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2022 DIGILAW 1371 (ALL)

Shefali Kaul v. State Of U. P.

2022-08-30

SUBHASH VIDYARTHI

body2022
JUDGMENT : (Subhash Vidyarthi, J.) 1. Heard Ms. Katyayni and Sri Pankaj Shukla, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava, the learned Additional Government Advocate, Sri Syed Imran Ibrahim, the learned counsel for the accused - respondents and perused the record. 2. The present application has been filed seeking cancellation of the order dated 21.10.2020 passed by the learned Additional Sessions Judge, Court No.1, Mathura in Bail Application No. 2832 of 2020 whereby the accused – respondent nos. 2 to 7 have been granted bail in Case Crime No.312 of 2020, under Sections 406, 420, 467, 468, 120-B IPC, Police Station-Nauhjheel, District Mathura. 3. The aforesaid order states that the accused persons were produced before the Court from jail and they had given an application stating that they had taken the money in question from the applicant in the year 2016; that they had entered into a settlement/MOU with the informant; that they had paid a sum of Rs. 40 lacs only to the informant in part performance of the settlement and they had issued post dated cheques to the informant in respect of the balance amount and they further stated that they would follow the terms of the settlement. The order further records that the informant also gave an application stating that she was satisfied with the settlement made by the applicants and the cheques given by them and she had no objection to the bail being granted. The Court further recorded that a perusal of the documents indicated that the accused persons had issued a promissory note stating that ten cheques have been issued to the informant and a compromise has been arrived, a settlement has been entered into between the parties and the MOU had been executed and the accused persons stated that they would follow the terms of the MOU. The Court further recorded that the informant had also filed an application stating that she was satisfied by the promise made by the applicant and she had no objection against grant of bail to the accused person. 4. After noting the aforesaid facts, the learned Additional Sessions Judge observed that keeping in view the facts and circumstances of the case and without going into merits of the case, there was sufficient ground for granting bail to the applicant. 4. After noting the aforesaid facts, the learned Additional Sessions Judge observed that keeping in view the facts and circumstances of the case and without going into merits of the case, there was sufficient ground for granting bail to the applicant. After the aforesaid narration and discussion, the Court proceeded to write the operative portion of the order stating that the applicants be released on bail on furnishing a personal bond of Rs. 02 lacs and two sureties of the same amount and an undertaking be obtained from them that during trial they will not go outside the boundaries of the country, they will not influence the witnesses and will remain present in the Court. 5. On 24.12.2021, the present application has been filed seeking cancellation of the order dated 21.10.2020. In the affidavit filed in support of the bail application, it has been stated that the accused persons have not complied with the conditions mentioned in the order passed by the court below, as the cheques which had been given by the accused persons were presented to the bank and same were dishonored for the reason that payment had been stopped by the drawer. 6. On the aforesaid allegations, the applicant filed an application before the learned Additional Sessions Judge, Court No.1, Mathura praying for cancellation of the bail granted to the accused persons. However, the aforesaid application has been rejected by means of an order dated 08.09.2021 holding that the offences with which the accused persons have been charged, are all triable by a Magistrate and the trial was not pending before the Sessions Court. The Court further held that the only conditions imposed in the bail order were that the accused persons will not go outside the boundaries of the country, they will not influence the witnesses and they will remain present on the dates fixed in the trial. The court held that the conditions imposed in the bail order are not related to the Court of Sessions but are related to the Court of Magistrate and, therefore, the application for cancellation of bail on the ground of non compliance with the conditions would lie before the concerned court. 7. The court held that the conditions imposed in the bail order are not related to the Court of Sessions but are related to the Court of Magistrate and, therefore, the application for cancellation of bail on the ground of non compliance with the conditions would lie before the concerned court. 7. At the outset, Sri Ibrahim, the learned counsel for the accused -respondents has raised a preliminary objection that the applicant has challenged the aforesaid order by means of filing an application under Section 482 Cr.P.C. No. 20896 of 2021 before this Court, which is still pending. During pendency of the aforesaid application, the applicant has filed the present application for cancellation of the bail and, therefore, the present application seeking cancellation of bail is not maintainable. 8. Refuting the aforesaid submission, the learned counsel for the applicant has submitted that in view of the provision contained in Section 439 (2) Cr.P.C., only a High Court or a Court of Sessions may direct that any person who has been released on bail, be arrested and be taken into custody and a Magistrate does not have jurisdiction to entertain such an application. He has submitted that the application under Section 482 Cr.P.C. has been filed only against the direction given by the Learned Additional Sessions Judge in the order dated 08.09.2021 to the effect that the application for cancellation of bail would lie before the Magistrate. 