Allahabad High Court
State Of U.P. ( Major B.C. ) vs Gayatri Prasad Prajapati And Ors. on 26 May, 2017
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- BAIL No. - 3584 of 2017 Applicant :- State Of U.P. ( Major B.C. ) Opposite Party :- Gayatri Prasad Prajapati And Ors. Counsel for Applicant :- Govt. Advocate,Anurag.S.'Kaalesh',Dinesh Chandra Tripathi Counsel for Opposite Party :- Kamlesh Kumar,Narendra Shanker Shukla,Vishal Dixit Hon'ble Amreshwar Pratap Sahi,J.
This application on behalf of the State has been filed praying for cancellation of the bail order whereby bail has been granted on 25.4.2017 to the three opposite parties arrayed herein, namely, Gayatri Prasad Prajapati, Vikas Verma and Amrendra Singh alias Pinto Singh, in relation to Case Crime No.29 of 2017 under Section 376 D/376/511/504/506 I.P.C. read with Section 3/4 POCSO Act, Police Station Gautam Palli, District Lucknow.
The FIR in this case was lodged on 18.2.2017 after the complainant/victim-Savita Pathak had approached the Apex Court in Writ Petition No.160 of 2016 where the following order was passed:-
"ITEM NO.60 COURT NO.8 SECTION X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition(s)(Criminal) No(s). 160/2016 SAVITA PATHAK Petitioner(s) VERSUS STATE OF UTTAR PRADESH AND ORS. Respondent(s)
(WITH APPLN. (S) FOR EXEMPTION FROM FILING O.T. AND PERMISSION TO FILE ADDITIONAL DOCUMENTS AND OFFICE REPORT) Date : 17/02/2017 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE R.K. AGRAWAL For Petitioner(s) Mr. Mehmood Pracha, Adv.
Mr. Mansoor Ali,Adv.
Mr. R.H.A. Sikander, Adv.
Mr. Prateek Gupta, Adv.
Mohd. Danish, Adv.
Ms. Lubna Ishrat Siddiqui, Adv.
For Respondent(s) Mr. Ravi Prakash Mehrotra,Adv.
Mr. Kabir Dixit, Adv.
Mr. Vibhu Tiwari, Adv.
UPON hearing the counsel the Court made the following O R D E R As an interim order we direct the registration of the First Information Report (FIR) on the basis of the complaint which is submitted by the petitioner with the concerned Police Station, Lucknow (UP) with the direction to the police to investigate into the matter and submit its report in a sealed cover within seven weeks from today.
List after two months.
(Ashwani Thakur) (Mala Kumari Sharma) COURT MASTER COURT MASTER"
The First Information Report alleges the commission of the offences under the Sections referred to herein above against the present complainant-Savita Pathak and her daughter-Ananya Pathak. It has been alleged that the offences under the aforesaid Sections had been committed after demonstrating some intoxicant substances and obscene photographs of the informant had been clicked, on the basis whereof the victim was being blackmailed. The sum and substance of the allegations was of outraging the modesty of the victim-Savita Pathak as well as her daughter, and was also threatened with dire consequences. The statement of both the victims were recorded under Section 161 Cr.P.C. and also under Section 164 Cr.P.C. No arrest had been carried out as a result whereof non-bailable warrants were issued, and it was after a lapse of one month of lodging of the FIR that all the three accused aforesaid who have been granted bail were arrested on 14.3.2017.
A joint application for grant of bail was moved on behalf of all the three opposite parties supported by a single affidavit of one Vyas Verma, who is stated to be the real brother of one of the co-accused, namely, opposite party No.2-Vikas Verma. The said bail application clearly denies the incidents narrated in the FIR with a further recital that no complaint was ever made to the higher officials. It is also alleged that the victim is trying to blackmail the opposite parties-accused and it appears that being a corporator, from ward No.10 at Chitrakoot, she has political ambitions. The bail application further indicates that the victim had earlier lodged FIRs against other persons as well, to harass them, but in the present case, once the statement under Section 164 Cr.P.C. has been recorded and the daughter of the complainant had clearly denied any such incident having taking place, there was absolutely no evidence on the basis whereof the opposite parties could have been prosecuted or even arrested. In such circumstances, bail was prayed for. The said bail application, even though is dated 22.4.2017, came to be presented and was registered on 24.4.2017 with notice to the Government Council, was directed to come up on 25.4.2017.
