Smt. Pooja Pal vs State Of U.P. And 2 Others
2017 Latest Caselaw 1464 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 51
 
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 38904 of 2016
 

 
Applicant :- Smt. Pooja Pal
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Mithilesh Kumar Tiwari,Daya Shankar Mishra,Khan Saulat Hanif,Ravindra Sharma,Sr. Advocate,Vikas Rastogi
 
Counsel for Opposite Party :- G.A.,Amit Misra,Ravindra Sharma,Satish Trivedi
 

 

 
Hon'ble Vipin Sinha,J.

Heard Sri Mithilesh Kumar Tiwari, learned counsel for the applicant/complainant, Sri Vinod Kant, learned Additional Advocate General, Sri Vimlendu Tripathi and Sri Nagendra Bahadur Singh, the learned AGA-I appearing for the State and Sri Satish Trivedi, the learned Senior Advocate assisted by Sri Ravindra Sharma, the learned counsel and Sri D. S. Mishra, the learned counsel appearing for opposite party no. 2 and Sri Amit Mishra, the learned counsel appearing for the CBI.

Present is a bail cancellation application filed by the applicant/complainant Smt. Pooja Pal with the prayer that this Court may be pleased to cancel the bail granted in favour of opposite party no.2-Atique Ahmed vide order dated 12.4.2005 passed by Hon'ble Mr. Justice C. P. Mishra as he was the then and by means of which the bail was granted to opposite party no.2-Atique Ahmad in Crl. Misc. Bail Application No. 6080 of 2005 in Case Crime No. 34 of 2005, under Sections 147, 148, 149, 307, 302, 120B and 506 IPC and Section 7 of Criminal Law Amendment Act, Police Station Dhoomanganj, District Allahabad.

The said order has been duly perused by this Court and noted that in the said case crime no. 34 of 2005, three persons were done to death in a broad day light incident.

Sri Mithilesh Kumar Tiwari, the learned counsel for the applicant/complainant in the present bail cancellation application has strongly pressed the instant application with the contention that earlier Bench of this Court while granting bail to opposite party no.2-Atique Ahmed vide order of 12.4.2005 has failed to appreciate the criminal history/antecedent of the said opposite party no.2-Atique Ahmed. The contention of the learned counsel for the applicant/complainant is that learned learned Single Judge has allowed the bail application solely on the ground that there was only an allegation of hatching a conspiracy against accused- applicant (opposite party no.2-Atique Ahmed in the present case) in the aforesaid case crime and the Court has not at all applied its mind to the long criminal history of the accused- applicant (opposite party no.2-Atique Ahmad in the present case). He has also drawn the attention of the Court to the extract of the order dated 12.4.2005, which is quoted herein below:

"Learned counsel for the opposite party and learned A.G.A. have opposed the prayer for bail as applicant ever got long previous criminal history involved in number of cases against him including the case of attempt the murder etc"

and, thus, it has been contended that the Court concerned has only made a very casual reference to the long criminal history but has not at all applied its mind to the nature of the said criminal history and thus it has been contended that the order granting bail, cancellation of which is being sought, suffers from an illegality and perversity in view of the law laid down by the Apex Court in the case of Neeru Yadav.

The learned counsel for the applicant/complainant has drawn the attention of the Court to the criminal history of opposite party no.2-Atique Ahmed which has been mentioned in paragraph no. 20 of the bail cancellation application in a chart from and which shows that on the date on which the bail was granted to opposite party no.2-Atique Ahmed he had criminal history of 58 cases. The further contention is that thereafter opposite party no.2-Atique Ahmed was further involved in a number of cases which have been mentioned in the chart itself. It has been contended that as per the gang chart which has been produced before this Court today, opposite party no.2-Atique Ahmed is a leader of a gang which consists of 138 members and there are 337 cases against opposite party no.2-Atique Ahmed. The said gang chart, which has been passed over to the Court by Sri Nagendra Bahadur Singh, the learned AGA-I, has been made a part of the record of present bail cancellation application itself. It has been mentioned in paragraph no. 13 of the bail cancellation application that two persons who were eye-witnesses, namely, Sadiq and Umesh Pal were kidnapped by opposite party no.2-Atique Ahmed on 20.2.2006 and 28.2.2006, respectively and after torturing them they were produced before the court concerned to give evidence and get statements recorded. It has also come on record that both Sadiq and Umesh Pal had lodged the FIR's of the aforesaid kidnapping against opposite party no.2-Atique Ahmed, copies of the said FIR's are annexed as annexure nos. 4 and 5 of the bail cancellation application. It has been further submitted in paragraph no. 17 of the bail cancellation application that though the Apex Court had directed the CBI to conclude the investigation of the aforesaid case within six months, but due to the terror and threat of opposite party no.2-Atique Ahmed, the statements of the applicant/complainant and other eye-witnesses could not be recorded. Paragraph nos. 18, 19 and 20 of the bail cancellation application are being reproduced herein below along with the relevant chart.

"18. That the opposite party no.2 is giving threat of life and other dire consequences to the applicant and other eye witnesses continuously and on 23.08.2016 the opposite party no.2 along with his brother Mohd. Ashraf along with five other unknown criminals armed with rifle and machine gun etc. have given threat of life to the applicant in case she will appear before the CBI for recording her statement then the applicant has filed an application dated 23.08.2016 before the S.P. (City), Allahabad and prayed to do needful in the matter and take necessary action against the opposite party no.2 and his other antisocial elements and the copy of the aforesaid application has been also given to S.S.P. Allahabad and S.H.O. Of Police Station Dhoomanganj, Allahabad for necessary action but no action has been taken against the opposite party on the basis of the aforesaid application filed by the applicant due to political pressure of the ruling party.

