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Allahabad High Court sets aside order of Rae Bareli court for not issuing notice

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The Allahabad High Court has set aside the order passed by the Sessions Judge, Rae Bareli and observed that the order passed without issuing notice to the applicants and without affording them a reasonable and sufficient opportunity of hearing is patently illegal.

A single-judge bench of Justice Ajai Kumar Srivastava-I passed this order while hearing an Application under section 482 filed by Rajendra Kumar and 2 Others.

The application under Section 482 CrPC has been filed by the applicants praying 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 UP 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.”

The Court noted,

From the pleadings, it transpires that the applicants were granted bail by order dated 22.11.2021 passed by the Sessions Judge, Rae Bareli.

The trial court was informed that the witnesses and the complainant of the Sessions Trial are being threatened of dire consequences by the applicants herein. The Sessions Trial was fixed on 01.09.2022 for recording evidence of prosecution witnesses.

However, taking note of the fact that the applicants are threatening the witnesses and the complainant to desist from prosecuting the case, the trial court kept the application moved to the aforesaid effect on record and a copy of the same was directed to be sent to Superintendent of Police, Rae Bareli for appropriate action directing him also to provide necessary security to the witnesses by the trial court.

The trial court thereafter found that by the order dated 22.11.2021, the applicants herein were enlarged on bail, inter alia, on the condition that they shall not temper with the evidence and shall also not intimidate the witnesses. They shall also not seek any adjournment, if the witnesses are present for being examined. In case of seeking adjournment when the prosecution witnesses are present, the same shall be considered as misuse of liberty of bail granted to the applicants.

Thereafter, the trial court found the aforesaid conduct of the applicants to be in violation of conditions of bail subject to which they were enlarged on bail vide order dated 22.11.2021. Therefore, the trial court directed the applicants to be taken into custody and also passed the impugned order dated 01.09.2022 cancelling the bail granted to the applicants the order dated 22.11.2021. Consequently, the applicants were directed to be lodged in the District Jail.

In aforesaid factual background, it has been submitted by the counsel for the applicants that the order is patently illegal insofar as it has been passed on the basis of vague allegations levelled against the applicants. It has also 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.

The counsel for the applicants has 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 trial court. However, the 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.

The AGA opposed the prayer by stating that the order has been passed by the trial court to ensure proper conduct of trial of Sessions Trial. However, he has very fairly stated that the same could not have been passed without issuing notice to opposite party No 2 and without affording a reasonable opportunity of showing cause to the applicants.

The Court observed,

Having heard the counsel for the applicants, AGA for the State and upon perusal of record, it requires to be made clear that it is settled law that once bail has been granted by a competent court after due consideration of facts and circumstances of the case, the same should not be cancelled in a mechanical manner without there being any supervening circumstance(s) which are not conducive to the fair trial. It cannot be cancelled on a prayer or request from the side of the complainant/ investigating agency/ victim, unless and until, it is shown to the satisfaction of the court concerned that the same is being misused and is no longer conducive, in the interest of justice, to allow the accused persons any further to remain on bail. No doubt, the bail can be cancelled only in those discerning few cases where it is established that a person to whom the concession of bail has been granted, is misusing the same.

In the case at hand too, the fact of alleged intimidation or extending threat to the complainant and witnesses, was intimated to the learned trial court. No application stating the facts of such intimidation was moved to the trial court. Be that as it may, the trial court at least ought to have provided a reasonable and sufficient opportunity to the applicants/ accused persons to show cause against such an application or prayer made by the prosecution for cancellation of the bail granted to the applicants as the same was likely to affect personal liberty of the applicants/ accused persons adversely.

In view of the aforesaid settled legal propositions, the court found that the impugned order which came to be passed by the 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 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 upshot of aforesaid discussion is that the instant application under Section 482 CrPC deserves to be allowed and the order dated 01.09.2022 passed by the Sessions Judge, Rae Bareli in Sessions Trial (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”, the Court further observed while allowing the application.

“The order dated 01.09.2022 passed by the Sessions Judge, Rae Bareli in Sessions Trial (State vs Ram Bachan and others) is hereby set aside as indicated above.

The 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.

It is also made clear that the trial court shall be at liberty to issue notice to the applicants stating therein the grounds which are to be considered by it for cancellation of bail granted to the applicants. It shall thereafter decide the same expeditiously in accordance with law after affording reasonable opportunity of hearing to the parties,” the Court ordered.

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