HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 10 Case :- CRIMINAL APPEAL No. - 237 of 2017 Appellant :- Shahid Ali & 4 Others Respondent :- State Of U.P. Counsel for Appellant :- Suhail Kashif,Krishna Mohan Srivastava,Pawan Kumar Pandey,Shahabuddin,Sunil Kumar Singh,Taufeeq Ahmad Counsel for Respondent :- Govt. Advocate,Indrajeet,Surendra Kumar Yadav,Vimal Kishor Singh Hon'ble Anil Kumar,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(C.M. Application No. 131300 of 2018) The present application has been moved by Alok son of Gopi for cancellation of bail, which has been granted to the accused Rinku and Raju in the present matter.
Learned counsel for the applicant, who has moved the application for cancellation of bail, while pressing the application in question submits that after the appellants/accused were released on bail on 4.10.2018, they had threatened the deponent, as such in this regard an NCR No. 0069 of 2018 under Section 352/504 IPC has been lodged in Police Station Masauli, District Barabanki. So taking into consideration of the fact the present application for cancellation of bail has been moved.
We have heard the matter in respect of the application for cancellation of bail before considering the matter, we feel to quote the provision of Section 439(2) Cr.P.C., which reads as under:-
"Section 439(2) Cr.P.C.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
The important word used by the Legislature in the said Section is "may".
Hon'ble Apex Court in the case of State of Uttar Pradesh Vs. Jogendra Singh, 1964 (2) SCR 197, in which Hon'ble the Apex Court has held that the word `may' is capable of meaning `must' or `shall' in the light of the context in which the word is used and where a discretion is conferred upon a public authority coupled with an obligation, the word `may' which denotes discretion should be construed to mean a command.
In the case of Govindlal Chhaganlal Patel Vs. the Agricultural Produce Market Committee, Godhra and Others, 1975 (2) SCC 482, wherein Hon'ble the Supreme Court has held that the question as to whether a statue is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed and, therefore, the use of the word `shall' or `may' is not conclusive on the question where the particular requirement of law is mandatory or directory. The said view was further reported by Hon'ble Supreme Court in the case of Pesara Pushpamata Reddy Vs. G. Veera Swamy and Ors., 2011(3) SCR 496, after placing reliance in the earlier Judgment. In the case of Khub Chand Vs. State of Rajasthan AIR 1967 SC 1074, wherein it was held by the Apex Court that construction in the meaning of the word is to be considered as per the intention of the legislature. Thus further, it is settled principle of law that The Courts decide what the law is and not what it should be. The courts of course adopt a constructions which will carry out the obvious intention of the legislature but cannot legislate. But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities.
In Nasiruddin v. Sita Ram Agarwal, (2003) 4 SCC 753, the Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain, unambiguous. It cannot add or subtract words to statute or read something into in which is not there. It cannot rewrite or recast the legislation.
Taking into consideration of the said facts as well as the intention of the legislature by using word "may" under Section 439(2) Cr.P.C. the legislature has given a discretion to the Court to cancel the bail, which has already been granted to the appellant-accused but the same is to be done taking into consideration the facts and circumstances of the each case as well as the conduct of the accused after granting of bail.
Reverting to the facts of the present case, accused-appellants Rinku and Raju have been granted bail by this Court on 4.10.2018, however the application for cancellation of their bail has been moved by the complainant on the ground that after being released on bail the accused persons have threatened the applicant Alok and in this regard and NCR No. 69 of 2018 dated 2.11.2018 under Section 352/504 I.P.C. has been lodged in the concerned police station. However from the material on record, it is apparent that no further step i.e. filing of criminal complaint against the accused-appellants has not been taken by the applicant.
It may be recalled that bail granted once should not be canceled in a routine or mechanical manner very compelling and cogent reasons are necessary for cancellation the bail already granted. While considering the cancellation application the question of individual liberty of the accused is to be put in jeopardy which should be done in an appropriate case. The grounds on which the bail already granted by the Court can be canceled cannot be put in a straight-jacket formula rather it will vary from case to case, keeping in view the peculiar facts and circumstances of each case.
Keeping in view the facts put forth by the applicant for cancellation of the bail granted by this Court to accused-appellants. We are inclined to accept the prayer of the accused-applicant as in our considered opinion sufficient grounds do not exist for cancellation of the bail already granted by this Court, therefore, the application of the applicant for cancellation of bail is liable to be rejected.
Accordingly the application for cancellation of the bail is rejected.
(Mohd. Faiz Alam Khan) (Anil Kumar) Order Date :- 4.12.2018 Muk .
Court No. - 10Case :- CRIMINAL APPEAL No. - 237 of 2017 Appellant :- Shahid Ali & 4 Others Respondent :- State Of U.P.
Counsel for Appellant :- Suhail Kashif,Krishna Mohan Srivastava,Pawan Kumar Pandey,Shahabuddin,Sunil Kumar Singh,Taufeeq Ahmad Counsel for Respondent :- Govt. Advocate,Indrajeet,Surendra Kumar Yadav,Vimal Kishor Singh Hon'ble Anil Kumar,J.
Hon'ble Mohd. Faiz Alam Khan,J.
As prayed list the second bail application before the appropriate Bench.
(Mohd. Faiz Alam Khan) (Anil Kumar) Order Date :- 4.12.2018 Muk