HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - [SECTION] Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 30322 of 2012 Applicant :- [ENTITY] Opposite Party :- State of U.P. and Another Counsel for Applicant :- [ENTITY], [ENTITY] Counsel for Opposite Party :- Govt. Advocate Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], learned counsel for applicant and learned AGA for State of U.P.
2. This is an application seeking cancellation of bail granted to respondent- 2, namely, [ENTITY] passed by learned IInd Additional Chief Judicial Magistrate, Gautam Budh Nagar vide order dated 21.07.2011 in [CASE NUMBER], under [SECTION] and [SECTION] [ACT], Police Station Kasna, District Gautam Budh Nagar.
3. It is contended that after grant of bail to accused-respondent- 2, he has threatened applicant and pressurize prosecution witnesses
4. Considerations and relevant aspects by a Court while granting a bail are different than those when an application for cancellation of bail has come up before the Court and this aspect has been considered by a three-Judges Bench of Supreme Court in State (Delhi Administration) vs. [ENTITY] (1978) 2 SCC [SECTION] had an occasion to consider an order dated 11.04.1978 passed by Delhi High Court rejecting Delhi Administration's application for cancellation of bail of respondent [ENTITY]. Court observed that rejection of bail, when bail applied is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves review of a decision already made and can, by and large, be permitted only, if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow accused to retain his freedom during the trial.
5. While considering degree of burden of prove lie upon prosecution or complainant/Informant, when an application for cancellation of bail moved, is not to the extent of proving by a mathematical certainty or beyond reasonable doubt but it must establish its case by showing on a preponderance of probabilities that accused has attempted or may attempt to or tamper or has tampered with witnesses. It may also be proved by test of balance of probabilities that accused has abused his liberty or it may show that there is reasonable apprehension that he will interfere with course of justice. Court approved Bombay High Court decision in [PRECEDENT] that test adopted by the Court would be, whether material placed before it is such as to lead to the conclusion that there is a strong prima facie case that accused if allowed to be at large he would tamper with prosecution witnesses and impede course of justice. Mere unfounded apprehension or self imagined threat by prosecution or Informant-Complainant would not justify cancellation of bail, granted to accused.
6. In [PRECEDENT], Court said that grounds for cancellation of bail under [SECTION] and [SECTION] are identical, namely, bail granted under [SECTION] can be cancelled where (i) 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.
7. It was also held that above grounds are illustrative and not exhaustive. Rejection of bail stands on one footing but cancellation of bail is a harsh order since it interferes with liberty of individual and must not be lightly resorted to.
8. Above decision was followed in [PRECEDENT] as also in [ENTITY] vs. Vishnu Narain Shivpuri and others (2014)13 SCC 492.
9. In [ENTITY] (supra), considering conduct of accused i.e. charge of throwing acid on complainant, Court held that it was a serious aspect and therefore, accused is not entitled to continue with the benefit of bail.
10. In Dolat Ram and others vs. State of Haryana (1995) 1 SCC [SECTION]9, Court said that rejection of bail in a non-bailable case at initial stage and cancellation of bail so granted, has to be dealt with and considered on different basis. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, already granted. Court further said that generally speaking grounds of cancellation of bail, broadly i.e. illustrative and not exhaustive are : (i) interference or attempt to interfere with the due course of administration of justice; (ii) evasion or attempt to evade due course of justice; (iii) abuse of the concession granted to the accused in any manner; (iv) Satisfaction of Court, on the basis of material placed on record of possibility of accused absconding.
11. Court also reminded 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 concession of bail during trial.
12. In [PRECEDENT] Court said that while granting bail, nature of accusations, severity of punishment, if accusation entails a conviction, nature of evidence in support of the accusations should be kept in mind. Further, reasonable apprehensions of witnesses being tampered with or apprehension of there being a threat for complainant also need be weighed by Court. No discussion of entire evidence to form an opinion whether evidence would established guilt beyond reasonable doubt is expected at the stage of considering matter of bail but prima facie satisfaction of Court in support of charge must be there. Lastly, Court should also consider whether prosecution has element of genuineness or there is some fragility. In case of any doubt as to genuineness, normal course is to grant bail. To the same effect are the observation made in [PRECEDENT].
