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Synopsis

The Supreme Court has on February 20, 2024 said exercise of jurisdiction by a single judge in the High Court to cancel the bail granted to accused by another single judge would amount to judicial impropriety and indiscipline.

A bench of Justices B R Gavai and Sandeep Mehta also pointed out cancellation of bail cannot be made by another judge after examining merits of the case as it amounted to virtual review.

"We fail to understand how the application seeking cancellation of bail came to be listed before a single judge other than the single judge who had granted bail to the appellants," the bench said.

The apex court quashed and set aside the order by the Madhya Pradesh High Court on December 12, 2023 cancelling the bail granted to accused appellants Himanshu Sharma and another by a separate bench on September 8 and 14, 2022, saying those were "grossly illegal and do not stand to scrutiny".

The appellants were arrested in connection with an FIR lodged under Sections Sections 419, 420, 467, 468, 470 and 471 of the IPC and Section 25/27 of the Arms Act in Shivpuri, on the basis of disclosure statements by co-accused. The charge sheets were already filed when they were granted bail by the High Court.

The state filed an application for cancellation of bail.

"Surprisingly, the applications for cancellation of bail came to be listed before Single Judge of the Gwalior Bench of High Court of Madhya Pradesh (other than the single judge who had granted bail to accused)," the bench noted.

By adverting to the merits of the case, the single judge bench, by the order on the same day, had observed that the independent role of the accused may vary but collectively their role appears to be challenging and has wider ramifications in respect of national security and cyber crime.

"The Aadhar cards and some copies recovered from the accused could be used in NDPS offences, terrorism related activities, cyber frauds, kidnapping, ransom purposes and for offences of grievous denominations," the HC had said.

After hearing the parties and going through the bail and cancellation orders, the bench said, "We are of the firm opinion that the exercise of jurisdiction by the single judge of High Court of Madhya Pradesh in cancelling the bail granted to the appellants by another single judge of the same High Court and that too, by examining the merits of the allegations was totally uncalled for and tantamounts to judicial impropriety/indiscipline."

The court also pointed out law is well settled by a catena of judgments that considerations for grant of bail and cancellation are entirely different. 

Bail granted to an accused can only be cancelled if the court is satisfied that after being released on bail, (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c ) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud, the bench said.  

"Under normal circumstances, the application for cancellation of bail filed on merits as opposed to violation of the conditions of the bail order should have been placed before the same single judge who had granted bail to the accused," the bench said.

"We feel that such exercise of jurisdiction tantamounted to gross impropriety," the bench added.

The court allowed the appeal noting the High Court even did not consider the fact that charges had been framed against the appellants and the trial had commenced after examination of seven witnesses and thus there could not have been any requirement of the appellants for further investigation.