Court No. - 22
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No.
- 36709 of 2016 Applicant :- Yogendra Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Jitendra Kumar Shishodia Counsel for Opposite Party :- G.A.
Hon'ble Aniruddha Singh,J.
The learned counsel for the applicant is not present. Heard learned AGA for the State and perused the record.
This bail cancellation application has been moved by the complainant namely Yogendra Kumar to cancel bail order dated 08.09.2016 passed by the Additional Sessions Judge/Fast Track Court, Court No.3, Muzaffarnagar in Bail Application No. 3757 of 2016(Nitin vs. State of U.P.) in pursuance of Case Crime No. 274 of 2010 under Sections 395, 397, 386, IPC, Police Station Bhaurakala, District Muzaffarnagar, in Sessions Trial No. 991 of 2012 whereby Nitin, accused/opposite party no.2 was granted bail.
From the perusal of record it appears that the accused opposite party no.2 and other were summoned under Section 319 Cr.P.C. Co-accused Shakti, Sompal, Randhol, Manish and Sachin have already been granted bail. It was found that the case of applicant is identical from the case of co- accused, who have already been granted bail, hence the bail was granted to the applicant by the trial court concerned.
The main ground for cancellation of bail is shown in para-14 of the affidavit, stating that the opposite party no.2 is continuously threatening the witnesses and creating pressure for compromise. The order passed by the trial court is illegal and arbitrary.
The ground mentioned in the bail cancellation application are 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 and it is not being proper to decide the issue by this Court.
Learned counsel for the applicant/complainant submitted that entire record/files were produced before the Additional Sessions Judge/Fast Track Court, Court No.3, Muzaffarnagar, during arguments on bail. However none of the judgements have been notified/dealt with by him in the impugned order. It is further submitted that opposite party no. 2 is not cooperating in prosecution case.
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."
It is also pertinent to mentioned here that the trial court has better knowledge about the facts of the case and allegation made by the applicant, hence it would be appropriate to disposed of this bail cancellation application with liberty to file a fresh bail cancellation application before trial court concerned. This 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 trial Court and if applicant files bail cancellation application, it is expected from the trial Court to decide the same on merit in accordance with law expeditiously.
Certify this judgement to the lower court immediately.
Order Date :- 29.3.2018 VKG