Bail Cancellation Plea in High Court Has to Be Listed Before Same Judge Who Granted Bail – Supreme Court

In the Matters of: -

Himanshu Sharma Vs. State of Madhya Pradesh, SLP(Crl.) No(s). 786 of 2024.

Background of the Case

The instant appeal was filed before the Hon’ble Supreme Court against the order dated, 12^th December, 2023 passed by the learned single judge of High court of Madhya Pradesh Bench at Gwalior pertaining to Miscellaneous Criminal Case No. 43154 of 2023 and 43149 of 2023, whereby the bail granted to the appellants was revoked upon the applications filed by the State under Section 439(2) of Code of Criminal   Procedure, 1973 (hereinafter   being   referred   to   as ‘CrPC’).

The appellants were arrested in connection with the FIR being Crime No. 21/2022 registered at P.S. Dinara District, Shivpuri for offences punishable under Sections 419, 420, 467, 468, 470 and 471 of the Indian Penal Code, 1960 (hereinafter being referred to as ‘IPC’) and Section 25 & 27 of the Arms Act.

The Gwalior Bench of the High Court of Madhya Pradesh, through a learned Single Judge, had initially granted bail to the appellants vide order dated, September 8, 2022 and November 14, 2022. It was argued that the appellants were not named or apprehended at the FIR registration, being implicated based solely on co-accused confessional statements. The bail was granted before the charge sheet was filed. Subsequently, the State filed application under section 439(2) CrPC for the bail’s cancellation.

Remarkably, the bail cancellation applications were heard by the different Single Judge in the Gwalior Bench (distinct from the one who granted bail), who accepted the same vide impugned order dated, December 12, 2023. The decision was based on the collective challenging role of the accused, emphasizing wider implications for the national security and cybercrime.

Appellant – Himanshu Sharma

Respondent – State of Madhya Pradesh 

Madhya Pradesh High Court Bench at Gwalior Observations:

Hon’ble High Court referred the case of Abdul Basit @ Raju   and   Others   v.   Mohd.   Abdul   Kadir   Chaudhary   and Another (2014)10 SCC 754, revoked the bail granted to the appellants by the parallel Single Bench of the Madhya Pradesh High Court Gwalior Bench. Same was justified on the following grounds:

1. Police is required to undergo further investigation. Therefore, in the considered opinion of this Court, bail application is required to be recalled and present accused is required to go in custody again.
2. So far as judgment relied upon, the judgment of Abdul Basit (supra) itself states that, if new adverse facts come to the knowledge of the Court, then Court can certainly look into it for cancellation of bail.
3. In the cumulative analysis, the State Government’s application for bail cancellation was granted. The respondent/accused was instructed to surrender within fifteen (15) days from the date of order. Failure to do so would empower the court to secure his presence in accordance with the law.

Supreme Court Observation:

Justices B.R. Gavai and Sandeep Mehta of the Supreme Court, having considered the submissions from counsel and reviewing the orders of December 12, 2023, as well as the bail grants on September 8, 2022, and September 14, 2022, firmly believe that the High Court of Madhya Pradesh's Single Judge's decision to cancel the appellants' bail, after scrutinizing the merits of the allegations, was unwarranted and amounted to judicial impropriety. It was noted that the application for bail cancellation was presented to a Single Judge other than the one who initially granted bail, deviating from the standard practice of placing such applications before the same judge.

In usual circumstances, an application for bail cancellation based on merits, rather than a violation of bail conditions, should have been brought before the original Single Judge who granted bail to the accused. Therefore, the Supreme Court concludes that the impugned orders of December 12, 2023, cancelling the bail granted on September 8, 2022, and September 14, 2022, are substantially illegal and lack justification. Consequently, these orders are set aside.

Sources - Court Order :

1. https://main.sci.gov.in/supremecourt/2024/1873/1873_2024_3_23_50632_Judgement_20-Feb-2024.pdf