# Prem Shanker Dixit v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 9 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Crl. Misc. Bail Cancellation Appl. No. 1 of 2022
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-shanker-dixit-v-state-of-u-p-anr-opp-parties-49073
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 439(2) -
Cancellation of Bail - Indian Penal Code,
1860 - Sections 394, 397 and 411-
considerations and relevant aspects by a
Court while granting a bail are different
than those when an application for
cancellation of bail has come up before
the Court - Rejection of bail stands on
one footing but cancellation of bail is a
harsh order since it interferes with
liberty of individual and must not be
lightly resorted to - where a bail is
granted considering irrelevant materials
or keeping out of consideration relevant
material, the order becomes vulnerable
and
warrants
annulment.
(Para
-
12,16,30 )

Respondent-2 initially granted bail - breach of
conditions - misused liberty of bail - breached
conditions of bail order - while enlargement
on bail involved himself into two criminal
cases . (Para - 4,36)

HELD:-Accused-respondent No.2 has misused
the bail granted to him and, therefore, it is
justified to cancel the bail. (Para -37 )

Bail cancellation application allowed. (E7)

List of Cases cited:-

## Text

9 All. Prem Shanker Dixit Vs. State of U.P. & Anr.
455
(supra) does not constrict exercise of such
power of the Court taking cognizance in
respect of this category of persons [i.e.,
whose names feature in column (2) of the
chargesheet]."

16. In view of the above, learned
Magistrate has not committed any error in
summoning other accused not being named
in charge-sheet on the basis of material
available with case diary. There is no
dispute that material was available in
regard
to
said
accused
persons
for
summoning.

17. The outcome of the above
discussion is that cognizance for offence
under Section 406 I.P.C. by learned
Magistrate against all the accused persons
is legally erroneous, therefore, cognizance
order is set-aside qua to taking cognizance
for the offence under Section 406 I.P.C. as
well as order passed in the revision petition
is interfered to the extent of observation
that there is prima-facie evidence against
Rohit Kashyap (applicant no.2) to summon
him under Section 377 I.P.C., as at this
stage of charge-sheet no offence could be
added or deleted and further that there is
prima-facie evidence to summon Arvind
under Sections 498-A, 406, 504, 506 I.P.C.
and 3/4 D. P. Act only to the extent to
summon him under Section 406 I.P.C. also.
However, the learned Magistrate is at
liberty to consider the material available to
take cognizance of other offence, if any,
against any accused, at the time of framing
of charge.

18. With the above mentioned
direction, this application is allowed partly.
----------
(2022) 9 ILRA 455
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.09.2022
BEFORE

THE HON'BLE IRSHAD ALI, J.

Crl. Misc. Bail Cancellation Appl. No. 1 of 2022

Prem Shanker Dixit ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Alok Saxena

Counsel for the Opp. Parties:
G.A., Divya Tripathi

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 439(2) -
Cancellation of Bail - Indian Penal Code,
1860 - Sections 394, 397 and 411-
considerations and relevant aspects by a
Court while granting a bail are different
than those when an application for
cancellation of bail has come up before
the Court - Rejection of bail stands on
one footing but cancellation of bail is a
harsh order since it interferes with
liberty of individual and must not be
lightly resorted to - where a bail is
granted considering irrelevant materials
or keeping out of consideration relevant
material, the order becomes vulnerable
and
warrants
annulment.
(Para
-
12,16,30 )

Respondent-2 initially granted bail - breach of
conditions - misused liberty of bail - breached
conditions of bail order - while enlargement
on bail involved himself into two criminal
cases . (Para - 4,36)

HELD:-Accused-respondent No.2 has misused
the bail granted to him and, therefore, it is
justified to cancel the bail. (Para -37 )

Bail cancellation application allowed. (E7)

List of Cases cited:-

1. St. (Delhi Administration) Vs Sanjay Gandhi,
(1978) 2 SCC 411
456 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Madhukar Purshottam Jondkar Vs Talab Haji
Hussain, 60 Bombay Law Reporter 465

