1. Heard Sri Sunil Kumar Singh, learned counsel for the applicant and Sri Raj Kumar Gupta, learned AGA for the State and perused the record.
2. This is a bail cancellation under Section 439(2) Cr.P.C. with the prayer to cancel the bail of opposite party nos. 2 to 5 who have been granted bail by this Court vide order dated 20.12.2019 passed in Crl. Misc. Bail Application No. 57414 of 2019 (Lal Bahadur and 3 others Vs. State of U.P.).
3. Learned counsel for the applicant strenuously argued that the order by which the opposite parties were granted, had imposed three conditions therein, in which, the first condition was that the applicants will not tamper with the evidences which has been breached by them with impunity. It is argued that the opposite party nos. 2 to 5 have indulged in tampering with the evidence by way of committing marpeet with the applicant for compromise when he went to District Court for recording of his statement who is the first informant of the case in question.
4. Learned counsel has drawn the attention of the Court to para 9 and 10 of the affidavit in support of the bail cancellation application and annexure 4 as annexed thereto and has argued that the deponent has moved an application dated 14.01.2020 to the S.P. Jaunpur after coming to know that accused Lal Bahadur and others have been granted bail by this Hon'ble Court. No other argument has been raised and no other ground has been pleaded before the Court except for para 9 and 10 of the affidavit. The said paragraphs are quoted hereinbelow:-
"9. That is is pertinent to mention here that the accused OPP. Parties are hardened Criminal persons and when the applicant and other witnesses of case crime No. 0278 of 2019 are went to District Court for statement then the accused persons committing marpeet with him for compromise and due fear of accused persons the applicant and his family are not living properly in the house.
10. That after coming to know that accused Lal Bahadur and others has granted the bail by this Hon'ble Court, the deponent moved an application dated 14.01.2020 addressed S.P. Jaunpur. A copy of application dated 14.01.2020 is being filed herewith and marked as Annexure No. 4 to this affidavit."
5. It is argued that looking to the facts and circumstances of the case and the breach of one of the conditions for release on bail, the bail granted to the opposite party nos. 2 to 5, be cancelled.
6. 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.
7. 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.
8. 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."
9. 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."
10. 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."
11. 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, behavior, 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."
12. Per contra, learned AGA opposed the prayer for bail cancellation.
13. After hearing learned counsel for the parties and perusing the records, it is evident that para 9 and 10 as stated and quoted above is in itself to vague and does not in any manner make out any case for which would go to show that the said condition has argued has been breached by the opposite party nos. 2 to 5. There is no evidence of moving any application (Annexure No.4) before the said officer. Even there is no argument and averment that the trial court was informed by way of any application about the said incident and there was any attempt to seriously pursue the matter for informing the police.
14. Looking to the facts and circumstances of the case, I do not find fit it a case for bail cancellation.
15. Accordingly, the bail cancellation application is rejected.
16. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
17. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
18. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.2.2021 M. ARIF (Samit Gopal, J.)