Suppressed 26 criminal cases and earlier bail plea: Patna High Court cancels anticipatory bail after six years

The petitioner-informant filed an application under Section 439(2) of the Code of Criminal Procedure, 1973, seeking cancellation of the anticipatory bail granted to opposite party no. 2, Awadhesh Mahto, in Nawada P.S. Case No. 149 of 2020, registered under Sections 279, 337, 338, 323 and 302 read with Section 34 of the Indian Penal Code.

The prosecution alleged that the informant’s sister, an elected Panchayat Samiti member, was struck from behind by a Scorpio vehicle and thereafter assaulted on the head with an iron rod by Awadhesh Mahto, resulting in her death.

Awadhesh Mahto had earlier filed anticipatory bail petition A.B.P. No. 773 of 2020, which was withdrawn on 11 September 2020. However, during the pendency of that petition, he filed A.B.P. No. 937 of 2020 and asserted that it was his first bail petition and that he had not previously sought bail.

The latter petition was allowed on 15 October 2020, substantially on the reasoning that the incident appeared to be an accident caused by a white Bolero rather than the Scorpio allegedly connected with the accused.

The petitioner alleged that the accused had suppressed both his earlier bail proceeding and his extensive criminal antecedents, comprising approximately 26 cases, including cases under Sections 307 and 364 of the IPC and the Arms Act.

The State did not dispute that these matters had not been disclosed to the court below.

1. Whether an anticipatory bail order obtained by suppressing an earlier bail application and the accused’s criminal antecedents can be annulled under Section 439(2) CrPC without proof of subsequent misuse of bail or supervening circumstances?

2. Whether the anticipatory bail order was otherwise illegal, perverse or vitiated by non-application of judicial mind because the court below ignored material antecedents and undertook an impermissible, detailed appreciation of the defence at the stage of bail?

3. Whether the passage of nearly six years after the grant of anticipatory bail prevented its cancellation?

Section 439(2) CrPC empowers the High Court to cancel bail, including anticipatory bail granted under Section 438 CrPC.

The court distinguished ordinary cancellation of bail for supervening circumstances or post-release misconduct, governed by the stringent standard in Dolat Ram v. State of Haryana, from annulment of a bail order that was illegal, perverse, passed on irrelevant considerations, or obtained by suppression of material facts.

Relying on Puran v. Rambilas, Neeru Yadav v. State of U.P., Deepak Yadav v. State of U.P., Ajwar v. Waseem, and State of Karnataka v. Sri Darshan, the court held that an unjustified or perverse bail order may be set aside even without subsequent misconduct.

Under Himanshu Sharma v. State of Madhya Pradesh, A.V. Papayya Sastry v. Government of A.P., Kusha Duruka v. State of Odisha, Zeba Khan, Kaushal Singh, and Mohd. Rustam @ Minu v. State of Bihar, suppression or misrepresentation of material facts, including prior bail proceedings and criminal antecedents, constitutes fraud upon the court and renders the resulting order a nullity.

A bail applicant has a continuing duty of candour, and this obligation does not depend upon the existence of a specific practice direction or office objection.

The court found that the suppression of the earlier bail petition was established by the record: A.B.P. No. 937 of 2020 was filed on 24 August 2020 while A.B.P. No. 773 of 2020 was still pending, yet the later petition falsely described itself as the first bail petition.

The subsequent withdrawal of the earlier petition on 11 September 2020 could not retrospectively cure the false disclosure made at the time of filing.

The accused also failed to disclose any criminal antecedent, despite the existence of numerous serious cases, and the bail order contained no consideration of that record.

The court held that the accused’s antecedents were a material consideration under Section 438 CrPC and that the suppression deprived the court below of the opportunity to properly exercise its discretion.

Independently, the bail order was held perverse because the court below conducted a roving assessment of witness statements, vehicle inspection reports and the defence theory, effectively concluding that the occurrence was an accident caused by another vehicle.

Such final-style evaluation was impermissible at the bail stage, where only a prima facie assessment was required.

The inconsistent treatment of the co-accused—whose anticipatory bail was rejected for the seriousness of the same offence, while the principal named accused was granted bail—further demonstrated the flawed approach.

The fact that the accused had enjoyed anticipatory bail for nearly six years, and that no subsequent misuse was alleged, did not validate an order found to be fraudulent and legally unsustainable from its inception.

His anticipatory bail and bail bonds were cancelled, and he was directed to surrender before the court below within three weeks, failing which the Superintendent of Police, Nawada, was directed to secure his custody in accordance with law.

The court clarified that, upon surrender, any regular bail application would be considered independently on its merits after full disclosure of the accused’s antecedents and prior bail proceedings.

The trial court was directed to conclude the trial expeditiously, without being influenced by the observations in the judgment.