On 25.4.2017, an application was moved by the Circle Officer of Hazratganj, District Lucknow, who was also the Investigating Officer praying before the Court concerned to grant three days time for obtaining documents and filing para-wise response to the bail application. The adjournment was sought on the ground of the engagement of the Investigating Officer in other administrative VIP duty as well as being involved in controlling law and order situation in the wake of certain protest and Dharnas within his area of duty.
Shri V.K. Shahi, learned Additional Advocate General for the State advancing his submissions contends that another application had been filed by the Additional DGC, Criminal on the same day making a request to the Court that the Investigating Officer has already prayed for three days time to provide the material and since he had not gone through any of the documents of the prosecution, including the case diary and there was hardly any time for the same as the application had been received just a day earlier in the evening, therefore, he may be excused from raising any arguments or the same being noted by the Court with a prayer that the matter be adjourned and some other date be fixed in order to enable him to obtain and complete his instructions in order to state the reply on behalf of the prosecution.
Shri V.K. Shahi submits that the Court passed an order on the application moved by the Investigating Officer rejecting the same on the ground that the ADGC, Criminal has agreed to argue the case, but at the same time, the Court did not pass any order on the application moved by the ADGC seeking adjournment. It is these facts which led to the passing of the bail order on the same day, 25.4.2017, which the State has impeached before this Court on the ground that it was passed in haste and without any reasonable opportunity to the prosecution. This, therefore, is in clear violation of the provisions of Section 437 Cr.P.C. that mandates of granting an opportunity to the public prosecutor before passing any order.
The learned Additional Advocate General submits that the grant of bail had wide repercussions inasmuch as, the order had been passed without any information being tendered by the applicants about the criminal history of the opposite party No.1 and this has resulted in gross failure of justice and complete mis-carriage of justice. He therefore submits that this Court should exercise it's powers under Section 439(2) of the Criminal Procedure Code read with Section 482 thereof and cancel the bail. He further submits that the basic parameters of the nature of accusation, the status of the evidence and the reasonable apprehension about the accused indulging in unlawful activities after release have all been over-looked, and therefore the bail granted to the opposite parties is based on irrelevant considerations.
He therefore contends that there is a procedural violation resulting in gross failure of justice and secondly, on merits as well, the order suffers from perversity.
From the record it appears that noting the submissions, Hon'ble the Chief Justice was pleased to pass the following order on 28.4.2017:-
"Mentioned not on Board.
Heard Mr. V.K. Shahi, Additional Advocate General, assisted by Mr. Anurag Verma, Additional Government Advocate.
By this application, the applicant-State seeks cancellation of bail granted to all three respondents vide order dated 25.4.2017 passed by the Additional District Judge, Court No.1, Lucknow, in Case Crime No. 29 of 2017, registered under Sections 376D/376/511/504/506 IPC and 3/4 POCSO Act, at P.S. Gautam Palli, District Lucknow. It appears that pursuant to the order of the Supreme Court dated 17.2.2017 in Writ Petition (s) (Criminal) No (s). 160/2016, an FIR came to be registered against all the respondents. On 18.2.2017, when the offence was registered, respondent No.1-accused was Cabinet Minister in the erstwhile Government. The applicant submits that after the crime was registered against the respondents, all the three accused were allegedly absconding. On 14.3.2017, respondent Nos. 2 and 3 came to be arrested, whereas respondent No.1 came to be arrested on 15.3.2017.
Learned Additional Advocate General submits that the respondents had filed an application before the Supreme Court for the relief that they should not be arrested in connection with the crime registered against them, and the prayer was refused. In this backdrop respondents-accused filed application for bail on 24.4.2017. Mr. V.K. Shahi, Additional Advocate General submits that the order of bail is based on irrelevant factors and/or ignoring the relevant factors and the orders of the Supreme Court. In support, he placed reliance upon the judgment of the Supreme Court in State of Bihar Vs. Rajballav Prasad Yadav, JT 2016 (11) SC 261.
