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2017 DIGILAW 897 (ALL)

Anuj Kumar Varshney v. State of U. P.

2017-03-30

VIJAY LAKSHMI

body2017
JUDGMENT : Vijay Lakshmi, J. 1. This application for cancellation of bail has been filed by the complainant with prayer to cancel the bail granted to accused respondents Raman Khandelwal and Rahul vide order dated 25.4.2014 passed by the Additional Sessions Judge, Court No. 1, Hathras, on Bail Application No. 402 of 2014, in Case Crime No. 217 of 2014, u/s 147, 148, 149, 307 I.P.C., P.S. Kotwali Hathras, District Hathras. 2. Heard learned counsel for the applicant, learned A.G.A for the State and learned counsel for the accused-respondents 2 and 3. Perused the record. 3. The contention raised by learned counsel for the applicant is that gunshot injuries were caused by accused-respondent no. 2 to the applicant due to which the applicant had to confine in the hospital for six days. However, the court below without considering the gravity of the offence and ignoring the grievousness of the injury caused by the firearm, has illegally granted bail to accused-respondents 2 and 3, which is liable to be cancelled. 4. Learned counsel for the accused-respondents 2 and 3 has vehemently opposed the bail cancellation application by contending that the court below while granting bail to the accused-respondents has considered all the facts of the case and has passed a detailed and well reasoned order, which does not require any interference by this court. The learned counsel has drawn the attention of this court to paragraph no. 3 of the impugned order in which there is a detailed description of the three injuries sustained by the injured and it has also been clearly mentioned in the impugned order that no x-ray report has been filed by the prosecution. Learned counsel has further contended that the trial is pending at the stage of evidence and at this stage any observation made by this court may prejudice the trial. Moreover, there is no allegation of misuse of his liberty against the accused respondent. On the aforesaid grounds it has been prayed that the bail cancellation application be dismissed. 5. Considered the rival submissions made by learned counsel for the parties. 6. Moreover, there is no allegation of misuse of his liberty against the accused respondent. On the aforesaid grounds it has been prayed that the bail cancellation application be dismissed. 5. Considered the rival submissions made by learned counsel for the parties. 6. The law regarding cancellation of bail has been well settled by a catena of judgments by Hon'ble Apex Court to the effect that cancellation of bail can be ordered only on stronger grounds and bail already granted should not be cancelled by the High Court unless it appears that the order passed by the Sessions Judge granting bail was arbitrary, illegal and perverse or if the accused is interfering with the course of justice by tampering with the evidence. It is also trite law that the power to cancel bail has to be exercised with caution and great circumspection in appropriate cases. 7. In Nitya Nand Rai v. State of Bihar & Another, 2005 SCC (Cri) 1159, decided on 11th April 2005, the Apex Court has held as under:- "We think the High Court was not justified in considering the application for cancellation of bail as if it was an application for grant of bail. Consideration of an application for grant of bail stands on a different footing than one for cancellation of bail." 8. In the case of State (Delhi Administration) v. Sanjay Gandhi (1978) 2 SCC 411 , it has been held as under: "Rejection of bail, when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." 9. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." 9. The Hon'ble Apex Court in the case of Bhagirathsinh v. State of Gujarat (1984) 1 SCC 284 , has held as under: "Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence." 10. The Hon'ble Apex Court in the case of Mehboob Dawood Shaikh v. State of Maharashtra (2004) 2 SCC 362 , has held as under: "It is trite law that the considerations for grant of bail and cancellation of bail stand on different footings.......bail granted under Section 437 (1) or (2) or Section 439 (1) can be cancelled were (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 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. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to." 11. Considering the facts and circumstances of the case and the well settled legal principles as cited above, this Court does not find any good ground to cancel the bail of the accused-respondent. 12. Accordingly, the bail cancellation application is rejected.