19. That on 05.10.2016 at about 7.00 pm. when the applicant was present in her office situated in Jayantipur, Police Station Dhoomanganj, near G.T. Road then the opposite party no.2 and his brother Mohd. Ashraf along with three unknown persons armed with rifle came in her office and given threat of her life in case she will appear before the CBI for recording her statement and thereafter the applicant has filed application dated 05.10.2016 before the S.S.P. Allahabad and when the S.S.P. Allahabad has not taken any action against the opposite party no.2 then she has send the aforesaid application dated 05.10.2016 to the I.G., Allahabad, D.I.G. Allahabad, SSP Allahabad and S.H.O of Police Station Dhoomanganj, through registered post on 06.10.2016 and prayed to take necessary action against the opposite party no.2 and his other antisocial elements to ensure the recording of her statement before the CBI.

20. That the accused opposite party no.2 is a hardened criminal and he is operating the gang of hardened criminals and more than 100 persons are the members of the gang of the opposite no.2 as per the police report of District Allahabad and there are criminal history of 69 cases against the accused opposite party no.2 which are described as under:-

Sl. No.

Case Crime No.

Sections

Police Station

District

Present Status

302 IPC

Khuldabad

Allahabad

Acquitted

147/148/149/302IPC

Barmo

Bokaro

(Bihar)

...

302/307 IPC

Khuldabad

Allahabad

...

Civil Lines

Allahabad

Charge Sheet has been sent. Present status is not known.

452/323/504/506 IPC

Khuldabad

Allahabad

Final Report

3(4) Gunda Act

Khuldabad

Allahabad

Challan Report has been sent Result is not known

25 Arms Act

Khuldabad

Allahabad

Acquitted

342/323 IPC

Civil Lines

Allahabad

Acquitted

147/148/149/307 IPC

Shahganj

Allahabad

Investigated by C.B.C.I.D and the name of Atiq Ahmed was removed.

2/3 Gangster Act

Khuldabad

Allahabad

Final Report

147/148/149/307/342/323/506/120-B IPC

Khuldabad

Allahabad

Final Report

143/153-A IPC

Khuldabad

Allahabad

Charge Sheet has been sent. Result is not known

147/148/149/379/332/427/342/506 IPC

Khuldabad

Allahabad

Final Report

353/504/506 IPC

Dhoomanganj

Allahabad

P.T.

384/504/506/323/34 IPC

Khuldabad

Allahabad

Acquitted

364/320/201 IPC

Peepari

Kaushambi

Acquitted

06 of 1992

147/148/149/364/506 IPC and 7 C. L. A. Act

Mutthiganj

Allahabad

Acquitted

ADJ-24 dated 5.1.2001

05 of 1992

30 Arms Act

Dhoomanganj

Allahabad

Re-investigation

2/3 Gangster Act

Khuldabad

Allahabad

Acquitted

302/394 IPC

Khuldabad

Allahabad

Chargesheet has been submitted

302/353/332/307/201 IPC

Colonelganj

Allahabad

CBI has sent the chargesheet and the matter is pending before the Court.

147/148/149/342/365/368/387/427/452/506/34 IPC and 3(1)10 SC/ST Act

Hajratganjs(State guest house)

Lucknow

P.T.

302/120B/218 IPC

Civil Lines

Allahabad

P.T.

3 U.P. Gunda Act

Khuldabad

Allahabad

Challan Report has been sent and the result is not known

1096/99

504/506 IPC

Colonelganj

Allahabad

The name of Atiq was removed during the investigation

188 IPC

Khuldabad

Allahabad

Final Report

147/148/149/323/504/506/311/342/452/384/427 IPC

Civil Lines

Allahabad

P.T.

NIL/2000

188 IPC

Khuldabad

Allahabad

Review petition is pending

91/2001

147/148/149/386/504/506/384/448/427/482/352/34 IPC & 7 C.L.A. Act & 2/3 Gangster Act

Dhoomanganj

Allahabad

Final report sent

95/2001

30 Arms Act

Dhoomanganj

Allahabad

P.T.

11/2001

302/120B IPC

Karaili

Allahabad

Chargesheet has been sent

27/2001

147/148/149/386/504/506/352/323/365 IPC & 3(1)10 SC/ST Act & 2/3 Gangster Act

Shahganj

Allahabad

Chargesheet has been sent

89/2001

395/397/387/448 IPC & 7 C.L.A. Act & 2/3 Gangster Act

Civil Lines

Allahabad

Chargesheet has been sent

186/2001

147/148/149/307/504/120B IPC

Dhoomnganj

Allahabad

C.S.

253/2002

147/148/149/452/330/304/506 IPC & 2/3 Gangster Act

Dhoomangaj

Allahabad

Under Investigation

257/2002

N.S.A.

Dhoomanganj

Allahabad

Counselling Board is dismissed

311/2002

467/468/471/420/506/384/387 IPC & 2/3 Gangster Act

Dhoomanganj

Allahabad

Under Trial

321/2002

147/148/435/307/153/336/332/427/120B IPC & 2/3/4 The Prevention of Damage to Public Property Act

Dhoomanganj

Allahabad

Under Trial

156/2002

147/148/149/307/504/506/387/120B IPC

Karaili

Allahabad

Under Trial

372/2002

302/120B IPC

Colonelganj

Allahabad

Under Trial

209/2002

147/148/149/336/427/506/120B IPC & 7 C.L.A. Act

Kotwali

Allahabad

Under Trial

263/2002

147/336/427 IPC & 7 C.L.A. Act & 3 The Prevention of Damage to Public Property Act

Civil Lines

Allahabad

Under Trial

264/2002

147/427 IPC & 7 C.L.A. Act

Civil Lines

Allahabad

Under Trial

265/2002

336/427 IPC & 7 C.L.A. Act

Civil Lines

Allahabad

Under Trial

267/2002

147/336/427 IPC & 7 C.L.A. Act

Civil Lines

Allahabad

Under Trial

96/2002

147/148/149/286/511/427 IPC & 7 C.L.A. Act

Shahganj

Allahabad

Under Trial

420/2002

307 IPC

Colonelganj

Allahabad

Under Trial

207/2002

147/148/452/504/506 IPC & 2/3/4 The Prevention of Damage to Public Property Act

George Town

Allahabad

Under Trial

251/2002

147/148/149/307/302/504/506/34/120B IPC

Khuldabad

Allahabad

Under Trial

35/2001

30 Arms Act

Dhoomnganj

Allahabad

257/2002

2/3 Gangster Act

Kotwali

Allahabad

P.I.

