State of U.P. vs Karunakar alias Deonath Tiwari

N.L. Ganguly, J.—This is an application by the State for cancellation of bail granted to the applicant on 11-5-1988. The grounds enumerated in the petition for cancellation of the bail are firstly that the accused-opposite party is a hardened criminal and was involved in eight cases since 1983 under Sections 302 IPC, 25 Arms Act, 395/397, 435, 147, 148, 149, 323, 307, 302 IPC and Section 2/3 of U.P. Gangsters Act and other cases u/s 25 Arms Act and case u/s 307/323 IPC, It was submitted that there are furious apprehension that the accused would indulge in committing serious crimes and as such it is desirable that the bail granted to him, be cancelled and he committed to the jail custody.

A perusal of the F.I.R. of the said case shows that some election of Block Pramukh was to he held on. 16-10-88. The opposite party with his brother etc. were convicted persons in a Sessions case, under Sections 307/ 323 IPC. It is said that the accused persons committed offences by hurling bombs and fire arm injuries with the country made pistol. It has been stated that one Rakcsh Kumar received bomb injuries in the said incident. The accused persons and opposite party had filed an appeal. There is another report filed with an affidavit u/s 2/3 of U.P. Gangsters Act dated 4-1-1988 in which the opposite party also arrayed as an accused at serial No. 4 in Crime No. 5/88 under Sections 147, 148, 149, 323, 307, 302, IPC. This is not disputed that the opposite party was an accused in such serious offences and Special Judge, Faizabad by order dated 7-1-89 was pleased to grant bail to the opposite party. No copy of the injury report of the person, alleged to have received bomb injury has been filed. The law for grant of bail and cancellation of bail is settled. The Supreme Court in Aslam Baba Desaj v. State of Maharastra 1993(2) EFR SC 11 observed that "it is easy to reject the bail application but it is difficult to cancel a bail granted by the Court." It has also been observed that "bail once granted by the court, could be cancelled only if it is shown that the person on bail violated the bail order and the case is covered under provisions of Sections 436(2) and 439(2) Code of Criminal Procedure are quoted as under:

Section 436(2): Notwithstanding anything contained in Sub-section (1) where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bound to pay the penalty thereof u/s 446.

Section 439(2): A High Court or the Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

It has been admitted that the opposite party is a hardened criminal was involved in number of criminal cases when he was granted bail. It is not for the court considering the application for cancellation of the bail to consider whether the person is hardened criminal and for that reason only the bail be cancelled. It was for the court who granted the bail to consider at the time of granting bail whether with those antecedents and criminal history, the person was a fit person to be enlarged on bail. It is not controverter and denied that antecedents and criminal history could be a ground for refusing bail. The opposite party was known to be an accused in a number of criminal cases, the history of which has now been stated in the bail cancellation application was also known to the State. These facts could have and ought to have been brought to the notice of Court when bail was granted to opposite party. It is not clear from the evidence on record whether the criminal history of the opposite party was brought to the notice of the Court granting bail. If it was informed to the court and still the court had granted indulgence and ordered for bail, the High Court would not easily cancel the bail simply on the ground that the opposite party had a criminal history and was erroneously bailed out. It would be necessary to show that the person after being enlarged on bail, violated the terms and conditions of the bail order or abused the bail granted.

The other aspect of the case is that one F.I.R. under Sections 307/323 IPC lodged only a few days after the opposite party was enlarged on bail, whether can be safely considered to be a ground for cancelling the bail granted to the opposite party. It appears that the FIR Under Sections 307/323 IPC was lodged against the opposite party to create ground for getting his bail order cancelled It is practically more than three years, there is nothing on record by the State to show that the opposite party, who is still on bail, has committed number of other criminal offences during this three years'' period. In these circumstances, I do not consider it necessary and in the interest of justice to cancel the bail granted to the opposite party.

The application for cancellation of the bail is, thus, liable to be rejected and is hereby rejected.