Nyazuddin Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:129102

Court No. - 72

Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 379 of 2023

Applicant :- Nyazuddin Opposite Party :- State of U.P. and Another Counsel for Applicant :- Balbir Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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Heard Shri Balbir Yadav, learned counsel for the applicant, Shri Shashi Shekhar Tiwari, learned counsel appearing for the State and perused the record.

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This is an application for cancellation of bail under Section 439 (2) of Cr.P.C. with the following prayer:

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"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to reject/cancel the bail order dated 24.05.2023 passed by Special Judge (Prevention of Children from Sexual Offences Act)/ Additional District and Sessions Judge, Aligarh, whereby, the accused person has been enlarged on bail in case Crime No. 234 of 2023 under Section 363 and 376 I.P.C. and 3/4 Prevention of Children from Sexual Offences Act, 2012, P.S. Akrabad, District Aligarh, so that justice be done with the applicant, otherwise the applicant will suffer irreparable loss and injury."

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The facts of the case in brief is that first information report was lodged on 28.04.2023 under Section 363 I.P.C. by the applicant against opposite Party No. 2. and three others. During investigation, under Sections 376 I.P.C. and 3/4 of Prevention of Children from Sexual Offences Act, 2012 have been added in the present matter. The opposite Party No. 2 was arrested on 03.05.2022 after which, he applied for bail which was granted vide order dated 24.05.2023 passed by the Special Judge (Prevention of Children from Sexual Offences Act)/ Additional District and Sessions Judge, Aligarh, in Application for Bail No. 2894 of 2023 (Punit vs. State of U.P. and others).

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Learned counsel for the applicant argued that the trial court committed an error in granting bail to the opposite party No. 2. While placing para 12 of the affidavit, in support of the Bail Cancellation Application, it is argued that after opposite party No. 2 was released on bail, he is tampering and harassing the witnesses and threatening the victim to commit her murder. It is argued that the applicant has moved an application before the Senior Superintendent of Police, Aligarh which has been sent by registered post on 06.06.2023. Copy of the said application and postal receipt has been placed as Annexure 3 to the affidavit. It is argued that the accused/opposite Party No.2 is not following the order of the trial court and is misusing the bail, as such, bail cancellation has been filed.

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After having heard learned counsel for the parties and perusing the records,

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it is evident that opposite Party No. 2 has been granted bail by the concerned trial court vide order impugned, the only ground as argued before the Court is with regard to the opposite party No. 2 tampering to the witnesses and harassing and threatening them but there is nothing concrete to substantiate the same. A perusal of the said application sent by the applicant to the Senior Superintendent of Police, Aligarh shows that the contents therein are vague. There is no date and time mentioned of the alleged incident. It appears that the same is only an intention to somehow or the other create a ground for moving an application for cancellation of bail.

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Cancellation of bail has to be dealt with on a completely different footing in comparision to refusal of bail and 'cogent and overwhelming' reasons are necessary to cancel bail once granted. In the case of, Dolat Ram vs State of Haryana: (1995) 1 SCC 349 the Apex Court held that :

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"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

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In view of the law as stated above and facts of the case, no ground for interference is made out.

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The present application for cancellation of bail is, thus, dismissed .

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Order Date :- 27.6.2023 Mukesh Kr.

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(Samit Gopal,J.)

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Digitally signed by :- MUKESH KUMAR High Court of Judicature at Allahabad

Nyazuddin v. State of U.P. and Another

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