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Subhash Chandra Jha vs State Of U.P. And Another on 6 March, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 16

Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. – 77 of 2020

Applicant :- Subhash Chandra Jha

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Santosh Kumar Giri

Counsel for Opposite Party :- G.A.

Hon’ble Samit Gopal,J.

1. Heard Sri Santosh Kumar Giri, learned counsel for the applicant, the learned A.G.A and perused the record.

2. This is an application preferred under Section 439 (2) of the Code of Criminal Procedure, 1973 for cancelling the bail of Yuvraj Singh, the opposite party no. 2 which has been allowed by the Chief Judicial Magistrate, Bareilly vide order dated 29.11.2019 in Case Crime No. 629 of 2018 under Sections 420, 406 of the Indian Penal Code, 1860 under Section 69 of Indian Stamp Act, 1899 under Section 25 of Uttar Pradesh Apartment (Promotion of Construction, Ownership Maintenance) Act, 2010 registered at Police Station Baradari, District Bareilly.

3. Learned counsel for the applicant argued that the opposite party no. 2 is the Director of Alliance Builders and Construction Limited, Bareilly. He had developed a colony in the year 2007 in the name of Super City in Bareilly in which the first informant and others took flats and paid money for it. It is further argued that in the present matter a suit has been filed by the accused himself which was after lodging of the F.I.R. The filing of the said suit was a mischievous act of the accused just in order to take benefit of the same in the present matter. It is further argued that the court below erred in allowing the bail application of the accused by overlooking the fact that during investigation sufficient evidence has been collected against the accused and as per the law laid down by the Apex Court it is for the trial court to weigh the statement and the evidence collected during investigation and arrive at its own conclusion. To make an enquiry into reliability and genuineness of the allegations made in the First Information Report and the material collected during investigation on the basis of which charge-sheet is submitted at the time of deciding a bail application is not a proper appreciation by the court below and the court below overstepped its jurisdiction. It is further argued on the basis of averments in para 10 of the affidavit that though the opposite party no. 2 / accused has delivered the possession of the land / house in dispute several years back, but sale deed has not been executed by him. Further on the pleading in para 11 of the affidavit it is argued that the opposite party no. 2 did not have title of the said property and hence he could not have executed any sale deed in favour of the allottees. It is then argued as per para 12 of the affidavit that the intention of the opposite party no. 2 / accused was dishonest from the very inception itself. The petition for quashing of charge-sheet dated 24.12.2018 in the matter has been dismissed by a co-ordinate Bench of this Court vide order dated 01.10.2019, the copy of which is annexed as Annexure- 2 to the affidavit. It is then argued that on the basis of para 15 of the affidavit that opposite party no. 2 / accused surrendered on the same day i.e. on 29.11.2019, moved his bail application on the same day which has been allowed on the same day itself. It is further argued that the opposite party no. 2 / accused after being released on bail is misusing the liberty of bail and is also tampering with the prosecution witnesses. It is thus argued that the present matter is a heinous and a grievous criminal case and as such the bail granted to opposite party no. 2 is liable to be cancelled.

4. The parameters for cancellation of bail have been laid down by the Apex Court in large number of cases. In Raghubir Singh v. State of Bihar (1986) 4 SCC 481 the Apex Court held that bail 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.

Apart from the above grounds for cancellation of bail it is to be kept in mind that rejection of bail and cancellation of bail are two different things wherein the cancellation of bail is a harsh step as it interferes with the liberty of an individual and thus the same should not be resorted to lightly.

5. Cancellation of bail can be done in cases where bail has been granted and the order suffers from serious infirmities which would result in miscarriage of justice, the Court while granting bail ignores relevant material showing prima facie involvement of the accused or it takes into account irrelevant material which has no relevance to the question of grant of bail to an accused.

6. The Hon’ble Apex Court in the case of Dataram Singh v. State of U.P. (2018) 3 SCC 22 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further been held by the Hon’ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon’ble Apex Court has held as under:

“2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.”

7. It is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial. The object of bail is neither punitive nor preventative. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 40 has been held as under:-

“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

8. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon’ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.”

9. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if r released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

The object of granting of bail is to secure the attendance of an accused in trial. The normal rule is of bail and not jail. The Court has to keep in mind the nature of acquisitions, nature of evidence in support thereof, severity of punishment, character of the accused and the circumstances which are peculiar to the accused involved in the matter.

10. Per contra learned A.G.A opposed the prayer for cancellation of bail on the ground that the court below after perusing the entire material came to a correct and a just decision of allowing the bail application and granting bail to the opposite party no. 2. It is further argued that the requirement for cancellation of bail is not made out and spelled out in any of the paragraphs of the affidavit. No misuse of bail has been alleged and even there is no averment regarding the accused tampering with evidence. Since charge-sheet has been submitted the investigation has concluded.

11. In the case in hand it is not the case of the first informant that irrelevant considerations have been taken into account while granting bail to the opposite party no. 2 / accused. The order granting bail specifically mentions therein that as per the charge-sheet there is no reported criminal antecedent of the accused. There is no averment whatsoever that while the investigation was continuing the accused has tampered or was tampering with evidence. The charge-sheet has been submitted against the opposite party no. 2 / accused. The accused was not arrested during investigation and a notice under Section 41 (1) of the Code of Criminal Procedure, 1973 was served upon him. The allegations as referred to in paragraph 19 and 20 of the affidavit are vague and without any corroboration whatsoever. The same are extracted herein below:-

“19. That accused i.e. (opposite party no. 02) after having being released on bail is misusing the liberty of bail and is also tampering prosecution witnesses.

20. That intention of grant of bail is not to misuse liberty of bail, while in the present case accused i.e. (opposite party no. 02) after being released on bail is tampering First Informant / Applicant to prosecute the Criminal Case against accused i.e. (opposite party no. 02).”

12. After hearing the learned counsel for the parties and perusing the material on record, in my opinion there is no specific ground which would warrant interference by way of cancelling the bail of the opposite party no. 2 granted by the court below. The discretion as exercised vide order dated 29.11.2019 is just and proper and not demanding any interference whatsoever.

13. The present bail cancellation application is thus devoid of any merit and is hereby, dismissed.

Order Date :- 6.3.2020

AS Rathore

(Samit Gopal,J.)

 

 

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