3. Raghubir Singh Vs St. of Bihar, (1986) 4 SCC
481

4. Manjit Prakash & Ors. Vs Shobha Devi & Anr.,
(2009) 13 SCC 785

5. Pooja Bhatia Vs Vishnu Narain Shivpuri &
Ors., (2014)13 SCC 492

6. Dolat Ram & Ors. Vs St. of Haryana, (1995) 1
SCC 349

7. Prahlad Singh Bhati Vs NCT, Delhi, (2001) 4
SCC 280

8. Ram Govind Upadhyay Vs Sudarshan Singh,
(2002) 3 SCC 598

9.
CBI,
Hyderabad
Vs
Subramani
Gopalakrishnan & Ors., (2011) 5 SCC 296

10. C.B.I. Vs Anil Sharma, (1997) 7 SCC 187

11. Padmakar tukaram Bhavnagare & Ors. Vs The
St. of Maharashtra & Ors., (2012) 13 SCC 720

12. Dinesh M.N. (S.P.) Vs St. of Guj., (2008) 5
SCC 66

13. St. of Maharashtra & Ors. Vs Pappu, (2014)
11 SCC 244

14. Neeru Yadav Vs St. of U.P., (2014)16 SCC 508

15. Virupakshappa Gouda & Ors. Vs The St. of
Karnataka & Ors., (2017) 5 SCC 406

16. Prasanta Kumar Sarkar Vs Ashis Chatterjee
& Anr., (2010) 14 SCC 496

17. Dataram Singh Vs St. of U.P. & Ors., (2018)
3 SCC 22

18. St. of Orissa & Ors. Vs Mahimananda Mishra
& Ors., (2018) 10 SCC 516

19. X Vs The St. of Telangana & Ors., (2018)16
SCC 511

20. Seema Singh Vs C.B.I. & Ors., (2018) 16
SCC 10

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Alok Saxena, learned
counsel for the applicant, learned A.G.A.
for respondent - State and Ms. Divya
Tripathi, learned counsel for respondent
No.2.

2. The present application for
cancellation of bail has been filed under
Section 439(2) Cr.P.C. seeking cancellation
of bail granted order dated 18.08.2021 in
Bail No.8763 of 2021.

3. It is contended that respondent
No.2 is being tried under Sections 394, 397
and 411 IPC in Case Crime No.158 of 2017
and was granted bail vide this Court's order
dated 18.08.2021 passed in Criminal Misc.
Bail Application No.8763 of 2021.

4. It is submitted by learned counsel
for applicant that respondent-2 was initially
granted bail by coordinate bench of this
Court vide order dated 02.01.2019 in Bail
No.10865 of 2017 with a condition that in
case of breach of conditions mentioned in
the bail order, the bail granted to him shall
be cancelled. He further submitted that,
after
being
released,
the
accused
-
respondent No.2 has misused the liberty of
bail and breached the conditions of the bail
order, as he indulged himself in case crime
No.0118 of 2020 under Sections 457, 497,
407 IPC on 25.11.2020 and in case crime
No.0119 of 2020 under Sections 3/25 Arms
Act (as mentioned in paragraph-11 of
application) was registered at police station
Jafarganj, District Fatehpur and has also
not co-operated in trial and absconded from
the same, therefore, learned trial court
9 All. Prem Shanker Dixit Vs. State of U.P. & Anr.
457
issued process against him under Section
82 Cr.P.C.

5. He further submitted that learned
trial court has rejected the bail application
of accused-respondent No.2 on 03.03.2021
in case crime No.158 of 2017 under
Sections 394, 397, 411 IPC registered at
police station Asoha, District Unnao.
Thereafter, he approached to this Court by
way of Bail Application No.8763 of 2021
taking shelter of medical ground only and
by concealing material fact regarding
misuse of bail granted to him. The said bail
application was allowed by this Court,
however,
fact
regarding
breach
of
conditions of earlier bail granted to the
accused, has been suppressed from this
Court.

6. On the other hand, learned counsel
for respondent No.2 - accused submitted
that due to ill health, respondent No.2 could
not appear before the trial Court and
thereafter, non bailable warrant has been
issued against him.

7. Learned A.G.A. submitted that in
case the accused- respondent No.2 has
breached the conditions of bail and is not
co-operating in conclusion of trial, it is a fit
case for cancellation of bail.

8. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

9. The earlier bail application of
respondent No.2 - accused was allowed by
co-ordinate bench of this Court in between
respondent No.2 breached the conditions of
the bail granted to him and indulged
himself in case crime Nos.0118 & 0119 of
2020,
therefore,
learned
Additional
Sessions Judge / FTC, Unnao has rejected
his application for bail on 03.03.2021,
however, taking shelter of medical grounds,
he obtained the bail from this court on
18.08.2021. This material fact has also not
been
disclosed
by
learned
counsel
representing accused - respondent No.2.