342/504/506/384/447/448 IPC & 2/3 Gangster Act

Khuldabad

Allahabad

Under Trial

307/120B/302 IPC

Dhoomanganj

Allahabad

Under Trial

155,156/03

25/30 Arms Act

Khuldabad

Allahabad

Under Trial

3(2) NSA

Dhoomanganj

Allahabad

Under Trial

452/323/504/506 IPC

Karaili

Allahabad

Under Trial

302/120B IPC

Khuldabad

Allahabad

Under Trial

251/2003

147/148/149/302/307/504/506/34/120B IPC

Khuldabad

Allahabad

147/148/149/302 IPC & 7 C.L.A. Act

Dhoomanganj

Allahabad

147/148/149/323/341/342/364/504/506 IPC & 7 C.L.A. Act

Dhoomanganj

Allahabad

147/148/149/323/341/342/364/504/506/452 IPC & 7 C.L.A. Act

Dhoomanganj

Allahabad

147/148/149/323/341/342/364/504/506/452 IPC

Dhoomangaj

Allahabad

147/148/364/394/323/504/506/34 IPC

Karaili

Allahabad

364/323/504/506/34 IPC

Kydganj

Allahabad

395/397/384/506 IPC

Bargarh

Chitrakoot

Under Trial

447/448/451/427 IPC

Dhoomanganj

Allahabad

P.I.

307 IPC

Dhoomanganj

Allahabad

P.I.

2/3 Gangster Act

Dhoomangajn

Allahabad

P.I.

147/148/149/448/323/427/342/420/506 IPC

Khuldabad

Allahabad

P.I.

3 U.P. Gunda Act

Dhoomanganj

Allahabad

P.I.

364/504/506/194/195-A/120B IPC

Dhoomanganj

Allahabad

P.I.

It has been submitted by the learned counsel for the applicant/complainant in paragraph no. 23 of the said application that after being released on bail in the aforesaid case crime in which the husband of the applicant/complainant was brutally murdered, opposite party no.2-Atique Ahmed has also kidnapped eye-witness, namely, Om Prakash Pal and thereafter got his statement recorded after he being seriously tortured during his period of abduction. The contention is that even the said injured eye-witness has lodged the FIR against opposite party no.2-Atique Ahmed bearing case crime no. 189 of 2007, under Section 364, 323, 504, 506 IPC and section 7 of Criminal Law Amendment Act, P. S. Kydganj, District Allahabad; similarly as mentioned in paragraph no. 24, another injured eye-witness, namely, Shaif Ullah was kidnapped on 21.2.2006, he was again abducted, tortured and thereafter forced to get his statement recorded in favour of opposite party no.2-Atique Ahmed. The said injured eye-witness Shaif Ullah has also lodged an FIR against opposite party no.2-Atique Ahmed bearing case crime no. 287 of 2007; similarly other eye-witness, namely, Mahendra Patel @ Buddhi Lal was also kidnapped. It has been contended that opposite party no.2-Atique Ahmad has been terrorizing the witnesses of the Raju Pal murder's case and has grossly abused the liberty and the indulgence which was granted to him vide order dated 12.4.2005 by means of which the bail was granted to opposite party no.2-Atique Ahmed.

Sri Satish Trivedi, the learned Senior Advocate assisted by Sri Ravindra Sharma, the learned counsel appearing for opposite party no.2-Atique Ahmed has filed a counter affidavit with the contention that bail once granted by the Court ought not to be cancelled and that the Court while granting bail had infact considered the criminal history (nevertheless the fact remains that criminal history of opposite party no.2-Atique Ahmed as already referred to above has not been appropriately considered). Sri Satish Trivedi further submits that till date the CBI has not filed any chargesheet against opposite party no.2-Atique Ahmed and that as on date opposite party no.2-Atique Ahmed remains in jail. He submits that CBI has also not submitted any report to the effect that opposite party no.2-Atique Ahmed is interfering with the investigation of CBI. He further contended that present bail cancellation application filed after a period of 11 years of the incident is highly belated, delayed and has been filed with the mala fide intention and thus it ought to be dismissed on this ground itself. As far as criminal history is concerned, he submits that in a number of cases opposite party no.2-Atique Ahmed has already been acquitted and in some cases he is not wanted and in most of the cases he is on bail. He further submits that of the five FIR's which were lodged against opposite party no.2-Atique Ahmed by the witnesses in the present case, three of them ended up in an acquittal and two of them opposite party no.2 - Atique Ahmad was granted bail wherein bail cancellation applications were filed, and have been got dismissed as withdrawn by the persons who had filed the said bail cancellation applications.

Sri D. S. Mishra, the learned counsel who is also appearing for opposite party no.2-Atique Ahmed contends that the matter of grant of bail as well as cancellation of bail are extremely different to each other and bail once granted by a Court of competent jurisdiction ought not to be cancelled. He placed heavy reliance on a few judgments, especially upon the judgments rendered by the Apex Court in the case of Dhariwal Industries Limited v. Kishore Wadhwani and other reported in 2016 (10) SCC 378 and Nityanand Rai v. State of Bihar and another reported in 2005 (4) SCC 178 and has emphatically relied upon the case of State through the Delhi Administration v. Sanjay Gandhi reported in AIR 1978 SC 961, however, if we go through the paragraph no. 24 of the said judgment, we find that the Court while considering the question of Section 439(2) Cr.P.C. has observed herein as under:

"Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than. permit a few to ensure that justice shall not be done."

