Gourav Bharat vs State of U.P. and Others

Vinod Prasad, J.—This bail cancellation application has been filed by Gaurav Bharat. informant of crime No. 585 of 2006 Under Sections 147, 148, 149, 323, 504, 506, 325, 379 I.P.C., police station Purani Basti, district Basti seeking cancellation of bail of accused respondents Ram Kumar, Ramesh Kumar, Anil Kumar and Ashish @ Anshu granted in the afore said crime number which has been allowed to them by C.J.M. Basti vide his bail granting order dated 29.9.2006 vide annexure No. 3.

The prosecution allegations against the applicants, as is perceptible from the F.I.R., annexure No. 1, are that the accused is a distant relative of Sahmbhu Nath, Mausa of informant Gaurav Bahrat and the informant resides with him. Ram Kumar and Shambhu Nath are on enemical terms with each other. Because of the enimosity on 22.8.2006 Ram Kumar had called Dimple @ Brij Kishore Singh along with his associates, who had came in three Safari, one Quails and one Bolero cars armed with firearms. Ram Kumar, Ramesh Kumar. Anil Kumar and Ashish @ Anshu along with their servant Shiv Lal and ten other people entered into the shop of Ram Kumar and there they committed decoity of gold ornaments in the shop and bet Gaurav Bharat informant, his Mausa Shambhu Nath and Mausi Raj Kumari Devi. The accused persons escaped from the place of the incident firing in the air. This incident was witnessed by Shiv Naryan Gupta, Bishun Guta, Audhya, Vishambher and many others. Informant lodged the FIR against the acused on the same day at 5.20 p.m. as crime number 585 of 2006 under Sections 395/397 IPC at police Station Purani Basti District Basti. The respondents accused applied for their bail before Session Judge, Basti in the afore said crime number lor offences u/s 395/397 IPC after the same was rejected by the Magistrate concerned vide criminal Miscellaneous Bail Application No. 1028 of 2006 and Criminal Miscellaneous Bail Application No. 1029 of 2006. Sessions Judge Basti rejected both the bail applications of the accused on 4.9.2006.

Subsequently it transpires from the averments made in this Bail Cancellation Application that during the investigation the offences were converted under Sections 147, 148, 149, 323, 504, 506, 325 and 379 I.P.C. and therefore, the applicant again applied for bail before the Magistrate for the newly converted offences before The Chief Judicial Magistrate. Basti Chief Judicial Magistrate Basti vide his impugned order dated 21.9.2006 allowed bail to the accused respondents for the said newly converted offences which order is sought to be cancelled through this Bail Cancellation Application.

I have heard Sri Rajendra Singh, learned Counsel for the applicant in support of this Bail Cancellation Application and the learned A.G.A. in opposition.

Learned Counsel for the applicant contended that the bail has been wrongly granted by the Chief Judicial Magistrate to respondents, namely, Ram Kumar. Ramesh Kumar, Anil Kumr and Ashish @ Anshu as the same was already rejected by the Sessions Judge, Basti. He contented that the incident had taken place in a high handed manner and therefore, bail should not have been granted to the accused respondents. He further contended that the informant had sustained 12 injuries in the incident along with the Shambhu Nath whose injuries were found to be grievous in nature. He further submitted that the incident had occurred for non-fulfilment of illegal demand and therefore, the respondents should not have been allowed bail by the Magistrate.

Learned A.G.A. on the other hand contended that bail has been rightly granted looking to the nature of altered offences offences and therefore, it should not be cancelled.

I have considered the submissions raised by rival fractions. Grant of bail is one thing and cancellation there of is quite another. From the perusal of this Bail Cancellation Application, it transpires that earlier the bail of the respondents accused were rejected by the Sessions Judge for offences under Sections 395/397 I.P.C, which offences were triable by court of sessions and therefore. Magistrate had no power to grant bail to the accused. Subsequently, the offences were altered into offences which were triable by Magistrate. Out of the said altered offences, the offences under Sections 147, 148, 504, 506, 325, were all bailable offences. The only non-bailable offence was Section 379 I.P.C. In bailable offences the accused had got a right of bail as Section 436 Cr.P.C. applies to it. Therefore, the accused could not have been denied bail by The Chief Judicial Magistrate for the aforesaid offences under Sections 147, 148, 149, 323, 504, 506 and 325 I.P.C. So far as offence u/s 379 I.P.C. is concerned, there was no specific role against the accused respondents in the F.I.R. A general omnibous role was assigned to all the accused persons who were six in numbers. In such a view, it could not have been said that that The Chief Judicial Magistrate, Basti has wrongly exercised his discretion in granting bail to the respondents accused. Further there are no allegations for tampering bail or misusing the liberty. The law relating to cancellation of bail has been spelt out by the Apex Court in Aslam Babalal Desai Vs. State of Maharashtra, in the following words:

