Allahabad High Court
Gayatri Singh Yadav vs State Of U.P. And Another on 30 April, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. 2024:AHC:76398 Reserved- 22.04.2024 Delivered- 30.04.2024 Court No. - 65 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 676 of 2023 Applicant :- Gayatri Singh Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shyam Sunder Mishra Counsel for Opposite Party :- G.A.,Satya Man Singh,Vidya Dhar Yadav Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Shyam Sunder Mishra, learned counsel for applicant, Sri D.P.S. Chauhan, learned AGA and Sri Prakash Chandra Tripathi, learned counsel for accused.
2. This is an application filed by complainant to cancel bail granted to accused Krishna Kumar (husband of applicant/informant) and father of victim, a minor girl aged about 4 years.
3. Allegations against accused (father of victim) are disturbing that he used to touch private part of minor girls of his neighbourhood which was objected by applicant/informant (his wife); both applicant (wife) and accused (husband) are working; accused has tried to outrage modesty of his minor daughter earlier also but since he has extended apology, it was ignored; however, on date of occurrence, when informant came from school, she heard screaming of victim and when she went inside room, she witnessed that accused person was forcing his minor daughter to touch his private part which squarely falls within the definition of rape.
4. It is further case of informant/applicant that when police has refused to lodge prompt FIR of above referred occurrence which took place on 25.03.2023, then, informant has availed legal recourse by filing an application under Section 156(3) Cr.P.C. on 27.04.2023 before learned Magistrate and on order of Court, FIR was lodged on 13.06.2023 i.e. after 2 months and 18 days though she has approached concerned Court within a month after occurrence.
5. The accused was arrested and he approached trial Court by way of filing a bail application with a prayer to grant him bail; trial Court, after considering rival submissions, passed a detailed order and granted bail; relevant part thereof is quoted below -:
"अभियोजन प्रपत्रों के अवलोकन से स्पष्ट है कि अभिकथित घटना दिनांक 25.03.2023 की उल्लखित की गयी है, जबकि प्रथम सूचना रिपोर्ट दिनांक 13.06.2023 को लगभग 02 महीना 18 दिन बाद दर्ज करायी गयी है। वादिनी मुकदमा ने अपने प्रार्थनापत्र अन्तर्गत धारा 156(3) द०प्र०स० में यह उल्लिखित किया है कि दिनांक 25.03.2023 को समय लगभग 12.10 बजे दिन में वह स्कूल से जल्दी छुट्टी हो जाने पर घर वापस आयी जबकि अभियुक्त द्वारा लिस्ट कागज संख्या 15अ से जूनियर हाईस्कूल सातों फतेहपुर के प्रधानाचार्य द्वारा निर्गत मार्च 2023 की उपस्थिति पंजिका की सत्य प्रतिलिपि कागज संख्या 16अ/1 दाखिल की है, जिसके अवलोकन से स्पष्ट है कि वादिनी मुकदमा दिनांक 25.03.2023 को आकस्मिक अवकाश पर होने के कारण स्कूल नहीं गयी थी। इसी प्रकार अभियुक्त द्वारा प्राथमिक विद्यालय बुसहरा शिक्षा क्षेत्र हथगांव, फतेहपुर के प्रधानाचार्य द्वारा मार्च 2023 की उपस्थिति पंजिका की सत्यप्रतिलिपि कागज संख्या 16अ/2 दाखिल की गयी है, जिसके अवलोकन से स्पष्ट है कि अभियुक्त कृष्ण कुमार दिनांक 25.03.2023 को स्कूल गया था। उस स्कूल में वह शिक्षा मित्र के रूप में तैनात है। पीडिता के चिकित्सीय मेडिकल रिपोर्ट के अन्तर्गत पीडिता के हाइमन को Intact पाया गया है और डाक्टर द्वारा यह राय दी गयी है कि बल प्रयोग का कोई निशान पीडिता पर नहीं पाया गया है। अभियोजन की ओर से अभियुक्त की पूर्व दोषसिद्धि का कोई आपराधिक इतिहास दाखिल नहीं किया गया है और न ही कोई अन्य FIR ही अभियुक्त के विरूद्ध दर्ज होने पर कोई प्रपत्र ही दाखिल किया गया है। आवेदक/अभियुक्त दिनांक 26.06.2023 से न्यायिक अभिरक्षा में जिला कारागार फतेहपुर में निरूद्ध है।
उपर्युक्त मामले के सम्पूर्ण तथ्यों एवं परिस्थितियों तथा अपराध की प्रकृति तथा दण्ड की मात्रा एवं दाताराम सिंह बनाम उ०प्र० राज्य बनाम अन्य (2018) 2 SCC 22 व Union of India Vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 व S.L.P (Crl). No. 5191 of 2021 Satendra Kumar Antil vs. CBI & Another judgement dated 11.07.2022 की नजीर में माननीय उच्चतम न्यायालय द्वारा प्रतिपादित विधि व्यवस्था एवं माननीय उच्च न्यायालय इलाहाबाद द्वारा निर्गत किये गये C.L. No. 11/2023/ADMIN.G. II Dated: Allahabad 27.04.2023 के प्रकाश में गुणदोष पर बिना कोई मत व्यक्त किये मेरे विचार में आवेदक/अभियुक्त को सशर्त जमानत पर रिहा किये जाने का आधार पर्याप्त है। तदनुसार आवेदक/अभियुक्त जमानत पर रिहा किये जाने योग्य है।"
6. Learned counsel for applicant has submitted that trial Court has committed error on fact as well as on law; he pointed out grounds for cancellation of bail as mentioned in present application that -:
(a). FIR was lodged after 2 months and 18 days without taking note that occurrence took place on 25.03.2023;
