Satyendra Yadav vs State of U.P. and Another

Vinod Prasad, J.—Heard Sri R. K. Sharma, learned Counsel for the applicant and the learned A.G.A.

The accused Respondent was granted bail on 6.7.2004 by Additional Sessions Judge/Special Judge S.C./S.T. Act, Ghaziabad. The bail granting order has been filed alongwith this bail cancellation application, which indicates that the lower court considered three aspect of the matter while granting bail to the accused Respondent.

The first aspect was that there was no intention to commit murder of the deceased as he had received a single fatal injury by assault made by a cricket bat and therefore, the offence will not travel beyond the scope of Section 304, Part II, I.P.C. and no offence u/s 302, I.P.C. was prima facie made out.

The second reason for granting of bail was that it was a case of a sudden fight at the spur of the moment without any pre-meditation.

The third reason was that a cross case under Sections 452, 323, 504 and 506, I.P.C. initiated by the wife of the present accused, Respondent, was also lodged. The said F.I.R. was registered as Crime No. 436A of 2004. The ancillary reason, which is mentioned by the Additional Sessions Judge was that the accused is an athlete champion and son of a senior advocate. He also belongs to a respectable family and there was no chance of his absconding. The Additional Sessions Judge has observed in concluding portion of the order that there was a single injury on the head. The wife of the accused had also sustained simple injuries in the same incident. The incident had taken place at the spur of the moment regarding the return of two lacs rupees.

On all these aspect of the matter considering the totality of the circumstances, the trial court exercised the discretionary power to grant bail to the accused Respondent.

Sri Rajesh Kumar Sharma, learned Counsel for the applicant contended that the bail was granted to the accused Respondent on the ground that he was the son of a senior advocate and was an athlete champion and he belonged to a respectable family and there was no chance of his absconding is wholly illegal. Learned Counsel for the applicant also contended that the memo filed in the trial court did not contain the signature of the counsel and hence bail application filed by accused Respondent was not maintainable. He has filed certified copy of the said memo of the engagement.

Learned A.G.A. on the other hand contended that contentions raised by counsel for the applicant is not correct. He submitted that the Additional Sessions Judge did not grant the order of bail on the contentions raised by the counsel for the applicant but he had taken into consideration the material in the case diary and the medical report. He pointed out to paragraph 7 of the bail granting order. He contended that the bail was granted on the factual aspect of the matter and not on the considerations, which has been stated by learned Counsel for the applicant. Learned A.G.A. also submitted that the contentions, which has been raised by the counsel for the applicant is wrong inasmuch as it were the arguments which were raised by the rival sides which has been mentioned by the Additional Sessions Judge in the bail granting order.

I have considered the submissions raised by both sides. In this case it is clear that Additional Sessions Judge/Special Judge S.C./S.T. Act, Ghaziabad while allowing bail to the Respondent on 6.7.2004 has observed that there was a single injury sustained by the deceased Pintoo on his head, which subsequently proved fatal. The wife of the deceased also sustained some simple injuries. He had further observed that the incident has taken place all of a sudden for the recovery of Rs. 2 lac. Thus, on these considerations the Additional Sessions Judge allowed the bail. I am also of the view that this Court is not sitting on the appeal over the bail granting order passed by the lower court. Power u/s 439, Cr. P.C. given to this Court in bail matters also gives the power to the Sessions Judge. Grant of bail is one thing and cancellation thereof is quite another. Bail once granted cannot be cancelled as a punitive measure. The relevant ground for cancellation of bail is tampering with the course of justice or fleeing from justice or hampering the trial or otherwise like reasons such as, it is not in the interest of justice to allow the accused to remain on bail. None of these conditions are present in the present case. Whatever learned Counsel for the applicant has submitted was the argument, which was raised by both the sides and which was referred to by the lower court, as is perceptible from the order granting bail. The Additional Sessions Judge has referred to the submissions raised by both the sides and finding the case to be fit for bail, taking an over all view of the matter, as was argued before him by the rival sides, that he had allowed the bail. The view taken by the Additional Sessions Judge cannot be said to be perverse or illegal in any manner. It cannot be said that the grant of bail was because of extraneous reasons than those, which are relevant under the law. Moreover, this bail cancellation application was filed on 29th July 2004. It has come up for final disposal after a gap of two years. During this period of two years there has been no complaint at all against accused Respondents. The gap of two years is sufficient enough not to interfere with the bail granting order once there is no allegation of tampering with the record or evidences or fleeing from justice.

Further the contentions of the counsel for the applicant that the power filed on behalf of the accused did not contain the signature of the counsel. I am of the view that the said technicality is no ground to cancel the bail. A perusal of the power definitely shows that the counsel who appeared on behalf of the applicant had got his stamp affixed in the memo. That, in my view is sufficient compliance so far as engagement of a counsel is concerned in a criminal matter.

In view of what has been stated hereinbefore, I am of the opinion that there is no reason to cancel bail of accused Respondent No. 2 which has been allowed by the Additional Sessions Judge/Special Judge SC/ST Act, Ghaziabad vide his impugned order dated 6.7.2004 in Crime No. 436 of 2004 under Sections 302 and 504, I.P.C., P.S. Kavi Nagar, district Ghaziabad. Resultantly, this criminal miscellaneous bail cancellation application being devoid of merit is hereby dismissed.