The application was affirmed by one Mr. Vyas Verma, the brother of Vikas Verma, respondent accused No.2. The application was placed before the Learned Judge on the very same day (24.4.2017) on which he passed the following order:
"Register: Copy be served to Govt. Counsel. Put up on 25.4.17 for disposal. C.D. and comments be called for"
Sd/-
24.4.2017"
On the next day i.e. (25.4.2017) the I.O. made an application seeking further time to produce the case diary (CD) and other records and also to submit his comments stating that the CD/record being very bulky he would require some more time to place his comments on record and requested for atleast three days time. Similarly, on this application, the learned Judge made the following endorsement:
"A.D.G.C. has asserted that he is ready to advance arguments on bail on ground of Case Diary which is available. Hence no further comments are needed. Accordingly application bears no cogent ground. Rejected"
It is pertinent to note that on the very same day Additional District Government Counsel (ADGC) also filed an application for seeking atleast three days time for seeking instructions and to place their comments and case diary before the Court. It is pertinent to note that on this application, the learned Judge did not make any endorsement and he proceeded to hear the case on merits and enlarged the accused on bail. I would not like to make any comments at this stage on merits of the order passed by learned Judge. I may however observe that the manner in which the learned Judge has shown the haste in releasing the accused on bail ignoring the nature of offence allegedly committed by the respondent accused and the fact that the crime came to be registered against these accused by virtue of the order of the Supreme Court dated 17.2.2017, I have my reservations about the bonafides/intention of the Learned Judge who is about to retire on 30.4.2017. This Court is also informed that insofar as accused No. 1 is concerned, he has not been released on bail in view of the fact that he is wanted in some other cases. So far as accused Nos. 2 and 3 are concerned, they have already been released on bail. It is also pertinent to note that the respondent-accused No.1 in his bail application has stated that no criminal cases are registered or pending against him which fact also prima facie does not appear to be true and correct. The applicants have placed on record the list of cases registered against respondent No.1-accused, at Annexure 12.
In this view of the matter, I am satisfied that the interim prayer in this application deserves to be granted as prayed. Accordingly, the order of bail shall remain in abeyance until further orders. In so far as accused no. 2 and 3 are concerned, it is open to the Investigating Agency to take accused Nos. 2 and 3 in custody, pending the hearing and final disposal of this application. S.O. to 12.5.2017."
It appears that against the aforesaid order dated 28.04.2017 the accused approached the Apex Court by filing Special Leave to Appeal (Criminal) No.3921 of 2017. The Supreme Court without commenting on any such plea directed the applicants to approach the High Court by the following orders passed on 04.05.2017:-
"ITEM NO.601 COURT NO.8 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No. 3921/2017
(Arising out of impugned final judgment and order dated 28/04/2017 in BA No. 3584/2017 passed by the High Court of Judicature at Allahabad, Lucknow Bench) AMRENDRA SINGH @ PINTOO SINGH AND ANR. Petitioner(s) VERSUS STATE OF U.P. AND ANR. Respondent(s) (With appln. (s) for exemption from filing c/c of the impugned judgment, exemption from filing O.T. and interim relief ) Date:04/05/2017 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ASHOK BHUSHAN For Petitioner(s) Mr. U. R. Lalit, Sr. Adv.
Mr. Aamir Khan, Adv.
Mr. Farrukh Rasheed, Adv.
Mr. Mayur Sharma, Adv.
For Respondent(s) "UPON hearing the counsel the Court made the following O R D E R It is argued by the learned senior counsel appearing for the petitioners that after the bail order was passed by the Trial Court, the petitioners were released on bail. The High Court by suspending the order of the Trial Court has passed further direction to take the petitioners in custody. It is argued that this part of the order directing the petitioners to be taken into custody is not appropriate. Without any comments on this plea, we permit the petitioners to approach the High Court in this behalf. High Court is free to deal with this argument as per law.
The special leave petition is disposed of.
(Nidhi Ahuja) (Mala Kumari Sharma) Court Master Court Master"
Holn'ble the Chief Justice was pleased to nominate this Bench and applications were filed by the opposite parties No.2 and 3 accused for modifying the said order dated 28.04.2017. The said applications came up on 12.05.2017 when the following order was passed:-
"Heard learned Additional Advocate Generals for the State Sri M.M. Pandey and Sri V. K. Shahi along with Sri Anurag Verma learned Additional Government Advocate.
Sri Gopal Chaturvedi learned Senior Counsel has appeared for Gayatri Prajapati along with Sri Arun Kumar Shukla. Sri Jyotindra Mishra learned Senior Counsel has appeared along with Sri Narendra Shanker Shukla and Sri Rakesh Kumar Upadhyay for the opposite party No.3 Amrendra Singh alias Pintoo Singh and Sri I.B. Singh learned Senior Counsel along with Sri Shailendra Singh learned counsel for the opposite party No.2 and 3.