10. On perusal, it is also evident that
the FIR No.0118 of 2020 has been lodged
against the accused - respondent No.2
under Sections 307, 380 & 457 IPC on
25.11.2020 and another FIR No.0119 of
2020 was registered under Sections 3/25
Arms Act against respondent No.2 on
25.11.2020.

11. The ground for cancellation of
bail is misuse of the liberty provided by
respondent
No.2.
In
the
matter
of
cancellation of bail, the court has to
examine the matter in a totally different
context
and
such
matter
cannot
be
scrutinized on the principles which are
normally
taken
note
when
the bail
application is considered.

12. It is now well settled that
considerations and relevant aspects by a
Court while granting a bail are different
than those when an application for
cancellation of bail has come up before the
Court.

13. A three-Judges Bench of Hon'ble
Supreme Court in the case of State (Delhi
Administration)
vs.
Sanjay
Gandhi
(1978) 2 SCC 411 had an occasion to
consider an order dated 11.04.1978 passed
by Delhi High Court rejecting Delhi
Administration's
application
for
cancellation of bail of respondent Sanjay
Gandhi. The Court observed that rejection
of bail, when bail applied is one thing;
cancellation of bail already granted is quite
another. It is easier to reject a bail
458 INDIAN LAW REPORTS ALLAHABAD SERIES
application in a non-bailable case than to
cancel a bail granted in such a case.
Cancellation of bail necessarily involves
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 accused to retain his freedom
during the trial.

14. While considering degree of
burden of prove lie upon prosecution or
complainant/Informant,
when
an
application for cancellation of bail moved,
is not to the extent of proving by a
mathematical
certainty
or
beyond
reasonable doubt but it must establish its
case by showing on a preponderance of
probabilities that accused has attempted or
may attempt to or tamper or has tampered
with witnesses. It may also be proved by
test of balance of probabilities that accused
has abused his liberty or it may show that
there is reasonable apprehension that he
will interfere with course of justice. The
court approved Bombay High Court's
decision
in
Madhukar
Purshottam
Jondkar vs. Talab Haji Hussain; 60
Bombay Law Reporter 465, that test
adopted by the Court would be, whether
material placed before it is such as to lead
to the conclusion that there is a strong
prima facie case that accused if allowed to
be at large, he would tamper with
prosecution witnesses and impede course of
justice. Mere unfounded apprehension or
self imagined threat by prosecution or
Informant-Complainant would not justify
cancellation of bail, granted to accused.

15. In the case of Raghubir Singh vs.
State of Bihar; (1986) 4 SCC 481, the
court said that grounds for cancellation of
bail under Sections 437(5) and 439(2) are
identical, namely, bail granted under
Section 437(1) or (2) or Section 439(1) can
be cancelled where (i) accused misuses his
liberty by indulging in similar criminal
activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens
witnesses or indulges in similar activities
which would hamper smooth investigation,
(v) there is likelihood of his fleeing to
another country, (vi) attempts to make
himself scarce by going underground or
becoming unavailable to the investigating
agency, (vii) attempts to place himself
beyond the reach of his surety, etc.

16. It was also held that above
grounds are illustrative and not exhaustive.
Rejection of bail stands on one footing but
cancellation of bail is a harsh order since it
interferes with liberty of individual and
must not be lightly resorted to.

17. Above decision was followed in
the case of Manjit Prakash and Ors. vs.
Shobha Devi and Anr.; (2009) 13 SCC
785 as also in the case of Pooja Bhatia vs.
Vishnu Narain Shivpuri and others;
(2014)13 SCC 492.

18. In the case of Pooja Bhatia
(supra),
considering
the
conduct
of
accused i.e. charge of throwing acid on
complainant, Court held that it was a
serious aspect and therefore, accused is not
entitled to continue with the benefit of bail.

19. In the case of Dolat Ram and
others vs. State of Haryana; (1995) 1
SCC 349, the court said that rejection of
bail in a non-bailable case at initial stage
and cancellation of bail so granted, has to
be dealt with and considered on different
basis. Very cogent and overwhelming
circumstances are necessary for an order
directing cancellation of bail, already
9 All. Prem Shanker Dixit Vs. State of U.P. & Anr.
459
granted. The court further said that
generally speaking grounds of cancellation
of bail, broadly i.e. illustrative and not
exhaustive are : (i) interference or attempt
to interfere with the due course of
administration of justice; (ii) evasion or
attempt to evade due course of justice; (iii)
abuse of the concession granted to the
accused in any manner; (iv) Satisfaction of
Court, on the basis of material placed on
record
of
possibility
of
accused
absconding.

