Judgment & Order (CAV):

1. Heard Sri Manish Kumar Agarwal, the petitioner in person. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State and Mr. K.M. Hasan, learned counsel for the respondent No. 2.

2. Invoking the provisions of Section 439 (2) CrPC (as it existed then), the petitioner is seeking cancellation of order dated 06.10.2020 passed by this Court in AB/2355/2019, whereby the respondent No.2, Tagung Neri Tallo, was granted anticipatory bail in connection with Dibrugarh P.S. Case No. 442/2018(GR No. 1002/2018) – which was registered based on a complaint on behalf of the petitioner. For the purpose of the present adjudication, it is not really necessary to go into the details of the said case. However, by way of background facts, it may be mentioned that the complaint before police was lodged with the allegations that one Tagung Neri had entered into an agreement with the mother of the petitioner for hiring excavators on a monthly rent, but not only the rent was not paid, but the excavators were misappropriated and sold off. The respondent No. 2 was also stated to be one of the accused involved in the alleged offences of misappropriating the excavators.

3. During the investigation of the aforesaid Dibrugarh P.S. Case 442/2018, the respondent No. 2 preferred an anticipatory bail before this Court – being AB No. 2355/2019, which was allowed vide order dated 06.10.2020 with the observations that, the dispute is a civil one and that, there are no sufficient materials to justify detention of the petitioner in judicial custody.

4. The petitioner has contended that, as part of the bail application, the respondent No. 2 had annexed a copy of a purported Equipment Rental Agreement dated 20.10.2017 entered into between him and petitioner which was allegedly fake. The petitioner has contended that the said agreement was a fake agreement and he had not entered into any such agreement.

5. On this aspect, the petitioner lodged a complaint before the Latasil police station alleging that with the help of this fraudulent document, the respondent No. 2 had misled this Court and secured a bail order. The complaint was registered into Latasil P.S. Case No. 326/2019 under Sections 120B/420/406/193 IPC. After completion of investigation, the I/O in the Latasil P.S. Case No. 326 of 2019 submitted charge-sheet vide C.S. No. 14 of 2023 dated 20.04.2023 in which the respondent No. 2 was the sole accused sent up for trial.

6. In the charge-sheet, it is revealed that one photocopy of the Equipment Rental Agreement, specimen handwriting and signatures of Manish Agarwal and one photocopy of application of Manish Agarwal along with specimen handwriting and signature of Tagum Neri Tallo, the respondent No. 2 was sent to the forensic laboratory of Assam for examination and furnishing of opinion. It is further stated in the charge-sheet that as per the examination report, the photocopy of the application of Manish Agarwal addressed to the Special DGP and the specimen handwriting and signatures of Manish Agarwal are the same, but there is no opinion in respect of the questioned document, which is a photocopy of the Equipment Rental Agreement. However, it is further stated in the charge-sheet that on physical appearance of the purported Equipment Rental Agreement submitted before this Court in the anticipatory bail application preferred by the respondent No. 2 –, the signatures of the petitioner Manish Agarwal in the Equipment Rental Agreement is not similar with his specimen signature. The I/O came to the opinion that the Equipment Rental Agreement was manufactured and forged and therefore, the charge-sheet was submitted against the respondent No. 2 Tagum Neri @ Tagum Neri Talo under section 468/471 IPC.

7. In the order dated 06-10-2020 passed by this Court in AB No. 2355 of 2019, the Court has opined that the dispute appears to be a civil dispute and that the materials do not indicate that the custodial detention of the respondent No. 2 as the bail petitioner was necessary. Accordingly, he was granted bail.

8. The learned counsel for the respondent No.2 submits that there was no infirmity in the order granting bail to him wherein this Court had also observed about the dispute being a civil dispute arising out of business transaction. It is submitted that the court rightly held that custodial detention may not be necessary and was accordingly pleased to grant him bail. It is submitted that the present petition seeking cancellation of the bail is unwarranted and should be dismissed.

9. Before proceedings further, the provisions of Section 439(2) CrPC may be reproduced herein below –

                   439. Special powers of High Court or Court of Session regarding bail.

                   439(2) – A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

The corresponding provision in BNSS is Section 483(3), which may be reproduced herein below :-

                   483. Special powers of High Court or Court of Session regarding bail.-(1) A High Court or Court of Session may direct -

                   3) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

10. Thus, the statute does not lay down the grounds for cancellation of bail and the said subject matter has developed by way of case laws laid down by the Hon’ble Supreme Court and the High Courts. In terms of these principles, the common grounds for bail cancellation are generally held to be misusing the liberty, threatening witnesses, intimidating or trying to influence witnesses or the victim side, violating conditions of bail etc.