Needless to say that in the said case, the bail was cancelled.

Sri D. S. Mishra has also challenged the locus of Smt. Pooja Pal to file the present bail cancellation application, but he has not denied that she happens to be the widow of Raju Pal, the deceased.

Sri Vinod Kant, the learned Additional Advocate General appearing for the State has filed a counter affidavit wherein reliance has been placed upon the division Bench judgment of this Court decided over by Hon'ble the Chief Justice, the special reference to the criminal history as mentioned therein shows that by an affidavit dated 17.2.2017 it was evident that there was 44 cases against opposite party no.2-Atique Ahmed registered in district Allahabad and six cases are registered in district Lucknow. The details of the said cases as brought up on record by the division Bench shows as under :

"A. Cases under Sections 323, 504 and 506 IPC- 10 previous cases

B. Cases under Section 307 IPC- 7 previous cases

C. Cases under Section 302 IPC- 7 previous cases

D. Cases under Sections 364, 365 and 368 IPC- 4 previous cases

E. Cases under the Gangsters Act- 3 previous cases"

Sri Vinod Kant further contends that the notoriety of opposite party no.2-Atique Ahmed is widespread and well established, which is apparent from various judicial order passed by this Court as well as Apex Court and if a person of such reputation is granted any indulgence and if his bail is not cancelled, there are chances that all the witnesses will become hostile.

The division Bench of this Court has already considered the gang chart, copy of the order in this regard has been annexed with the counter affidavit filed on behalf of the State.

Sri Vimlendu Tripathi, the learned AGA-I along with Sri Nagendra Bahadur Singh, the learned AGA-I appearing for the State has strongly pressed the present bail cancellation application by placing reliance upon the averments as made in the affidavit dated May, 2017 filed on behalf of the State of Uttar Pradesh - opposite party no. 1. Relevant paragraphs of the said affidavit are extracted herein below:

"6. That for proper adjudication upon the issue of cancellation of bail granted to the opposite party no. 2 in criminal case in question, the relevant facts required to be considered by this Hon'ble Court are that the contents of paragraph no. 20 of the affidavit accompanying Bail Cancellation Application are matter of records which are not being disputed and rather the same are being reiterated with the list of criminal cases registered against the opposite party no. 2 in order to place correct factual status of criminal history of opposite party no. 2. It is pertinent to mention here that the total criminal cases registered against the opposite party no. 2 are seventy five (75) criminal cases, out of which thirty two (32) criminal cases have been decided either in the form of judgment of acquittal or in the form of final report by the concerned Investigating Officers or in the form of withdrawal of prosecution by the State Government under Section 321 Cr.P.C., however, total forty three (43) criminal cases are still pending before concerned courts of law at the stage of trial.

8. That it is further submitted that total five (5) witnesses of criminal case in question (Case Crime No. 34 of 2005) had lodged criminal cases in respect of violation of conditions of bail granted to opposite party no. 2 and the attempts made by opposite party no. 2 to threaten these witnesses and to tamper the evidence of criminal case in question. The details of those criminal cases registered by the witnesses of present criminal case are being summarized hereinafter:-

(i) Case Crime No. 270 of 2007 under Sections 147, 148, 149, 323, 341, 342, 364, 504, 506, 34 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Dhoomanganj, District Allahabad lodged by Sri Umesh Pal against accused persons namely Atique Ahmad, Ashraf, Dinesh Pasi, Ansar, Shaukar Hanif and four (4) others.

(ii) Case Crime No. 288 of 2007 under Sections 147, 148, 149, 364, 341, 342, 323, 504, 506, 34 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Dhoomanganj, District Allahabad lodged by Sri Mahendra Patel alias Budho alias Buddi son of Mangla Prasad against accused persons namely Atique Ahmad, Rafeeq alias Gulful, Guddu, Ranjeet Pal, Ishraar, Abdul Haq, Shamshad, Navi Ahmad and others.

(iii) Case Crime No. 287 of 2007 under Sections 147, 148, 323, 149, 452, 342, 364ka, 504, 506, 120B I.P.C. and Section 7 of Criminal Law Amendment Act Police Station Dhoomanganj District Allahabad.

In Case Crime No. 287 of 2007 the opposite party no. 2 namely Sri Atique Ahmad along with other co-accused persons have been acquitted by Sri Mahtab Ahmad, Learned Addl. Sessions Judge, Court No. 2 District Allahabad vide judgment and order of acquittal dated 29.10.2013.

(iv) Case Crime No. 139 of 2007 under Sections 147, 148, 149, 341, 342, 364, 504, 506, 34, 394 I.P.C. and Section 7 of Criminal Law Amendment Act at Police Station Kareli District Allahabad.

In case crime no. 139 of 2007, the opposite party no.2 namely, Atique Ahmad along with other co-accused persons have been acquitted by learned Additional Session Judge, Court No.7, District Allahabad vide judgment and order of acquittal dated 14.4.2016

(v) Case Crime No. 189 of 2007 under Sections 364, 323, 504, 506 I.P.C. and Section 7 of Criminal Law Amendment Act at Police Station Kydganj District Allahabad. "

Relying upon the said averments, it has been contended that opposite party no.2-Atique Ahmed after being granted bail in the present case has continued to misuse the liberty so granted and has abused the bail granted by this Court vide order of 12.4.2005 and thus, it has been contended that the indulgence which has been granted to opposite party no.2-Atique Ahmed should be revoked and the bail be cancelled.