20. The court also reminded that 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 concession of bail
during trial.

21. In the case of Prahlad Singh
Bhati vs. NCT, Delhi; (2001) 4 SCC
280, the court said that while granting
bail, nature of accusations, severity of
punishment,
if
accusation
entails
a
conviction, nature of evidence in support
of the accusations should be kept in mind.
Further, reasonable apprehensions of
witnesses
being
tampered
with
or
apprehension of there being a threat for
complainant also need be weighed by
Court. No discussion of entire evidence
to form an opinion whether evidence
would
established
guilt
beyond
reasonable doubt is expected at the stage
of considering matter of bail but prima
facie satisfaction of Court in support of
charge must be there. Lastly, the court
should also consider whether prosecution
has element of genuineness or there is
some fragility. In case of any doubt as to
genuineness, normal course is to grant
bail.
To
the
same
effect
are
the
observation made in the case of Chaman
Lal vs. State of U.P.; (2004) 7 SCC 525.

22. In the case of Ram Govind
Upadhyay vs. Sudarshan Singh; (2002)
3 SCC 598, it was held that grant of bail
though discretionary in nature, yet such
exercise cannot be arbitrary, capricious
and injudicious. Heinous nature of crime
warrants more caution.

23. In the case of CBI, Hyderabad
vs. Subramani Gopalakrishnan and
others; (2011) 5 SCC 296, in para 23, the
court held as under :

"....that there is difference between
yardstick for cancellation of bail and
appeal against the order granting bail.
Very
cogent
and
overwhelming
circumstances are necessary for an order
directing the cancellation of bail already
granted. Generally speaking, the grounds
for cancellation of bail 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
concessions granted to the accused in any
manner.
These
are
all
only
few
illustrative materials. The satisfaction of
the Court on the basis of the materials
placed on record of the possibility of the
accused absconding is another reason
justifying the cancellation of bail. In
other words, 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."

19. Position, influence and resources
of accused have also been held relevant
460 INDIAN LAW REPORTS ALLAHABAD SERIES
factors to adjudge whether accused is likely
to interfere with administration of justice,
trial or tamper with witness or evidence."

24. In the case of C.B.I. vs. Anil
Sharma; (1997) 7 SCC 187, anticipatory
bail was granted by Himachal Pradesh
High Court and C.B.I. approached for
cancellation of bail stating that accused was
a former Minister of Himachal Pradesh and
being a high authority in power is likely to
disrupt even investigation but High Court
did not accept application for cancellation
of bail. On appeal, Supreme Court accepted
C.B.I. contention and observed that in case
of such highly influenced political person,
the very interrogation and investigation
may become a mere ritual hence Court
cancelled order of anticipatory bail.

25. In the case of Padmakar
tukaram Bhavnagare and Ors. vs. The
State of Maharashtra and Ors.; (2012)
13 SCC 720, Hon'ble Supreme Court
while
confirming
the
order
of
anticipatory bail took into accunt that
accused
are
aged
and
rustic,
not
influential persons holding high office
who
can
bring
pressure
upon
investigating agency and it is unlikely
that Police would find it difficult to
interrogate
them
because
they
are
protected
by
an
order
granting
anticipatory bail. That is how judgment in
State Represented by the C.B.I. vs. Anil
Sharma (supra) was also distinguished.
However,
Court
also
clarified
that
grounds for cancellation of bail, broadly,
are interference or attempt to interfere
with due course of justice or abuse of
concession granted to the accused in any
manner but an order of bail can also be
cancelled where it is found to be
perverse, passed ignoring evidence on
record
or
taking
into
considering
irrelevant material. Relying on the case of
Dinesh M.N. (S.P.) vs. State of Gujarat;
(2008) 5 SCC 66, the court said that such
vulnerable bail order must be quashed in
the interest of justice.