Sri Gopal Chaturvedi has prayed for an adjournment and for a week's time to file counter affidavit to the bail cancellation application moved on behalf of the State. Learned Additional Advocate General prays for a week's time to file a response to the same. He also prays for filing a reply to the application filed on behalf of other two opposite parties.
Time prayed for is granted.
Learned counsel for the parties pray that the matter may be taken up on Friday 26.05.2017.
Let the affidavits be exchanged within the said period.
The matter shall be listed on 26.05.2017 at 10:15 a.m."
In response to the aforesaid order all the opposite parties have filed their counter affidavits to which rejoinder affidavits have been filed. The applicant State has also filed supplementary affidavit dated 12.05.2017 which is on record.
On the strength of the aforesaid facts and after exchange of affidavits the learned Additional Advocate General has advanced his submissions as noted above and has also expressed a grave concern that in the event the opposite parties are allowed to be enlarged on bail it will not be possible to ensure their availability during trial as the opposite party No.1 happens to be a Former Cabinet Minister of the State, the opposite party No.2 happens to be his Private Secretary-cum-Public Relation Officer and the opposite party No.3 happens to be the Public Representative of the opposite party No.1 who are all involved in the commission of offence and they are likely to tamper the evidence, influence the trial and also threaten the victims and the witnesses. To substantiate his submissions, learned Additional Advocate General has urged that the opposite parties were so powerful that they avoided their arrest for more than a month and the FIR itself could be registered only after the intervention of the Apex Court. The Court below while granting bail has nowhere discussed this apprehension and for which he has relied upon the case of Chaman Lal Vs. State: 2004 (7) SCC 525 Para-9 and the case of Sitaram Vs. Balbir: 2014 13 SCC 489. The supplementary affidavit dated 12.05.2017, has also been placed before the Court and it is urged that the contents thereof particularly paragraph-7 clearly indicates the threat apprehension to the victims from the accused.
Learned Additional Advocate General has then invited the attention of the Court to the categorical averments made in the bail cancellation application that the deponent of the bail application had sworn an incorrect affidavit and had withheld the criminal history of the opposite party No.1. A chart explaining the criminal antecedents of the opposite party No.1 was filed as Annexure-12 to this application. He therefore submits that this deliberate concealment and its non-consideration by the Court below clearly amounts to ignoring a vital and important factor while granting bail which amounts to releasing the opposite parties on irrelevant considerations. This perversity in the bail order establishes the haste in whcih the bail was granted without waiting for a reply and any material for which an opportunity ought to have been given to the State. It is urged that had the time as prayed for by the State been granted by the Court below all these facts could have been brought to the notice of the Court for its assessment. It is thus clear that the opposite parties by deliberate concealment of facts obtained the bail order which deserves to be cancelled.
It is urged that this unusual mode of granting bail is coupled with the fact that the concerned Officer of the Court below was to retire shortly on 30.04.2017 and therefore he was in a hurry to grant bail. Learned counsel has relied on the judgment in the case of Subodh Kumar Yadav Vs. State of Bihar: 2009 (14) SCC 638 to substantiate his submissions.
Apart from the aforesaid decisions, the learned Additional Advocate General has relied on the following judgments to buttress his submissions:-
1. (2001) 6 SCC 338 (Pooran Vs. Rambilan and another).
2. (2006) 12 SCC 131 (Gajanand Agarwal Vs. State of Orissa and others).
3. (2014) 3 SCC (Crl) 527 (Neeru Yadav Vs. State of U.P. and another).
4. (2017) 2 SCC 178 (State of Bihar Vs. Rajballav Prasad alias Rajballav Prasad Yadav alias Raj Ballabh Yadav).
It is therefore, ultimately urged that this Court in the exercise of powers under Section 439 (2) Cr.P.C. read with Section 482 Cr.P.C. should cancel the bail granted to the accused by the Court below.
