Court No. - 50
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No.
- 2324 of 2017 Applicant :- Raj Kumar Jaiswal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravindra Nath Rai,Akhilesh Kumar,Ashok Kumar Rai,Daya Shanker Mishra,Shiv Nath Singh,Sunil Vashisth Counsel for Opposite Party :- G.A.,Ved Byas Mishra,Vibhava Prakash Tripathi
Hon'ble Aniruddha Singh,J.
Heard Sri Shiv Nath Singh, learned counsel for the applicant/complainant Sri Ved Byas Mishra, learned counsel for opposite party no.2-Anil Kumar Tripathi, learned AGA and perused the record.
This bail cancellation application has been moved by the applicant/complainant (Raj Kumar Jaiswal) to cancel bail granted vide order dated 8.12.2016 passed by the learned Session Judge,/Special Judge (Prevention of Corruption Act, Court no. 4, Gorakhpur in bail application no. 3352 of 2016, in Case Crime No. 39 of 2016, under Sections 419, 420, 467, 468, 471, 120B IPC, Police Station Cantt., District Gorakhpur whereby opposite party no. 2-Anil Kumar Tiparthiwith was enlarged on bail with three conditions.
Learned counsel for the applicant/complainant submitted that initially interim bail was granted in favour of Anil Kumar Tripathi, which was cancelled by the learned Sessions Judge, Gorakpur. Later on, bail application no. 3352 of 2016 was transferred to the court of learned Session Judge,/Special Judge (Prevention of Corruption Act), Court no. 4, Gorakhpur in which opposite party no.2 Anil Kumar Tripathi had obtained bail by concealing criminal history, hence bail granted by the court concerned may be cancelled.
Learned counsel for opposite party no. 2 submitted that order passed by the court concerned is legal and bail cancellation application is liable to be dismissed.
The issue raised in the bail cancellation application has been opposed by the learned counsel for the opposite party no.2 which relates to finding of fact.
Counter affidavit and rejoinder affidavits have been exchanged between the parties, it will not be proper to decide the bail cancellation application by this Court as the ground of cancellation is related to facts which cannot be adjudicated by this Court and it can be decided by the Tiral court where the case is pending for trial that related to finding of fact.
In these circumstances, it will be proper that all issues raised before this Court may be raised before the court of District Judge, Gorakhpur and, if so raised, before the District Judge by moving bail cancellation application as above mentioned case and crime number, the District Judge, Gorakhpur is directed to decide the said application himself or transfer it to the court concerned, who has granted bail to opposite party no.2 Anil Kumar Tripathi.
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.
In the case of Daulat Ram Vs. State of Haryana, AIR 1995 SC 1998 it was held by the Hon'ble Apex Court that 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 or Sessions Courts find that the accused has misused the privilege of bail.
7. If the life of the accused itself be in danger."
This bail cancellation application has not been moved by the State.
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 off with liberty to file fresh bail cancellation application before the court of District Judge, Gorakhpur or any other court nominated by him and if applicant files bail cancellation application, it is expected from the court to decide the same on merit in accordance with law expeditiously.
The present bail cancellation application is disposed of accordingly.
Certify this judgment to the lower court immediately.
Order Date :- 30.1.2019 OP