.R. No.43/2009 of Police Station, Jyoti Nagar, Jaipur City, Jaipur the accused petitioner Lalit Kumar Modi S/o Shri K.K. Modi shall be released on bail provided he furnishes a personal bond in the sum of Rs.25,000/- with two sureties in the like amount to the satisfaction of the concerned Investigating Officer/S.H.O. On following conditions:
(1) that he shall make himself available for interrogation by a police officer as and when required;
(2) that he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(3) That he shall not leave India without the previous permission of the Court;
(4) That he shall attend in accordance with the conditions of the bond executed by him.
4. The primary submission made by the learned counsel for the informant petitioner is that the accused respondent No.2 has violated condition No.3, imposed by the Court while granting anticipatory bail, by proceeding abroad to visit South Africa. According to the counsel for the informant petitioner, the accused was not to leave India without previous permission of the Court. It has been submitted that undisputedly, the accused had made a visit to South Africa and no permission was sought from this Court before doing so. Therefore, it is submitted by the counsel for the informant petitioner that the accused is disentitled to remain on anticipatory bail and the same is liable to be cancelled in the terms under Section 439(2) Cr.P.C. The learned counsel for the informant petitioner has, in support of its case, placed reliance on the case of State of Punjab vs. Raninder Singh & Anr., AIR 2008 SC 609.
5. On issuance of notices to the accused respondent No.2 as to why anticipatory bail should not be cancelled for violating the condition imposed by the Court, a reply has been filed on his behalf. It is averred in the reply that respondent has highest regard for the majesty and authority of law and has strictly adhered to the orders passed by the High Court, in its letter and spirit. Further, it is averred that when the order of granting anticipatory bail was passed by the High Court, he had already left for South Africa on 23.03.2009 to organise the Indian Premier League-2 as the venue had been shifted from India to South Africa, due to compelling circumstances in view of Lok Sabha Elections. It was also submitted that there has not been any violation of the order passed by the High Court. The order of granting anticipatory bail was granted on 27.03.2009 and copy of the same was issued on 30.03.2009 by the Registry of the High Court. Thereafter, the same was communicated to the accused respondents but he had already left the country for South Africa on 23.03.2009. After lodging of the report on 15.02.2009, the accused respondent had applied for and was granted anticipatory bail for a period of four weeks by the Court of Sessions at Bombay, by its order dated 24th/26th February, 2009. No condition/ restriction on travelling of the respondent abroad had been imposed in that order. Therefore, the accused respondent had travelled out of India and at that time there was no such restriction for the accused respondent to go abroad.
6. Subsequently, on a Criminal Miscellaneous Petition (1286/2009) having been filed by the accused respondent for quashing of first information report No.43/2009, registered at Police Station Jyoti Nagar, Jaipur City, High Court had admitted the same on 22.07.2009. Meanwhile, further investigation in the said first information report was ordered to remain stayed. It is also stated in the reply that at the time of considering of the Criminal Miscellaneous Petition (1286/2009), in presence of the learned Additional Advocate General for the State of Rajasthan, no statement was made by him that the accused respondent was otherwise ever called/ required by the Investigating Agency or that he did not cooperate or attend the investigation. It has also been averred in the reply that there is no allegation against the accused respondent for tampering with the witnesses or the prosecution evidence, has been made in the application for cancellation of bail. No other supervening or overwhelming circumstances have been mentioned by the complainant in the application, while seeking cancellation of bail, which would warrant an order of cancellation.
7. The accused respondent has mentioned the details of the Schedule, in para 4, which compelled him to remain abroad. Firstly, for organising the tournament of IPL-2 matches at South Africa. Secondly, being the Vice-President of BCCI, the respondent had to go directly to England from South Africa for Twenty-20 World Cup which was to start in the month of June, 2009. Thirdly, on account of the accused respondent being the Commissioner of Indian Premier League and also holding the post of Vice-President of BCCI, he had to regularly travel abroad since 2008 to conduct various meetings with the Government Authorities for organising different matches and venues at South Africa; for various cricket activities and also to attend his wife who is suffering from Metastatic Cancer which required continuous treatment at Los Angeles. Therefore, it has been stated in the reply that in view of the forgoing facts and that the further investigation in the instant case has already been stayed by the High Court, this application for cancellation of anticipatory bail has become infructuous and even otherwise, it is motivated to harass the accused respondent and same be dismissed.
