Court No. - 22
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No.
- 34827 of 2015 Applicant :- Mohd. Khalid Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Santosh Tripathi Counsel for Opposite Party :- Govt. Advocate,Ramesh Kumar Pandey
Hon'ble Aniruddha Singh,J.
Heard Sri S.S. Tripathi, Advocate, holding brief of Sri Santosh Tripathi, learned counsel for the applicant, learned A.G.A. and perused the record.
This bail cancellation application has been filed against the order dated 09.04.2014 passed by this Court in Case Crime No. 1032 of 2013, under Sections 363 and 366 I.P.C, P.S. Sahibabad, District Ghaziabad against opposite party no.2.
Learned counsel for the applicant submitted that after getting bail the opposite party no.2 is threatening the victim not to give evidence against him and subsequently on 10.04.2015 the prosecutrix was examined before the court and fully corroborated the prosecution version and has clearly stated that opposite party no.2 and other accused persons forcibly took her away by a Maruti Car and thereafter gang rape has been committed by the opposite party no.2.
From the perusal of the record I found no ground to cancel the bail of opposite party no. 2.
In the case of Shahzad Hasan Khan v. Ishtiq, AIR 1987 SC 1613, the Apex Court has held that in the absence of sufficient materials to show that the accused was threatening the informant, bail granted cannot be cancelled. The order under this section may be passed on the following grounds:-
"1. When the accused is found tampering with the evidence either during the investigation or during the trial.
2. When the persons on bail commits similar offence or any heinous offence during the period of bail.
3. When the accused has absconded and trial of the case gets delayed on that account.
4. When the offence so committed by the accused had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.
5. If the High Court finds that the lower Court granting bail has exercised its judicial power wrongly.
6. If the High Court of Sessions Courts find that the accused has misused the privilege of bail.
7. If the life of the accused itself be in danger.
Ground of cancellation is related to facts which can not be adjudicated by this Court and it can be decided by the trial Court where the case is pending for trial.
Moreover, in view of law laid down in the case of Abdul Basit @ Raju and others vs. Mohd. Abdul Kadir Chaudhary and another (2014) 10 SCC 754, this application would lie before the Court of Session Judge, not before the High Court, hence application is disposed of with liberty to file fresh bail cancellation application before the trial Court and if it is filed, it is expected from the trial Court to decide the same on merit in accordance with law expeditiously.
Certify this judgment to the lower court immediately.
Order Date :- 23.2.2018 A. Tripathi