# Rajendra Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Application U/S 482 No. 6779 of 2022
- **Bench:** Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-kumar-ors-v-state-of-u-p-ors-47739
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - once
bail has been granted by a competent
court after due consideration of facts and
circumstances of the case - 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 - 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.(Para - 10)

Applicants were granted bail - condition - not
temper with evidence and shall not intimidate
witnesses - applicants threatening witnesses
and complainant to desist from prosecuting
the case - applicants violated conditions of
bail - trial court cancelled bail of applicant -
directed to take applicants into custody.(Para
-4,5,6,7)

HELD:-Impugned order passed by trial court
without issuing notice to applicants and without
affording them a reasonable and sufficient
opportunity of hearing is patently illegal being in
flagrant violation of the settled procedure in
respect of cancellation of bail. It has caused
miscarriage of justice to the applicants. (Para -
8,16)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

494 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The issue, which emerges for
consideration and reflect in this case is as to
whether, in view of the provisions contained
in Section 202(1) of Cr.P.C., the inquiry by
the Magistrate himself or the direction for
investigation is mandatory requirement, as
soon as the fact borne out before the
Magistrate concerned is that the accused is
residing outside the territorial jurisdiction of
the Magistrate concerned.

24. From bare perusal of the order
impugned dated 28.10.2021 as well as the
statement recorded under Sections 200 and
202 of Cr.P.C., it emerges that no inquiry has
been done by the Magistrate prior to
issuance of process and even the Magistrate
did not direct the police officer for
investigation in the matter.

25.
 Admittedly,
prior
to
the
amendment in Cr.P.C. i.e., before the year
2005, this provision was not in existence
but, thereafter, vide an amendment of Act
No. 25 of 2005, it has been inserted in
Section
202(1)
of
Cr.P.C.
This
amendment also shows the intent of the
legislature
that
for
avoiding
the
harassment of prospective accused, who
is sitting at far-reaching place the instant
provision has given effect to.

26.

While
examining
all
the
proceedings, which was conducted by the
Magistrate, there seems to be no whisper
regarding the fact that the Magistrate has
inquired or get investigated the matter with
regard to the fact that applicant is residing
outside the territorial jurisdiction or not.

27. Emphasis was also laid that since
the proceedings under Sections 200 is qua
an inquiry proceeding under Section 202 (1)
and therefore if a Magistrate has proceeded
or inquired during the investigation under
Sections 200 and 202 of Cr.P.C., separate
proceeding for inquiry or investigation is not
required. In the instant matter, neither the
Magistrate in the proceeding under Sections
200 and 202 Cr.P.C. tried to inquire
regarding the issue of territorial jurisdiction
nor he has separately done any inquiry or
directed for any investigation.

28. This Court is of the considered
opinion that it is a settled law that if a thing
is to be done in a manner prescribed in a
statue, then that has to be done in the same
manner not otherwise. In the instant matter,
it is, prima facie, a case where the mandate
of provision of Section 202 (1) of Cr.P.C.
has clearly been violated and thus, the order
impugned is not tenable.

29.

Resultantly,
the
instant
application is allowed. The order dated
28.10.2021 passed in Complaint Case No.
07 of 2021 (Shiv Naresh Maurya vs. Amit
Iqbal Srivastava and others), is hereby set
aside.

30. However, the matter is remitted
back to the Magistrate concerned to proceed
afresh and pass the order accordingly.
----------
(2022) 10 ILRA 494
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.09.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 482 No. 6779 of 2022

Rajendra Kumar & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Tanay Hazari
10 All. Rajendra Kumar & Ors. Vs. State of U.P. & Ors.
495
Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - once
bail has been granted by a competent
court after due consideration of facts and
circumstances of the case - 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 - 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.(Para - 10)

Applicants were granted bail - condition - not
temper with evidence and shall not intimidate
witnesses - applicants threatening witnesses
and complainant to desist from prosecuting
the case - applicants violated conditions of
bail - trial court cancelled bail of applicant -
directed to take applicants into custody.(Para
-4,5,6,7)

HELD:-Impugned order passed by trial court
without issuing notice to applicants and without
affording them a reasonable and sufficient
opportunity of hearing is patently illegal being in
flagrant violation of the settled procedure in
respect of cancellation of bail. It has caused
miscarriage of justice to the applicants. (Para -
8,16)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-
1. Samarendra Nath Bhattacharjee Vs St. of
W.B. & anr. , (2004) 11 SCC 165

2. Mehboob Dawood Shaikh Vs St. of Maha. ,
(2004) 2 SCC 362
3. Gurdev Singh & anr. Vs St. of Bihar & anr. ,
(2005) 13 SCC 286

4. P.K. Shaji @ Thammanam Shaji Vs St. of
Kerala , (2005) 13 SCC 283

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard learned counsel for the
applicants, learned A.G.A. for the State and
perused the entire record.