8. The learned counsel for the accused has reiterated the averments made in the reply and submitted that the respondent was never called for investigation purpose since grant of anticipatory bail to him on 27.03.2009, at the time when he had already gone abroad. In the transit bail granted by the Court of Sessions at Bombay on 24th/26th February, 2009, there had been no condition/restriction on him for travelling out of India. Therefore, when the respondent travelled abroad on 23.03.2009, there was no requirement of seeking previous permission of the Court before leaving the country. It has been submitted by the counsel for the respondent that after passing of the order by the High Court on 27.03.2009, the accused was never called/informed by the Investigating Agency with regard to his arrest and as such, there was no occasion for him to execute the bonds in the event of his arrest, as per the order of anticipatory bail passed by the High Court. Accordingly, it has been submitted by the counsel for the respondent that as the order of anticipatory bail had not come into operation, the condition imposed therein had never become applicable. Moreover, there was no whisper whatsoever, from the side of the Investigating Agency that the accused respondent has violated any of the four conditions imposed while granting anticipatory bail to him. Above all, it has been submitted that after passing of the order of anticipatory bail, High Court had stayed further investigation in the present case by its order dated 22.07.2009 in Criminal Miscellaneous Petition No.1286/2009, filed by the accused respondent. Therefore, it has been submitted that the application for cancellation of anticipatory bail be dismissed. The learned counsel for the accused respondent has substantiated his submissions by placing reliance on the cases of (1) Shri Balchand Jain vs. State of Madhya Pradesh, (1976) 4 SCC 572; (2) Gurbaksh Singh Sibbia etc. vs. The State of Punjab, AIR 1980 SC 1632, (3) D.K. Ganesh Babu vs. P.T. Manokaran & Ors., AIR 2007 SC 1450; (4) S. Swaminathan vs. The State, (M.P. (MD) No.1 of 2008 in Crl.O.P. (MD) 8180 of 2008, decided by the Full Bench of the High Court of Madras on 03.12.2008; and the case of (5) Savitri Agarwal & Ors. vs. State of Maharashtra & Anr., (2009) 8 SCC 325.
9. As mentioned above, the material facts giving rise to the said question are that anticipatory bail was granted to the accused respondent on 27.03.2009 with four conditions, out of which condition No.3 was that he shall not leave India without previous permission of the Court. It is noteworthy that while coming to the conclusion that the petitioner is entitled for anticipatory bail, the High Court on 27.03.2009 had directed that in the event of the arrest of the accused respondent in connection with FIR No.43/2009, registered at Police Station Jyoti Nagar, Jaipur City, Jaipur, he shall be released on bail provided he furnishes a personal bond in the sum of Rs.25,000/- with two sureties in the like amount to the satisfaction of the concerned Investigating Officer/ S.H.O., on the four conditions mentioned in the order. Apart from the fact that the accused respondent had left the country for South Africa on 2303.2009 which is prior to the passing of the order of anticipatory bail by the High Court, the Investigating Agency had never approached/ informed the accused respondent that they propose to arrest him. It was in the event of his arrest that the accused respondent was to be released on bail provided he furnishes requisite bonds and the said release was on the four conditions mentioned therein. Subsequently on 22.07.2009 the High Court had, in Criminal Miscellaneous Petition No.1286/2009, admitted the petition for quashing and setting aside the first information report of the present case and it had also ordered that meanwhile further investigation in the matter shall remain stayed.
10. According to the learned counsel for the informant petitioner, the order of anticipatory bail was passed on 27.03.2009 and the accused respondent had left India without seeking any permission from the Court which tantamounts to violation of condition No.3 of the order that he shall not leave India without the previous permission of the Court. Therefore, the case of the petitioner is that the order of anticipatory bail deserves to be cancelled only on the ground that the accused respondent had violated the condition imposed by the High Court by leaving the country without seeking permission. The case of the accused respondent is that the order of anticipatory bail was passed on 27.03.2009, the Investigating Agency had never come up to arrest him and as such the order of anticipatory bail had not come into operation as no bonds had been executed by him in compliance of the order of anticipatory bail so as to make four conditions mentioned therein, applicable to the accused.
11. Historically speaking, earlier there was conflict of decisions amongst different High Courts in India with regard to power of Court for granting anticipatory bail. The learned Commissioner, in it Forty-first Report, had recommended introduction of a provision for grant of anticipatory bail. The said recommendation was accepted by the Central Government and clause 447 was introduced in the draft Bill of the new Code of Criminal Procedure conferring power on a Court of Sessions or a High Court to grant anticipatory bail. The provision of draft Bill was considered by the learned Commission, in para 31 of its Forty-eighth Report. Clause 447 of the draft Bill had then came to be enacted as Section 438 in the new Code of Criminal Procedure.
