Allahabad High Court

Joni vs State Of U.P. And Another on 2 May, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:79236
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 322 of 2021
 

 
Applicant :- Joni
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ashok Kumar,Jeetendra Kumar Sharma
 
Counsel for Opposite Party :- G.A.,Suneel Kumar Mishra
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This bail cancellation application was filed in the year 2021 for cancelling bail of accused granted by trial Court vide order dated 22.07.2021 in Case Crime No. 122/2021 under Sections 376 IPC and 3/4 of POCSO Act, Police Station- Kotwali Dehat, District- Mirzapur and reasons assigned in bail order are quoted below -:

???? ????? ?? ?????? ?? ?? ???? ???? ?? ?? ???????? ?????? ?? ??????? ?????? ?? ???? ?????? ?????? 24-06-2021 ?? ??? 2201 ??? ????? ??? ??, ??? ???? ?????? 24-06-2021 ?? ??? 4.00 ??? ??? ?? ????? ??? ??? ????? ????? ??????? ??? ??????? ?? ???? ?? ???? ?? ??? ??? 4.00 ??? ???????? ?????? ???? ?????? ?? ???? 18 ???? ????? ??? ??, ?? ???? ?? ??? ?????? ???? ??? ???????? ?? ??? ????? ???? ??? ??, ?? ?? ?? ???? ????? ???? ??? ?? ?? ??????? ?? ??? ?? ?? ??? ??????? ???? ?????? ?? ????? ???? ??? ????? ?? ???? ?? ????-354 ????????? ? ????-7/8 ?????? ???? ?? ???????? ?????? ???? ???? ?? ??????? ???? ???? ??????? ?? ???? ???? ???????? ????-161 ??????? ??? ??? ??? ??? ?? ??? ???? ??, ?? ?? ????? ?? ?? ???????? ??? 16.00 ??? ???? ???? ?? ??? ?? ???, ??? ???? ??? ???????? ???? ???? ??? ????? ?? ???? ?????, ??? ???? ?? ????? ?? ???????, ??? ???????? ?? ????? ???

???? ???? ???????? ????-164 ?????????? ??? ??????? ?? ???????? ?????? ???????? ??? ?????? ???? ?? ??? ?? ????, ??? ?????? ???? ???? ??????? ?? ????? ??????, ?? ???? ???? ?? 1 ??? ???? ?? ????? ????? ??, ?? ?? ?? ??? ???? ?? ??? ???????? ???? ???? ?? ??? ???? ???? ???? ?? ???? ???? ?????? ???? ??. ????? ???? ?? ???? ?? ?????? ????, ??? ??? ???????? ???, ???????? ?? ?? ??? ??????? ???? ???, ?? ???????? ???? ???? ????. ?? ??? ???? ?? ??? ???? ???? ?? ???? ? ??? ??? ??????? ?? ?? ?? ??? ???? ?? ?? ???? ??? ???????? ???, ??? ?????? ???? ???? ?????? ??????? ?? ???? ????? ????? ??????? ??? ??????? ?? ???? ?????? ????? ?? ????? ???? ??? ?? ?? ?? ???????? ???????? ?? ??? ??. ?? ??????? ?? ???????? ?? ?? ??? ????? ???? ????? ????? ??????? ??? ???????? ?? ??? ??? ???? ???? ??? ???

