The present appeal, by Special Leave, is directed against the order dated, 1st October, 2012 passed by the High Court, whereby the learned Single Judge, in exercise of the jurisdiction under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 has set aside the order dated passed by the learned Additional Sessions Judge, Saket Courts, Delhi, who had granted the benefit of anticipatory bail to the appellants in FIR no. AA instituted for the offence punishable under Section 420 IPC, registered at Police Station, Defence Colony, New Delhi. The factual matrix that is required to be exposited for the purpose of disposal of the present appeal is that the 2nd respondent filed an FIR against the present appellants alleging that both of them had conspired against him and in furtherance of the said conspiracy, they had subjected him to cheating, criminal breach of trust and have misappropriated the money. As alleged in the FIR, the appellants allured the said respondent to buy a property situated at Lodhi Road, New Delhi, for which he paid an advance of Rs. 1 crore. As the narration would unfurl, it was apprised by the appellants that the property comprising entire basement floor and entire ground floor with one servant and impartible share of ownership rights in the land underneath would be sold to him and he will be delivered vacant peaceful physical possession. There are series of other allegations which would show that on the basis of oral agreement, certain amount was paid and on 30th April, 2013, an agreement to sell was duly executed between the parties. It is also the case of the informant that remaining part of the amount i.e. Rs. 4 crores was to be paid to the accused persons at the time of registration of the sale deed on or before 26th September, 2011. As the allegations proceed, after receipt of the amount, the appellants disputed the amount and delayed the execution of the sale deed. On an inquiry being made, the 2nd respondent came to know that the appellants had entered into an agreement to sell the said property to a third person. That was the foundation to lodge the FIR. After the lodgement of the FIR, the appellants moved an application under Section 438 Cr.P.C. for grant of anticipatory bail. The Appeal was dismissed by the learned Additional Sessions Judge, South East, Saket Courts, New Delhi vide order dated 25th March, 2012. Thereafter, the appellants after expiry of three weeks filed second application under Section 438 Cr.P.C. which came to be considered by the learned Additional Sessions Judge-2, South East, New Delhi, who allowed the same by the impugned order dated 10th March, 2012. The aforesaid order was assailed before the High Court on two grounds, first the accused persons had misrepresented the facts and that there was no change in the circumstances; and second, the application for grant of anticipatory bail could not have been entered by the learned Additional Sessions Judge-4, for the first application was rejected by the learned Additional Sessions Judge-6, South East Saket. The High Court referred to certain decisions with regard to the parameters for grant of anticipatory bail, absence of change of circumstances, conduct of the accused persons in the manner in which they had executed the agreement for sale, the need for custodial interrogation and the impropriety in view of the fact that another court had entertained the application for consideration despite the fact that the first application was earlier rejected by another court and analyzing these aspects, set aside the order for grant of bail. It is necessary to state here that the High Court has drawn a distinction between an order passed which is perverse in nature inviting the wrath of impropriety and a cancelling order of bail due to supervising circumstances after the grant of bail. We have heard the leaned senior counsel for the appellants, learned A.S.G. for the State of N.C.T. of Delhi and the learned counsel for the informant, the 2nd respondent. On a perusal of the order passed by the High Court, we find that it has felt disturbed that the second application under Section 438 Cr.P.C. was allowed by another Additional Sessions Judge who had not dealt with the first application. It has opined that the second Judge could not have entertained the bail application especially when the earlier Judge was available. To elaborate, the Additional Sessions Judge who has dealt with the matter on the first occasion, had neither been transferred from the said court, nor had he become incapacitated to come to court. (800)
