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2018 DIGILAW 650 (ALL)

SANTOSH KUMAR MEHROTRA v. STATE OF U. P.

2018-03-16

ANIRUDDHA SINGH

body2018
JUDGMENT/ORDER : Aniruddha Singh, J. Heard Sri Brijesh Tiwari, learned counsel for the applicant, Sri Sushil Kumar Rao and Sri O.P. Singh, learned counsel for opposite party nos. 2 & 3, Learned Additional Government Advocate and perused the record. 2. The present bail cancellation application has been moved by the applicant Santosh Kumar Mehrotra against Lal Singh Tomar and Atul Kumar Singh (Opposite Party Nos. 2 & 3), with the prayer to cancel bail dated 10.02.2016 passed by Additional Sessions Judge, Court No. 3, Kanpur Nagar in Bail Application No. 74 of 2016 (Atul Kumar Singh Vs. State of U.P.) and Bail Application No. 75 of 2016 (Lal Singh Tomar Vs. State of U.P.) jointly in Case Crime No. 325 of 2008, under Sections 420, 467, 468, 471 and 448 IPC, P.S. Naubasta, District Kanpur Nagar by which opposite party nos. 2 &3 were enlarged on bail. 3. Learned counsel for the applicant submitted that opposite party no. 2 Lal Singh Tomar is an Ex M.L.C auction purchaser and Ex-Secretary of Anand Nagar Co-operative Housing Society Ltd. Kanpur Nagar. He had no concern with Plot Nos. 280 and 282, opposite party no. 3 Atul Kumar Singh is the Manager of Roop Rani Sukhnandan Singh Post Graduate College, Naubasta, Kanpur Nagar which is situated on Plot Nos. 280 and 282. Opposite party nos. 2 & 3 had purchased the land by way of registered sale-deed showing it as agricultural land and paid less stamp duty in respect thereof. A number of cases are pending between opposite party nos. 2 &3 and Smt. Kanta Mehra in Civil Court and High Court. Plot Nos. 280 and 282 were auctioned by the Government and opposite party no. 2 was the highest bidder who purchased the said plot, and on 28.12.1991 Collector Kanpur Nagar executed the registered sale-deed. Civil Court granted injunction order in favour of opposite party nos. 2 &3 vide order dated 15.01.2005. On Plot Nos. 280 and 282 there was factory of Prithivi Raj Batra which was wrongly attached and auctioned in favour of the society of opposite party nos. 2 &3 and by which in place of 2200 square yard, 3130 square yard land was delivered to the Co-operative Society of opposite party nos. 2 &3. Hence 930 square yard land was obtained by opposite party nos. 2 & 3 by cheating, and got mutated on the basis of forged sale-deed. 2 &3 and by which in place of 2200 square yard, 3130 square yard land was delivered to the Co-operative Society of opposite party nos. 2 &3. Hence 930 square yard land was obtained by opposite party nos. 2 & 3 by cheating, and got mutated on the basis of forged sale-deed. The F.I.R. was lodged against opposite party nos. 2&3 and after investigation charge-sheet was submitted by the Investigating Officer and bail was granted wrongly without giving opportunity of hearing to A.D.G.C. and complainant. 4. Learned counsel for the applicant next submitted that initially interim bail was granted to opposite party nos. 2 & 3 and finally they were enlarged on bail by the impugned order without giving opportunity of hearing and without considering papers submitted by the prosecution. Opposite party nos. 2 & 3 have criminal history and it was not considered by the Court. Some media reports of newspapers were against opposite party nos. 2 & 3 but that was also not considered by the court. Accused/opposite party nos. 2 &3 had filed an application under Section 482 Cr.P.C. which was rejected by Hon'ble High Court and SLP was filed before the Supreme Court and that was also rejected, in spite of that opposite party nos. 2 &3 have been enlarged on bail wrongly. 5. Learned counsel for the applicant further submitted that accused have never surrendered before the learned court of A.C.M.M. Ist Kanpur Nagar and bail was granted. Accused/opposite party nos. 2 & 3 are habitual offenders and criminals. This Court has inherent power under article 227 of Constitution of India to cancel bail of opposite party nos. 2 &3. 6. Learned counsel for opposite party nos. 2 & 3 submitted that all the allegations made by the complainant are false and fabricated. There is no ground for cancellation of bail, the bail was granted within the norms laid down by the Apex Court and following the procedure established by law. No misuse of bail has been proved by the applicant. Opposite party nos. 2 &3 and are regularly appearing before the court and co-operating in trial. 7. It is admitted fact that civil proceeding is pending in the Civil Court hence the dispute between the parties is civil in nature. The bail was granted on merit by the Court concerned. The cancellation of bail is not a general rule. Accused/opposite party nos. 2 &3 and are regularly appearing before the court and co-operating in trial. 