11. It is well settled by now that an order of granting bail which suffers from material irregularity, gross error or is perverse can be interfered with by a higher forum. Since an order of granting or refusing bail is generally considered to be an interlocutory order, therefore, such interference with a grossly erroneous bail order is usually made in exercise of inherent jurisdiction under Section 482 CrPC and now Section 528 BNSS.

12. For the purpose of the present adjudication, the petitioner is seeking cancellation of a bail order granted by this very court and not invoking, the inherent powers which in any case may not lie as the bail order was passed by a coordinate bench. Therefore, the question for the present adjudication is to whether a bail can be cancelled under section 439-(2) Cr.P.C as sought for by the petitioner on the ground of playing fraud upon the Court.

13. It is well settled that fraud vitiates everything and anything obtained by fraud suffers from infirmity striking at the very roots. In this regard, reference may be made to the decision of Hon’ble Supreme Court in A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221 and the relevant paragraphs gainfully reproduced here:-

                   “21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:

                   “Fraud avoids all judicial acts, ecclesiastical or temporal.”

                   22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non-est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court— has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

                   39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior.”

14. In the case of Dolat Ram & Ors. Vs. State of Haryana, reported in (1995) 1 SCC 349, the Hon’ble Supreme Court dealt into the distinction into the rejection of bail and cancellation para 4 may be reproduced below –

                   “4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-b bailable case in the first instance and the cancellation of bail already granted.”

15. Similarly, in the case of Ashok Dhankad vs. State of NCT of Delhi & Anr. reported in 2025 INSC 974, this distinction was given into para 14 thereof may be reproduced herein below –

                   ”14. At the outset, we must clarify that setting aside an order granting bail and cancellation of bail are two distinct concepts. While the former contemplates the correctness of the order itself, the latter pertains to the conduct of the Accused subsequent to the order granting bail. Judicial pronouncements of this Court have time and again reiterated this position.”

16. In the case of Abdul Basit @ Raju & Ors. Vs. Mohd. Abdul Kadir Chaudhary, reported in (2014) 10 SCC 754, the Court discussing the distinction between cancellation of bail and interference of the bail order with merits. Para 19 thereof may reproduced herein below –

                   “19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after 9 the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.”

17. In the case of Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr. reported in (2005) 4 SCC 370, it has been held that if an offence with regard to the documents submitted before the court prior to its production or giving in evidence in court, no complaint by court would be necessary and a private complaint would be maintainable. Para 10 and 33 thereof may be reproduced herein below –

                   ”10. The scheme of the statutory provision may now be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is - "Of Contempts of the Lawful Authority of Public Servants". These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as "Of False Evidence and Offences Against Public Justice". The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court.

33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodial legis.”

18. From the charge-sheet, it is revealed that the I/O opined on the basis of physical appearance that the signature of the petitioner in the purported Equipment Rental Agreement is different from his specimen signature. However, the I/O has clearly stated in the narration of the charge-sheet that forensic opinion regarding the questioned document i.e. the purported Equipment Rental Agreement was not there. It is undoubtedly true that fraud vitiates everything and there might be justification in cancelling a bail order which was secured by playing fraud on the Court. However, in the instant case, the conclusion of the I/O regarding the purported Equipment Rental Agreement being forced was based more on the physical comparison of the signature after indicating that the forensic opinion regarding the same was not available. Therefore, it appears that the veracity of the purported signature of the petitioner and as to whether the purported Equipment Rental Agreement was indeed fake would be a matter of determination during trial, if any, on the basis of evidence. Though charge- sheet has been filed, but in view of the inconclusive forensic opinion at this stage, the question of whether the purported agreement is a fake one, perhaps remains an open question.

19. Cancellation of bail is undoubtedly a strong measure and should not be resorted to easily and that bail should be cancelled only when there are cogent reasons for doing so, one of which could be definite materials about fraud on the Court.

20. In the given facts and circumstances of this case and in the backdrop of the above discussion - I come to the considered opinion that it would not be justified to cancel the bail granted by this Court earlier to the petitioner.

21. In such view of the matter, the interlocutory application filed under section 439(2) Cr.P.C is found to be devoid of merits and is accordingly dismissed and disposed of.