?????? ?? ???? ???? ???????? ????-161 ?????????? ??? ?? ??? ??? ??? ???? ???? ??? ????? ???? ???? ???? ???????? ????-164 ???????? ??? ???? ??? ?? ??? ???? ??, ?? ???? ??? ?? ??? ???? ?? ?? ???? ??? ???????? ??? ??? ???? ?????? 24-06-2021 ?? ????? ??? ??, ?? ?????? ?? ???? ???????? ????-164 ?????????? ?????? 29-06-2021 ?? ????? ??? ??? ?? ????? ??????? ???? ????-???? ?? ??? ????? ????????? ??????? ??? ?????? ?? 17 ?? 18 ???? ?? ??? ?? ????? ??? ??, ?? ???????? ??????-???? ?? ?????? ??????? ?? ???????? 18-07-2005 ????? ??? ????? ????? ??????? ??? ??? ??????? ?? ???? ???????? ????-161 ?????????? ??? ???????? ?? ??????? ??? ??? ??? ? ????, ?? ???? ?? 6 ??? ??? ????-164 ????????? ?? ???? ??? ?? ?????? ??? ?? ???????? ?? ??????? ??? ??? ??? ? ????, ???????? ?? ????????? ???? ?? ?????? ????? ??? ???????? ?????? ?? ???? ??? ????? ?? ????? ?????? ??? ???????????? ?? ???????? ???? ??? ???-??? ?? ??? ??? ?????? ???? ???? ???? ??? ??? ????? ?? ???? ???????? ??? ??? ???????? ?? ????? ?????????-???? ??????? ???? ???? ????? ????

2. Sri Jeetendra Kumar Sharma, learned counsel for applicant has referred contents of paragraph nos. 17 to 19 of present application which are quoted below -:

?17. That after releasing on bail, the Opposite Party No. 2 is continuously threatening the applicant and victim to compromise in this case and also given threat to them.

18. That the Opposite Party No. 2 with help of antisocial element is continuously making pressure over applicant to withdraw the case lodged against Opposite Party No. 2.

19. That life of the applicant and victim is in danger and in any untoward incident can be happened with them.?

3. Learned counsel submits that he has no instructions whether till date, statement of victim has been recorded during trial or not.

3. Learned counsel for accused Sri Suneel Kumar Mishra, Advocate has denied above allegations and refers paragraph nos. 11 to 15 of counter affidavit which are quoted below -:

?11. That, it is stated here that the O.P. No.2 after released on bail by the order of Special Judge (POCSO Act), Mirzapur has not misused the liberty of bail and also appearing on each and every dates before the trial court.

12. That, after submission of the charge sheet the trial court has proceeded the trial of the case and after framing of charge the trial court has recorded the statement of total 3 fact witnesses including the informant as well as victim of this case, out of 10 witnesses shown in the list of witness of the charge sheet.

13. That, it is also submit that the informant or any other witness of case has not made any complaint against the O.P. No.2 till now with regard the threatening, only oral allegation has been made by the informant before this Hon'ble Court only for filing of this case.

14. That in view of the facts and circumstances of the case as stated above the Hon'ble Court may kindly be pleased to reject the bail cancellation application of the applicant.

15. That, it is stated here that there is no evidence about the threatening to the witness of the case or tamper the evidence or misused the liberty of bail against the O.P. No.2 and also the accused is fully co-operate in the trial, hence the present bail cancellation application is liable to be dismissed.?

4. Heard learned counsel for parties and perused the record.

5. Law in regard to cancellation of bail is reiterated by Supreme Court in Himanshu Sharma vs. State of Madhya Pradesh, 2024 SCC Online SC 187 and relevant part is quoted below -:

?12. Law is well settled by a catena of judgments rendered by this Court that the considerations for grant of bail and cancellation thereof are entirely different. Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail, (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud. In the present case, none of these situations existed.?.

7. Above referred grounds to cancel bail are essential that accused has threatened victim to compromise, however, it is not supported by any substantial material since neither any complaint nor any FIR in this regard was brought on record.

8. Court also takes note that according to counsel for accused, statement of 3 prosecution witnesses including victim have already been recorded, therefore, element of threat if any does not exist as of now.

9. Therefore, in view of judgment passed by Supreme Court in Himanshu Sharma (supra), I do not find that it is a ase to cancel bail of accused, hence, present application is rejected.

10. Trial Court is directed to conclude the trial expeditiously and trial Court will always be at liberty to cancel bail of accused if it is brought into notice that accused has violated any condition of bail.