Allahabad High Court
Monu Alias Hasin Ahmad vs State Of U.P. And Another on 24 August, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:171190
Court No. - 87
Case :- APPLICATION U/S 482 No. - 36306 of 2022
Applicant :- Monu Alias Hasin Ahmad
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajesh Singh,Diwan Saifullah Khan
Counsel for Opposite Party :- G.A.,Mohd. Monis
Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and Sri Sudhier Kumar Tiwari, Advocate, holding brief of Sri Mohd. Monis, learned counsel for the opposite party No. 2.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 07.09.2022 passed in Case Crime No. 291 of 2021, under Sections- 363, 366, 376(I) I.P.C. and 3/4 POCSO Act, Police Station- Karari, District- Kaushambi.
3. Learned counsel for the applicant submitted that FIR dated 18.11.2021 has been lodged against the applicant, in which, he was arrested by the Police and ultimately, he was enlarged on bail vide order dated 23.08.2022 passed by this Court in Criminal Misc. Bail Application NO. 19702 of 2022. He next submitted that applicant submitted the papers alongwith bail bond and sureties before the trial Court, which was verified vide order dated 02.09.2022 and the applicant was released from jail on he very same date. He next submitted that applicant could not appear before the trial Court on the next date fixed, i.e. 07.09.2022 and trial Court proceeded to issue N.B.W. and Notice to suirities against the applicant, but after cutting the same on the order sheet, on the very same dated, trial Court has cancelled the bail of applicant granted by this Court vide order dated 23.08.2022. He firmly submitted that in case of cancellation of bail, notice has to be issued to applicant, but in the present case, straight away, without issuance of notice, bail of applicant has been cancelled.
4. In support of his contention, learned counsel for the applicant has places reliance on the judgment of this Court passed in Rajendra Kumar and 2 others Vs. State of U.P. Thru Prin Secy Home and Another :Application U/s 482 No. 6779 of 2022, decided on 30.09.2022. He lastly submitted that in light of settled provision of law, bail of applicant should not have been cancelled.
5. Learned A.G.A. though opposed the submission of learned counsel for the applicant, but could not dispute the aforesaid facts.
6. I have considered the rival submissions made by learned counsel for the parties, perused the record as well as judgment relied upon .
7. From the perusal, it is apparently clear that for mere absence on one day, i.e. 07.09.2022, without issuing notice to applicant, bail of applicant granted by this Court vide order dated 23.08.2022 has been cancelled.
8. I have also perused the judgement relied upon by the learned counsel for the applicant in the matter of Rajendra Kumar(Supra). Relevant paragraphs of the said judgments are quoted hereinbelow:
"11. The Hon'ble Supreme Court in Samarendra Nath Bhattacharjee vs. State of W.B. and another reported in (2004) 11 SCC 165, has pointed out as to what should be the approach of the court dealing with the matter of cancellation of bail. In the instant case, the High Court cancelled the bail which was earlier granted to the accused. The Hon'ble Supreme Court observed that the High Court has approached the case as if it is an appeal against the conviction by giving findings on factual issues which are yet to be decided. Thus, the Hon'ble Supreme Court found the matter to be too premature which is likely to prejudice the trial. That apart, since the only ground on which the cancellation of bail could have been ordered being the ground of intimidation, the same was not satisfactorily proved. Therefore, in view of the Hon'ble Supreme Court, the High Court erred in cancelling the bail granted to the accused.
12. In the case at hand too, the fact of alleged intimidation or extending threat to the complainant and witnesses, was intimated to the learned trial court. No application stating the facts of such intimidation was moved to the learned trial court. Be that as it may, the learned trial court atleast ought to have provided a reasonable and sufficient opportunity to the applicants/ accused persons to show cause against such an application or prayer made by the prosecution for cancellation of the bail granted to the applicants as the same was likely to affect personal liberty of the applicants/ accused persons adversely.
16. In view of the aforesaid settled legal propositions, this court finds the impugned order which came to be passed by the learned trial court without issuing notice to the applicants and without affording them a reasonable and sufficient opportunity of hearing is patently illegal being in flagrant violation of whatever has been held by the Hon'ble Supreme Court in Samarendra Nath Bhattacharjee's case (supra), Mehboob Dawood Shaikh's case (supra), Gurdev Singh's case (supra) and in P.K. Shaji alias Thammanam Shaji's case (supra). it has, thus, caused miscarriage of justice to the applicants.
17. The upshot of aforesaid discussion is that the instant application under Section 482 Cr.P.C. deserves to be allowed and the impugned order dated 01.09.2022 passed by the learned Sessions Judge, Raebareli in Sessions Trial No.812 of 2021 (State vs. Ram Bachan and others) also deserves to be set aside to the extent it concerns cancellation of bail granted to the applicants and taking them into custody as a consequence thereof only.
18. Accordingly, the instant application under Section 482 Cr.P.C. is allowed. The impugned order dated 01.09.2022 passed by the learned Sessions Judge, Raebareli in Sessions Trial No.812 of 2021 (State vs. Ram Bachan and others) is hereby set aside as indicated above. "
9. The facts and controversy involved in the present case is squarely covered with the judgment of this Court in the matter of Rajendra Kumar(Supra), as in that case too, bail was cancelled by the trial Court without issuance of notice.
10. Therefore, under such facts and circumstances of the case, application is allowed. Order dated 07.09.2022 is hereby quashed. Applicant is directed to appear before the trial Court on the next date fixed. In case of absence of applicant on the next date fixed, trial Court shall proceed against the applicant strictly in accordance with law.
Order Date :- 24.8.2023
ADY
