The Allahabad High Court recently comprising of a bench of Justice Ajai Kumar Srivastava ruled that bail cannot be canceled without giving notice to the accused and giving him an opportunity of being heard. (Rajendra Kumar And 2 Others v. State Of U.P. Thru Prin Secy Home And Another)
Facts of the case
The applicants/accused were granted bail vide by the Sessions Judge on November 22, 2021. However, the court was later informed that the accused allegedly threatened the witnesses and the complainant to desist from prosecuting the case after being granted bail.
The trial court finding that the aforesaid conduct of the applicants was violative of the conditions of bail subject to which they were enlarged on bail, directed that the applicants be taken into custody and also passed the impugned order cancelling the bail granted to the applicants.
The applicant xhallenging the order moved the Court arguing that in this case, their bail was cancelled without giving them any opportunity of being heard.
The instant application under Section 482 Cr.P.C. was filed by the applicants praying inter alia the following reliefs:-
"a. Issue and order for quashing the Proceedings and Set aside the Bail Cancellation Order dated 01.09.2022 under the Sessions Trial No. 812/2021 in re: State of U.P. v. Ram Bachan and Ors delivered by the Ld. Sessions Judge annexed as Annexure No. 1.
b. Issue an order directing the Police to release the Applicants from Judicial Custody on Bail."
Contention of the Parties
It was submitted by the counsel for the applicants that the impugned order is patently illegal insofar as it has been passed on the basis of vague allegations levelled against the applicants. It was been submitted that it is settled law that parameters for grant of bail and for cancelling an order granting bail are settled and specified. The cancellation of bail is a serious matter and should be dealt with accordingly as the same concerns, the personal liberty of the persons who have been enlarged on bail.
Learned counsel for the applicants further submitted that in case, there was any grievance to the victim, the complainant or any witness as aforesaid, they were at liberty to move an application for cancellation of bail of the applicants who would have got an opportunity of showing cause by filing a reply to the same and thereafter appropriate order based on the facts and circumstances of this matter, could have been passed by the learned trial court. However, the impugned order has come to be passed in flagrant violation of the settled procedure in respect of cancellation of bail which is not sustainable at all.
On the other hand learned A.G.A. opposed the prayer by stating that the impugned order has been passed by the learned trial court to ensure proper conduct of trial of Sessions Trial No.812 of 2021. However, he has very fairly stated that the same could not have been passed without issuing notice to the opposite party No.2 and without affording a reasonable opportunity of showing cause to the applicants.
Courts Observation and Judgment
The bench at the very outset referred to a number of judgments where it was held that cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.
The bench noted that in Mehboob Dawood Shaikh vs. State of Maharashtra reported in (2004) 2 SCC 362, it has been held by the Hon'ble Supreme Court that the cancellation of bail are never be resorted to lightly.
Moreover, the Hon'ble Supreme Court in Gurdev Singh and another vs. State of Bihar and another reported in (2005) 13 SCC 286, has held that cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.
In P.K. Shaji alias Thammanam Shaji vs. State of Kerala reported in (2005) 13 SCC 283, the Hon'ble Supreme Court has again held that the accused must be heard before his bail is cancelled.
In view of the aforesaid settled legal propositions, this court found 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.
The bench allowing the application remarked, "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.
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.
The learned trial court is directed to release the applicants after obtaining the fresh personal bonds and two sureties each in the like amount to the satisfaction of the court concerned."
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