Vishal Singh vs State of U.P. and Others

Surendra Singh. J.

The applicant by way of filing this application u/s 439(2) of Code of Criminal Procedure has sought to cancel the bail granted to opposite party Nos. 2 and 3, namely, Yashoverdhan Singh and Shiv Baran Singh in Case Crime No. 301 of 2007 under Sections 302, 307 and 120B, I.P.C. Police Station Ghatampur, district Kanpur, setting aside both the orders dated 11.9.2007 and 27.9.2007, passed by the learned Sessions Judge, Kanpur Dehat.

The background facts in nutshell are as follows:

The applicant, lodged the F.I.R. under Sections 302, 307 and 120B, I.P.C. at Police Station Ghatampur, district Kanpur Nagar vide Case Crime No. 301 of 2007 on 29.4.2007 at about 9.45 p.m. regarding the incident alleged to have taken place on the same day at about 6.30 p.m. Opposite party Nos. 2 and 3 were named in the F.I.R. inclusive of three other persons, namely, Jai Vardhan Singh, Smt. Neelam Devi and wife of Jai Vardhan Smt. Sheela. As per the F.I.R. on 29.4.2007 at about 6.30 p.m. while the applicant alongwith his father (deceased) and some other family members were present in the house, Yashovardhan alias Lalji (opposite party No. 2), his brother, namely, Jai Vardhan alias Bauna sons of Shiv Baran Singh (retired Judge) came to the door of the applicant and started hurling fusillade abuses to the deceased Virendra Kumar Singh and when he asked them to desist from abusing opposite party No. 2 Jai Vardhan and their father Shiv Baran Singh (opposite party No. 3) and Smt. Neelam wife of opposite party No. 3 armed with pharsa, sword, axe, tamancha and lathis made assault at the deceased with the result he sustained grievous injuries on the head and fell down. The applicant''s brother Navneet Singh (Fauzi) came to rescue, then above named persons made assault on him also resultantly he sustained several injuries on his vital parts of body. It is further alleged that the applicant, injured Navneet Singh, the applicant''s mother, sister and bhabhi Rekha Singh have witnessed the occurrence. It is further submitted that entire incident has occurred due to conspiracy of the wife of Jai Vardhan, brother of the opposite party No. 2. During the course of investigation, statement of certain witnesses were recorded u/s 161, Code of Criminal Procedure. As per the statement of the witnesses recorded u/s 161, Code of Criminal Procedure opposite party Nos. 2 and 3 were alleged to have been armed with pharsa while Jai Vardhan is said to be armed with an axe and country-made pistol and were admitted to bail vide order dated 28.8.2007 and bail application of the opposite party Nos. 2 and 3 was also admitted by the learned Sessions Judge vide orders dated 11.9.2007 and 27.9.2007 respectively which is the subject-matter of challenge in this application before this Court.

Learned Counsel for the applicant has submitted that from the perusal of the F.I.R. as well as statements of the eye-witnesses recorded u/s 161, Code of Criminal Procedure, it is apparent that opposite party Nos. 2 and 3 alongwith other co-accused persons had brutally committed murder of Virendra Kumar Singh (father of the applicant) and caused several grievous injuries to Navneet Singh (brother of the applicant). The medical evidence in no way is at variance with the ocular version. He has further submitted that after a long period of absconding opposite party Nos. 2 and 3 surrendered before the Court concerned and moved an application for bail before the learned Sessions Judge, Kanpur Dehat by concealing and suppressing so many facts with specific plea of parity of bail order of Jai Vardhan indisputably granted by this Court. Learned Sessions Judge without appreciating the evidence which was produced before him passed the cryptic and illegal order releasing the opposite party Nos. 2 and 3 on bail. He next argued that after they were released on bail both of them started regularly and continuously advancing threats to the applicant as well as his family members and further forcing the informant to leave the village alongwith family members and also started compelling the witnesses of the incident to turn down from their statements and further giving threats that if they will not turn down from their statements, then all of them will have to face the consequences. He next argued that keeping in view above facts and circumstances of the case, the orders dated 11.9.2007 and 27.9.2007 granting bail to the opposite party Nos. 2 and 3 are absolutely illegal, unjust and perverse as such deserve to be set aside by this Court.

However, this application has been opposed by Sri. R.B. Singhal, learned Counsel for the opposite party Nos. 2 and 3. He has contended that the parameters for granting bail and cancellation of bail are entirely different as has been laid by Hon''ble Apex Court in several cases. In the present application for cancellation of bail, there is no reference of any supervening circumstance and only analysis of materials which were considered by the trial court to grant bail were highlighted. He further submits that once bail has been granted, it should not be cancelled mechanically. He placed reliance on the decision of Hon''ble Apex Court in the case of Panchanan Mishra v. Digambar Mishra and Ors. 2005 (1) SCC 660 : 2005 (1) ACR 510 (SC); State of U.P. v. Amar Mani Tripathi 2005 (1) SCC 1960 : 2005 (3) ACR 2995 (SC) and Daulat Ram v. State of Haryana 2005 SCC 237.

Taking note of the submissions made by learned Counsel for the parties and having gone through the material placed on record, indisputably the parameters for grant of bail and cancellation of bail are different. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted by a competent court. Generally, the grounds for cancellation of bail are interfered or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or process of abuse of the privilege granted to the accused in any manner or there is reasonable apprehension of the accused of absconding. Therefore, for cancellation of bail, the conduct of the accused subsequent to release on bail and supervening circumstance alone are relevant. Hon''ble Apex Court in specific terms has held in the case of Panchanan Mishra (supra) in paragraph 13 as follows:

We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of the bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set a liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.

It is also settled by Hon''ble Apex Court that bail once granted should not be cancelled in a mechanical manner without considering whether there is any supervening circumstance rather rendered but no longer conducive to fair trial to allow the accused to retain his freedom of enjoying the concession of bail during the trial. It is not disputed that once it is found that the bail was granted on untenable grounds, same can be cancelled. The stand that there was no supervening circumstance has no relevance in such a case. Since in the present case co-accused Jai Vardhan having similar role was granted bail by another Bench of this Court, thus the learned Sessions Judge has committed no error in allowing the bail application moved on behalf of the opposite party Nos. 2 and 3. It is also noted that the applicant has not preferred any bail cancellation application against co-accused Jai Vardhan before this Court. Since accused, opposite party Nos. 2 and 3 are on bail for considerable length of time and keeping into account aforesaid facts and circumstances of the case, it would not be proper to cancel the bail granted to them, though there appears some substance in the plea that impugned orders granting bail surfers from various infirmities. The application, therefore, deserves to be dismissed and is accordingly dismissed.

However, taking into account aforesaid facts and circumstances of the case the trial court is directed to make every endeavour to conclude the trial as expeditiously as possible without unreasonable delay. Both the parties are expected to co-operate in the trial and shall not seek unnecessary adjournment.

It is also directed that if the complainant/applicant or any witness seeks protection for appearance before the trial court through a proper application, the same shall be provided by the concerned police officials.

The office is directed to send the copy of this order to the District and Sessions Judge/trial court for intimation and necessary compliance.