Court No. - 71
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 2450 of 2018 Applicant :- Zainuddin Ansari Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Syed Wajid Ali Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
As per office report dated 10.01.2019 based on the report of the CJM, Gorakhpur dated 13.12.2018 notice on opposite party no.2, Durga Dutt Singh, has been served. Despite service of notice no one has in appearance on behalf of opposite party no.2.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This bail cancellation application has been filed to cancel the bail granted to opposite party no.2 vide order dated 19.09.2018 passed by Special Judge (Prevention of Corruption Act), Court No.1, Gorakhpur in Bail Application No.3673 of 2018 (Durga Dutt Singh Vs. State of U.P.) arising out of Case Crime No.40 of 2007, under Section 7/13 of Prevention of Corruption Act, 1988, P.S. Pipraich, District Gorakhpur.
The facts pleaded in the affidavit in support of application are:
That in the intervening night of 31.3/1.4.2006, the son of the applicant, namely, Asahar Ahmad alias Muggan was murdered and his dead body was thrown in an agricultural field. Coming to know of the aforesaid murder, an information was sought to be registered at the police station Pipraich. The opposite party No.2 was the then S.H.O. of P.S. Pipraich, District-Gorakhpur. He instead of lodging the F.I.R. got the thumb impression of the applicant on two plain papers and said that the proceedings will be recorded after sometime. The dead body of deceased was taken into custody and was sent for postmortem. In the postmortem as many as 7 injuries in the form of lacerated wounds were found. The F.I.R. was registered as case crime No.192 of 2006 u/s. 304, 34, 201 I.P.C. against Arif and Mulla alias Rahmatullah, Resident of – Village Chak Jalal, District-Gorakhpur. The applicant had told the opposite party No.2 that his son has been murdered due to conspiracy of Shaida Khatoon Daughter of Eis Mohd. alias Peer Mohd. Eis Mohd. son of Sardar, Munna, Nisha wife of Eis Mohd. alias Peer Mohd. and Nirmala Devi wife of Udai Bhan Singh, but, instead of proceeding against these persons, the opposite party No.2 started making unnecessary pressure upon the applicant and threatened him with dire consequences and in order to save the aforesaid persons, the other son of the applicant, namely, Arif and a villager, Mulla alias Rahmatullah, were made accuseds in case crime No.192 of 2006 aforesaid.
The opposite party No.2 was not taking any action against the persons, whose name was disclosed by the applicant. Rather, he was threatening and making unnecessary and undue pressure upon the applicant to name some other person to save them. When applicant refused to do so, then his mother, wife, daughter in-law and children were brought to the police station and they were badly beaten and misbehaved by him and applicant was asked for bringing an amount of Rs. 50,000/- only then his, mother, wife and daughter-in-law will be let off, otherwise they will also be made accuseds in the case concerned. The applicant in order to save his relations and to satisfy illegal demand of opposite party No.2, collected some amount from his relation, Shakir Ali and thereafter, he gave Rs. 60,000/- to the opposite party No.2 at the police station concerned and only thereafter, his relations were released from the police station. To this effect, the applicant made complaint to the Chief Minister, S.S.P. Gorakhpur, D.I.G. Gorakhpur and I.G. Gorakhpur and to The Human Rights Commission, New Delhi and Lucknow, but, no effective action was taken against the opposite party No.2.
On 9.9.2006, opposite party No.2 came along with some other police personnels in the house of applicant on the pretext of making some search. The applicant had given Rs. 20000/- to his wife for getting some construction raised in the house in future and the said amount was kept in a box. The opposite party No.2 on the pretext of making search, also took away the said amount. This action was opposed by applicant and other family members, thereafter, they were slapped and mal-treated and on the said date, Rahmulla and Salamat were taken into custody and detained illegally for many days in the police station concerned and to this effect, the applicant had also made complaint to the authorities on 9.9.2006 through registered post.