13. In [PRECEDENT] it was held that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious. Heinous nature of crime warrants more caution.
14. In [PRECEDENT], in para 23, Court said :
" that there is difference between yardstick for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, 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 the trial."
15. Position, influence and resources of accused have also been held relevant factors to adjudge whether accused is likely to interfere with administration of justice, trial or tamper with witness or evidence.
16. In [PRECEDENT], anticipatory bail was granted by Himachal Pradesh High Court and C.B.I. approached for cancellation of bail stating that accused was a former Minister of Himachal Pradesh and being a high authority in power is likely to disrupt even investigation but High Court did not accept application for cancellation of bail. On appeal, Supreme Court accepted C.B.I. contention and observed that in case of such highly influenced political person, the very interrogation and investigation may become a mere ritual hence Court cancelled order of anticipatory bail.
17. In [PRECEDENT], Supreme Court while confirming order of anticipatory bail took into accunt that accused are aged and rustic, not influential persons holding high office who can bring pressure upon investigating agency and it is unlikely that Police would find it difficult to interrogate them because they are protected by an order granting anticipatory bail. That is how judgment in [PRECEDENT] (supra) was also distinguished. However, Court also clarified that grounds for cancellation of bail, broadly, are interference or attempt to interfere with due course of justice or abuse of concession granted to the accused in any manner but an order of bail can also be cancelled where it is found to be perverse, passed ignoring evidence on record or taking into considering irrelevant material. Relying on [PRECEDENT] Court said that such vulnerable bail order must be quashed in the interest of justice.
18. In [PRECEDENT], accused was convicted under [SECTION] [ACT] for hatching criminal conspiracy in killing of deceased [ENTITY]. In appeal, High Court while admitting appeal, enlarged accused on bail and this order of bail was challenged in Supreme Court by the State on the ground that accused was involved in as many as 52 cases, out of which 20 cases offences were registered against him before going to jail and while he was in jail; and 32 cases were registered when he was released by Court on conditional bail. The defence taken on behalf of accused, besides other, was that he has already spent 9 years in jail during pendency of trial and no witness has supported prosecution case and that it was a political rivalry in which he was falsely implicated. Supreme Court said that reason given by High Court that father and wife of deceased have turned hostile, cannot be a ground to grant bail since there were other witnesses and material available. High Court should not have ignored the fact that accused was involved in as many as 52 cases out of which 20 were registered before going to jail and during stay in jail, and whenever he was on bail or conditional bail, 32 cases were registered. Court also found that in some cases accused was acquitted but still 15 trials were pending in which two cases were under [SECTION] [ACT]. Having said so, Court observed that since accused was in jail for 9 years and as per pendency, High Court would have taken a large number of years in deciding appeal, therefore, Court should decide appeal expeditiously and with the above direction, appeal was allowed and order of bail granted by High Court was set aside.
19. In [PRECEDENT], this Court had granted bail to accused for offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] on the ground of parity as another accused [ENTITY] was already enlarged on bail. The wife of deceased filed appeal for setting aside order of bail granted by this Court. Court considered various earlier authorities and said in para 13 of judgment as under :
" It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court."
20. Thereafter, referring to 15 cases registered against accused showing that he was a history-sheeter and mostly under [SECTION] [ACT], order of bail was set aside. Court observed that there has to be a balance between personal liberty of an individual and peace and harmony of Society. No individual interest can be allowed to create a concavity in the stem of social stream otherwise it would bring chaos and anarchy in the Society. Relevant observations made in this regard are reproduced as under :
" We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body.
