Imran Ahmad vs State Of U.P. And Another
2021 Latest Caselaw 2197 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 05.02.2021
 
Delivered on 10.02.2021
 
Court No. - 83
 

 
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 2064 of 2017
 
Applicant :- Imran Ahmad
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Muqeem Ahmad,Haseen Ahmad,Saurabh Basu
 
Counsel for Opposite Party :- G.A.,Sanjeev Kumar Shukla
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1 Heard Sri Haseen Ahmad, learned counsel for the applicant, Sri S.K. Shukla, learned counsel for opposite party no.2, Sri A.K. Mishra, learned AGA for the State and perused the material placed on record.

2. This is an application seeking cancellation of bail granted to opposite party no.2, namely, Subhash Chaubey by this Court vide order dated 18.01.2012 passed in Criminal Misc. Bail Applications No. 4666 of 2011 arising out of Case Crime No. 1255 of 2010, under Sections 419, 420, 467, 468, 471, 504, 506 IPC, Police Station Phulpur, District Azamgarh.

3. Learned counsel for the applicant submits that the opposite party no.2 was granted bail on certain conditions in the aforesaid case, for ready reference the said bail order is reproduced hereinafter:-

"This bail application has been moved on behalf of the applicant Subhash Cahubey, who is involved in Case Crime No.1255/10, under Sections 419, 420,467, 468, 471, 504,506 IPC, PS Phulpur, District Azamgarh.

Heard Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Ayank Misra, Advocate,learned counsel for the applicant as well as S/Sri Rajarshi Gupta and Mukeem Ahmad, learned counsel for the complainant and learned AGA and perused the record.

Learned counsel for the applicant has contended that the applicant was a property dealer and on promise given by the applicant for 50 percent share in the profits of the business, the complainant joined him as his associate and consequently paid Rs.1 crores 24 lakhs to the applicant in lieu of the said business. Subsequently the complainant became suspicious on the working of the applicant as he found that the applicant had fraudulently cheated others in a similar manner. Hence the complainant demanded his money back for which the applicant issuied cheques in favour of the complainant but due to meager amount in his account, the complainant's money could not be returned to him.Thereafter the complainant contacted the applicant on several occasions, but all in vain. The FIR was thereafter lodged against him under the aforesaid Sections by the complainant.

It appears that the parties have amicably settled the dispute outside court, during the pendency of this bail application and a supplementary affidavit has been jointly filed on behalf of the applicant's father as well as Sri Imran Ahmad, the complainant in this regard setting forth certain terms and conditions which both the parties have accepted. It has been stated therein that they are willing to compromise the dispute. It has been mentioned in the said affidavit that the complainant has alleged in the FIR that the dispute arose over the recovery of the amount of Rs.1 crore 24 lakhs from the applicant. It is further stated in the said affidavit that now the applicant's father and even the applicant is ready to pay the said amount in two parts at an interval of 5 months from today. The said condition has been accepted by the complainant and he has stated that he is willing to resolve the dispute without any other condition. It is also mentioned in the said affidavit that a sum of Rs.22 lakhs has been paid to the complainant by the applicant's father. Learned counsel for the complainant has also admitted that a further sum of Rs.2 lakhs was also paid to the complainant. It is also mentioned in the said affidavit that the complainant has accepted the said condition and is not having any dispute left against the applicant. It is also mentioned that the applicant may be granted bail by this court as the dispute has been resolved.

Considering the entire facts and circumstances of the case, the averments made in the said affidavit filed on behalf of the applicant as well as the complainant, without expressing any opinion on the merits of the case, the applicant may be enlarged on bail on the undertaking given by the learned counsel for the applicant to pay the balance amount in two parts at an interval of 5 months from the date of release of the applicant.

Let the applicant Subhash Chaubey involved in Case Crime No.1255/10, under Sections 419,420,467,468,471,504,506 IPC,PS Phulpur, District Azamgarh be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned."

4. He further submits that in pursuance of the above order, till date the O.P. no.2/respondent accused has paid only amount of Rs.33,50,000/-, out of the outstanding amount of Rs.1,24,00,000/- and he also regularly threatening the applicant and his family members and objecting the process of fair trial. He further submits that this application is liable to be allowed.

