Allahabad High Court
Udaiveer Singh vs State Of U.P. And Another on 24 April, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:72249 Court No. - 65 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 232 of 2019 Applicant :- Udaiveer Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijay Singh Sengar Counsel for Opposite Party :- G.A.,Neeraj Pandey,Rajiv Kumar Tripathi Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ajay Singh Sengar, Advocate, holding brief of Sri Vijay Singh Sengar, learned counsel for applicant, Sri Rajiv Kumar Tripathi, learned counsel for accused and Sri Rakesh Kumar Mishra, learned A.G.A. for State.
2. This is an application to cancel the bail granted to accused by this Court vide order dated 06.08.2018 in case arising out of Case Crime No.63 of 2016 under Sections 302, 120-B I.P.C., Police Station- Nadigaon, District- Jalaun.
3. This application is pending since 2019 and according to order-sheet, it was taken earlier for hearing on 11 dates, however, it was mainly adjourned in order to exchange the pleadings and for that repeatedly time was granted.
4. Learned counsel refers grounds to cancel bail granted to accused. The exact present status of trial is not on record. Learned counsel in support of his submission that it is fit case to cancel bail refers contents of paragraph No.9, 10, 11, 12, 13 of present application which are hereinafter:-
"9. That it is submitted here that the opposite party no.2 has misuse the bail granted by this Hon'ble Court and also not follow the terms and conditions of the bail and committed criminal activities regarding this Station House Officer of Police Station Nadigaon, District Jalaun has lodged an F.I.R. on 25.01.2019 against the opposite party no.2 and others regarding the incident of dated 25.01.2019 at 13.25 hours in case crime No.16/2019, under section 147,148, 149,353,307 I.P.C. at 7 Criminal Law Amendment Act, Police Station Nadigaon, District Jalaun. The true copy of F.I.R. dated 25.01.2019 lodged by Police concerned is being filed and marked as Annexure No.6 to this affidavit.
10. That thereafter again on 30.5.2019 one Laxman has lodged an F.I.R. against the Vivek Yadav and Sher Singh for an incident of dated 29.05.2019 No.141/2019, at 2000 hours inder in case section 363,366 crime I.P.C., Police Station Kotwali Konch, District Jalaun. The true copy of the F.I.B. dated 30.05.2019 is being filed and marked as Annexure No.7 to this affidavit.
11. That thereafter the statement u/s 164 Cr.P.C. has been recorded of victim Shiva Yadav in which she has disclosed the name of opposite party no.2 namely Ranu alias Ranveer Singh. The true copy of the statement u/s 164 Cr.P.C. dated 13.06.2019 of victim Shiv Yadav is being filed herewith and marked as Annexure No.8 to this affidavit.
12. That the opposite party no.2 has misused the bail granted by this Hon'ble Court and committed many crime, hence his bail is liable to be rejected.
13. That after releasing the bail the accused person/opposite party no.2 is continuously harassing the applicant and her family members for dire consequences."
5. Learned counsel further submits that accused has a long criminal history of 16 cases but he has referred only 9 cases in application filed by him for bail.
6. Per contra, learned counsel appearing on behalf of accused has refers contents of paragraph No. 4, 5, 6, 7 and 8 of counter affidavit which are reproduced hereinafter:-
"04. That, in reply of paragraph No. 9 of the affidavit, it is cleared that due to village party bandi and political enmity the O.P. No. 2, deponent herein was falsely indulged into Case Crime no. 16/2019 under Sections 147, 148, 149, 353, 307 I.P.C. and 7 Criminal Law Amendment Act, Police Station Nadi Gaon although he was not present at the time of incident, so he was granted bail by the court below vide order dated 23.10.2019 passed by the learned Session Judge, Jalaun at Orai. The true copy of the order dated 23.10. 2019 passed in the Bail Application No. 737/2019, 'Ranu @ Ranveer Singh Vs. State of U.P.' is being filed herewith and marked as Annexure C. A. No. 1 to this affidavit.
05. That, in reply of paragraph No. 10 & 11 of the affidavit, it is cleared that the deponent / O.P. No. 2 was not named in the said F.I.R. The said F.I.R. was lodged against Vivek And Sher Singh and in the statement recorded under Section 164 of Cr.P.C. dated 13.06.2019 (Annexure No. 8) the name of the deponent was mentioned by the victim that the deponent was reached to the place where a planning was being made to sell her but in the Police Report dated 16.11.2019 it was cleared that the deponent was not wanted in the Case Crime No. 141 of 2019 under Sections 363, 366 of I.P.C., Police Station Kotwali Konch, District Jalaun. The true copy of the Police Report dated 16.11.2019 is being filed herewith and marked as Annexure C. A. No. 2 to this affidavit.
06. That, the contents of paragraph Nos. 12 & 13 of the affidavit is not admitted and in reply it is stated that this Hon'ble Court was pleased to grant bail to the O.P. No. 2 and 3 after considering all the facts as well as false cases imposed upon them and moreover the Bail Cancellation Applications against the opposite party bearing Bail Cancellation Application No. 224/2019, "Rani Devi Versus State of U.P. and Ranu @ Ranveer Singh", Bail Cancellation Application No. 269/2019, "Parmal singh Vs. State of U.P. and Another" and Bail Cancellation Application No. 405 / 2022, "Rani Devi versus State of U.P. and 2 Others' have been rejected by this Hon'ble Court vide orders dated 08.08.2019, 17.10.2022 and 01.03.2023 and one more Bail Cancellation Application No. 18/2020, "Giriraj @ Giru Vs. Mangal Singh and Another" has been rejected by the Court below /Special Judge (D.A.A. Act) Jalaun at Orai vide his order dated 20.04.2022 considering the real facts of the case and thus filing the Bail Cancellation Applications again and again is nothing but abuse of process and is liable to be rejected. True copies of the orders dated 08.08.2019, 17.10.2022 and 01.03.2023 passed by this Hon'ble Court and dated 20.04.2022 passed by the court below are collectively being filed herewith and marked as Annexure C. A. No. 3 to this affidavit.
