Allahabad High Court
Mamta Devi vs State Of U.P. Thru. Prin. Secy. ... on 22 May, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:35608
Court No. - 28
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 37 of 2023
Applicant :- Mamta Devi
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lko. And Another
Counsel for Applicant :- Hari Om Pandey,Rajat Sharma
Counsel for Opposite Party :- G.A.,Rajesh Kumar Awasthi
Hon'ble Shree Prakash Singh,J.
Case called out.
None is present for the opposite party no. 2 though the name of Sri Rajesh Kumar Awasthi, Advocate has been printed in the cause list for opposite party no. 2.
In view of aforesaid circumstances, the court is proceeding with the matter in the absence of learned counsel for the opposite party no. 2.
Heard learned counsel for the applicant, Sri Anirudh Kumar Singh, learned A.G.A.-I for the State and perused the material placed on record.
Instant application for cancellation of bail has been filed under section 439(2) of Cr.P.C. against the Judgment and order dated 01-11-2022 passed by this court in Crl.Misc. Bail Application No. 11907 of 2022 on the ground that the condition mentioned at point no. 1 of the bail application has been violated by the applicant as he admitted that he will repay back the amount of Rs. 6,52,000/- to Mamta Devi within a period of one month.
Learned counsel appearing for the applicant submits that infact against non payment of aforesaid amount, the present applicant has instituted the instant application for cancellation of bail wherein notices were issued and as the same has been served and thereafter, learned counsel has put in appearance on behalf of opposite parties and on 25-04-2023, he on the basis of instructions received, submitted that half of the amount shall be paid uptill 12-05-2023. He added that even after the aforesaid statement, neither the opposite party no 2 nor his counsel appeared today and thus, the opposite party no. 2 is avoiding the court's proceedings deliberately. He next added that the opposite party no. 2 is playing with the proceeding of the court and even after a specific admission that he will repay the amount of Rs. 6,52,000/- to Mama Devi , Wife of Suresh, the same has still not been paid. This court considering the aforesaid payment of amount, the opposite party no. 2 was enlarged on bail. Infact the opposite party no. 2 has committed cheat and fraud with several other persons including the present applicant and in several bail applications, he has admitted that he will repay back the amount to those persons from whom he has taken such money. He submits that opposite party no. 2 has not come with clean hands before this court and has played fraud with the court.Thus, the submission is that since the opposite party no. 2 is misusing the liberty of bail and has violated the terms and conditions fixed by this court and therefore, the bail granted to the opposite party no. 2 namely, Sandeep Ojha, vide order dated 01-11-2022 may be cancelled.
On the other hand, learned A.G.A. appearing for the State has submitted that this court has granted bail to the opposite party no. 2 with the condition that he will repay the amount of Rs. 6,52,000/- to the present applicant namely, Mamta Devi as per the averments, which have been mentioned in the affidavit filed in support of the application for cancellation of bail,but, the same has not been paid as yet. It shows that the opposite party no. 2 has violated the terms and conditions mentioned in the bail application. He next added that prima-facie, there seems to be misuse of liberty of the bail including the violation of terms and conditions of the bail application itself. Thus, the submission is that the bail granted to the opposite party no. 2 is liable to be cancelled.
Considering the submissions of learned counsel for the parties and after perusal of material placed on record, prima-facie, it reveals that on 01-11-2022, this court after well considering the statement of the opposite party no. 2 that he will repay back the amount of Rs. 6,52,000/- to the applicant namely Mamta Devi, had passed the order and enlarged the opposite party no. 2 on bail. The terms and conditions with respect to admission of opposite party no. 2 for repaying back the amount is also mentioned in the bail order dated 01-11-2022 at point no. 1. The fact with respect to non payment of the amount has also been mentioned in paragraph no. 15 of the affidavit filed in support of application for cancellation of bail.
This court has also noticed the fact that the learned counsel who has put in appearance for opposite party no. 2 has also stated before the court that opposite party no. 2 is ready to repay back the amount to the applicant and on the request of learned counsel for the opposite party no. 2, this court had fixed the date in the matter, but, neither the opposite party no. 2 nor his counsel is present today before this court.
In view of aforesaid circumstances, the opposite party no. 2 has tried to play with the proceedings of this court and further he has violated the terms and conditions as mentioned in the bail application, particularly, on the admission of the opposite pary n. 2 itself, the bail was granted to him vide order dated 01-11--2022.
In view of aforesaid circumstances, the order dated 01-11-2022 passed in Crl.Misc. Bail Application No. 11907 of 2022 is hereby recalled and the bail granted to the opposite party no. 2 namely Sandeep Ojha is cancelled.
The trial court concerned is directed to forfeit the sureties and cancel the personal bonds submitted by the opposite party no. 2.
The Chief Judicial Magistrate concerned is directed to send the opposite party no. 2, Sandeep Ojha to jail forthwith.
With the aforesaid observations/directions, the instant application is allowed.
Order Date :- 22.5.2023
AKS