26. In the case of State of Maharashtra
and Ors. vs. Pappu; (2014) 11 SCC 244,
the accused was convicted under Section
302 read with 120-B IPC for hatching
criminal conspiracy in killing of deceased
Inder Bhatija. In appeal, High Court
while admitting appeal, enlarged accused
on bail and this order of bail was
challenged in Supreme Court by the State
on the ground that accused was involved
in as many as 52 cases, out of which 20
cases offences were registered against
him before going to jail and while he was
in jail; and 32 cases were registered when
he was released by Court on conditional
bail. The defence taken on behalf of
accused, besides other, was that he has
already spent 9 years in jail during
pendency of trial and no witness has
supported prosecution case and that it
was a political rivalry in which he was
falsely implicated. Supreme Court said that
reason given by High Court that father and
wife of deceased have turned hostile,
cannot be a ground to grant bail since there
were
other
witnesses
and
material
available. High Court should not have
ignored the fact that accused was involved
in as many as 52 cases out of which 20
were registered before going to jail and
during stay in jail, and whenever he was on
bail or conditional bail, 32 cases were
registered. Court also found that in some
cases accused was acquitted but still 15
trials were pending in which two cases
were under Section 302 read with 120B
IPC. Having said so, Court observed that
since accused was in jail for 9 years and as
per pendency, High Court would have
9 All. Prem Shanker Dixit Vs. State of U.P. & Anr.
461
taken a large number of years in deciding
appeal, therefore, Court should decide
appeal expeditiously and with the above
direction, appeal was allowed and order of
bail granted by High Court was set aside.

27. In the case of Neeru Yadav vs.
State of U.P.; (2014)16 SCC 508, this
Court had granted bail to accused for
offences punishable under Sections 147,
148, 149, 302, 307, 394, 411, 454, 506,
120B and 34 IPC on the ground of parity as
another
accused Ashok
was
already
enlarged on bail. The wife of deceased filed
appeal for setting aside order of bail
granted by this Court. The court considered
various earlier authorities and said in para
13 of judgment as under :

"...It is well settled in law that
cancellation of bail after it is granted
because the accused has misconducted
himself
or
of
some
supervening
circumstances
warranting
such
cancellation have occurred is in a
different compartment altogether than
an
order
granting
bail
which
is
unjustified, illegal and perverse. If in a
case, the relevant factors which should
have been taken into consideration while
dealing with the application for bail and
have not been taken note of bail or it is
founded on irrelevant considerations,
indisputably the superior court can set
aside the order of such a grant of bail.
Such a case belongs to a different
category and is in a separate realm.
While dealing with a case of second
nature, the Court does not dwell upon
the violation of conditions by the
accused
or
the
supervening
circumstances
that
have
happened
subsequently. It, on the contrary, delves
into the justifiability and the soundness
of the order passed by the Court."

28. Thereafter, referring to 15 cases
registered again accused showing that he
was a history-sheeter and mostly under
Section 302 IPC, order of bail was set
aside. The court observed that there has to
be a balance between personal liberty of an
individual and peace and harmony of
Society. No individual interest can be
allowed to create a concavity in the stem of
social stream otherwise it would bring
chaos and anarchy in the Society. Relevant
observations made in this regard are
reproduced as under :

"....We are not oblivious of the fact
that the liberty is a priceless treasure for a
human being. It is founded on the bed rock
of constitutional right and accentuated
further on human rights principle. It is
basically a natural right. In fact, some
regard it as the grammar of life. No one
would like to lose his liberty or barter it for
all the wealth of the world. People from
centuries have fought for liberty, for
absence
of
liberty
causes
sense
of
emptiness. The sanctity of liberty is the
fulcrum of any civilized society. It is a
cardinal value on which the civilisation
rests. It cannot be allowed to be paralysed
and immobilized. Deprivation of liberty of
a person has enormous impact on his mind
as well as body.

A democratic body polity which is
wedded to rule of law, anxiously guards
liberty. But, a pregnant and significant one,
the liberty of an individual is not absolute.
The society by its collective wisdom
through process of law can withdraw the
liberty that it has sanctioned to an
individual when an individual becomes a
danger to the collective and to the societal
order. Accent on individual liberty cannot
be pyramided to that extent which would
bring chaos and anarchy to a society. A
society
expects
responsibility
and
462 INDIAN LAW REPORTS ALLAHABAD SERIES
accountability from the member, and it
desires that the citizens should obey the
law, respecting it as a cherished social
norm. No individual can make an attempt
to create a concavity in the stem of social
stream. It is impermissible. Therefore, when
an individual behaves in a disharmonious
manner ushering in disorderly things which
the
society
disapproves,
the
legal
consequences are bound to follow. At that
stage, the Court has a duty. It cannot
abandon its sacrosanct obligation and pass
an order at its own whim or caprice. It has
to be guided by the established parameters
of law." (emphasis added)

