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) Cr.P.C (as it existed then), the petitioner is seeking cancellation of order dated 14-10-2019 passed by this Court in AB/3239/2019, whereby the respondent No.2, Manoj Kumar Bora, 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 offenses of misappropriating the excavators.

3. During the investigation of the aforesaid Dibrugarh P.S. Case 442/2018, the respondent No. 2 received notice whereupon he preferred an anticipatory bail before this Court – being AB No. 2070/2019, which was rejected by the order dated 19-08-2019 with the observations that, as per the materials, he was found to have received one excavator. Subsequently, the respondent No. 2 preferred another anticipatory bail application before this Court – being AB No. 3239 of 2019.

4. It is the case of the petitioner that one of the contentions in the subsequent petition was that he was a bona fide purchaser of one of the excavators prior to the lodging of the FIR and that said aspect had mistakenly not been placed before the Court during the adjudication of the first appeal application. The petitioner has annexed a copy of the bail order filed in AB No. 3239/2019 and drawn attention to a para, which may be reproduced herein below –

                   “It appears from the materials in the case diary that the petitioner purchased the excavator, involved in this case, from one Karken Ngomdir at Rs.35 Lakhs. The excavator has already been recovered during investigation. The petitioner, at best be said to have received the stolen property, attracting, prima facie, Section 411 of the IPC.”

5. The petitioner has contended that, as part of the bail application, the respondent No. 2 has annexed a copy of a purported agreement dated 19-08- 2017 entered into between him and one Karken Ngomdir of Pasighat, Arunachal Pradesh, whereby he had purchased one excavator L&T Komats EX-200 hydraulic excavator for Rs.35,00,000/-. The petitioner has contended that the said agreement was a fake agreement as an agreement to sell the said excavator was between his mother and the said person.

6. 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 PS case No. 78 of 2021 under section 120B/420/406/193 IPC. After completion of investigation, the I/O in the Latasil PS case No. 78 of 2021 submitted charge-sheet vide C.S. No. 130 of 2023 dated 21-11-2023 in which the respondent No. 2 was the sole accused sent up for trial.

7. The petitioner in person submits that the purported agreement shown by the respondent No.2 in his bail petition is a fraudulent document and therefore, he misled the court into granting him bail in that bail petition. It is submitted that any order of the Court obtained by misrepresentation and playing fraud is liable to be set aside and therefore, he seeks cancellation of the bail order in question. The petitioner submits that the criminal prosecution launched at his behest in the Latasil police case with regard to the fraudulent document having culminated in a charge-sheet – has clearly shown about the document submitted by the respondent No. 2 in the bail petition as fraudulent.

8. From the narration of the charge-sheet, it is revealed that the original agreement in respect of the same excavator having a serial number was seized from the respondent No. 2 and his specimen signature was also collected and sent for forensic examination for comparison with the purported agreement for sale. It is revealed from the charge-sheet that the said agreement stated that the physical possession of the excavator bearing serial No. KUTB048TNL1C797 was already handed over to the purchaser i.e. respondent No. 2 along with the vehicle and original papers. However, during the investigation, it was found that the original documents of the vehicle were with the present petitioner/informant and the same was seized in connection with the Latasil case, upon being produced by the petitioner/informant. The specimen handwriting/signature of respondent No. 2 Manoj Kumar Bora was sent to the forensic for comparison with the signature in the purported sale agreement and the Scientific Officer (Question Documents Division) of the FSL returned the opinion that the specimen signature of Manoj Kumar Bora matched with the signature in the purported agreement of sale.

9. The I/O after completion of investigation came to the conclusion that the respondent No. 2 Manoj Kumar Bora had submitted a fraudulent deed of agreement for sale before this Court while filing AB/3239/2019 arising out of Dibrugarh P.S. Case No. 442 of 2018.

10. In the order dated 14-10-2019 passed by this Court in the said AB/3239/2019, it is clearly revealed that this Court referred to the said aspect of the purported sale/purchase by respondent No. 2 and went ahead to allow the subsequent bail application, granting pre-arrest bail to the respondent No. 2. The corresponding PRC No. of Latasil case is stated to be PRC No. 1011 of 2024.

11. On the other hand, the learned counsel for the respondent No. 2 submits that there is no infirmity in the bail order and certain facts which could not be briefed to the counsel at that time were done so at the time of filing the subsequent bail application and that the subsequent bail was rightly allowed in favour of the respondent No. 2 after the Court was appraised of the situation regarding purchase of the excavator by the respondent No. 2.

12. Before proceeding 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.

13. Thus, 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.

14. 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.

15. 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) CrPC as sought for by the petitioner on the ground of playing fraud upon the court.

16. In the case of Dolat Ram & Ors. Vs. State of Haryana , reported in (1995) 1 SCC 349, the Hon’ble Supreme Court delved into the distinction between 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.”

17. Similarly, in the case of Ashok Dhankad vs. State of NCT of Delhi & Anr. reported in 2025 INSC 974, this distinction was gone 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.”

18. In the case of Abdul Basit @ Raju & Ors. Vs. Mohd. Abdul Kadir Chaudhary, reported in (2014) 10 SCC 754, the Court discussed the distinction between cancellation of bail and interference of the bail order on 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.”

19. 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 a document is committed 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 custodia legis.”

20. Coming back to the facts of the instant case, investigation into Latasil P.S. case No. 78 of 20 alleging securing of bail order from this court by using fraudulent document - resulted in a charge-sheet wherein the IO on the basis of investigation, including a forensic report - has recorded a clear finding that the document in question was fraudulent. The purported purchase of the excavator by the respondent, on the basis of such an agreement, which was actually fraudulent, was relied upon by this court and must have been a governing factor in granting or in allowing the bail by accepting the subsequent bail application.

21. If this was not so, perhaps the court might have taken a different view. Therefore, on the basis of the materials, it is clearly revealed that order dated 14-10-2019 passed by this court in AB No. 3239 of 2019 was obtained by respondent No. 2 by projecting a document, which was prima facie a fake and fraudulent, as revealed by the outcome of investigation in Latasil P.S. Case No. 78 of 2021.

22. It is well settled that fraud vitiates everything and anything obtained by fraud suffers from infirmity striking at the very roots.

23. On the issue of cancelling a bail on the ground of fraud, a reference may be made to the following decision of the Hon’ble Supreme Courtand the relevant paragraphs gainfully reproduced herein below:-

                   A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221 it was held that in (para-21, 22 and 39),

                   “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.”

24. In the given facts and circumstances, on the touchstone of the principles of law noticed and in the backdrop of the above discussion – I come to the considered opinion that any bail order obtained by a litigant by playing fraud with the court would be a vitiated one, striking at the roots and the court in exercise of powers of bail cancellation under section 439(2) Cr.P.C {Section 483(3) BNSS} would be within its rights to cancel such a fraudulently secured bail order.

25. Resultantly, in such view of the matter, the anticipatory bail granted to the respondent No. 2, Manoj Kumar Bora by the order dated 14-10-2019 in AB No. 3239 of 2019 passed by this court is hereby cancelled. A copy of this order shall be sent to the learned court below and also to the I/O of Latasil P.S. Case No. 78 of 2021.

26. The I/A stands allowed and disposed of.