A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law." (emphasis added)
21. In Virupakshappa Gouda and Ors. Vs. The State of Karnataka and Ors. (2017) 5 SCC [SECTION], application for bail was rejected by Sessions Judge as also High Court. Even second bail application was rejected by Sessions Judge as also High Court. This time accused went to Supreme Court also but Special Leave Petition was also rejected. Then a third application was filed before Additional Sessions Judge, Raichur, which was allowed and accused were enlarged on bail. Informant brought the mater to High Court under [SECTION] [ACT] seeking cancellation of bail. He succeeded and High Court cancelled bail. Thereafter accused brought the matter to Supreme Court. Court made serious observations in respect of approach of Trial Court in granting bail by treating filing of charge-sheet as a change of circumstance but ignoring that already two bail applications were rejected and one has attained finality up to Supreme Court. Court said that bail application cannot be allowed solely or exclusively on the ground that in criminal jurisprudence accused is presumed to be innocent till found guilty by the Court. Trial Court has relied on Supreme Court judgment in [ENTITY] vs. Central Bureau of Investigation (2012) 1 SCC 40 wherein it was observed that object of bail is to secure appearance of accused at trial and not punitive or preventive. Deprivation of liberty should be considered a punishment. Court should appreciate that punishment begins after conviction and every man is deemed to be innocent until duly tried and found guilty. Supreme Court said that above observations in [ENTITY] (supra) have their relevance but cannot be made applicable in each and every case for grant of bail. It all depends upon factual matrix of each case, nature of crime and manner in which it was committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of factual score and understanding of pronouncements in the field. Court relied on [PRECEDENT] where it was opined that while exercising power for grant of bail, Court must to keep in mind certain circumstances and factors as under :
"(i) whether there is any prima facie or reasonable ground to be believed that the Accused had committed the offence.
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the Accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail." (emphasis added)
22. It also held that where a bail is granted considering irrelevant materials or keeping out of consideration relevant material, the order becomes vulnerable and warrants annulment. The order of High Court setting aside bail granted by Trial Court was upheld by Supreme Court.
23. In [PRECEDENT]. [PRECEDENT] enlarged to certain more aspects for granting bail, whether accused was arrested during investigation when he had best opportunity to tamper with evidence and influence witness or Investigating Officer found it not necessary to arrest accused during investigation and this factor would go in favour of accused. Similarly, whether accused was participating in investigation regularly and not absconding or avoiding investigation. Further, whether accused is a first-time offender or is accused of other offences and if yes, nature of such offences and his general conduct. Poverty or deemed indigent status of an accused, Court held, is also an important factor to be taken note. It observed that grant of bail is a rule and refusal is an exception. Finding that accused was not said to be a person of shady character and there was no history of his involvement in any unacceptable activity etc., accused was granted bail, though it was rejected by Trial Court as well as High Court.
24. In [PRECEDENT]. [PRECEDENT], accused was granted bail by High Court and it was set aside by Supreme Court. Court observed that accused was a powerful and influential person in his locality and even Investigating Officer apprehends that he may influence witnesses by intimidating them and this may influence trial by creating fear in the minds of witnesses. Court also looked into past attempt of accused to evade process of law and then found that order of grant of bail was not proper and it was set aside.
25. In [PRECEDENT], accused, a Film Producer, based in Mumbai, was charged of offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT]. Accused got anticipatory bail from Sessions Judge on 13.01.2017 and had advantage of that order for about eight months. The said order was cancelled by Sessions Judge on the ground that accused has not disclosed that he was also accused in 2G Spectrum case. This cancellation order was affirmed by High Court and also by Supreme Court. Thereafter accused moved a bail application under [SECTION] [ACT], which was allowed by High Court and accused was released on bail. This order was challenged in appeal before Supreme Court. Upholding the said order, Court said that bail once granted should not be cancelled unless a cogent case, based on supervening event has been made out.
26. In [PRECEDENT]. (2018) 16 SCC 10 bail granted to accused by High Court in the case registered under [SECTION], [SECTION], [SECTION] [ACT] was challenged in appeal before Supreme Court. Court noticed that accused-2's bail application was rejected by Special Judicial Magistrate, CBI, Ghaziabad and thereafter bail was granted by High Court. Court said that gravity of offence is a relevant factor but not the sole ground to deny bail if there are other overwhelming circumstances justifying grant of bail. Noticing special feature, Court upheld order of High Court granting bail.
27. Thus, the broad principles, which are to be considered by this Court while granting bail and when bail is already granted but an application for cancellation has come up for consideration, as discussed above, show that there is no thumb rule in both the situations. However, it is true that factors relevant for grant of bail are different and approach required to be adopted while considering application for cancellation of bail is different.
28. Looking to above exposition of law as also the fact and circumstances of the case, I find that there is no material available on record to show any justification for cancellation of bail after seven years and, therefore, order of cancellation of bail cannot be justified at this stage.
29. Application is accordingly rejected.
Order Date :- 11.12.2019 [ENTITY]