The Court has further been informed that opposite party no.2-Atique Ahmed was also involved in case crime no. 1117 of 2016 under Sections 147, 148, 149, 395, 323, 504 and 506 IPC read with section 7 Criminal Law Amendment Act with regard to an incident which has occurred on 14.12.2016 in an institution known as "Sam Higginbottom Institute of Agriculture, Technology and Sciences, Naini, Allahabad. It has also been informed to this Court that in the said case the bail application of opposite party no.2-Atique Ahmed has also been rejected by another Bench of this Court. Along with the counter affidavit, a detail chart of criminal history of opposite party no.2-Atique Ahmed has been annexed, which has been duly perused by the Court.

This Court has once again gone back to the order dated 12.4.2005 passed in Crl. Misc. Bail. Application No. 6080 of 2005 and keeping in view the contention as raised at the Bar of this Court by counsel of both the sides, the order has been perused, nevertheless the fact remains that a minute perusal of the said order shows that the learned Single Judge was unduly swayed by the fact that the only role assigned to accused- applicant (opposite party no.2-Atique Ahmed in the present case) in the said case was hatching a conspiracy, but the Court has not at all considered the criminal history of accused- applicant (opposite party no.2-Atique Ahmed in the present case) and this Court has no hesitation in holding that the order passed by learned Single Judge suffers from aforesaid illegality of non-consideration of criminal history of heinous offences in an appropriate manner. Only a casual reference has been made in the order dated 12.4.2005 which shows total non-application of mind to the criminal history of heinous offences.

Sri Nagendra Bahadur Singh, learned AGA-I appearing for the State has drawn the attention of the Court to a division Bench judgment of this Court dated 19.5.2017. This Court has also gone through the said judgment and perused the parameters with regard to the grant of bail and also with regard to the cancellation of bail viz-a-viz section 439(2) Cr.P.C.

However, before coming to the judgment of the Apex Court, reference may be made to an observation of division Bench judgment of this Court as contained in the judgment dated 19.5.2017 wherein the Court had reproduced and extracted the order passed by concerned SSP dated 16.2.2017 which reads herein as under:

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vr,o vki yksxksa dks funsZf'kr fd;k tkrk gS fd vfHk;qDr vrhd vgen ,oa vU; lgvfHk;qDr mijksDr ds fo:} layXud izpfyr oknksa dk ifj'khyu dj vafdr xEHkhj vijk/kksa ds lEcU/k esa rRdky fof/kd izfdz;k ds vuq:i tekur fujLrhdj.k dh dk;Zokgh 'kh?kzkfr'kh?kz djkrs gq, d`r dk;Zokgh dh vk[;k ls esjs okpd dks miyC/k djkuk lqfuf'pr djsaA"

If we look at the consistent legal position, we find the relevant legal precedent with regard to the question of grant of bail and cancellation of bail, the position which crystallizes is herein as under:

In the case of State of U.P. v. Amarmani Tripati reported in 2005 (8) SCC 21, the Apex Court held herein as under:

"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp. 535-36, para 11)

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] .)"

In the case of Neeru Yadav v. State of U.P. and another (Criminal Appeal No. 2587 of 2014 arising out of S.L.P. (Crl.) No. 8469 of 2014 decided on 16.12.2014), the Apex Court observed as under:

"10. The pivotal issue that emanates for consideration is whether the impugned order passed by the High Court deserves legitimate acceptation and put in the compartment of a legal, sustainable order so that this Court should not interfere with the same in exercise of jurisdiction under Article 136 of the Constitution of India. In this context, a fruitful reference be made to the pronouncement in Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, wherein this Court has observed that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious, for the heinous nature of the crime warrants more caution and there is greater change of rejection of bail, though, however dependant on the factual matrix of the matter. In the said decision, reference was made to Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and the Court opined thus:

"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. [pic]

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

13. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court.

16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.

17. Coming to the case at hand, it is found that when a stand was taken that the 2nd respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non- application of mind. That apart, as a matter of fact it has been brought on record that the 2nd respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this court would tantamount to travesty of justice, and accordingly we set it aside."

and, thus, in view of the aforesaid, the bail was allowed by the Apex Court and the order granting bail was set aside.

Similarly, in another case of Neeru Yadav v. State of U.P. and another (Criminal Appeal No. 1272 of 2015 arising out of S.L.P. (Crl.) No. 1596 of 2015 decided on 29.09.2015) the Apex Court while relying upon the number of precedent has held as under:

"9. On a perusal of the aforesaid list, it is quite vivid that the respondent no.2 is a history-sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a "history-sheeter". The question, therefore, arises whether in these circumstances, should the High Court have enlarged him on bail on the foundation of parity.

10. In Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter.

11. It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge.

15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. "

and, thus, in this case also, the bail was subsequently cancelled.

The reference may also be made to the case of Chandrakeshwar Prasad @ Chandu Babu v. State of Bihar and another (Criminal Appeal No. 932 of 2016 arising out of S.L.P. (Crl.) No. 7284 of 2016 with State of Bihar v. Md. Shahabuddin in Criminal Appeal No. 933 of 2016 arising out of S.L.P. (Crl.) No. 7230 of 2016 decided on 30.09.2016) wherein again the order granting bail to the accused persons were set aside by the Apex Court.

The last but not the least the Court also referred to a judgment of the Apex Court rendered in the case of Pooja Pal v. Union of India and other reported in 2016 (3) SCC 135 wherein the Apex Court after observing the facts and circumstances of the case as mentioned in paragraph nos. 8, 9, 10, 11, 12, 13, 14, 15 and 16 and after relying upon the number of precedent was pleased to observe herein as under

40. We have extended our anxious consideration to the competing pleadings and the arguments advanced. The gory incident in which the appellant's husband was brutally gunned down in a public place is indeed harrowing and alarmingly distressful. Not only the daring act in the broad day light is condemnable, it sent shock waves among the living community, wrecking the temper and rhythm of social life and created a fear psychosis and a scary feeling of lack of security in all concerned.