9. Having considered the aforesaid submissions, and keeping in view the provision contained in Section 439 (2) Cr.P.C., I am of the view that this Court has power to entertain the application for cancellation of bail and this power is not taken away merely because of pendency of an application under Section 482 Cr.P.C. challenging the order dated 08.09.2021 passed by the Sessions Judge holding that the application ought to be filed before the Magistrate. Therefore, I find no force in the preliminary objection raised by the learned counsel for the accused - respondents and the same is turned down. 10. The learned counsel for the applicant has submitted that the order dated 21.10.2020 granting bail to the accused respondents had been passed without going into the merits of the application, merely taking into consideration the application filed by the accused -respondents stating that they have entered into a settlement with the informant; that they have already paid Rs. 10. The learned counsel for the applicant has submitted that the order dated 21.10.2020 granting bail to the accused respondents had been passed without going into the merits of the application, merely taking into consideration the application filed by the accused -respondents stating that they have entered into a settlement with the informant; that they have already paid Rs. 40 lacs to her and they have issued post dated cheques in respect of the balance amount and also keeping in view the fact that the informant had filed an application stating that she was satisfied with the promise made by the applicants and by the cheques given by them. The accused – respondents have violated the aforesaid settlement by issuing a direction to the Bank to stop payment of the cheques given under the settlement and, therefore, the order dated 21.10.2020 is liable to be cancelled. 11. Per contra, the learned counsel for the accused -respondents has submitted that the bail order was passed only subject to the conditions that the applicant will furnish a personal bond of Rs. 02 lacs and two sureties of the like amount; that they will not leave the country and that they will not influence the witnesses and also they will appear before the Trial Court on the date fixed. He has further submitted that there is no allegation that the accused persons have violated any of the conditions imposed on the applicant in the bail order. He has submitted that it was not a condition of bail that the accused persons will pay the balance amount of the settlement, regarding which they had issued cheques to the informant. 12. It is a fundamental principle of law that any document, be it a statute, a judgment or order of the Court, a pleading, a contract, has to be read as a whole and an order passed by a Court cannot be read in a piece-meal manner by picking up a passage and reading it by isolating it from the other part, which forms the foundation of passing the order. 13. The order dated 21.10.2020 contains a narration that the accused persons had filed an application stating that they had entered into a settlement with the informant, they had paid Rs. 13. The order dated 21.10.2020 contains a narration that the accused persons had filed an application stating that they had entered into a settlement with the informant, they had paid Rs. 40 lacs to the informant as part of the settlement amount and they have issued post dated cheques for the balance amount and they have stated that they would follow the terms of the settlement. The informant has also filed an application expressing her satisfaction with the terms of settlement and the Court has passed an order for granting bail to the to the accused respondents keeping in view the aforesaid facts and circumstances. It cannot be said that the terms of the MOU are not relevant for deciding the application for cancellation of bail on the ground that its terms had not been incorporated in the operative part of the bail order. In fact, the terms of the settlement/MOU form the basis of the order dated 21.10.2020. 14. In the rejoinder affidavit filed on behalf of the applicant, it has been stated that although a condition has been imposed in the bail order that the accused persons will not leave the country during pendency of the trial, the opposite party no.7 tried to flee the country. He was trying to depart to Bahrain from Indira Gandhi International Airport, New Delhi by Flight No. AL-939 on 22.01.2021 and an intimation to this effect has been sent to the applicant by the immigration department through an SMS, a print out whereof has been annexed as annexure no. RA-1 to the rejoinder affidavit. It has further been stated in the rejoinder affidavit that the opposite party no.7 has assaulted the applicant for threatening him for not pursuant the case and an FIR bearing Case Crime No. 1054 of 2021 has been lodged by the informant in Police Station-Phase-3, District Gautam Budh Nagar in this regard, a copy whereof has been annexed as annexure no. RA-2. The learned counsel for the applicant has stated that accused – respondent nos. 6 and 7 have been arrested in pursuance of Case Crime No. 1054 of 2021. 15. Having considered the aforesaid facts and circumstances, I am of the view that the order dated 21.10.2020 was passed keeping in view the fact that the accused persons and the informant had entered into a settlement as per which the accused persons had paid Rs. 15. Having considered the aforesaid facts and circumstances, I am of the view that the order dated 21.10.2020 was passed keeping in view the fact that the accused persons and the informant had entered into a settlement as per which the accused persons had paid Rs. 40 lacs to the informant and they had issued cheques or payment of the balance amount, and the accused persons had categorically stated that they would follow the terms of settlement. The accused persons' subsequent conduct in issuing instructions to their bank for stopping payment of the cheques amounts to the accused persons resiling from the conditions which formed the basis of the order dated 21.10.2020. Moreover the subsequent conduct of the opposite party no.2 in trying to go to Bahrain and the conduct of the accused persons in threatening the informant, is a clear violation of the conditions incorporated in the order dated 21.10.2020 that the accused persons will not go outside the boundaries of the country and they will not influence the witnesses. The aforesaid conduct of the accused persons subsequent to grant of bail to them shows that they have shown least regard to the process of law, which makes this an exceptional case warranting cancellation of the bail order dated 21.10.2022 passed by the Sessions Court. 16. In view of the aforesaid discussion, I find it to be a fit case for exercising the powers of this Court under Section 439 (2) of the Code of Criminal Procedure to cancel the order dated 21.10.2020 and I direct that the accused respondents, who had been released on bail by means of the order dated 21.10.2020 passed by the Additional Sessions Judge, Court No. 01, Mathura in Bail Application No. 2832 of 2020 be arrested and committed to custody. 17. The learned counsel for the applicant states that the accused respondents no. 6 and 7 have already been arrested in connection with Case Crime No. 1054 of 2021. 18. The other accused – respondents no. 2 to 5 are directed to surrender before the Court concerned within a period of three weeks from today failing which the court below shall take steps to ensure the compliance of the orders.