12. For the purpose of examining the question involved in the instant application, it would be appropriate to refer the text of Section 438 Cr.P.C. which is in the following terms:-
438. Direction for grant of bail to person apprehending arrest.
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Sessions, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]
(2) Where the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer and when required;
(ii) a condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
(iii) a condition that the person shall not leave India without the previous permission of the court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).
13. The question as to when the order granting anticipatory bail becomes operative had been considered by the Hon'ble Apex Court, as early as, in the year 1976 in the case of Shri Balchand Jain (supra). In para 2 of the said judgment, it has been laid down that:-
...When the Court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly, there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative... It has been further observed, in para 14, as follows:-
14....Section 438 of the Code expressly prescribes that any order passed under that section would be effective only after the accused has been arrested. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the rigorous of jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest.
14. Subsequently, in the case of Adri Dharan Das vs. State of West Bengal, (2005) SCC (Crl.) 933, the Hon'ble Apex Court, after incorporating the principles laid down by the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) and other decisions held, in para 7, as follows:-
7...The order under Section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by Section 46(1) of the Code or any confinement. The Apex Court in Balchand Jain v. State of M.P. 1976 SCC (Crl.) 689 has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty, then power is to be exercised under Section 438. The power is to be exercised higher echelons of judicial forums, i.e., the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. In para 18 of the said judgment, it has been further observed as under:-
18.....the direction which a Court can issue under Section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the Court may deem fit to impose. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest.
15. The same question was further considered by the Hon'ble Supreme Court in the case of D.K. Ganesh Babu (supra) and it was laid down, in para 6, as under:
6.....Any order of bail can be effective only from the time of arrest of the accused..........Thus bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.......The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.
16. In the case of Savitri Agarwal (supra), the Hon'ble Supreme Court had further reiterated the principles, in para 15, as follows:-
....when a competent court grants anticipatory bail, it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.
17. A Full Bench of the High Court of Madras, in the case of S. Swaminathan (supra), has held in para 12 that:-
...An anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Further, in para 16, it has been observed that:-
....in the very nature of the direction which the Court can issued under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. Further, in para 19 and 20, it observed as follows:-
19. It is pertinent to be noted from the above principle laid down by the Apex Court that anticipatory bail order becomes operative and effective at the very moment of arrest and as such the person, who is armed with an order of direction from the High Court or the Sessions Court to release him on bail, in the event of such arrest, shall be released forthwith without taking him into custody or remanding him to judicial custody.
20. Therefore, it is clear from the decisions of the Apex Court cited supra that the condition precedent for operation of the direction given by the High Court or the Sessions Court under Section 438 of the Code is the arrest of the accused.
18. In view of the principle that an order of anticipatory bail becomes operative, and effective at the very moment of arrest, it is noteworthy to consider as to what amounts to arrest. This has become further necessary because the words 'custody' and 'arrest' are not synonyms terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. The concept of arrest or custody had come up for consideration before the Hon'ble Apex Court in the case of Niranjan Singh & Anr. vs. Prabhakar, 1980 Cr.L.J. 426, where the Hon'ble Court, in para 6, 7, 8 and 9, laid down as under:
6. Here the respondents were accused of offences but were not in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 Cr.P.C. unless he is in custody.
7. When is a person in custody, within the meaning of Section 439 Cr.P.C. ? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the courts jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can, be stated to be in judicial custody when he surrenders before the court and submits to its directions....
19. Subsequently, in the case of Directorate of Enforcement vs. Deepak Mahajan, (1994) SCC (Cri.) 795, the Hon'ble Supreme Court has elaborately dealt with this aspect, in para 46, 47 and 48, as under:-
46. The word 'arrest' is derived from the French 'Arreter' meaning 'to stop or stay' and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu, AIR 1984 NOC 103 (FB), had an occasion to go into the gamut of the meaning of the word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws of England, 'A Dictionary of Law' by L.B. Curzon, Black's Law Dictionary and 'Words and Phrases'. On the basis of the meaning given in those text book sand lexicons, it has been held that:
"The word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in connection with criminal offences, an 'arrest' consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested."
