12. Apart from the above, it is also important to note the legal principles governing this case. We make it clear that this case is not an appeal seeking cancellation of bail in any sense rather, this case calls for the legal sustainability of the impugned order granting bail to the accused-respondent herein. The difference between the cancellation of the bail and a legal challenge to an order granting bail for non-consideration of material available on record is a settled proposition. To clarify, there is no ground pleaded herein that a supervening event breaching bail conditions is raised. [refer State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189].
13. Having cleared this confusion, we may clarify, though seriously urged by the counsel appearing on behalf of the respondent no. 1, that there is no warrant for cancellation of bail as there has been no breach of bail condition, yet such submission is not countenanced under the law.
14. For all the aforesaid reasons, the appeal is allowed. We, therefore, set aside the order of the High Court granting bail to the respondent no. 1 and direct the concerned police authorities to take the respondent no. 1 into custody immediately.
High courts cannot direct or give mandatory orders to the subordinate courts to grant or not grant bail
25. It is unfortunate to note that the order of the High Court on the first instance clearly points out that it has virtually directed the course of action to be undertaken by the subordinate court. It is not expected from the High Court to pass such mandatory orders commanding the subordinate court to compulsorily grant bail. Recently, this court on similar facts in Madan Mohan v. State of Rajasthan [Criminal Appeal No. 2178 of 2017] , has laid down that courts cannot issue mandatory directions which breach the independence of subordinate courts. Therefore, such circuitous method undertaken by the respondent in obtaining a bail is a gross abuse of the court process undertaken in bad faith. Moreover, our attention is drawn to the fact that he was declared as a proclaimed offender before the grant of bail, which was not taken into consideration by the High Court. In light of the above, we allow the appeal, set aside the order of the High Court and direct the concerned authorities to take the respondent no. 1 herein into custody forthwith.
PARTY:
LACHHMAN DASS vs. RESHAM CHAND KALER and anr – Criminal Appeal No.161 of 2018 (Arising out of SLP (Crl.) No. 3168/2017) – JANUARY 23, 2018.
Lachhman dass vs Resham Chand Kaler9758_2017_Judgement_23-Jan-2018
Author’s note
- Breaching bail conditions leads to cancellation of bail [order will be cancelling the bail]; and
- Granting bail without considering the material available on records leads to appeal against bail granted [order will be setting aside the order granting bail].
