Applications seeking cancellation of Kanhaiya Kumar’s bail, dismissed

Delhi High Court: Deciding the applications moved by the petitioners in their individual capacity praying for the cancellation of interim bail granted to Kanhaiya Kumar on March 2, 2016, on the ground of breach of the conditions of bail,  the Court observed that the Code of Criminal Procedure, 1973 envisages or confers the right to move an application for cancellation of bail only by the investigating agency or by the complainant. As per Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 and  A.R. Antulay v. Ramdas Shrinivas Nayak, (1984) 2 SCC 500, a stranger can move the application to put the law into motion by the competent authority i.e. the prosecution. Any application moved by a stranger should be on the basis of a substantial set of facts and on sound basis of law and without the same, the application should not be entertained by the court.

The Court observed that  “As per the Code of Criminal Procedure set up, the criminal proceedings are between the State and the accused or between the complainant and the accused. A stranger does not have any access to the proceedings particularly when the investigation is already in progress to prepare the report to submit the same before the court. The investigation cannot be interfered with or intervened in any manner by any stranger and the Investigating Officer is to take decisions regarding the conduct of the investigation and the accused as provided by CrPC.”

The Court held that the petitioners’ contention that the speeches made by the respondent-accused subsequent to the grant of bail are anti- national and violative to the conditions of bail, do not find any substance on the file. The alleged speeches have been noticed by the petitioners from the television or newspapers, who have no personal knowledge of the speeches so made and contents thereof. Even the petitioners are not aware whether these speeches were declared anti-national by any court of law or whether such speeches are the subject-matter of any prosecution before any court of law. Alleging the speeches as anti-national is the personal perception of the petitioners and nothing has been brought forth to establish that such speeches were actually made or that the same were declared anti-national by any court of law.

The Court observed that at no point of time did the State/Government of NCT of Delhi seek the cancellation of bail. In pursuance of the court’s notice,  on August 9, 2016, the Standing Counsel (Criminal)  on the instructions of the Investigating Officer categorically stated that the “State (Police) is not for cancellation of bail”. The prosecution did not wish to enter into the question whether any such speech made was violative to the condition of bail and instead wished to continue with the investigation smoothly without any hindrance and was of the categorical stand that bail need not be cancelled.

Dismissing the applications, the Court categorically observed that “investigation is the prerogative and domain of the Investigating Officer and no other person is allowed to intervene in the same. The Investigating Officer is to ensure that his investigation is moving smoothly without any interference or obstruction caused by the accused. So, as per the principle laid down in Dolat Ram v. State of Haryana, (1995) 1 SCC 349, the Investigating Officer is the only appropriate person to move the application for cancellation of bail through the State, if need arises. In the present case, no hindrance or obstruction has been brought forth by any of the parties, rather it is the specific case of the petitioners that they are seeking cancellation of bail solely on account of the alleged violation of the conditions imposed in the bail order dated March 2, 2016.”

The Court laid down the principles as follows:

  • The Investigating Officer is to take decision seeking cancellation of bail and the grounds thereof on the basis of material collected during investigation.
  • Section 439(2) CrPC does not envisage any right upon any stranger to approach the court for cancellation of bail, a right which has been conferred only on the Investigating Officer or under exceptional circumstances to the complainant.
  • Application of a stranger cannot be entertained by the court without any substantial set of facts and circumstances or without sound principle of law to call upon the accused for cancellation of bail who has been protected under Article 21 of the Constitution except the authority empowered under the Code of Criminal Procedure.

[Prashant Kumar Umrao  v.  State, 2016 SCC OnLine Del 4472, decided on August 11, 2016]

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