TMI Blog2020 (11) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... of any offences in any other cases and in order to substantiate that he is a habitual offender, no material is placed before the Court - It is clear from reading of the Section 439(2) that the High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. In the case on hand, there is no any allegations against respondent No. 2 that he has violated the order of bail granted in his favour except alleging that there are number of cases registered against him. In the case on hand, no doubt, though 10 cases are listed out, out of which 3 cases are registered for the offences punishable under Sections 376, 420, 417 and 506 of I.P.C. It is important to note that in all the cases he has been enlarged on bail invoking Sections 438 and 439 of Cr.P.C. and not convicted. Merely because the prosecution has failed to bring out the said cases which are pending against him while considering the bail petition, the same cannot be a ground for canceling the same - To invoke Section 439 (2) of Cr.P.C., there must be material before the Court to show that there is violation of conditions of the bail order granted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the pretext that he was an extremely successful businessman with multiple business establishments in India and abroad. 4. Furthermore, the accused confessed and expressed his love for the complainant with the promise of marriage. Trusting his intentions to be pure and being impressed with his charismatic approach, the complainant began a romantic relationship with the accused herein. The accused expressed his desire to get married to the complainant. Subsequently, the accused started demanding the complainant to engage in sexual intercourse with him. Despite her emphatic resistance to the same, the accused tried to establish physical and sexual relationship with her. In this regard the accused made an unequivocal promise to the complainant that they shall get married and also asked her to presume that they were already a married couple. The accused had taken the complainant into his confidence by portraying himself to be a genuine person and tendering false assurances, he started demanding for payments of money from her to the tune of ₹ 31,88,500/- and subsequently, the complainant came to know that the accused was already married for almost ten years and has a child ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the judgment of the Apex Court in the case of K.D. Sharma v. Steel Authority of India and Others reported in (2008) 12 SCC 481, wherein it is held that suppression of facts is not an advocacy. 10. The accused herein deliberately suppressed the material facts regarding the pending criminal cases. Hence, it is a fit case to exercise powers under Section 439(2) of Cr.P.C. and cancel the bail granted in his favour, which is void ab initio. 11. Learned counsel appearing for the petitioner herein in his oral arguments also relied upon the judgment of the Apex Court in the case of Neeru Yadav v. State of Uttar Pradesh and Another reported in (2016) 15 SCC 422, wherein it is held that having taken note of the criminal antecedents of the accused, it is a fit case to cancel the bail. Learned counsel also brought to my notice para No. 18 of the said judgment, wherein the Apex Court has observed as hereunder:- 18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court or coming in the way of trial which he is facing. 16. This Court, considering the merits of the case and the ingredients of the offences alleged against the respondent No. 2 exercised its discretion while passing the order on bail. Hence, no circumstances are made out to invoke Section 439(2) of Cr.P.C. and cancel the bail granted to respondent No. 2. In support of the said contention, learned counsel also relied upon the judgment of this Court passed in Criminal Petition No. 1364/2019. Referring to the said judgment, learned counsel would submit that, in order to invoke Section 439(2) of Cr.P.C., there must be a breach or violation of the conditions of the bail granted by this Court. It is observed in the said judgment that even the material facts indicate that the accused has been granted anticipatory bail and thereafter he has appeared before the Court and he is regularly attending the Court and already many more witnesses have been examined and when there is no hurdle or misuse of the liberty granted by the accused in the said case, wherein the bail has been granted, merely because some other cases have been registered and in that light if the bail is cancelled, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all the aforesaid cases, he has been enlarged on bail. 20. No doubt, the State while considering the earlier bail petition did not bring it to the notice of this Court about the pendency of several cases against this petitioner. Merely registering of several cases against respondent No. 2 is not a ground to invoke Section 439(2) of Cr.P.C. While exercising the power under Section 439 (2) of Cr.P.C., the Court has to look into the material available on record. 21. On perusal of the material placed before the Court, except listing out the cases registered against the accused, no other material is placed before the Court to show that he has been convicted for the commission of any offences in any other cases and in order to substantiate that he is a habitual offender, no material is placed before the Court. 22. It is clear from reading of the Section 439(2) that the High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. In the case on hand, there is no any allegations against respondent No. 2 that he has violated the order of bail granted in his favour except alleging that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to invoke Section 439(2) of Cr.P.C. When no such circumstances have been made out in the case on hand, this Court is not inclined to exercise powers conferred under Section 439(2) of Cr.P.C. 25. Having considered the material available on record and the grounds urged in the petition, in the absence of any material to show that he has violated the order of the Court or coming in the way of the trial and when this Court has considered the bail petition on merits, as observed in para No. 8 of the order, the question of canceling the bail does not arise at all. In the absence of any cogent material on record, the liberty of any person as envisaged under Article 21 of the Constitution of India cannot be curtailed on the mere ground of number of cases being pending against him. It is settled law that Section 439(2) of Cr.P.C. has to be invoked in exceptional cases when it causes miscarriage of justice, if it is not invoked and the same has to be exercised sparingly and not mere asking of the cancellation of bail. Hence, I do not find any merits in the petition to exercise powers conferred under Section 439(2) of Cr.P.C. and cancel the bail which was granted by this Court vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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