Sri Gopal Chaturvedi learned Senior Counsel, for the opposite party No.1, has invited the attention of the Court to the recitals contained in the bail order, the statement of Savita Pathak under section 164 Cr.P.C. and then the statement of Ananya Pathak under section 164 Cr.P.C. to urge that the entire case is nothing else but a simple case of false implication and blackmailing with no evidence to support any of the allegations. Neither any F.I.R. was lodged or complaint filed or any medical conducted so as to substantiate the allegations of offence of rape. He has also urged that the hearing of the bail was not in haste and it was in the usual course that the Court passed the order after recording the assertions of ADGC (Criminal) who was prepared to argue the case and who too had advanced his submissions. This is supported by the recital in the bail order which also states that the public prosecutor was given full opportunity of hearing and not only this the Court applied it's mind to the material that was available before the Court including the case diary. He submits that the order of bail was passed on relevant considerations and the court-below did not find any fault in the plea raised on behalf of the opposite parties prima-facie to conclude that there was no material or evidence on the basis whereof it could be said that the opposite parties were not entitled for bail. He submits that the manner in which the order has been written expressing two possible views and then accepting one is a manner of expression of discretion and the same does not amount to assessing the evidence. To the contrary according to him the court-below came to the correct conclusion after noting the statements under Section 164 Cr.P.C. of both the victims and then comparing it with the statement under section 161 Cr.P.C. He submits that this is a most normal method of discussing a bail/plea order particularly in cases where the statement of the prosecutrix carries weight at the stage of grant of bail. He submits that once the statement of Ananya Pathak is taken in it's entirety that was recorded under section 164 Cr.P.C., then no case was made out for prosecuting the opposite parties under the POCSO Act as well and hence the question of presumption as raised under the said provision does not arise. He further submits that as a matter of fact this Court should assess the same and grant the bail on its own merits.
He submits that so far as the procedure adopted by the court-below is concerned the ADGC (Criminal) has not come forward to explain as to what prompted him to move the application seeking more time and according to him this was only a ploy to delay the consideration of bail in spite of the fact that the entire material was available and which has been indicated in the bail order. Thus, the excuse for seeking time was without substance and the court-below after noting that the ADGC(Criminal) was prepared to advance his arguments has granted bail. Thus on merits as well as procedure there is no fault much less any impropriety or illegality in the grant of bail. The bail cancellation application has, therefore, no merits and should be rejected.
On the issue relating to the non-disclosure of criminal history, Sri Chaturvedi on behalf of opposite party no. 1 has urged that such non-disclosure does not in any way affects the grant of bail as the cases shown in the chart have no impact. He has further invited the attention of the Court to the counter affidavit filed on behalf of opposite party no. 1, particularly paragraphs 53 to 55 thereof to urge that none of the cases about which criminal history has been complained of in any way establish that the applicant / opposite party no. 1 had bad criminal antecedents, as well as, in all those cases either final reports have been submitted or there was no evidence collected so as to prosecute the opposite party no. 1. Sri Gopal Chaturvedi has vehemently argued that whatever material has been collected during investigation rules out the possibility of any ingredients so as to deny bail to the opposite parties. He, therefore, submits that the grant of bail is fully justified and the bail cancellation application should be rejected.
Sri Jyotindra Mishra learned Senior Counsel for the accused Amrendra Singh submits that firstly the said opposite party has no criminal history, consequently the public prosecutor about whom the court-below has recorded that he has advanced his submissions, has not filed his affidavit before this Court to contradict the same and, therefore, the argument that the order was passed in haste is without any basis. He further submits that the order dated 28.4.2017 whereby the other two co-accused were directed to be taken into custody is without any justification inasmuch as by an interim order the status-quo ante cannot be restored. He has relied on the decision in the case of Shree Chamundi Moped Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1. He submits that the bail had not been cancelled and, therefore, no order for taking into custody could have been passed. He submits that the public prosecutor was the only person authorized to conduct the case and, therefore, any affidavit filed by the Investigating Officer or the police authorities before this Court to support the bail cancellation application is clearly in the teeth of section 302 Cr.P.C. He, therefore, submits that he adopts all the arguments of Sri Chaturvedi that had been advanced on behalf of opposite party no. 1 and contends that the bail cancellation application deserves to be rejected.
It has been pointed out that both the opposite parties no. 2 and 3 pursuant to the orders of the Court have already surrendered and have been taken in to custody.
