TaxTMI 
TaxTMI 
2011 (3) TMI 742
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....rime. Thereafter, the respondent-Union of India moved an application for cancellation of bail of the petitioner under Section 439(2) of the Code of Criminal Procedure mainly on the ground that the petitioner has been found to be in constant touch with co-accused Vishnu Kant Sharma on mobile telephone which was suppressed by the petitioner from the department. Accordingly, it is stated that the petitioner did not cooperate in the investigation by way of misleading the Officer not disclosing about his conversation with co-accused Vishnu Kant Sharma. It is further stated that co-accused Mr. Sharma submitted that he had not entered into an agreement with the petitioner; rather the petitioner had got his signature on blank papers which have been fabricated in the form of agreement. 4. The learned Sessions Judge, Lucknow after considering the aforesaid facts as well as the statement of co-accused Vishnu Kant Sharma has observed that the documents alleged as agreement entered into between the petitioner and co-accused Vishnu Kant Sharma appear to be forged as he failed to produce the original copy of the same, therefore, he cancelled the bail of the petitioner. 5. Mr. Arun Sin....
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.... by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time frame. The deeming fiction of correlating the release on bail under sub-section (2) of Section 167 with Chapter XXXIII i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh v. State of Bihar2 the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 43....
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....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-bailable case in the first instance and the cancellation of bail already granted. 7. Since the learned Sessions Judge has taken note of statement of co-accused Vishnu Kant Sharma in cancelling the petitioner's bail, the learned counsel for the petitioner further submits that in the case of Mohtesham Mohd. Ismail v Spl. Director, Enforcement Directorate, reported in 2007 (220) E.L.T. 3 (S.C) = 2009 (13) S.T.R. 433 (S.C.), the Hon'ble Supreme Court has held that the confession of co-accused cannot be treated as substantive evidence. The court must seek corroboration of purported confession from independent sources. The relevant paragraphs 15 and 16 are reproduced hereunder :- "15. Apart therefrom the High Court was bound to ....
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....r other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure (5 of 1908) shall be applicable to requisitions for attendance under this section. (3) Every such inquiry as aforesaid shall be deemed to be a "judicial proceedings" within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)." 10. He further submits that the statement made before the Customs Officials is a material piece of evidence and the statement of a person made for another person which inculpates not only himself but also another person can be used as substantive evidence against that another person. In suppo....
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....ecuring some unfair or undeserved benefit by taking undue advantage of another In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants. 29. The Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party". 13. Upon perusal of the record, I find that it is not in dispute that the house in question in which the said objectionable factory was running, belongs to the petitioner as he is owner of the said house. The said factory i.e. for manufacturing the Pan Masala/Gutkha was running without licence as neither the petitioner being owner nor Vishnu Kant Sharma (tenant) has ....