Allahabad High Court
Smt. Durgesh Nandini Minor B.C. vs State Of U.P. And Anr. on 13 March, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 22 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 8330 of 2020 Applicant :- Smt. Durgesh Nandini Minor B.C. Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Abhishek Misra,Satendra Kumar (Singh) Counsel for Opposite Party :- G.A.,Romit Seth,Varsha Sharma Hon'ble Manish Mathur,J.
Application has been filed under Section 439(2) of the Code of Criminal Procedure for cancellation of bail order dated 17.12.2019 passed in Bail Application No.8253 of 2018.
A perusal of bail order dated 17.12.2019 indicates that there was a dispute between the parties with regard to the bail applicant providing an immovable property in the nature of flat for which the informant had advanced some money which was neither returned nor the accommodation provided leading to lodging of first information report dated 23.01.2018 as Case Crime No.42 of 2018 under Sections 406, 420, 467, 468 and 471 I.P.C., Police Station Hazratganj, District Lucknow.
The order also indicates that the bail applicant had voluntarily filed an undertaking dated 10.12.2019 that the outstanding amount would be paid in three equal instalments within a period of six months into the account of informant. It was on the basis of the undertaking dated 10.12.2019 that the bail application was allowed recording submission of learned counsel for informant that the bail applicant be put to strict conditions for ensuring compliance of the undertaking.
Learned counsel for informant while pressing the application for cancellation of bail has submitted that the undertaking which forms the basis of bail order dated 17.12.2019 has been violated many times over as would be evident from a perusal of the order sheet. It is submitted that ever since January, 2021, time has been granted by the Court for ensuring compliance of the undertaking given before this court, which however has not been adhered to till date and as such the bail granted on the basis of the undertaking requires cancellation since it amounts to misleading the court.
Mr. Romit Seth, learned counsel appearing on behalf of bail applicant submits that in pursuance of directions issued by this Court, a sum of Rs.9,00,000/- was paid to the informant out of the total outstanding of Rs.20,01,000/-. It is submitted that in the meantime, the bail applicant underwent financial constraints due to which he was unable to adhere to his undertaking given before this court. It is submitted that non-adherence to the undertaking is bonafide and not deliberate and therefore, the same is required to be condoned.
Upon consideration of submissions advanced by learned counsel for the parties and perusal of the bail order dated 17.12.2019 as well as the subsequent orders passed in the present application, it is evident that initially even when notice had been issued to the bail applicant, no adequate representation was made due to which vide order dated 19.03.2021, bailable warrant was issued to the bail applicant through Chief Judicial Magistrate whereafter he put in appearance through counsel. The order sheet also indicates numerous dates on which time had been granted to bail applicant for adhering to the undertaking given by him in the bail application. However, despite passing of more than three years, the undertaking has not been followed through by the bail applicant which clearly indicates that this Court was misled into granting bail to the bail-applicant-opposite party.
Hon'ble the Supreme Court in Deepak Yadav v. State of U.P. reported in AIR 2022 SC 2514 : (2022) 8 SCC 559 has indicated conditions whereunder bail once granted can be cancelled. The relevant portion of judgment reads as under:-
30.This Court has reiterated in several instances that bail once granted, should not be cancelled in a 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 trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two-Judge Bench of this Court inDolat Ramv.State of Haryana[Dolat Ramv.State of Haryana, (1995) 1 SCC 349 : 1995 SCC (Cri) 237] laid down the grounds for cancellation of bail which are:
(i) interference or attempt to interfere with the due course of administration of justice;
(ii) evasion or attempt to evade the due course of justice;
(iii) abuse of the concession granted to the accused in any manner;
(iv) possibility of the accused absconding;
(v) likelihood of/actual misuse of bail;
(vi) likelihood of the accused tampering with the evidence or threatening witnesses.
Upon applicability of aforesaid parameters as enunciated by Hon'ble the Supreme Court, it is evident that the same applies with full rigour in the present case whereunder the aspect of bail being granted on the basis of a false undertaking by the bail applicant is evident. Even after filing of application for cancellation of bail, ample opportunity was provided to bail applicant time and again for adhering to the undertaking but the same remains unfulfilled.
Condition (vii) of bail order dated 17.12.2019 clearly stipulated that the applicant shall strictly comply with the condition of undertaking failing which the informant was granted liberty to file application for cancellation of bail. In view of circumstances indicated herein above, it is apparent that the bail applicant has not adhered to the condition of bail stipulated vide order dated 17.12.2019 thereby disentitling for the continued relief of bail.
Considering aforesaid factors, bail granted to bail applicant Asad Mehdi Rizvi by means of order dated 17.12.2019 passed in Bail Application No.8253 of 2018 stands cancelled. Office is directed to intimate the trial court concerned through District & Sessions Judge, Lucknow with regard to passing of this order and for taking appropriate steps in pursuance thereof.
The application as such stands allowed.
The trial court is also directed to expedite the trial in the case bearing Case Crime No.42 of 2018 under Sections 406, 420, 467, 468 and 471 I.P.C., Police Station Hazratganj, District Lucknow.
Order Date :- 13.3.2023 kvg/-