On 11.9.2006 when the applicant returned from his duty to his home, he came to know that his mother, wife, daughter in-law have been taken to the police station and they have been detained there. When applicant went there, he was also threatened to give statement, which the opposite party no.2 was dictating, otherwise, he will face the consequences. To this effect, the applicant had also faxed a complaint on 11.9.2006. Thus, by doing this illegal act, opposite party No.2 took Rs. 80000/- from the applicant. he was again demanding Rs. 20000/- and when the applicant showed his inability to satisfy illegal demand of opposite party No.2, son of applicant, namely, Arif and a villager were made accuseds.
When complaint against the opposite party No.2 was not registered, applicant moved an application u/s. 156(3) Cr.P.C. dt. 20.11.2006 before Special Judge, PC Act, Gorakhpur. The learned Judge called for a report from the Inspector Prevention of Corruption Cell. The Inspector made a thorough investigation of the complaints made by the applicant and thereafter he submitted is report dt. 17.7.2007 before the Judge, Prevention of Corruption, Act, Gorakhpur, but Judge, dismissed his application u/s. 156(3) Cr.P.C. vide order dt. 26.7.2007.
Thereafter, applicant filed a Criminal Misc. Application (U/s 482) No.18516 of 2007 before this Court. The aforesaid application of the applicant was allowed by this Hon’ble Court vide order dt. 7.8.2007 and the order of rejection of the application filed u/s. 156(3) by the applicant was set side and the matter was remanded back to learned Special Judge for passing a fresh order. Thereafter, by order dt. 8.10.2007 Judge, Prevention of Corruption Act, Gorakhpur directed for registering F.I.R. against opposite party No.2.
F.I.R. was registered on 17.12.2007 at 7.30 p.m. against opposite party No.2 as Case Crime No.40 of 2007 u/s. 342,467,468,347,348,218,219,220,504,506,323,161 I.P.C. and U/s. 7/13 of Prevention of Corruption Act, 1988, at P.S. Pipraich, District-Gorakhpur.
Investigation was started by the investigating officer, but, the investigating officer instead of making fair and proper investigation, started making unnecessary pressure upon the applicant and other witnesses and in the process, he by subduing Noor Ali son of Ali Husain Resident of Chak Jalal, P.S. Pipraich, District Gorakhpur, Inqelab Singh son of Sri. Ram Pyare Singh, Resident of- Ghora Deur, P.S. Pipraich, District-Gorakhpur, and Shakir son of Jibril Ansari, Resident of Ramwapur, P.S. Pipraich, District- Gorakhpur, got their affidavits filed in favour of the opposite party No.2 dt. 17.12.2007.
Section 161 Cr.P.C. statements of the applicant, Chainu and Ram Pyare Yadav were recorded on 4.1.2008. The statement of Ram Raksha, Ameer Sajjad were recorded on 7.1.2008, while statement of Indrajeet Yadav and Peer Mohd were recorded on 8.1.2008 and statement of D.D. Singh (opposite party No.2) was recorded on 9.1.2008.
Since the investigation was not going in right direction, therefore, the applicant made complaint to the authorities concerned, then investigating officer was changed. The subsequent investigating officer was also not making fair and proper enquiry. Rather, he was also trying to save opposite party No.2. Thereafter, again on the complaint of the applicant, the subsequent, investigating officer was changed. Thus, two investigating officers were changed and subsequently, investigation was handed to investigating officer, Sabhajeet Tripathi.
The investigating officer concerned recorded the statement of informant/ applicant, Mohd. Arif, Smt. Sairun Nisha, Smt. Shahru Nisha and Noor Ali, u/s. 161 Cr.P.C. on 21.4.2013.
Section 161 Cr.P.C. statement of Krishna Gopal Pandey, Advocate, Sri. Rahmullah and Smt. Zaibun Nisha were recorded on 24.4.2013.