Sri Jyotindra Misra has further relied on following decisions to substantiate his submissions and urge that the parameters of bail cancellation are entirely different and would not apply on the facts of the present case :
1. Bhagirath Sinh vs. State of Gujarat, 1984 Supreme Court Cases (Cri) 63.
2. Dolat Ram and others vs. State of Haryana, 1995 Supreme Court Case (Cri) 237.
3. State (Delhi Administration) vs. Sanjay Gandhi, 1978 Supreme Court Cases (Cri)223.
4. State of U.P. vs. Karunakar Alias Deonath Tiwari, Criminal Misc. Bail Cancellation Application NO. 2051 of 1989.
5. Mehboob Dawood Shaikh vs. State of Maharashtra, 2004 Supreme Court Cases(Cri) 551.
6. Awadhesh Kumar Singh vs. State of U.P. & another, 2010(69) ACC 920.
7. Shiv Mohan Gupta vs. State of U.P., 2010 (69) ACC 911.
Sri I.B. Singh learned Senior Counsel for the opposite party accused Vikas Verma has also adopted the same arguments as noted above and in addition thereto has urged that prior to the lodging of the F.I.R. the complainant had moved a complaint to the Director General of Police, U.P. on which a C.B.C.I.D. inquiry was carried out and the statement of the husband and in-laws of the complainant Savita Pathak were recorded. Not only this a couple of F.I.Rs. have been lodged and this entire material indicates the history and background of the complainant who can indulge in any form of blackmailing keeping in view her activities as indicated in the counter affidavit filed on behalf of the said opposite party No. 2. He has particularly invited the attention of the Court to paragraph No. 3 and it's sub-paragraphs to demonstrate the same. Thus, the story set up by the complainant is absolutely unbelievable and consequently the bail cancellation application deserves to be rejected.
He further submits that the grounds of cancellation as spelt out in the bail cancellation application are only in par no. 3 thereof. The ground mentioned therein is not available as is evident from the material on record ad as demonstrated through the statements recorded herein above. He has then urged that bail can only be cancelled on the ground as has been explained by the Apex Court in the judgments cited at the Bar, namely in the case of Mehboob Dawood Shaikh vs. State of Maharashtra, 2004 (2) Supreme Court Cases 362 para 5 and 7, Dolat Ram and others vs. State of Haryana, (1995)1 Supreme Court Cases 349 and Aslam Babalal Desai vs. State of Maharashtra (1992) 4 Supreme Court Cases 272. He submits that the leading case was that in the case of Raghubir Singh vs. State of Bihar, (1986) 4 Supreme Court Cases 481 and in view of parameters laid down therein the consideration of the factors for cancellation of bail are more stringent as the cancellation of a bail is a harsh order and, therefore, the Court should be circumspect in proceeding to pass any such order. He submits that in the present case and on the facts that have been discussed there is nothing which may impel this Court to cancel the bail. He has invited the attention of the Court to the judgment of learned Single Judge of this Court in the case of State of U.P. vs. Vinay Kumar Gupta, Criminal Misc. Bail Cancellation Application No. 37923 of 2015 decided on 30.3.2017.
He has also tried to distinguish the facts of the decision in the case of Chandrakeshwar Prasad @ Chandu Babu vs. State of Bihar and others and State of Bihar vs. Md. Shahabuddin in Criminal Appeals no. 932 of 2016 and 933 of 2016 decided on 30.9.2016 to urge that the ratio of the said case would not be attracted on the facts of the present case.
Learned Counsel for the complainant-Savita Pathak has also advanced his submissions and he contends that the arguments of the learned counsel for the opposite parties-accused that the F.I.R. was lodged after three years is of no avail, inasmuch as such an offence which has been committed, lapse of time would be immaterial and he has relied on the decision in the case of State through C.B.I. v. Amar Mani Tripathi [2005 (8) SCC 21] to substantiate his submissions. He has also relied on in the case of Chandrakeshwar Prasad and others v. State of Bihar and others [2016 (9) SCC 443] to contend that a large number of factors have to be taken into consideration which the Lower Court has failed to take into account and has hastily and hurriedly granted bail. He therefore submits that in the light of what has been brought on record, the bail deserves to be cancelled and this Court has rightly taken cognizance of the same.
Having considered all the submissions raised at the Bar and the arguments having been concluded, a perusal of the record leaves no room for doubt that two applications had been moved, - one by the Investigating Officer and the other by the Additional District Government Counsel (Criminal) before the Court below on 25.4.2017 both of which had sought time for three days to provide a response and para-wise comments to the bail application of the opposite parties. The learned Judge of the Court below passed an order which is recorded on the application filed by the Investigating Officer. The said order recites that the Additional District Government Counsel (Criminal) has asserted that he is ready to advance arguments on bail on the ground of case diary which is available. Hence no further comments are needed and accordingly, the application seeking time bears no cogent ground and was rejected. Beneath the said endorsement of the order, there is also an endorsement that the said application was submitted by Sri Avinash Kumar Mishra, Circle Officer, Hazaratganj, Lucknow and by the Additional District Government Counsel (Criminal).