07. That, the contents of paragraph No. 14 of the affidavit is not admitted and in reply it is stated that the this Hon'ble Court has been already informed about these false cases imposed upon the opposite parties due to village party bandi and political enmity and considering all the aspects this Hon'ble Court as well as the court below have granted bail to the opposite parties in all the cases or final report was submitted by the Investigation Officer after finding them innocent,
08. That, the contents of paragraph No. 15, 16 & 17 of the affidavit is not admitted and in reply it is stated that the deponent/O.P. No. 2 was not named in the present alleged case as per the F.I.R. dated 25.01.2019 bearing Case Crime No. 63/2016 under Sections 147, 148, 149, 302, 34 of I.P.C. and 7 Criminal Amendment Act (Annexure No.2) was lodged against Abhimanyu Singh @ Dimpal and Others but after 3 days its whole version was changed by the informant who was himself eye witness of the case in the pressure of Abhimanyu Singh @ Dimpal. It is also pertinent to mention here that there are two political group in the Kasba Nadi Gaon, District Jalaun, one in the leadership Abhimanyu Singh @ Dimpal and another in the leadership of Anar Singh, father of the deponent and Abhimanyu Singh @ Dimpal is a notorious criminal having political power who has indulged the deponent and his relatives in several false criminal cases although he himself has a criminal history of 70 cases but due to political strength no action has been taken against him in spite of direction passed in the Criminal Writ- Public Interest Litigation No. 13 of 2018, "Arjun Singh Vs. State of U.P. and 7 Others" vide order dated 14.09.2018 passed by the bench presided over Hon'ble Chief Justice. Thus the instant Bail Cancellation Application is liable to be rejected by this Hon'ble Court. The details of criminal history of Abvhimanyu Singh @ Dimpal and order dated 14.09.2018 passed by this Hon'ble High Court are collectively being filed herewith and marked as Annexure C. A. No. 4 to this affidavit."
7. Law of cancellation of bail is being reiterated by Supreme Court in the case of Himanshu Sharma vs. State of Madhya Pradesh, 2024 SCC OnLine SC 187 and relevant part thereof is reproduced hereinafter:-
"11. While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court's judgment in the case of Abdul Basit (supra). However, we are compelled to note that the ratio of the above judgment favours the case of the appellants. That apart, the judgment deals with the powers of the High Court to review its own order within the limited scope of Section 362 CrPC. Relevant observations from the above judgment are reproduced below:?
"14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last-mentioned case, one would expect very strong grounds indeed. (Raghubir Singh v. State of Bihar [(1986) 4 SCC 481)
15. The scope of this power to the High Court under Section 439(2) has been considered by this Court in Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118]
16. In Gurcharan Singh case [(1978) 1 SCC 118] this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short "the old Code") and elucidated the position of law vis--vis powers of the courts granting and cancelling the bail. This Court observed as under:
"16. Section 439 of the new Code confers special powers on the High Court or Court of Session regarding bail. This was also the position under Section 498 CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly, under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis--vis the High Court."
(emphasis supplied)
17. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas [(2001) 6 SCC 338]. In the said case, this Court held (SCC p. 345, para 11) that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. In Narendra K. Amin v. State of Gujarat [(2008) 13 SCC 584], the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled the bail granted to the appellant in exercise of power under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case [(2001) 6 SCC 338] has observed that when irrelevant materials have been taken into consideration by the court granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate court and that no review would lie under Section 362 of the Code. In essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same court.
18. Reverberating the aforesaid principle, this Court in the recent decision in Ranjit Singh v. State of M.P. [(2013) 16 SCC 797] has observed that:
"19. ? There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court."
19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.
20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law.
21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.""
8. In the present case, applicant is facing trial for offence of murder and conspiracy. The present status of trial is not on record. It is alleged that there are violation of conditions of bail and accused was allegedly indulged in criminal activities, however, considering the contents of paragraph No.4 of counter affidavit as referred above as well as that there is no subsequent allegation of any other criminal activity for at last four years, therefore, I do not find that it would be a ground to cancel the bail.
9. The other submission about not disclosing entire criminal history while filing the bail application by accused may be a ground for cancel the bail. It would be a case of misrepresentation, however, still considering that it is not a case that applicant has not even disclosed a single criminal case as well as that there is no allegation of making influence or extending threats to any witness in last four years, when this application is pending, therefore, misrepresentation itself may not be sufficient ground to cancel the bail.
10. Accordingly, this application is rejected, however, learned Trial Court is directed to conclude the trial expeditiously, and in case, it is brought into notice of learned Trial Court that applicant has violated any condition of bail, learned Trial Court will be at liberty to cancel bail granted to accused.
11. Registrar (Compliance) to take steps.
Order Date :- 24.4.2024 P. Pandey