As slated in Raghubir Singh and Others Vs. State of Bihar, the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted u/s 437(1) or (2) or 439(1) can be cancelled where (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. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

It has further been held in Raj Kumar Jain and Another Vs. Kundan Jain and Another, as follows:

Having heard learned Counsel for the parties and perused the records, we are convinced that the impugned order of the High Court cancelling the anticipatory bail granted to the appellants cannot be sustained in law. It is an admitted fact that within 14 days of the marriage of the first appellant to Dimple Jain daughter of the first respondent herein, disputes had arisen between them and they had started living separately. There were complaints and counter-complaints between the parties which had compelled the appellants herein and 2 others to obtain anticipatory bail from the High Court. It is also an admitted fact that pursuant to the directions issued by the High Court in the said bail order, the persons who sought bail from the High Court including these 2 appellants, had surrendered before the Court and offered bailbonds which was accepted by the Court concerned and in furtherance of the directions issued by the High Court though appellant No. 2 was not required to attend the Police Station without being summoned, he along with appellant No. 1, was attending the Police Station everyday. In this background, if really a threat as alleged by Harish Bhuva was administered to him on 15-2-2003 a complaint in this regard would have certainly been lodged either on that day itself or on the next day. On the contrary, as could be seen from the records, a complaint was posted only on 17-2-2003 at about 1956 hours through speed post. Of course, there is an allegation that on 16th evening, an oral complaint was lodged but there is no record substantiating the same, except the ipse dixit of Harish Bhuva. Then again, if we read the affidavit filed by the Inspector of Police, which was 8 months after the alleged threat, it is seen that this Officer makes a complaint for the first time that the second appellant has not complied with the conditions imposed by the High Court while granting bail of appearing before the Police. This is a fact, in our opinion, far from truth. As a matter of fact, as per the order granting anticipatory bail to the appellants and two others, there was a direction only with regard to the first appellant herein to star in Chennai for a week, others were not even required to be in Chennai but they had to report to the Police as and when required by the Police. If really the second appellant had disobeyed this direction, we would not have expected the Police Officer to condone this default and wait for nearly 10 months before making an issue of it in an application filed for cancellation of bail by the first respondent. It is further seen from the said affidavit of the Police Inspector that Harish Bhuva lodged the complaint as to the threat administered to him only on 17-2-2003. She has not stated anything about the oral complaint that is allegedly lodged by said Harish Bhuva on 16-2-2003. If we notice the allegation made in the affidavit filed by Harish Bhuva in this regard, it could be seen that he informed the first respondent about the visit of the appellant to his house and the first respondent promised him that his interest would be protected in a manner known to law but he does not state in that affidavit that he tried to lodge an oral complaint on 16-2-2003. As notice above, in the background of the facts of this case, we find it difficult to believe that this witness would have failed to inform the first respondent of the visit of the appellants on 15-2-2003 itself and first respondent or said Harish Bhuva would have failed to lodge a complaint with the concerned Police immediately thereafter either on 15-2-2003 or 16-2-2003. The actual complaint lodged as stated above, was only on 17-2-2003 and that too was only posted at 1956 hours. This delay in lodging a complaint itself creates a doubt in our mind as to the authenticity of this complaint. In this factual background, we are of the opinion that the High Court was not justified in cancelling the bail granted.

Further in the case Samarendra Nath Bhattacharjee Vs. State of West Bengal and Another, it has been held by the Apex Court as follows:

Having heard the learned Counsel and having perused the records of the case, we notice that the trial court after looking into the case diary and other material produced before it and also noticing the fact that investigating agency had only sought judicial remand, and the argument of the possibility of accused tampering with the evidence still taking into consideration the age and ailments of the accused appellant granted bail on stringent condition.

Per contra, the High Court, in our opinion, has approached the case as if it is an appeal against the conviction by giving findings on factual issues which are yet to be decided which, in our opinion, is too premature and is likely to prejudice the trial.

Further, while granting bail to the accused respondents C.J.M., Basti has observed that no recovery has been made'' from the possession of the respondents accused and they were in jail since 23.8.2006. He has further observed that there was a cross case of the incident as well and there was no reason to come to conclusion that the accused persons will abscond after being released on bail. Observing thus, the C.J.M., Basti has allowed bail to the respondents accused. After going through the bail granting order, I am of the opinion that there is no allegation of tampering with evidence nor an allegation has been levelled that the accused will not appear or abscond and will not allow to trial to proceed and that they are threatening the witnesses which are the only relevant and germane grounds for cancelling the bail to accused respondents.

In such a view, I am not inclined to set aside the bail granting order passed by C.J.M., Basti. This bail cancellation application, therefore, is dismissed being merit less.