The second application also refers to the request made by the Investigating Officer for three days but this second application which was moved by the Additional District Government Counsel (Criminal) himself remains undisposed of till today. Learned counsel for the opposite parties have not been able to dispute the existence of the said application on the record of the case which is of the same date, i.e., 25.4.2017. It is not understood as to why no orders were passed on the said application and as to why the Court below did not choose to refer to the said application while passing the final bail order. Learned Counsel for the opposite parties were unable to cast any doubt about the purpose of the said application except that it was moved only with a view to get the matter somehow or the other adjourned. Thus, the existence of the application on record is not doubted. It therefore stands established that no orders were passed on the said application and it cannot be construed that the Court below was unaware of the same.
In this background, the recording of the order on the application moved by the Investigating Officer that the Additional District Government Counsel (Criminal) had agreed to proceed with the arguments becomes seriously doubtful. The recital contained in the bail order about the matter having been heard on behalf of the State and the material having been perused is under a serious cloud.
It is not understood as to in what manner had the case diary been relied on by the Court below when the Additional District Government Counsel (Criminal) had neither perused the same and had categorically stated that he could not advance his submissions without the para-wise comments that was to be given in response to the bail application.
It was imperative on the part of the Court below to have taken care of the situation, inasmuch as an undisputed fact that has come to the fore is that the opposite party No.1 had criminal antecedents that were not disclosed in the bail application. To the contrary, paragraph - 15 of the affidavit in support of the bail application before the Court below gives an incorrect statement that there is no criminal antecedent of any of the accused, whereas it is now evident from the pleadings on record that there were criminal antecedents of the opposite party No.1. Had the Public Prosecutor been given the opportunity, as prayed for, it is quite possible that the said criminal history would have been brought to the notice of the Court below before consideration of the bail matter. This concealment on behalf of the accused and a false affidavit having been tendered on this score certainly undermines the pure stream of justice.
The aforesaid facts also establish that the bail application was moved on 24.5.2017 and was hastily taken up on the very next date in the circumstances indicated above which has clearly resulted in miscarriage and subversion of justice. The Court below therefore clearly fell into a grave error in a case of this dimension to have not waited for the response of the State and took up the bail matter and granted the same that clearly vitiates the due procedure prescribed in law.
This is also to be viewed in the light of the fact that the said officer was to retire on 30.4.2017 from service. The aforesaid facts therefore also establish that the bail application was heard and granted for irrelevant considerations by ignoring the process of law.
It is here that the Court may record that this is a bail cancellation application that stands co-related with the provisions Sub-Section (2) of Section 439 Cr.P.C. but at the same time the powers under Section 482 Cr.P.C. are clearly attracted wherever there is a miscarriage of justice and gross violation of procedure thereby subverting the cause of justice, that too even on account of the conduct of a Judicial Officer acting in haste. The High Court in exercise of such powers can proceed to correct and rectify any such error and therefore even applying the ratio of the judgments that have been relied upon by the learned Counsel for the opposite parties on the parameters of cancellation of bail, such an instance, would be also an illustrative example where a bail can be cancelled when it is found that the bail has been granted in undue haste and without reasonable opportunity to the Public Prosecutor as is evident on the facts of the present case.
There is yet another dimension namely the power of the High Court to cancel the bail by invoking it's inherent jurisdiction. The said power is inherent as was acknowledged way back in the case of Emperor Vs. Mirza Mohd. Ibrahim AIR 1932 Allahabad page 534 under the then existing provisions of the Criminal Procedure Code of 1898. The situation is no longer different and has been acknowledged in various decisions of various High Courts. To mention a few, reference be had to the judgments of the Orissa High Court in the case of Criminal Revision No.380 of 1976 [Dayanidhi Sarangi and Ors. Vs. State of Orissa] decided on 12.8.1977, in the case of Criminal Revision No.1128 of 1993 [Sudhir Kumr Singh Vs. State of Orissa and Anr.] decided on 18.5.1994 of the same High Court and in the case of Criminal Application No.780 of 1975 of Bombay High Court [The State of Maharashtra Vs. Tukaram Shiva Patil] decided on 18.8.1975.