41. It is a matter of record that at the relevant time, the appellant's husband was a sitting member of the State Legislative Assembly, having defeated the respondent No. 5, in the bye-elections held a few months prior to his murder. That at that time, the respondent No. 4, brother of respondent No. 5 was a member of the Parliament is also an admitted fact. In the FIR filed by the appellant soon after the incident, she named the respondent No. 5 to be the assailant who had shot Raju Pal in the head, being accompanied by others. She has alleged therein that respondent No. 4 was the brain behind the operation and thus was involved in the conspiracy to eliminate her husband. As referred to hereinabove, it has been averred by her as well that soon after the bye-elections in which her husband had been elected, a number of unsuccessful attempts had been made on him for which he genuinely sustained an apprehension regarding his safety and security. That he had repeatedly aired his apprehension to that effect and had sought remedial measures before the appropriate authorities, has been pleaded as well. Immediately after the assassination of her husband, the appellant as well as the President of the Bahujan Samaj Party, to which he belonged, also had submitted a spate of representations before the Governor, Chief Minister, Chief Secretary and other authorities of the State requesting for entrustment of the investigation of the case to the CBI as the state police, as perceived by them, was found to be patently partisan in their initiatives and approach in connection therewith. The allegations by the appellant about laconical autopsy of the dead body without any notice to her or any other family member of the deceased, refusal to return the dead body to them and hasty and secret cremation thereof to remove the otherwise tell tale clues to identify the assassins have been candidly made. As these imputations have been denied by the respondents in their pleadings, we refrain from further dilating thereon. Similarly, both sides have also alleged registration and pendency of criminal cases against the appellant's husband, respondents No. 4 and 5 involving offences amongst others of murder, attempt to murder etc.

46. In the course of the arguments, attention of this Court has been drawn to the additional documents filed on behalf of the appellant pertaining to the trial so far held and also the parallel criminal cases registered on the accusation of threats being extended to the eye witnesses of the incident. On a cursory perusal of the testimony of witnesses so far examined at the trial, it prima facie appears therefrom that though all of them were present at that time at the spot when the offence was committed, none of them has identified the accused persons standing trial including the respondent Nos. 4 and 5 to be/or among the assailants. Some of the witnesses, who were also injured in the incident, after being declared hostile by the prosecution, have even resiled from their statements under Section 161 of the Code made before the police. Significantly, however the witnesses have admitted the occurrence in which the appellant's husband had been shot at, following which he had succumbed to the injuries sustained.

47. The additional documents also include a judgment rendered by the trial court on 2.11.2011 in Sessions Trial No. 749 of 2009, State vs. Ram Chandra Yadav @ Fauji registered on the complaint filed by one Mahendra Patel @ Budhi Lal Patel, who in his cross-examination, retraced from the charge levelled by him against respondent No. 4 and his companions of having threatened and assaulted him so as to pressurize him to change his statement made before the police, lest he and his family be murdered. The complainant Mahendra Patel also was an eye witness to the incident of 25.1.2005 and had been driving the Scorpio vehicle which was following the one in which Raju Pal was travelling. The trial court acquitted the accused mainly in view of the retraction of the statement of the complainant and lack of evidence in support of the charge. Having regard to the present stage of the trial, for obvious reasons, we do not wish to offer any comment on any aspect relatable thereto. It is however noteworthy that some other witnesses of the prosecution including the appellant are yet to be examined by the prosecution.

49. These notwithstanding, it would still be, in our opinion, imperative to examine as to whether for doing complete justice and enforcing the fundamental rights guaranteed by the Constitution, the relief of entrustment of the investigation of the case again to the CBI is grantable or not on its own merits. This is chiefly, in view of the intrepid, audacious and fiendish intrusion of human right by the assassins in broad day light at a public place, by defiantly violating all canons of law and making a mockery of the administrative regime entrusted with the responsibility to maintain an orderly society. The terrorising impact of this incident and the barbaric manner of execution of the offence is also a factor which impels this Court to undertake such a scrutiny in the interest of public safety, a paramount duty entrusted to all the institutions of governance of our democratic polity. This is more so, where a grisly and intimidatory crime impacting upon the public confidence in the justice delivery system as a whole is involved, so as to ensure that such outrageous do not go incautiously, unfathomed and unpunished.

97. Reverting to the facts, the gruesome and sordid assassination of the appellant's husband in broad day light under the public gaze is not in dispute. As a consequence of the murderous assault with firearms and indiscriminate use thereof, Raju Pal along with two others fell to the bullets. Records seem to suggest that even prior to the incident, attempts were made on his life but he survived the same in view of the timely intervention of the security guards. That representations were made by him seeking additional protection and that after his murder, the appellant and the party higher ups of Raju Pal had persistently appealed, amongst others, to the Governor and the Chief Minister of the State for handing over the investigation to the CBI is also testified by the records.

98. Pleaded imputations of the appellant include deliberate, uncalled for and mysterious replacement of the earlier sets of personal security officers/gunners of the deceased, presence of high police officials near the place of occurrence, indifference on the part of the state police to act with alacrity, hasty conduct of the post mortem of the dead body and cremation thereof without handing over the same to the appellant or any of his relatives, political pressure on the investigating agency to distort the course of the probe and to screen the incriminating evidence collected etc. One of the Investigating Officers in his writ petition, questioning his suspension had also pleaded on oath about the unexpected and unwarranted interference of the higher ups in the department to withhold evidence gathered in course of the investigation underway. Though nothing decisively turn on these accusations, the same having been refuted by the respondents, the fact remains that the appellant's husband had been mercilessly killed by a group of gun wielding assailants in a public place, in the open view of all concerned. Such a daring and desperate act did have a terrorizing impact on the society sending shock waves amongst all cross sections of the community and received wide coverage by the media. The incident understandably is not one to be lightly glossed over or trivialized.

