Abhishek Tyagi vs State Of U.P. And Another
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Allahabad High Court

Abhishek Tyagi 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:79257
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 340 of 2021
 

 
Applicant :- Abhishek Tyagi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Harish Chandra
 
Counsel for Opposite Party :- G.A.,Satish Kumar Tyagi
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

1. This bail cancellation application was filed in the year 2021 for cancelling bail of accused granted by coordinate Bench of this Court vide order dated 28.05.2021 in Case Crime No. 1600/2020 under Sections 302, 120-B IPC, Police Station- Sihani Gate, District- Ghaziabad. Reasons assigned in bail order are quoted below -:

?After having heard learned counsel for the parties and perusing the record, it is apparent that. first information report has been lodged against unknown persons. The name of the applicant has surfaced for the first time after 20 days of the incident that too on the basis of hearsay evidence. The next evidence coming forward is confessional statement of the applicant, which is inadmissible piece of evidence.

Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.?

2. Sri Harish Chandra, learned counsel for applicant has referred contents of paragraph nos. 10 and 13 of present application which are quoted below -:

?10. That the accused-opp. Party no.2 in his bail application before this Hon'ble Court stated that he has only 3 criminal history in which he was acquitted while he has 8 criminal history and in one case he is still in jail. The applicant is a man of criminal in nature as against him several criminal cases is going on in different police stations. As per knowledge of the answering O.P. No. 2 the criminal history of the applicant is stated below:

1. Case Crime No. 170 of 2017 Under Section 143, 188 I.P.C. police station Murad Nagar, District-Ghaziabad.

2. Case Crime No. 1698 of 2017 u/s 29/3/25 Arms Act, P.S. Sihani Gate, District-Ghaziabad.

3. Case Crime No. 995 of 2015 under section 307 I.P.C., P.S. Sihani Gate, District-Ghaziabad.

4. Case Crime No. 1395 of 2013 U/s 27/30 Arms Act, P.S. Sihani Gate, District-Ghaziabad.

5. Case Crime No. 1600 of 2020 under section 302, 120-B I.P.C., P.S. Sihani Gate, District-Ghaziabad.

6. Case Crime No. 964 of 2010 under section 307 IPC P.S. Sihani Gate, District-Ghaziabad.

7. Case Crime NO. 1367/2013 under section 147/148/149/302/504/506 IPC, P.S. Sihani Gate, District-Ghaziabad.

8. Case Crime No. 1543 of 2020 Under Section 147, 452, 365, 511, 506, 354 I.P.C. and 3(2) (va) of SC/ST Act, Police station Kavinagar, District- Ghaziabad.

13. That from perusal of the bail order of the applicant dated 28.5.2021 pendency of criminal appeal was not shown, a fact, which clearly shows that the bail order obtained by applicant on concealment of facts and hence his bail is liable to be cancelled on this ground.?

3. Learned counsel submits that it is a case of misrepresentation since accused has not disclosed his criminal history, however, as pointed out by Sri Satish Kumar Tyagi, learned counsel for accused by referring a part of order whereby accused was granted bail that details of 7 criminal cases were considered by coordinate Bench and he refers following part of order -:

?Learned counsel has placed paragraph No.29 of the affidavit filed in support of bail application and has stated that as per his instructions, the applicant was involved in three criminal cases, but all the three cases have ended into acquittal, copy of judgments are annexed as Annexure No.10 to the affidavit. It is argued that the applicant has been falsely implicated and there is no credible evidence against him.

It is argued that he was informed that the applicant has committed the murder. It is argued that apart from the said three cases there are four other cases against the applicant, but learned AGA states that other cases are petty cases and old cases ranging from the year 2013-17 but there are no new and fresh cases to show the involvement of the applicant in recent time.?

4. Learned counsel for applicant has also referred that accused after coming out on bail has participated in criminal activity and for that he refers paragraph 4 and 5 of supplementary affidavit which is quoted below -:

?4. That during the pendency of the above noted case the applicant came to know that the opposite party no.2 after releasing on bail in the present Case Crime no. 1600 of 2020 Under Section 302, 120-B I.P.C. Police Station Sihani Gate, District-Ghaziabad, he misused the bail and again committed offence and he was arrested by the police in Case Crime No. 612 of 2022 Under Section 386, 387, 323, 506, 120-B I.P.C. and 3/25/27 Arms Act, Police Station-Sihani Gate, District-Ghaziabad and his Bail Application was rejected by the learned Addl. Sessions Judge, Court No.2, Ghaziabad on 23.11.2022. Now Bail Application No: 59818 of 2022 is still pending before this Hon'ble Court. The true copy of the F.I.R. dated 21.9.2022 registered as Case Crime No. 612 of 2022 under section 506, 323, 386 I.P.C., Police Station-Sihani Gate, District-Ghaziabad is being enclosed herewith and marked as Annexure-SA 1 to this affidavit.

5. That it is also stated that against opposite party no.2 another F.I.R. dated 21.1.2023 was registered as Case Crime no. 55 of 2023 under section 2/3 U.P. Gangster Act, Police Station-Sihani Gate, District-Ghaziabad. The true copy of the F.I.R. dated 21.1.2023, Is being enclosed herewith and marked as Annexure SA-2 to this affidavit.?

5. Learned counsel for accused submits that in aforesaid case, this Court has already granted bail to accused, therefore, it may not be considered that accused has violated any condition of bail.

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

7. 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.?.

8. As referred in the order whereby accused was granted bail, coordinate Bench has taken note of 7 criminal cases of accused, so far as those cases are concerned, it could not be a case of misrepresentation. In paragraph 12 of application, case has been disclosed, however, details thereof was not disclosed during considering of bail application, however, it could not be considered to be a case of misrepresentation since accused has disclosed almost all his criminal cases which are 7 in number.

9. Other ground that accused was involved in 2 criminal cases in which he has been granted bail though it appears to be a violation of condition of bail, however, considering that in those cases, accused has already been granted bail, therefore, in view of judgment of Supreme Court in Himanshu Sharma (supra), no case is made out for cancelling bail of accused, hence, application is rejected.

10. However, considering that trial is proceeding and PW-1 has already been examined and there is no material on record that accused has tried to influence any witness and considering entire facts of present case and in order to remove any apprehension that accused may influence the victim/witnesses, it is directed that accused will mark his presence on every alternate Saturday before concerned police station with an undertaking that he will not make any contact with any prosecution witness.

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

12. Registrar (Compliance) to take steps.

Order Date :- 2.5.2024

N. Sinha