The application made under the aforesaid two Sections was also heard and decided by the Supreme Court in the case of Gulabrao Baburao Deokar Vs. State of Maharashtra and Ors. [2014 (2) SCJ 555] decided on 17.12.2013. The aforesaid decision of the Apex Court has been followed in the case of Criminal Petition No.46 of 2016 [Rahima Khatun Vs. Panna Ahamed and Ors.] in the High Court of Tripura at Agartala decided on 31.1.2017.
In a matter where there were allegations against the presiding Judge of having passed an order on extraneous considerations, learned Single Judge of the Andhra Pradesh High court in the case of Criminal Petition No.4540 of 2012 decided on 13.6.2012 passed an order setting aside the order of grant of bail with the observations that the bail application can be moved again and heard on merits afresh.
One of the submissions of Shri I.B. Singh, learned Senior Counsel is that the complainant herself has had a shady past for which he has relied on certain paragraphs of the counter affidavit filed on behalf of the accused-Vikas Verma. Suffice it to say that such a plea would amount to a defense that is not sufficient to dislodge or disbelieve the entire prosecution story at the stage of consideration of bail. The Court below also has not discussed any such material and this argument appears to have been raised before this Court in order to urge that a bail cancellation is a harsher order and such facts should be taken into consideration. This argument cannot be accepted for the simple reason that this is not the stage of consideration of any such plea when this Court has found that the Court below itself had acted in a manner which does not inspire confidence and faith to accept the bail order having been granted bonafidely.
The argument of Shri Mishra that by an interim order the status quo ante could not have been restored by taking the opposite parties No.2 and 3 into custody, is an argument which no longer survives in view of the fact that the said opposite parties have already been taken into custody and this application has been finally heard and is being disposed off today.
Thus this is a case where the merits of the grant of bail is coupled with and inextricably mixed up with the procedure adopted by the Court below to grant bail. The bail was also obviously granted in the circumstances indicated above without following the due procedure of law and consequently this Court is of the firm opinion that the bail order dated 25.4.2017 granted by the learned Additional District Judge, Court No.1, Lucknow in bail application No.1734 of 2013 deserves to be cancelled.
Learned counsel for the opposite parties have vehemently urged that in the absence of any reliable material and in view of the contradictory statement under Section 164 and the long span of time, after which the FIR came to be lodged, clearly establishes that the opposite parties have been falsely implicated on the notions and apprehensions of the complainant, who has obvious reasons as indicated above, has tried to blackmail the opposite parties. Having gone through the ingredients it would have been appropriate for the Court below to have allowed the prosecution to file it's response and then assess the case diary and material for the purpose of consideration of grant of bail or otherwise. As indicated above, the entire process was concluded as if the grant of bail had been preordained. In the circumstances, there cannot be a presumption of the impugned order having been passed in good faith. Rather, the entire episode indicates that the manner in which the bail was granted almost on the eve of the retirement of the officer concerned, that too even without any opportunity being afforded to the prosecution in the real sense, the grant of bail was clearly vitiated.
The Court below as rightly urged by the learned Additional Advocate General has not discussed the ingredients of the provisions of the POCSO Act and it's implications, and therefore there is a total absence of relevant consideration of the aforesaid provision of law that raises a strong presumption against the accused. It has also been rightly urged, and is evident, that the learned Judge took into consideration that there were two possible views in the matter and has then recorded a positive finding to disbelieve the story of the prosecution and the statement of the prosecutrix. The Court below certainly travelled beyond the parameters of considerations for bail by recording findings on evidence which has to be avoided at the stage of bail.
Shri Vishal Dixit, learned counsel appearing for the accused raised a plea that speedy justice did demand the disposal of the bail application on the very next day of it's moving. The Court is unable to appreciate the said argument as the learned counsel has not appreciated the distinction between hasty justice and speedy justice. The argument is too thin to plough and too thick to drink. A court while dealing with such serious matters having the potential of wide ramifications has to act with gravity and patience. It is therefore trite to remember that safety first and speed afterwards.
Accordingly, the bail cancellation application is allowed. The bail order dated 25.4.2017 in respect of all the three accused opposite parties is hereby cancelled, without prejudice to the rights of the opposite parties to move a fresh application, in case they so desire before the Court below and the Court below will be at liberty to consider any such application moved, on it's merits after providing reasonable opportunity to the prosecution to contest the matter.
The Application is allowed with the aforesaid observations.
Order Date :- 26.5.2017 Rajneesh/Lakshman/ Om/Arnima