99. The trial on the basis of the investigation completed hitherto by the state police and the CBCID has remained stayed by the orders of this Court. Prior thereto however as per the materials laid before this Court, several eye-witnesses cited by the investigating agency have been examined. As the trial is pending for the present, we refrain from commenting on their testimony, except that they seem to have resiled from their statements under Section 161 of the Code. Having regard to the manner in which the offence had been committed, it is incomprehensible that there was no eye- witness to the incident. Thus, if the persons cited as eye-witnesses by the investigating agency retract from their version made before the police, then either they have been wrongly projected as eye-witnesses or they have for right or wrong reasons resiled from their earlier narration. In both the eventualities, in our opinion, the investigation has to be faulted as inefficient, incomplete and incautious with the inevitable consequence of failure of the prosecution in the case in hand. Such a fall out also spells a dismal failure of the state machinery as a pivotal stake holder in the process of justice dispensation to protect and assure the witnesses of their safety and security so to fearlessly testify the truth. We would hasten to add that these observations are by no means suggestive of the complicity of the respondent Nos. 4 & 5 and other accused persons standing trial. These, to reiterate, are farthest from even any presumptive hypothesis of their involvement in the offence for the present and are engendered by the concern of possible failure of justice. If the investigating agencies, as involved, have not been able to identify and present eye-witnesses of the incident who would under all circumstance religiously and devotedly abide by their version about the same, the shortcoming apparently is in the probe made, sadly reflecting on the competence, commitment and efficacy of such agencies. The very fact that this Court had earlier stayed the trial while permitting the appellant to approach the High Court with the relief for assignment of the investigation to the CBI does signify its expectation that the High Court would adopt a sensitive insight into the issues raised and appropriately address the same. The pendency of the trial and the examination of the witnesses so far made thus in our estimate is not a disarming factor for this Court, to consider the necessity of entrusting the investigation to the CBI even at this stage. To reiterate, a decision in this regard has to be induced and impelled by the cause of justice viewed in the overall facts and circumstances attendant on the incident. No inflexible norm or guideline is either available or feasible.

101. Judged in these perspectives, we are of the firm opinion that notwithstanding the pendency of the trial, and the availability of the power of the courts below under Sections 311 and 391 of the Code read with Section 165 of the Evidence Act, it is of overwhelming and imperative necessity that to rule out any possibility of denial of justice to the parties and more importantly to instill and sustain the confidence of the community at large, the CBI ought to be directed to undertake a de novo investigation in the incident. We take this view, conscious about the parameters precedentially formulated, as in our comprehension in the unique facts and circumstances of the case any contrary view would leave the completed process of crime detection in the case wholly inconsequential and the judicial process impotent. A court of law, to reiterate has to be an involved participant in the quest for truth and justice and is not expected only to officiate a formal ritual in a proceeding farseeing an inevitable end signaling travesty of justice. Mission justice so expectantly and reverently entrusted to the judiciary would then be reduced to a teasing illusion and a sovereign and premier constitutional institution would be rendered a suspect for its existence in public estimation. Considering the live purpose for which judiciary exists, this would indeed be a price which it cannot afford to bear under any circumstance.

102. In the wake of the above, we are unhesitatingly inclined to entrust the CBI, with the task of undertaking a de novo investigation in the incident of murder of Raju Pal, the husband of the appellant as afore- mentioned. Though a plea has been raised on behalf of the respondent Nos. 4 and 5 in particular that this incident has been exploited by the appellant for her political gains, we are left unpersuaded thereby, as her achievements in public life must have been fashioned by very many ponderable as well as imponderable factors. In any view of the matter, such a contention, in our view, is of no consequence or relevance. We would, however make it abundantly clear that this direction for entrustment of the investigation to the CBI anew has been made in view of the exceptional features of the case as overwhelmingly demonstrated by attendant facts and circumstances indispensably necessitating the same.

103. We are aware that in the meantime, over a decade has passed. The call of justice however demands, that the CBI in spite of the constraints that it may face in view of the time lag, would make all possible endeavours to disenter the truth through its effective and competent investigation and submit the same before the trial court, as early as possible preferably within the period of six months from today. The clarion call of justice expects a befitting response from the country's premier and distinguished investigating agency. On receipt of the report by the CBI only, the trial court would proceed therewith in accordance with law and conduct and conclude the trial expeditiously and not later than six months. The interim order staying the ongoing trial is hereby made absolute."

In view of the aforesaid, the Apex Court had directed for a CBI investigation de novo and directed to CBI to complete the investigation within six months from the date of the judgment.

Sri Amit Mishra learned counsel appearing for the CBI has informed the Court that the investigation is still under progress.

This Court would also like to refer to a recent judgment of the Apex Court rendered in the matter of State of Bihar v. Raj Ballav Prasad @ Rajballav Prasad Yadav reported in 2017 (2) SCC 178 wherein the Apex Court after relying upon the number of precedent has held herein as under:

"Keeping in view all the aforesaid considerations in mind, we are of the opinion that it was not a fit case for grant of bail to the respondent at this stage and grave error is committed by the High Court in this behalf. We would like to reproduce following discussion from the judgment in the case of Kanwar Singh Meena v. State of Rajasthan & Anr (2012)12SCC 180:

"10...While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail.

18. Taking an overall view of the matter, we are of the opinion that in the interest of justice, the impugned order granting bail to the accused deserves to be quashed and a direction needs to be given to the police to take the accused in custody..."

24. As indicated by us in the beginning, prime consideration before us is to protect the fair trial and ensure that justice is done. This may happen only if the witnesses are able to depose without fear, freely and truthfully and this Court is convinced that in the present case, that can be ensured only if the respondent is not enlarged on bail. This importance of fair trial was emphasised in Panchanan Mishra v. Digambar Mishra & Ors. (2005) 3 SCC 143 while setting aside the order of the High Court granting bail in the following terms:

"13. We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."