29. In the case of Virupakshappa
Gouda and Ors. Vs. The State of
Karnataka and Ors.; (2017) 5 SCC 406, the
application for bail was rejected by Sessions
Judge as also High Court. Even second bail
application was rejected by Sessions Judge as
also High Court. This time accused went to
Supreme Court also but Special Leave Petition
was also rejected. Then a third application was
filed before Additional Sessions Judge,
Raichur, which was allowed and accused were
enlarged on bail. Informant brought the mater
to High Court under Section 439(2) Cr.P.C.
seeking cancellation of bail. He succeeded and
High Court cancelled bail. Thereafter accused
brought the matter to Supreme Court. Court
made serious observations in respect of
approach of Trial Court in granting bail by
treating filing of charge-sheet as a change of
circumstance but ignoring that already two
bail applications were rejected and one has
attained finality up to Supreme Court. Court
said that bail application cannot be allowed
solely or exclusively on the ground that in
criminal jurisprudence accused is presumed to
be innocent till found guilty by the Court. Trial
Court has relied on Supreme Court judgment
in Sanjay Chandra vs. Central Bureau of
Investigation (2012) 1 SCC 40 wherein it was
observed that object of bail is to secure
appearance of accused at trial and not punitive
or preventive. Deprivation of liberty should be
considered a punishment. Court should
appreciate that punishment begins after
conviction and every man is deemed to be
innocent until duly tried and found guilty.
Supreme Court said that above observations in
Sanjay Chandra (supra) have their relevance
but cannot be made applicable in each and
every case for grant of bail. It all depends upon
factual matrix of each case, nature of crime
and manner in which it was committed. A bail
application is not to be entertained on the basis
of certain observations made in a different
context. There has to be application of mind
and appreciation of factual score and
understanding of pronouncements in the field.
The court relied upon a judgment in the case
of Prasanta Kumar Sarkar vs. Ashis
Chatterjee and Anr.; (2010) 14 SCC 496,
where it was opined that while exercising
power for grant of bail, Court must to keep in
mind certain circumstances and factors as
under :

"(i) whether there is any prima
facie or reasonable ground to be
believed
that
the
Accused
had
committed the offence.

(ii)
nature
and
gravity
of
the
accusation;

(iii) severity of the punishment in the
event of conviction;

(iv) danger of the Accused absconding
or fleeing, if released on bail;

(v)
character,
behaviour,
means,
position and standing of the accused;

(vi) likelihood of the offence being
repeated;

(vii) reasonable apprehension of the
witnesses being influenced; and

(viii) danger, of course, of justice
being thwarted by grant of bail." (emphasis
added)
9 All. Prem Shanker Dixit Vs. State of U.P. & Anr.
463

30. It was also held that where a bail
is granted considering irrelevant materials
or keeping out of consideration relevant
material, the order becomes vulnerable and
warrants annulment. The order of High
Court setting aside bail granted by Trial
Court was upheld by Supreme Court.

31. In the case of Dataram Singh vs.
State of Uttar Pradesh and Ors.; (2018) 3
SCC 22, the court enlarged to certain more
aspects for granting bail, whether accused
was arrested during investigation when he
had best opportunity to tamper with
evidence
and
influence
witness
or
Investigating Officer found it not necessary
to arrest accused during investigation and
this factor would go in favour of accused.
Similarly,
whether
accused
was
participating in investigation regularly and
not absconding or avoiding investigation.
Further, whether accused is a first-time
offender or is accused of other offences and
if yes, nature of such offences and his
general
conduct. Poverty
or deemed
indigent status of an accused, Court held, is
also an important factor to be taken note. It
observed that grant of bail is a rule and
refusal is an exception. Finding that
accused was not said to be a person of
shady character and there was no history of
his involvement in any unacceptable
activity etc., accused was granted bail,
though it was rejected by Trial Court as
well as High Court.