Shakir son of Jibril had also submitted his statement dt. 24.4.2013. On 3.6.2016, the investigating officer Sabhajaeet Tripathi, prepared Parcha No.27. The State Government, granted sanction for prosecution of opposite party no.2 vide letter dated. 24.10.2016. Thereafter, the investigating officer submitted a charge sheet dt. 3.12.2016 against the opposite party No.2. Aforesaid trial is pending as S.S.T. No.1288 of 2016 in the court of Special Judge, Special Court, Prevention of Corruption Act, Court No.1, Gorakhpur.
Since opposite party No.2 had not surrendered and applied for bail, therefore, by the order dated 17.12.2016 non-bailable warrants were issued against him. The trial court had also directed the S.S.P. and D.G.P. Lucknow for service of non-bailable warrants upon the opposite party No.2, but, non-bailable warrants were not served nor he was being arrested.
Feeling aggrieved by the inaction of the authorities concerned, the applicant came to this Court and filed a Criminal Misc. Application (U/s 482) No.19351 of 2018 (Zainuddin Ansari Vs. State of U.P. and 3 others). This Court by means of order dt. 29.5.2018 disposed of the aforesaid application, with the direction to the court below to take appropriate action for execution of non- bailable warrants against the opposite party No.2 and ensure his presence before it, expeditiously, preferably within a period of six weeks from the date of production of certified copy of the order.
Subsequently, opposite party No.2 surrendered on 18.9.2018 before the trial court and applied for bail on 18.9.2018. He was taken into custody and the trial court on the very next date i.e., 19.9.2018 allowed his bail application and directed him to be released on bail.
On the basis of the above above facts the learned counsel for the applicant has made following submissions :-
From the bail granting order dt. 19.9.2018, it is apparent that trial court without going through the materials collected by the Investigating Officer against the applicant and demeanor of the opposite party No.2, who deliberately avoided his presence before the trial court for long time and only taking into consideration an affidavit, which was got filed, in his favour by the investigating officer, passed bail order.
Trial court also did not made any endeavor to look into the judgment and order dt. 13.4.2011 passed by Special Judge, E.C. Act, Gorakhpur in S.T. No.199 of 2007 whereby Arif and Mulla alias Rahmatullah were acquitted of charges u/s. 302, 34, 201 I.P.C. In the said judgment, the trial court has observed that P.W. No.17, Durga Dutt Singh, opposite party No.2, deliberately committed slackness and recklessness in investigation and he made his full efforts to save Nirmala and others, while he had come to know on 1.4.2006, on approaching the place of occurrence, that the death of Muggan has not been caused by poison. Rather, the death was caused by lacerated wounds, therefore, he was required to immediately convert the case u/s. 302 I.P.C.
From the evidence collected by the investigating officer, it is proved that the amount demanded by the opposite party No.2 was given to him at the police station concerned, thus, prima-facie offence u/s. 7/13 of Prevention of Corruption Act was made out. Apart from that, there is ample evidence available against the opposite party No.2 that he has committed the offences. Thus, he was not entitled for bail, but, the court below without taking into account the material evidence collected against the opposite party No.2, on very next day granted bail to the opposite party No.2. Thus, the bail granting order suffers from patient error of law and non application of mind, therefore, the bail granted to the opposite party No.2 deserves to be cancelled.
It is also clear from the bail granting order that the court below has not taken into consideration the nature of accusations and nature of supporting evidence, reasonable apprehension of tampering with the witnesses, apprehension of threat to the complainant, danger of opposite party No.2, absconding or fleeing, if released on bail, character, behaviour, means and position of opposite party No.2 and the prima facie satisfaction of the court in support of the charge.
The court below completely failed to consider the above aspects in the bail granting order and in a very capricious and arbitrary manner granted bail very next day to the applicant who had been absconding from long time. This is indicative of the fact that he is an influential person.
Opposite party No.2 badly, illegally and arbitrarily, against all legal canons of fairness in discharge of his official duty, eroded the liberty of the applicant and his other relations and then took bribe for letting them off from the police station and is the real culprit.