25. Such sentiments were expressed much earlier as well by the Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar & Ors. (AIR) 1958 SC 376 in the following manner:

"6...There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked..."

26. We are conscious of the fact that the respondent is only an under-trial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trail of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation of witnesses etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer. This is so beautifully captured by this Court in Masroor v. State of Uttar Pradesh & Anr. (2009) 14 SCC 286 in the following words:

"15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan [(1987) 2 SCC 684] are quite apposite:

"6... Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.""

27. This very aspect of balancing of two interests has again been discussed lucidly in Neeru Yadav v. State of Uttar Pradesh & Anr. ((2014) 16 SCC 508 in the following words:

"16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the second respondent? We are not oblivious of the fact that liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on the human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to the rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.

17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., Criminal Misc. Bail Application No. 31078 of 2014, decided on 22-9- 2014 (All)] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside."

28. In Ramesh & Ors. v. State of Haryana (2017) 1 SCC 529, which was decided only two days ago i.e. on 22.11.2016, this Court discussed the problem of witnesses turning hostile, and if that is for wrong reasons, observed that it affects the very fabric of criminal justice delivery system. We would like to reproduce following passages therefrom:

"44. On the analysis of various cases, following reasonscan be discerned which make witnesses retracting their statements before the Court and turning hostile:

"(i) Threat/intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness."

45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.

46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:

"11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise...Time has come for a comprehensive law being enacted for protection of the witness and members of his family."

47. Almost to similar effect are the observations of Law Commission of India in its 198th Report (Report on 'witness identity protection and witness protection programmes'), as can be seen from the following discussion therein:

"The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection."

Learned AGA submits that opposite party no.2-Atique Ahmed appears to be a manifestation of the age old quote that 'too err is human, to repent is divine but to persist is devilish.'

A perusal of the facts and circumstances clearly shows that opposite party no.2-Atique Ahmad had committed his first murder in the year 1979, the second murder was committed in 1981, third murder in the year 1984 and so on and subsequently which has culminated and resulted in a long criminal history of heinous offences.

It is a matter of record and a part of judicial order passed by Division Bench of this Court against opposite party no.2-Atique Ahmed who had participated in an incident which took place in an educational institution with regard to which the FIR came to be registered as case crime no. 1117 of 2016. However, even though the FIR was lodged on 14.12.2016, but no arrest was made and it was only when the matter was taken up by the Division Bench of this Court on 13.3.2017 the District Administration woke up and opposite party no.2-Atique Ahmad was arrested subsequently a bail application has been filed on behalf of opposite party no.2-Atique Ahmad and the same has been rejected by another Bench of this Court as informed by the learned AGA.

Thus, having perused the order 12.4.2005 by means of which the bail was granted it becomes crystal clear that the Court has not at all considered the criminal history of the opposite party no.2-Atique Ahmad in the manner in which it ought to have been considered as per the legal parameters as laid by the Apex Court and also moreover there is much evidence on record to show that opposite party no.2-Atique Ahmad is tampering with the evidence and harassing the witnesses some of whom have been kidnapped, abducted, tortured and forced to give statements in favour of opposite party no.2-Atique Ahmad as it is evident from the record itself and also in view of the observations made by the Apex Court in the judgments rendered in the case of Pooja Pal, this Court finds that opposite party no.2-Atique Ahmad is not entitled to grant of indulgence of this Court.

Thus, the picture which emerges within the explicit ramification is that one single individual/person cannot be permitted to hold the entire civilized society to ransom the extent of the terror which is exercised by opposite party no.2-Atique Ahmed which itself is evident from judicial record available before this Court. Moreover, the record shows that (a) with reference to the order by means of which the bail was granted and for the cancellation of which the present bail cancellation application has been filed (b) the bail has been granted without any real and appropriate consideration of the long criminal history of opposite party no.2-Atique Ahmed (c) even subsequent to the grant of bail in the aforesaid matter which clearly provided that opposite party no.2-Atique Ahmed shall give an undertaking before the court concerned that he will not temper with the evidence or threaten the witnesses after his released on bail and shall cooperate in expeditious trial of the case by the trial court, but the fact remains that there has been a gross violation of the said undertaking as there was evidence on record to show that opposite party no.2-Atique Ahmed has been tampering with the evidence and on this ground itself, the present bail cancellation application deserves to be allowed (c) it is apparent that he had continued with his wrong doings and persisted in terrorizing the society without any care for law and order and after grant of bail witnesses have been kidnapped, terrorized, tortured and forced to give statements in court in favour of opposite party no.2-Atique Ahmed himself (d) complainant has also been extended threats with regard to which applications were filed before the police authorities, copy of which are annexed with the present bail cancellation application. Moreover, it is apparent that opposite party no.2-Atique Ahmad is a gang leader with a long list of gang members and long list of criminal cases.

Thus, in view of what has been discussed above, the indulgence granted to the opposite party no.2-Atique Ahmed vide order dated 12.4.2005 is hereby revoked. The bail granted to opposite party no.2-Atique Ahmad in case crime no. 34 of 2005 accordingly stands cancelled and the bail cancellation application is thus allowed. Consequences to follow.

The Court has been informed that even though initially opposite party no.2-Atique Ahmed was released on bail in compliance of the order of another Bench of this Court dated 12.4.2005 but subsequently he was arrested in case crime no. 1117 of 2016 and is in jail at present. Accordingly, it is directed that the copy of the order shall immediately be forwarded to the Director General of Police, State of U.P. and the Inspector General, Prison through the Office of the Government Advocate for immediate compliance.

It is being made clear that the copy of the order shall also be forwarded to all the concerned jail authorities for necessary compliance.

Order Date :- 31.5.2017

Kuldeep