PRASHANT KUMAR AGARWAL,J. - (1.) The complainant-petitioner has filed this application under Section 439 (2) with a prayer to cancel the order dated 22.4.2015 passed by the Additional Sessions Judge No.4, Jaipur Metropolitan whereby the learned Court below allowed the second application filed by the respondent-accused under Section 439 Cr.P.C. and granted benefit of bail to him in respect of FIR No.1178/2013 registered at Police Station JDA, Jaipur for the offences under Sections 420, 406 and 120B I.P.C.
(2.) Brief relevant facts for the disposal of this application are that FIR No.1178/2013 came to be registered at Police Station JDA, Jaipur on 28.10.2013 for the aforesaid offences at the instance of petitioner against respondent and during the course of investigation respondent was arrested. With a prayer to grant bail to him respondent filed Misc.Bail Application No.53/2015 under Section 439 Cr.P.C. which was dismissed by the Additional Sessions Judge No.4, Jaipur Metropolitan, Jaipur on merit vide a reasoned order dated 6.2.2015 after hearing counsel for the respondent as well as Additional Public Prosecutor and also counsel for the petitioner-complainant. Respondent filed S.B. Criminal Misc. Bail Application No.1776/2015 for grant of bail under Section 439 Cr.P.C. before this Court and the same was dismissed on merit by this Court by a reasoned order dated 4.3.2015 after taking into consideration the evidence collected during investigation which was produced before this Court by way of case diary and also the gravity of the offence. Thereafter, charge-sheet was filed against the respondent for the aforesaid offences in the Court concerned and respondent filed second application for grant of bail under Section 439 Cr.P.C. on 20.4.2015 and the same was allowed by the Court below vide order dated 22.4.2015. It is this order dated 22.4.2015 which has been challenged by the complainant by way of this application under Section 439 (2) Cr.P.C. with a prayer to set aside the same.
(3.) It was submitted by the learned counsel for the petitioner that after submission of the charge-sheet respondent filed second application for grant of bail under Section 439 Cr.P.C. before the Court below but this material and relevant fact was concealed that the bail application filed by the respondent under Section 439 Cr.P.C. has been dismissed by High Court on merit vide order dated 4.3.2015 and on account of concealment of this material fact only, order dated 22.4.2015 is liable to be cancelled as it is well settled legal position that an order of bail passed in ignorance or overlooking a material fact is liable to be cancelled under Section 439 (2) Cr.P.C. It was further submitted that it was the duty of the respondent and his counsel to mention in the second application the fact that the bail application filed by respondent under Section 439 Cr.P.C. has been dismissed by the High Court but in the application filed by the respondent on 20.4.2015 through his counsel it was specifically mentioned that no application for grant of bail under Section 439 Cr.P.C. has been filed before Hon'ble High Court. It was submitted that if the fact of dismissal of application for bail by the High Court would have brought to the knowledge of the Court below there was possibility that the second application filed by the respondent would not have been allowed. It was further submitted that the ground recorded by the Court below to grant benefit of bail to the respondent appears to be that after investigation charge-sheet has been filed and the trial is unlikely to be concluded within a reasonable period whereas the first application was dismissed by the same Court observing that the offences for which the accusation has been made against the respondent are very serious and grave. It was submitted that in a serious and grave case bail cannot be granted to an accused merely by the reason that after investigation charge-sheet has been filed and the trial is unlikely to be concluded within a reasonable period. It was also submitted that by mere filing of charge-sheet it cannot be said that there is substantial change in the facts and circumstances of the case rather it is indication of the fact that the allegations made in the FIR are prima facie correct. It was submitted that at the time of hearing of the second application filed by the respondent counsel for the complainant-petitioner was not present before the Court below as is clear from the fact that his name was not mentioned in the title of the order and in Para No.3 of the order it has wrongly been mentioned that counsel for the complainant was also present, who opposed the prayer made on behalf of the respondent. In the order-sheet dated 22.4.2015 also, name of counsel for the petitioner was not mentioned. It was submitted by the learned counsel for the petitioner that after the order was passed by the Court below on 22.4.2015 granting bail to the respondent and when this fact came into the knowledge of the complainant, immediately an application was filed on his behalf stating therein that the accused has deliberately concealed the fact of dismissal of his application for bail by the High Court. The application filed by the petitioner was taken on record by the Court below vide order-sheet dated 22.4.2015 at 12.15 PM. It was submitted that if the counsel for the petitioner would have present before the Court below at the time of hearing of the second application filed by the respondent this fact would have certainly been mentioned in the order-sheet drawn on the application filed by the petitioner. It was submitted that Vakalatnama/Power on behalf of the petitioner was filed by his counsel along with the aforesaid application and not in the second application filed by the respondent for grant of bail under Section 439 Cr.P.C.;