Now after grant of bail, the opposite party No.2 by using his influencive position would certainly do all acts to weaken the prosecution case to secure his acquittal or discharge from the case. Thus, his bail is liable to be canceled, so that fair and proper trial may proceed against opposite party No.2 and justice may be done to the applicant.
In view of the above facts and circumstances it is desirable in the interest of justice that this Hon’ble Court may be pleased to allow the present bail cancellation application and cancel the bail granted to opposite party No.2 vide order dated. 19.9.2018 by Special Judge (Prevention of Corruption Act), Court No.1, Gorakhpur.
While bail granting, the court below did not traversed through the case diary wherein there was sufficient material against the accused that he got the affidavits filed by the witnesses by force. The court below did not adverted itself to the statements of the prosecution witnesses who had deposed about the atrocities of he accused perpetrated upon them. The Court below failed to take into consideration that the family of the informant /applicant was harassed to a great extent and also taken Rs.80,000/- from the informant for not harassing him and his family. The audacity of the accused is writ large on record since instead of booking the real culprit he made pressure upon the informant to take name other persons around them as accused in lieu of real culprit. Surprisingly enough, the accused implicated the son of the informant and one more person in the murder of his other son who however have been acquitted in the trial, since their application was false. Accused absconded for long time and he did not surrendered. He surrendered only after the order of the High Court.
After considering the facts of the case, as pleaded by the applicant in the affidavit, hearing the counsel for the applicant and learned AGA this Court feels that it would be apt to consider the relevant legal propositions with regard to the question of granting bail and its cancellation before the proceeding with this case further.
In the case of State of U.P. v. Amarmani Tripati reported in 2005 (8) SCC 21, the Apex Court held herein as under:
"18. It is well settled that the matters to be considered in an application for bail are (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 charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if 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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp. 535-36, para 11) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] .)"
In the case of Neeru Yadav v. State of U.P. and another (Criminal Appeal No. 2587 of 2014 arising out of S.L.P. (Crl.) No. 8469 of 2014 decided on 16.12.2014), the Apex Court observed as under:
"10. The pivotal issue that emanates for consideration is whether the impugned order passed by the High Court deserves legitimate acceptation and put in the compartment of a legal, sustainable order so that this Court should not interfere with the same in exercise of jurisdiction under Article 136 of the Constitution of India. In this context, a fruitful reference be made to the pronouncement in Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, wherein this Court has observed that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious, for the heinous nature of the crime warrants more caution and there is greater change of rejection of bail, though, however dependant on the factual matrix of the matter. In the said decision, reference was made to Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and the Court opined thus:
"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (pic)
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
13. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court.
16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible.
Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.
17. Coming to the case at hand, it is found that when a stand was taken that the 2nd respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non- application of mind. That apart, as a matter of fact it has been brought on record that the 2nd respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this court would tantamount to travesty of justice, and accordingly we set it aside."
and, thus, in view of the aforesaid, the bail was allowed by the Apex Court and the order granting bail was set aside.
Similarly, in another case of Neeru Yadav v. State of U.P. and another (Criminal Appeal No. 1272 of 2015 arising out of
S.L.P. (Crl.) No. 1596 of 2015 decided on 29.09.2015) the Apex Court while relying upon the number of precedent has held as under:
"9. On a perusal of the aforesaid list, it is quite vivid that the respondent no.2 is a history-sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a "history-sheeter". The question, therefore, arises whether in these circumstances, should the High Court have enlarged him on bail on the foundation of parity.
10. In Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter.
11. It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge.
15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner."
and, thus, in this case also, the bail was subsequently cancelled. The reference may also be made to the case of Chandrakeshwar Prasad @ Chandu Babu v. State of Bihar and another (Criminal Appeal No. 932 of 2016 arising out of S.L.P. (Crl.) No. 7284 of 2016 with State of Bihar v. Md. Shahabuddin in Criminal Appeal No. 933 of 2016 arising out of S.L.P. (Crl.) No. 7230 of 2016 decided on 30.09.2016) wherein again the order granting bail to the accused persons were set aside by the Apex Court.