32. In the case of State of Orissa
and Ors. Vs. Mahimananda Mishra
and Ors.; (2018) 10 SCC 516, the
accused was granted bail by High Court
and it was set aside by Supreme Court.
The court observed that accused was a
powerful and influential person in his
locality and even Investigating Officer
apprehends
that
he
may
influence
witnesses by intimidating them and this
may influence trial by creating fear in the
minds of witnesses. Court also looked
into past attempt of accused to evade
process of law and then found that order
of grant of bail was not proper and it was
set aside.

33. In the case of X vs. The State of
Telangana and Ors.; (2018)16 SCC 511,
the accused, a Film Producer, based in
Mumbai, was charged of offences under
Sections 376, 342, 493, 506, 354(C) of
IPC. Accused got anticipatory bail from
Sessions Judge on 13.01.2017 and had
advantage of that order for about eight
months. The said order was cancelled by
Sessions Judge on the ground that
accused has not disclosed that he was
also accused in 2G Spectrum case. This
cancellation order was affirmed by High
Court and also by Supreme Court.
Thereafter
accused
moved
a
bail
application under Section 439 Cr.P.C.,
which was allowed by High Court and
accused was released on bail. This order
was challenged in appeal before Supreme
Court. Upholding the said order, Court
said that bail once granted should not be
cancelled unless a cogent case, based on
supervening event has been made out.

34. In the case of Seema Singh vs.
Central Bureau of Investigation and
Ors.; (2018) 16 SCC 10, the bail granted
to accused by High Court in the case
registered under Sections 498-A, 302, 120B IPC was challenged in appeal before
Supreme Court. Court noticed that accused2's bail application was rejected by Special
Judicial Magistrate, CBI, Ghaziabad and
thereafter bail was granted by High Court.
Court said that gravity of offence is a
relevant factor but not the sole ground to
deny bail if there are other overwhelming
464 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances justifying grant of bail.
Noticing special feature, Court upheld
order of High Court granting bail.

35. Thus, the broad principles, which
are to be considered by this Court while
granting bail and when bail is already
granted but an application for cancellation
has come up for consideration, as discussed
above, show that there is no thumb rule in
both the situations. However, it is true that
factors relevant for grant of bail are
different and approach required to be
adopted while considering application for
cancellation of bail is different.

36. Liberty granted to accused -
respondent No.2 by enlarging him on bail
has been misused in view of the facts stated
on oath by the applicant, which are
uncontroverted since respondent No.2 has
chosen to opt for grant of bail by
concealing
material
fact
that
while
enlargement on bail he involved himself
into two criminal cases and to contest this
application. The conduct and nature of
violations on the part of respondent No.2,
has already been discussed above.

37. Looking into all the facts and
circumstances, this court is of the view that
here is a case in which it has clearly
substantiated that accused-respondent No.2
has misused the bail granted to him and,
therefore, it is justified to cancel the bail.

38. In the result, the application for
cancellation of bail is allowed.

39. The bail granted to accused -
respondent
No.2,
namely,
Pinku
@
Mustakeem @ Irfan Ahmad vide order of
this Court dated 18.08.2021 passed in
Criminal Misc. Bail Application No.8763
of 2021 in Case Crime No.157 of 2017,
under Sections 394, 397 and 411 IPC
registered at Police Station Asoha, District
Unnao, is hereby cancelled.

40. However, it is stated by learned
counsel for the parties that the accused -
respondent No.2 is in jail, however, if that
be not so, he shall surrender before
concerned
Chief
Judicial
Magistrate
positively by 19.09.2022, failing which, the
Chief Judicial Magistrate concerned shall
ensure his arrest and send him to jail.
----------
(2022) 9 ILRA 464
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Crl. Misc. Anticipatory Bail Application No. 1345
of 2022

Sujay Uday Desai ...Applicant
Versus
C.B.I. ...Respondent

Counsel for the Applicant:
Nadeem Murtaza, Aditya Vikram Singh, Sheeran
Mohiuddin Alvi

Counsel for the Respondent:
Anurag Kumar Singh

(A) Criminal Law - Anticipatory Bail - issue
of economic offence - Indian Penal Code,
1860 - Sections 120B, 420, 467, 468, 471 -
Category B/D - on appearance of the
accused in the court pursuant to process
issued bail application to be decided on
merit. (Satender Kumar Antil Vs. Central
Bureau of Investigation & another) - case
of economic offences stand on a different
footing which affect the economic fabric
of the society and poses a serious threat
to the nation's economy and financial
integrity (P. Chidambaram Vs. Directorate
of Enforcement).(Para - 24,34)