Akhilesh Mathur vs State Of Rajasthan And Anr on 13 April, 2017

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR

S.B. Criminal Misc. Bail Cancellation Application No.
23/2017

Akhilesh Mathur S/o late Shri Durga Lal Mathur, aged
about 44 years by caste Kayasth R/o House No. 47,
Nagrik Nagar, Tonk Road, P.S. Sanganer, Jaipur

…Petitioner/Complainant.
Versus

1. State of Rajasthan through Public Prosecutor.

…Respondent.

2. Virendra Kumar Sarswat S/o Late Shri Jaganath
Prasad by Brahmin, aged about 57 years, R/o House
No. 46, Nagrik Nagar, behind Morani Moters, P.S.
Sanganer Jaipur.

…..Respondent/Accused

DATE OF ORDER ::: 13th April, 2017

HON’BLE MR. JUSTICE BANWARI LAL SHARMA

Mr. Krishan Sharma for the Petitioner.
Mr. I R Saini Sr. Counsel with,
Mr. Mahendra Sharma for the Respondent.
Mr. Jitendra Shrimali, PP.

Petitioner complainant Akhilesh Mathur has preferred

this application under Section 439(2) Cr.P.C. for cancellation of

impugned bail order dated 11.01.2017 passed by learned

Special Judge SC/ST (Prevention of Atrocities Cases), Jaipur in

Bail Application No. 20/2017.

The brief facts of the case are that a case was

registered against respondent No. 2 accused for offence under

Sections 354 IPC and 7/8 POCSO Act, 2012 wherein respondent
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No. 2 accused was arrested and after arrest his bail application

was allowed under Section 439 Cr.P.C. by the impugned order

dated 11.01.2017 by learned Special Judge SC/St Cases, Jaipur.

Learned counsel for petitioner Shri Krishan Sharma

submits that the allegations against respondent accused are

serious and without considering gravity of offence learned Court

below allowed the bail application, therefore, same may be

quashed and set aside.

Per contra, learned PP. Shri Jitendra Shrimali submits

that since a regular application was allowed by the lower Court,

therefore, there is no ground for cancellation.

Shri I R Saini learned counsel appearing on behalf of

respondent No. 2 accused also submits that since there is no

allegation regarding misuse of liberty and gravity of offence has

already been considered by the Court below, therefore, there is

no ground for cancellation of bail.

Heard.

Learned counsel Shri Krishan Shamra relied on

Prakash Kadam Ors. Vs. Ramprasad Vishwanath Gupta

Anr. Reported in (2011) 6 Supreme Court Cases 189

wherein it was observed that:-

“It is not an absolute rule that
considerations for cancellation of bail are
different from the consideration of grant of
bail; it will depend on the facts and
circumstances of the case. In considering
whether to cancel the bail the Court has also
to consider the gravity and nature of the
offence, prima facie case against the
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accused, the position and standing of the
accused, etc. If there are very serious
allegations against the accused his bail may
be cancelled even if he has not misused the
bail granted to him. There is no absolute rule
that once bail is granted to the accused then
it can only be cancelled if there is likelihood
of misuse of the bail. That factor, though no
doubt important, is not the only factor.
There are several other factors also which
may be seen while deciding to cancel the
bail.

In the aforesaid judgment it was the case of fake
encounter by the police and the offences were of Sections 302,
79 and 330 IPC.

Shri Krishan Sharma learned counsel also relied on
Smt. Madhuri Sharma Vs. State of Rajasthan Anr. S.B.
Criminal Misc. Cancellation Bail Application No. 4674/2011
decided by the Co-ordinate Bench of this court decided on
15.01.2015 wherein it was observed that :-

“The power vested in the High Court under
Section 439(2) Cr.P.C. can be invoked
either by the State or by any aggrieved
party. The said power could also be
exercised suo-moto by the High Court. It is
always open to the High Court to cancel the
bail if it feels that there are sufficient and
enough and reasons for doing so. The High
Court being superior Court in the hierarchy
of Courts, can cancel even bail granted by
the Sessions Court under Section 439(2)
and it is not necessary to first approach the
Sessions Court for its cancellation.”

The aforesaid observation of Hon’ble Supreme Court
and High Court is not disputed but in the present case, the
learned Court below after considering the allegations leveled by
prosecutrix and the fact that investigation has been completed
from the accused allowed the bail application. Therefore,
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considering the allegations and the fact that there is no
allegation regarding misuse the liberty by the accused, I am not
inclined to allow this bail cancellation application, therefore, the
bail cancellation application is hereby dismissed.

[BANWARI LAL SHARMA], J.

Komal/1.

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