This Court in the case of State of U.P. (Major BC) Vs.. Gayatri Prasad Prajapati and others has disproved the granting of bail to the accused whose application was moved on 24.05.2017 and was hastily taken up on the very next day and was granted bail on the next date.
In para 32 of the judgment, this court held as follows :
32. The aforesaid facts also establish that the bail application was moved on 24.05.2017 and was hastily taken up on the very next date in the circumstances initiated above which has clearly resulted in miscarriage and subversion of justice. The Court below therefore clearly fell into a grave error in a case of this dimension to have not waited for the response of the State and took up the bail matter and granted the same that clearly vitiates the due procedure prescribed in law.
In the light of the aforesaid principles for grant and cancellation of bail, in the present case it is found that opposite party no.2 is a Police Officer of the State and his conduct is required to be beyond reproach. From the facts emerging from the pleadings, it is clear that there are serious allegations against conduct of opposite party no.2 in discharge of his official duties. In the case of murder of the son of the applicant, Asahar Ahmad alias Muggam, in the year 2006 the applicant informed the names of the persons who were involved in the murder of his son but opposite party no.2 implicated another son of the applicant, Arif and a co- villager, Mulla alias Rahatamulla and did not implicated the real accuseds named by the applicant, Sayeda Khatoon and others. The trial of the accuseds implicated by opposite party no.2 in the charge-sheet resulted into acquittal and the trial court recorded finding against opposite party no.2 in its judgment and order dated 13.04.2011 passed in Sessions Trial No.199 of 2007 under Sections 302, 34, 201 I.P.C regarding deliberate faulty investigation and his conduct of absolving the real culprits. The allegation of taking bribe was found correct by the Investigating Officer and he submitted charge-sheet against opposite party no.2 in the present case under Section 7 / 13 of the Prevention of Corruption Act.
Opposite party no.2 initially endeavoured to thwart fair investigation through two Investigating Officers and the applicant had to make complaint against them and only thereafter third Investigating Officer submitted charge-sheet against opposite party no.2. Initially his application under Section 156(3) was dismissed by the Trial Court and only after setting aside the aforesaid order of trial court case was remanded by this Court. The Special Judge proceeded against opposite party no.2 and summoned him. It is further clear from the record that opposite party no.2 left no stone unturned to avoid appearance in court after charge-sheet was submitted by the Investigating Officer against him. The applicant has to file Criminal Misc. Application under Section 482 Cr.P.C No.19350 of 2018 and after direction of this Court to the Court below to execute non-bailable warrant against opposite party no.2 within six weeks he only surrendered. He surrendered on 18.09.2018 and was released on bail on very next day i.e.,19.09.2018 by the Court below. The Court below did not considered the conduct of opposite party no.2 of avoiding the court to the hilt and granted him bail. Opposite party no.2 has not even bothered to respond to the notice sent by this Court for his appearance for answering this bail cancellation application. The report of the C.J.M., Gorakhpur dated 13.02.2018 shows that notice of this bail cancellation application has been served upon him. The overall conduct of opposite party no.2 shows that despite being Officer of a disciplined force of the State Government, he had scant respect for the law and he is not a person who should have been enlarged on bail by the court below in such a cavalier manner.
Keeping in view the above conduct of opposite party no.2 of implicating innocent persons in the murder of the son of the applicant and permitting the real accuseds to go scot free and also apprehension of the applicant that opposite party no.2 will tamper with the witnesses and may effect the trial, this Court finds that the bail granted to the opposite party no.2 by order dated 19.02.2018 passed by court below deserves to be cancelled and he should be taken into custody forthwith.
The trial court is directed to conclude the trial against opposite party no.2 within a period of six months from the date of production of a certified copy of this order before it.
The bail cancellation application is allowed.
Order Date :- 28.2.2019 SS