5. Learned counsel for opposite party no.2 at the outset submits that this application is not maintainable on behalf of the applicant as he has no locus to file this application. He further submits that the only locus in a criminal case to file such application is only of the State. In support of his submission he has relied upon a judgment passed by High Court of Andhra Pradesh, in the case of Sardela Damodar vs. State of Andhra Pradesh : 1997, Law Suit (AP) 408, for reference the relevant paragraph of the said judgment is reproduced hereinafter:-

"11. Therefore, I am of the considered opinion that the petitioner has no locus-standi to file the present application for cancellation of the bail as he cannot be treated on par with the Public Prosecutor. As already observed, it is for the prosecution to satisfy itself whether by granting bail, the accused will be interfering with the trial or the evidence and if it finds that the accused is conducting himself prejudicial to the interest of the prosecution, it is open for the prosecution to file an application or bring to the notice of the Court for cancellation of the bail. But, it would not authorise the private person to step in the shoe of Public Prosecutor and file the application under section 439(2) Cr.P.C."

6. Counsel fairly admitted that the O.P. no.2 accused has paid only amount of Rs.33,50,000/-, out of the outstanding amount of Rs.1,24,00,000/-. He further submits that O.P. no.2/respondent accused wants to sale his property, however, due to undue pressure of the applicant, his property is not sold. He lastly submits that this application is liable to be rejected.

7. Learned A.G.A. submits that the applicant has locus to approach this Court for cancellation of bail and O.P. no.2/respondent accused has admittedly violated the conditions of the bail order and misused his liberty and Court has a right to consider the same and to pass the appropriate order.

8. Considered the rival submissions, material available on record and perused the record. The relevant Section 439 (2) of Cr.P.C. provides that "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". This provision does not specify that the State is alone has locus to approach this Court to make out a case to exercise powers by the High Court under Section 439 (2) of Cr.P.C.

9. The Hon'ble Supreme Court in a case of R. Rathinam vs. State By DSP, District Crime Branch and another : (2002) 2 SCC 391, has discussed the question of locus in a case of filing a bail cancellation application. The relevant paragraphs of the said judgment are reproduced hereinafter:-

"6. Be that as it may, the next question is whether the same High Court can cancel the bail for other reasons. The answer is explicit in Section 439(2) of the Code of Criminal Procedure. It reads thus:

"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."

7. The frame of the sub-section indicates that it is a power conferred on the said courts. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or even a public prosecutor moves for it by a petition.

8. It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations it is open for the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law."

10. From the above, it is clear that the law declared by the High Court of Andhra Pradesh in Sardela Damodar (Supra) is not a good law. The Apex Court in R. Rathinam (Supra) has specifically held that the powers of 439 (2) Cr.P.C. is vested in the High Court which can be invoked either by the State or any aggrieved party. The said power can be exercised even by the High Court suo moto.

11. In view of the above, the submission made by learned counsel for the O.P. no.2 in regard to the locus of the applicant is rejected and it is held that this application for cancellation of bail is maintainable on the behest of the applicant, who is a complainant.

12. Apex Court in the case of Ranjit Singh vs State Of M.P & Ors (2013) 16 SCC, 797, has held that "It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation."

13. On the factual aspect, the learned counsel for O.P. no.2 has fairly admitted that he has paid only amount of Rs.33,50,000/-, out of the outstanding amount of Rs.1,24,00,000/- and therefore, O.P. no.2 has violated the undertaking given while granting bail and for reference the condition in the order date 18.1.2012 is reproduced again hereinafter:-

"Considering the entire facts and circumstances of the case, the averments made in the said affidavit filed on behalf of the applicant as well as the complainant, without expressing any opinion on the merits of the case, the applicant may be enlarged on bail on the undertaking given by the learned counsel for the applicant to pay the balance amount in two parts at an interval of 5 months from the date of release of the applicant."

14. In view of the above, it is evident that the O.P. no.2 accused has not paid entire outstanding amount till date and as such he has violated the condition mentioned in the bail order. Therefore, the present application is allowed and bail granted to O.P. no.2/respondent namely, Subhash Chaubey, by order dated 18.1.2012 passed by this Court in Criminal Misc. Bail Applications No. 4666 of 2011 arising out of Case Crime No. 1255 of 2010, under Sections 419, 420, 467, 468, 471, 504, 506 IPC, Police Station Phulpur, District Azamgarh, is set aside and he is directed to surrender before learned trial Court. Learned Trial Court is at liberty to take appropriate steps to arrest the O.P. no.2/respondent.

Order Date :- 10.02.2021

A.Dewal

[Saurabh Shyam Shamshery,J]