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SAMIULLAH versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Samiullah v. State Of U.P. & Another - APPLICATION U/s 482 No. 17343 of 2005 [2005] RD-AH 7349 (12 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble M. K. Mittal, J.

Heard Sri Shahroje Khan,   learned counsel for the applicant,  learned A.G.A. and perused the record.

Application under Section 482 Cr.P.C. has been filed with the prayer to set aside the  order dated 9.11.2005 passed by Special/Addl. Sessions Judge, Sidharth Nagar  in S T. No  25 of 2004 under Sections 363, 366, 376 IPC and Section 3(2)(5) SC/ST Act, P.S. Itwa, District Sidharth Nagar, whereby he cancelled the bail granted to the accused applicant.

Brief facts of the case are that F.I.R. was lodged by opposite party no. 2 against the applicants and two others under Section 363, 366, 376 IPC and Section 3(2)(5) SC/ST Act on 16.11.2003 alleging that the accused persons had enticed away her minor daughter Km. Urmila aged about 14 years on 7.11.2003 at about 11 a.m.. Accused applicant was directed to be released on bail by the Special Judge,  vide order dated 5.1.2004. Thereafter the complainant filed an application for cancellation of bail under Section 439 (2) Cr.P.C. on 12.8.2005 alleging that the accused had been threatening the complainant his son and daughter, not to give evidence against him, otherwise they would be ruined. On 8.5.2005 when his daughter Urmila was going with his wife to ease herself, the accused applicant along with 2-3 other unknown persons came there and beat his wife and forcibly took Urmila in Jeep. The complainant informed the Police but no action was taken. The accused was not appearing in the Court for several dates and was threatening the witnesses. The accused filed an objection denying the allegations and contending that he never threatened the complainant or the witnesses. He also denied the alleged incident of 8.5.2005. Learned court after considering the application and objection held that the accused had been threatening the complainant and the witnesses and was misusing the bail therefore he cancelled the bail and sent the accused to jail. Now this application has been filed.

Learned counsel for the accused applicant has contended that against bail  cancellation order the accused has two options as he can either seek fresh bail  or can challenge the order under Section 482 Cr.P.C.. He has placed reliance on the case of Surya Narain and others Vs. State of U.P. And others 1998 (37) ACC 537, Sri Pal Singh Vs. State of U.P. 1988 U.P. Criminal Rulings 139, Madhu Limaye Vs. State of Maharashtra 1978, S.C. 47. In these cases, it has been held that the order granting or rejecting bail or cancelling bail are interlocutory in nature and therefore revision is not maintainable.

Learned counsel for the applicant has also contended that once the bail is granted by the Court it cannot be cancelled on mere allegations made by the complainant regarding the misuse of the bail. In support of his contention he has placed reliance on the case of The State through Delhi Administration Vs. Sanjay Gandhi, AIR 1978,SC 961. In this case, it has been held by the Hon'ble Apex Court that rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

It has also been held in this case that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases, when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such case, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process. In that matter the witnesses had turned hostile and it was held that prosecution had to show that the hostility was on account of the pressure or influence exercised by the accused. In the instant case witnesses are being threatened from deposing in the Court.

The contention of the learned  counsel for the accused applicant is that the girl in question is grown up and she went out of her own free will but according to the complainant the girl was taken by the accused when she had gone with her mother and at that time her mother was also beaten by the accused persons. It appears that the girl has not yet been traced out.

Learned counsel for the accused applicant has also contended that the complainant and the girl have already been examined in the Court. But according to the learned A.G.A. other  witnesses are still to be examined and they are being threatened by the applicant.

In the circumstances of the fact and the fact that the girl was taken away second time by the accused, has not yet been recovered, learned trial court has rightly cancelled the bail of the accused. Learned Trial Court has given cogent reasons for arriving at the conclusion that the accused had been misusing the bail and in the circumstances, I do not find any ground to interfere in the impugned order and the application is liable to be rejected.

Application is hereby rejected.

Dated: 12.12.2005

RKS/17343/05


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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