2. The instant application under
Section 482 Cr.P.C. has been 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."

3. In view of the order which is
proposed to be passed today, notice to
opposite party No.2 is hereby dispensed
with.

4. From the pleadings, it transpires
that the applicants were granted bail vide
order dated 22.11.2021 passed by the
learned Sessions Judge, Raebareli in Bail
Application No.2638 of 2021 arising out of
Sessions Trial No.812 of 2021 (State vs.
Ram Bachan and others).

5. The learned trial court was
informed that the witnesses and the
496 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant of the aforesaid Sessions Trial
No.812 of 2021 are being threatened of dire
consequences by the applicants herein. The
aforesaid Sessions Trial No.812 of 2021
was fixed on 01.09.2022 for recording
evidence
of
prosecution
witnesses.
However, taking note of the fact that the
present applicants are threatening the
witnesses and the complainant to desist
from prosecuting the case, the learned 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, Raebareli for
appropriate action directing him also to
provide necessary security to the witnesses
by the learned trial court.

6. The learned trial court thereafter
found that by the order dated 22.11.2021
passed in the Bail Application No.2683 of
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
learned trial court found the aforesaid
conduct of the applicants to be violation of
conditions of bail subject to which they were
enlarged on bail vide order dated 22.11.2021.
Therefore, the learned trial court directed to
the applicants to be taken into custody and
also passed the impugned order dated
01.09.2022 canceling the bail granted to the
applicants vide order dated 22.11.2021
passed in Bail Application No.2638 of 2021.
Consequently, the applicants were directed to
be lodged in the District Jail.

7. In aforesaid factual background, it
has been submitted by the learned 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 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.

8. Learned 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 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.

9. Per contra, learned A.G.A. has
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.
10 All. Rajendra Kumar & Ors. Vs. State of U.P. & Ors.
497

10. Having heard the learned counsel
for the applicants, learned A.G.A. 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.

11. The Hon'ble Supreme Court in
Samarendra Nath Bhattacharjee vs. State of
W.B. and another reported in (2004) 11
SCC 165, has pointed out as to what should
be the approach of the court dealing with
the matter of cancellation of bail. In the
instant case, the High Court cancelled the
bail which was earlier granted to the
accused. The Hon'ble Supreme Court
observed
that
the
High
Court
has
approached the case as if it is an appeal
against the conviction by giving findings
on factual issues which are yet to be
decided. Thus, the Hon'ble Supreme Court
found the matter to be too premature which
is likely to prejudice the trial. That apart,
since the only ground on which the
cancellation of bail could have been
ordered being the ground of intimidation,
the same was not satisfactorily proved.
Therefore, in view of the Hon'ble Supreme
Court, the High Court erred in cancelling
the bail granted to the accused.

12. 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 learned trial
court. Be that as it may, the learned trial
court atleast 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.

13. 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.

14. 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 done without giving notice to the
accused and giving him an opportunity of
being heard.

15. 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.

16. In view of the aforesaid settled
legal propositions, this court finds 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
498 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

17. 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.

18. 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.

19. 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.

20. It is also made clear that the learned
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.
----------
(2022) 10 ILRA 498
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 482 No. 6781 of 2022

Jwala Prasad Maurya ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Saurabh Yadava, Poonam Maurya

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
323 and 504 - for the purpose of
computing the period of limitation under
Section 468 CrPC, the relevant date is the
date of filing of the complaint or the date
of institution of prosecution and not the
date on which the Magistrate takes
cognizance of the offence.(Para - 18)

(B) Criminal Law - Limitation for taking
cognizance of certain offences -The Code
of criminal procedure, 1973 - Section 467
- period of limitation , Section 468 - Bar to
taking cognizance after lapse of the period
of
limitation
,
Section
469
-
Commencement of the period of limitation
- 'institution of prosecution' - refer to the
date
of
filing
of
the
complaint
or
registering of the FIR - in a case where
the same is within the period of limitation
- proceedings cannot be held to be barred
by Section 468 - merely for the reason
that the order of cognizance or issuance of
process
is
made
on
a
subsequent
date.(Para -16)

(B) Words/phrases/Legal maxim - 'nullum
tempus aut locus occurrit regi' - a crime