(b). informant/applicant filed an application under Section 156 Cr.P.C. on 27.04.2023 i.e. about 1 month and as such delay was only of 1 month and thereafter FIR was finally lodged on 13.06.2023 i.e. after 2 months and 18 days of occurrence, however, effective date would be 27.04.2023;
(c). trial Court has taken much note on 2 documents placed by accused though it was not part of investigation and it was akin to his proposed defence that on date of occurrence, informant/applicant was on casual leave whereas it is case of prosecution that she returned from school and witnessed the alleged occurrence;
(d). trial Court has also taken note of other documents that on date of occurrence, accused was present in school i.e. his place of work;
(e). trial Court has taken note of medical report of medical examination of victim which was conducted on 17.06.2023 i.e. after 3 months of occurrence that no force was visible and hymen was found intact without considering nature of allegations as referred in FIR that victim was naked and accused was forcing her mouth to touch his private part.
7. Per contra, learned counsel for accused has opposed prayer to cancel bail and referred documents in order to state that it was a false case and also alleged malafide and reasons for false implication; relevant paragraph 5 of counter affidavit is quoted below -:
"That reply of the contents of para no. 4 of the affidavit filed in support of bail cancellation application has already been mentioned in preceding paragraph. Therefore there is no need of repetition of the same. But an important fact is necessary to brought before this Hon'ble Court that the alleged allegation is manipulated, false, fabricated and very reproachful. In fact on alleged occurrence day, dated 25.03.2023 the deponent was present in his Primary School; Busahara, Shiksha kshetra Hathgaon; Fatehpur. On the other hand Complainant was taken Casual leave to prepare false and fabricated story. The plea of alibi was accepted by the Hon'ble lower Court and granted bail on 23.08.2023 to the deponent."
8. Heard learned counsel for parties and perused the record.
9. Before adverting to rival submissions, it is pertinent to mention here that law in regard to cancellation of bail is well settled and it is reiterated by Supreme Court in Himanshu Sharma vs. State of Madhya Pradesh, 2024 SCC Online SC 187 and relevant paragraph thereof is quoted below -:
"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-à-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-à-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.""
10. As referred above, in order to cancel bail granted to accused by trial Court, it has to be shown that it was perverse, unjustified, illegal or based on irrelevant materials.
11. In present case, there is statement of victim recorded under Section 164 Cr.P.C. wherein she has stated against accused and she has replied to queries and narrated entire occurrence by way of sign; however, trial Court, while considering bail application of accused, has not even referred statement of victim recorded under Section 164 Cr.P.C.
12. Therefore, the order whereby bail was granted to accused becomes illegal and against law.
13. There is further error in said order as trial Court has not considered the actual delay which is 1 month in filing application under Section 156(3) Cr.P.C. and mentioned incorrect fact that there was a delay of 2 months 18 days in lodging FIR.
14. Trial Court has considered the documents which are still to be examined before it being defence of accused; trial Court has also committed an error by making much reliance on a medical examination report of victim conducted after 3 months i.e. trial Court took cognizance of irrelevant materials; even considering two documents placed by accused, Court cannot ignore the contents of allegations as well as statements of victim, a minor girl aged about 4 years and relation between accused and victim.
15. In aforesaid circumstances, taking note of above referred legal error which rendered order granting bail to accused unjustified, illegal, perverse and that it has taken note of irrelevant materials at the stage of granting bail; therefore, this bail cancellation application is allowed and order dated 23.08.2023 whereby bail was granted to accused is set aside.
16. Accused is directed to surrender before trial Court in pursuance of Case Crime No. 181 of 2023 under Section 376-AB IPC and Section 5/6 of POCSO Act, Police Station- Thariyaon, District- Fatehpur within a period of 7 days from today.
17. A copy of this order be supplied to trial Court for compliance.
18. Registrar (Compliance) to take steps.
Order Date :- April 30, 2024 N. Sinha [Hon'ble S.S. Shamshery, J.]