Smt. Asha Devi vs State Of U.P. And Another
2021 Latest Caselaw 9350 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 38
 

 
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 212 of 2020
 

 
Applicant :- Smt. Asha Devi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Virendra Singh,Hari Om Gupta
 
Counsel for Opposite Party :- G.A.,Shashi Bhushan Kunwar
 

 
Hon'ble Siddharth, J.

Order on Criminal Misc. Bail Cancellation

1. Heard Sri V. Singh, learned counsel for the applicant, learned A.G.A for the State of U.P., opposite party no. 1 and Sri Kamal Krishna, learned Senior Counsel assisted by Sri Shashi Bhushan Kunwar, learned counsels for opposite party no. 2.

2. This bail cancellation application has been filed for cancellation of bail granted to the opposite party no. 2, Umesh Yadav, by this Court vide order dated 05.03.2020 vide Criminal Misc. Bail Application No. 45966 of 2019 (Umesh Yadav vs. State of U.P). In compliance of the order of nomination dated 27.11.2020, of Hon'ble the Chief Justice this application is listed before this Court.

3. Bail was granted to the applicant in Case Crime No. 117 of 2019, under Sections 323, 504, 506 and 304 IPC, P.S. Reoti, District- Ballia, relying upon G.D. Entry no. 24 dated 11.06.2019 wherein it was mentioned that the deceased initially suffered injury on hip in an incident which took place at Ballia on 03.06.2019. When he was being transported from Ballia to Varanasi for treatment, he met with a road accident and sustained head injury at Ghazipur and was admitted in Trauma Centre, Varanasi on the same day. The deceased died on 11.06.2014 at Trauma Centre, Varanasi. It is clear from the order that the learned A.G.A testified to the aforesaid facts before the Court after going through the case diary.

4. Learned counsel for the applicant has submitted that when the applicant-informant came to know that the opposite party no. 2 has been granted bail by this Court vide order dated 05.03.2020 on the basis of G.D. Entry No. 24 dated 11.06.2019, she moved an application before S.S.P., Varanasi on 19.03.2020 stating that on 03.06.2019 at about 6:00 a.m., dispute took place between her husband and opposite party no. 2 and other persons. Her husband was beaten by the opposite party no. 2 and other accused persons and he got injured. Vinod took him to Sadar Hospital, Ballia from where he was referred to Varanasi. At Varanasi, he was treated at Trauma Centre, Varanasi, B.H.U., where he died on 11.06.2019. The hospital informed the Police Station - Lanka, Varanasi about the death of husband of applicant. The employee who noted the information from the hospital at Police Station- Lanka, Varanasi made wrong entry that the deceased suffered injuries in road accident at Ghazipur and the person who brought him was named Amar Singh. On account of the aforesaid wrong G.D. Entry, the applicant has been enlarged on bail by the High Court which order should be cancelled. An inquiry was conducted by Circle Officer, Bhelupur, Varanasi who got another G.D. Entry no. 52 dated 09.07.2020 recorded in the case diary noting the facts informed by the applicant, subsequent to grant of bail to the opposite party no. 2 by this Court.

5. Counsel for the applicant submits that it is clear that on the basis of wrong G.D. Entry, bail was granted to the opposite party no. 2 and the same may be cancelled. Since the correct G.D. Entry has been recorded in G.D. No. 52, he has submitted that co-accused persons of opposite party no. 2 are applying for bail claiming parity with the bail granted to the opposite party no. 2.

6. Learned Senior Counsel for the opposite party no. 2 has submitted that this bail cancellation application is misconceived and not maintainable. He has submitted that at the time when the bail was granted, G.D. Entry no. 24 was in the case diary and it is an admitted fact that the aforesaid entry was disputed by the applicant after the bail was granted by this Court and therefore there was no fraud or misrepresentation on the part of the opposite party no. 2. Even the Additional Government Advocate appearing for state found the aforesaid G.D. Entry no. 24 in case diary and on the basis of the same, bail was granted to the applicant. He has submitted that after the bail was granted on 05.03.2020, G.D. Entry no. 24 was corrected vide G.D. Entry no. 52 on 09.07.2020 and it cannot be a ground for cancellation of bail. In support of his argument has relied upon the judgment of the Hon'ble Supreme Court in the case of Abdul Basit vs. Abdul Kadir Choudhary (2014) 10 SCC 754.

7. He has submitted that none of the grounds specified by the Apex Court are found in the present bail cancellation application. Learned Senior Counsel has further submitted that the applicant in this case is seeking review of the bail granted to the opposite party no. 2 earlier by way of the above noted application which is not permissible under the law.

8. He has submitted that there is no provision in the Cr.P.C., which gives such a power to the Court to alter or review its judgment or final order. Hence, the bail cancellation application of the applicant is misconceived and deserves to be rejected.

9. After hearing the counsel for the parties, this Court finds that when the bail was granted to the applicant, there was no dispute regarding the G.D. Entry no. 24 and only after the bail was granted to the applicant on 05.03.2020, the applicant started disputing the G.D. Entry no. 24. In her statement recorded by the police, she has clearly stated that she came to know of the wrong recital in the G.D. Entry no. 24 only after bail was granted to the applicant and hence, on the basis of her statement, another G.D. Entry no. 52 was recorded in the case diary stating that the deceased died on account of head injury caused by the applicant and other accused persons at Ballia and that has been made the basis of the bail cancellation application.

10. The Apex Court in the case of Abdul Basit (Supra) in paragraph 18 clarified the grounds required for cancellation of bail granted to an accused as follow:-

"18. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody, i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation , (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh and Ors. etc. v. State of Bihar, 1987 CriLJ 157)"

11. In paragraph 25 of the Apex Court has held that once case is decided by the Court, Cr.P.C does not provides for review of the order as follow:-

"25. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as bar to any alteration or review of the cases disposed of by the Court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the Court."

12. Regarding the submission of learned counsel for the applicant that other co-accused persons are claiming parity with the bail order of the applicant, it is open for the applicant to point out the subsequent events regarding the G.D. Entry no. 24 of case diary before the Court. It cannot be a ground for cancellation of bail of the opposite party no. 2.

13. In view of the above consideration, the bail cancellation application is rejected.

Order date:- 03.08.2021

Rohit