Bail Cancellation Meant To Ensure Justice, Prevent Accused From Tampering Evidence; Must Be Ordered Cautiously: Allahabad HC Reiterates

Justice Ashutosh Srivastava held,

“The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to the Society by preventing the accused, who had been set at liberty by the bail order from tampering with the evidence. The cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the Court, which granted bail. Cancellation of bail necessarily involves the review of a decision already made and this should be exercised very sparingly and with due caution.”

Observing that Section 439(2) Cr.P.C (Now Section 483(3) in Bharatiya Nagarik Suraksha Sanhita) empowers the High Court to cancel a bail already granted, the Court laid down the circumstances which must be considered while cancelling the bail.

“The cancellation of bail is not limited to supervening events or events which take place after the grant of bail. An order which is tarnished by patent illegality or perversity and which does not assign reasons for the order can definitely be set aside in a proceedings under 439(2) Cr.P.C. An order granting bail based on irrelevant material or an order which does not take into consideration relevant material can also be cancelled in exercise of powers u/s 439(2) Cr.P.C.”

Case Background

Applicant alleged that the opposite party no.2 induced him to inject Rs. 2 crores in a sand mining project in return for profits. When the opposite party (accused) did not share the profit of more than Rs. 10 crores with the applicant, he lodged an FIR against the accused and one other person under Sections 420, 406, 506 I.P.C.

It is alleged that subsequently, the accused forged agreement between applicant and himself showing a sale transaction of an agricultural land of Rs.2,94,68,000/-. This was document was declared forged by FSL and Sections 467, 468, 471 and 120B IPC were added to the FIR. Since the accused was allegedly threating the applicant, he represented before the Additional Director General of Police, Meerut Zone Meerut. Meanwhile, the accused applied for bail before the Sessions Judge, Ghaziabad which was allowed.

Challenging the bail order, counsel for applicant/informant submitted that accused had a history of criminal cases in heinous offences and was also charged under the Goonda Act and U.P. Gangster Act. It was argued that Trial Court had granted bail stating that the accused will return the money, however, he was threatening the applicant's life. It was further argued that fresh FIR has been lodged against the accused and he has been evading arrest by the investigating agencies.

It was further argued that the accused, with the help of others, had lodged a false rape case against the applicant where the alleged victim (girl) had demanded Rs. 50 lakhs for falsely alleging rape by the applicant. It was argued that though the FSL report proved that the document was forged, the accused submitted the same before the Court below and thus, committed perjury.

Counsel for applicant argued that the order of the Trial Court granting bail to the accused was not based on relevant factors and was liable to be set aside.

High Court Verdict

The Court relied on Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Another where the Supreme Court held that though the Supreme Court does not normally interfere with the grant/ rejection of bail by the High Court but the High Court must use the discretion granted to it in bail matter “judiciously, cautiously and strictly” according to the principles laid down by the Supreme Court.

In Deepak Yadav Vs. State of Uttar Pradesh and Another, the Apex Court held that bail can be cancelled by the it even if there are no change in circumstances. It held bail could be cancelled by the higher court when bail was granted on irrelevant material ignoring the relevant material including the past history of the accused, his influential status over the victim's, etc.

Justice Srivastava held that the bail order showed non-application of mind and non-consideration of the law laid down the Supreme Court. Observing that the document regarding sale of land had been forged by the accused and the land was not in his possession, the Court held that the accused was not entitled to bail as economic offences were coupled with forgery.

Regarding the rape case filed against the applicant, the Court observed that the accused had filed the false rape case to create pressure on the applicant to withdraw the criminal cases lodged against him

“A final closure report has been filed in favour of the applicant herein by the Police mentioning the case to be a fake one and that no such incident had taken place. The report categorically mentions that call records of the victim (girl) and the opposite party No.2 proved that the victim (girl) was in constant touch with the opposite party No.2 and co-accused Brijnandan Sharma. A revision petition was filed before the Additional Sessions Judge by the applicant herein and the above facts were confirmed in revision.”

The Court further observed that since the accused had refused to pay Rs. 50 lakhs to alleged rape victim, the same was now sought to be recovered for the applicant in exchange for withdrawing the false case and making a statement in his favour.

Noting that the applicant was also attacked by the accused and his gang members in the Bulandshahar Court, the Court held that this was a fit case for cancellation of bail. Accordingly, the bail of the opposite party no.2/ accused was cancelled.

Case Title: Ahswani Kumar Agarwal v. State of U.P. and Another [CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 6 of 2023]

Counsel for Applicant : Nipun Singh, Sumit Suri

Counsel for Opposite Party : Rajiv Lochan Shukla, Shikhar Awasthi