7. It is admitted fact that civil proceeding is pending in the Civil Court hence the dispute between the parties is civil in nature. The bail was granted on merit by the Court concerned. The cancellation of bail is not a general rule. Accused/opposite party nos. 2 &3 are in possession of the property in dispute and they got injunction order by the competent court in their favour. 8. In the application filed under Section 482 Cr.P.C. by opposite party 2 direction was given by the Hon'ble High Court as under: "in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid down by this Court in the case of Amrawati and another Vs. State of U.P, 2004 57 AllLR 290 as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P, (2009) 3 ADJ 322. For a period of 30 days from today, no coercive action shall be taken against the applicants in pursuance of the aforesaid case. " 9. In compliance of order of Hon'ble High Court opposite party nos. 2 & 3 appeared before the Court and obtained bail after giving opportunity to A.D.G.C. The bail was granted without any illegality. 14 (kha) objection was filed by the applicant and that was also considered. 10. In the case of Rizwan Akbar Hussain Syyed, 2007 ACC 368 it was held by the Hon'ble Apex Court that cancellation of bail should not be done in a routine manner. Court considering the application for cancellation of bail has to take note of all relevant aspects. 11. In the case of State through Delhi Administration Vs. Sanjay Gandhi, (1978) AIR SC 961 it was held by the Apex Court that power to cancel bail, must be exercised with care and circumspection and in appropriate cases. Grounds of Bail cancellation must bear casual connection with same act or conduct of accused. Burden of proof in an application for cancellation of bail lies on the applicant/complainant. 12. Sanjay Gandhi, (1978) AIR SC 961 it was held by the Apex Court that power to cancel bail, must be exercised with care and circumspection and in appropriate cases. Grounds of Bail cancellation must bear casual connection with same act or conduct of accused. Burden of proof in an application for cancellation of bail lies on the applicant/complainant. 12. In the case of Shahzad Hasan Khan v. Ishtiq, (1987) AIR 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. 13. In the case of Daulat Ram Vs. State of Haryana, (1995) AIR 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 of Sessions Courts find that the accused has misused the privilege of bail. 7. If the life of the accused itself be in danger. 14. In the case of State of Rajasthan Vs. Sanjay Singh, 1988 2 Crimes 521, 523 (Raj) it was held by Hon'ble Apex Court that merely because the prosecution failed in its duty to point out certain statements which it thought proper, to be considered at the time of consideration of the bail application of accused, it cannot be made ground for cancellation of the bail, which was granted after hearing both the parties. 15. Cancellation of bail depends upon facts and circumstances of the case, each and every case has different facts and circumstances, and it has to be decided case to case separately on the grounds mentioned in that case. 16. 15. Cancellation of bail depends upon facts and circumstances of the case, each and every case has different facts and circumstances, and it has to be decided case to case separately on the grounds mentioned in that case. 16. It is admitted fact that there is civil dispute between the parties and civil suit is pending before the competent court and injunction order was granted in favour of opposite party nos. 2 & 3. It is also admitted by the parties that the bail has been granted by the Additional Sessions Judge Court No. 3, Kanpur Nagar and not by this Court. It is also admitted that no bail cancellation application has been moved by the State of U.P. 17. All submissions of the applicant are related to facts. In my opinion issues relating to facts in general can not be adjudicated by this Court and it can be decided by the trial Court concerned who may very well find out whether there is any misuse of bail order or not. 18. In the above backdrop, and 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 , as also because the issues of this bail cancellation application are related to facts, this bail cancellation application is disposed off with liberty to file fresh bail cancellation application before the trial Court and if it is filed, it is expected from the trial Court to decide the same on merit in accordance with law expeditiously. 19. Certify this judgment to the lower court immediately.