47. There are various sections in Chapter V of the Code titled "Arrest of persons" of which Sections 41, 42, 43 and 44 empower different authorities and even private persons to arrest a person in given situation. Section 41 deals with the power of a police officer to arrest any person without an order from a Magistrate and without a warrant. Section 42 deals with the power of a police officer to arrest any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence and who refuses on demand "to give his name and residence or gives a name or residence which such officer has reason to believe to be false". Section 43 empowers any private person to arrest any person who in his presence commits a non-cognizable offence, or any proclaimed offender. Section 44 states that when any offence is committed in the presence of a Magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender and may thereupon subject to the provisions contained in the Code as to bail commit the offender to custody.
48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice-versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences.
In the judgment of State of Haryana vs. Dinesh Kumar, (2008) 3 SCC 222, the Hon'ble Apex Court has concurred with a view taken in the earlier cases.
20. So far as the case of Raninder Singh (supra), relied upon by the counsel for the informant petitioner is concerned, it may be mentioned that the said appeal before the Hon'ble Supreme Court was against the order dated 24.05.2007 by which anticipatory bail was granted by the learned Single Judge of Punjab and Haryana High Court. After considering the matter, the Hon'ble Supreme Court was of the opinion that no interference was called for in the impugned order before it and accordingly the appeal was dismissed. It was by way of clarification that the Hon'ble Supreme Court had observed that in case the respondent accused, therein, did not cooperate with the investigation then it was always open for the State to move an application before the High Court for cancellation of bail. Further, it had mentioned that under Section 438 (2)(i) of the Code of Criminal Procedure, it is clear that while granting anticipatory bail, the Court can lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. The purpose of such a provision was that anticipatory bail cannot be permitted to be abused. It is implicit that whenever a Court imposes such a condition in its order and the accused, which called for interrogation or for certain investigation, does not appear before the Investigating Officer then it would be open for the State to move the High Court for cancellation of bail. In the said case, the Hon'ble Supreme Court had also made it clear that the order passed therein was confined only to the first information in that case. Therefore, the case of Raninder Singh (supra) is of no assistance to the informant petitioner as the same relates to a different fact situation and the order passed by the Punjab and Haryana High Court, granting anticipatory bail, was upheld and the appeal was accordingly dismissed.
21. Besides, it is a settled principle of law that the principles governing grant of bail are different from the one for its cancellation. In the case of Dolat Ram vs. State of Rajasthan, (1995) 1 SCC 349, it has been laid down by the Hon'ble Supreme Court that:-
...rejection of bail in a non-bailable case at the initial stage and the cancellation of bail had to be considered or dealt with on a different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted.
Further, it was observed that:-
...nothing was brought to our notice from which it could be inferred that the appellants have not cooperated in the investigations or have, in any manner, abused the concession of bail granted to them.
22. Undisputedly, in the instant case, after grant of anticipatory bail on 27.03.2009 the Investigating Agnecy had never, in the instant case, informed/ approached the accused for his arrest and therefore, the order of bail was never given effect to nor it became operative because there was no release on bail by furnishing the bonds as ordered by the High Court. It was only on such eventuality and coming into operation of the order of anticipatory bail that the accused respondent was bound to follow the four conditions imposed in the said order. Apart from the fact that the accused respondent had already left the country on 23.03.2009 which was prior to passing the order of anticipatory bail on 27.03.2009, the third condition of the anticipatory bail that the accused would not leave India without previous permission of the Court, would not be attracted because the accused respondent was never released by the Investigating Officer/ SHO of Police Station Jyoti Nagar, Jaipur City, Jaipur on his furnishing bonds, in accordance to the order of anticipatory bail passed by the High Court. Moreover, after granting of anticipatory bail by the High Court, a Co-ordinate Bench had, after taking into consideration the first information report in which the present anticipatory bail was granted, deemed it proper to admit the Criminal Miscellaneous Petition, seeking quashing and setting aside of the same. Further investigation in the matter arising out of the said report had been stayed, vide order dated 22.07.2009.
23. After considering the facts and circumstances of the case as well as the settled principles of law with regard to the stage as to when the order of granting anticipatory bail becomes operative and there being absence of circumstances leading to inferences that the accused respondents have not cooperated in the investigation or has, in any manner, abused the concession of anticipatory bail granted to him, this Court is of the considered opinion that the submissions made by the counsel for the informant petitioner has no merit.
24. Consequently, this application for cancellation of anticipatory bail has no merit and it is accordingly dismissed.