# Rajesh Kumar Sharma v. State of U.P. & Ors

- **Citation:** (2025) 2 ILRA 99
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-21
- **Case number:** Matters Under Article 227 No. 15602 of 2024
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-sharma-v-state-of-u-p-ors-53036
- **Pages:** 4

## Headnote

Criminal Law-The Constitution of India,
1950-Article 227 - The Code of Criminal
Procedure,
1973-Section
439(2)---Bail
cancellation application can only be preferred
under Section 439(2) Cr.P.C--- The procedure
has not mandated for seeking cancellation of
bail through preferring petition under Article
227 of the Constitution of India and the
prayer made in the instant petition for
seeking quashing the order only to the extent
insofar as it considers the non-bailable
offences against the respondent as bailable
and
granted
anticipatory
bail
to
the
respondent cannot be considered since the
same is directly seeking cancellation of the
bail as extended in favour of respondent.

Petition dismissed. (E-15)

List of Cases cited:

## Text

2 All. Rajesh Kumar Sharma Vs. State of U.P. & Ors.
99
Judge, SC/ST Act, Gautam Buddha
Nagar was not having any power provided
as per law for passing an order of reinvestigating the matter in reference of the
petitioner.

20. With regard to issue no. II,
learned
counsel
for
the
petitioner
specifically took a ground while submitting
written submissions that there was hardly
any occasion available before learned
Additional District and Sessions JudgeII/Special Judge, SC/ST Act, Gautam
Buddha Nagar to pass any other order
except
rejecting
or
allowing
the
anticipatory bail application preferred at the
behest of Dr. Gyanendra Aggarwal. The
issue before the learned Sessions Judge was
for consideration of anticipatory bail filed
by Dr. Gyanendra Aggarwal and there was
no other issue under Section 438 Cr.P.C to
deal
with
other
matters
and
the
observations made by learned Sessions
Judge was uncalled for and moreover on
the basis of the observation, the direction
issued to concerned Investigating Officer
for re-investigation is liable to be set aside.

21. In view of the aforementioned
facts and circumstances and discussions
made in the light of the judgments as
referred above rendered by Hon'ble Apex
Court as well as by different High Courts,
part of the direction, contained in order
dated 17.05.2024 under para no. 14
specifically issuing direction to concerned
Investigating Officer for re-investigation, is
hereby set aside.

22. The instant petition stands
allowed accordingly.
----------
(2025) 2 ILRA 99
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2025
BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Matters Under Article 227 No. 15602 of 2024

Rajesh Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Deepak Pandey, Lavlesh Kumar Sharma

Counsel for the Respondents:
G.A.

Criminal Law-The Constitution of India,
1950-Article 227 - The Code of Criminal
Procedure,
1973-Section
439(2)---Bail
cancellation application can only be preferred
under Section 439(2) Cr.P.C--- The procedure
has not mandated for seeking cancellation of
bail through preferring petition under Article
227 of the Constitution of India and the
prayer made in the instant petition for
seeking quashing the order only to the extent
insofar as it considers the non-bailable
offences against the respondent as bailable
and
granted
anticipatory
bail
to
the
respondent cannot be considered since the
same is directly seeking cancellation of the
bail as extended in favour of respondent.

Petition dismissed. (E-15)

List of Cases cited:

1. Srikant Upadhyay & ors.Vs St. of Bihar & ors.,
2024 (3) SCR 421

2. Abdul Basit Vs Mohd. Abdul Kadir Chaudhary,
2014 (10) SCC 754

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Deepak Pandey, learned
counsel for petitioner, Sri Anand Sagar
Dubey, learned AGA-I for respondent no. 1
and Sri Rohan Gupta, learned counsel for
respondent no. 2.
100 INDIAN LAW REPORTS ALLAHABAD SERIES
2. After hearing in detail, while
reserving the judgment, all the learned
counsels appearing for the parties were
requested to submit their written arguments
along with relied upon judgments within a
week and the same has been received and
are available in the records.

Petitioner's submissions

3. Present writ petition has been
preferred for challenging the order dated
17.05.2024 passed by learned court of
Additional District and Sessions JudgeII/Special Judge, SC/ST Act, Gautam
Buddha Nagar through which anticipatory
bail application under Section 438 Cr.P.C.
has been allowed and bail has been
extended on certain conditions which are
mentioned in the order which impugned the
present petition and are five in numbers.

4.
Learned
counsel
for
the
petitioner while assailing the order dated
17.05.2024 submitted that despite the
bailable warrants having been issued
against
the
respondent
no.
2,
the
anticipatory bail application preferred at the
behest of respondent no. 2 has been
allowed and the same is in violation of the
verdict rendered by Hon'ble Apex Court in
case of Srikant Upadhyay and others vs.
State of Bihar and others, 2024 (3) SCR
421.

5.
Learned
counsel
for
the
petitioner further submitted that although
order dated 17.05.2024 is under challenge
but a direction contained in the same order
through which Inquiry Officer has been
directed to re-investigate the role of
respondent no. 2 is not under challenge.
Substantiating the arguments for not
challenging part of the order impugned
dated 17.05.2024, learned counsel for the
petitioner sought the attention of the Court
over the prayer clause which is reproduced
herein below:

"(i) to quash the order dated
17.05.2024 only to the extent in so far as it
considers the Non Bailable Offences
against the respondent no. 2 as Bailable
and grants Anticipatory Bail to the
respondent no. 2 in contemptuous violation
of the Hon'ble Supreme Court's judgment in
the case of Srikant Upadhyay & ors. vs.
State of Bihar & Anr. (SLP (Cri.) No. 7940
of 2023) [2024] 3 SCR 421. "

6. It is also submitted by learned
counsel for the petitioner that various
grounds have been taken while preferring
the instant petition which is squarely
covered with the judgment of Srikant
Upadhyay (supra) and as such part of the
order dated 17.05.2024 except one part of
the order dated 17.05.2024 is liable to be
set aside.

Respondent's submissions

7. Per contra, Sri Rohan Gupta,
learned counsel appearing on behalf of
respondent no. 2 submitted through his
written submission that after issuing
bailable warrants on dated 12.04.2024
respondent no. 2 appeared in person before
learned court concerned by way of
preferring anticipatory bail application and
the same was rightly allowed vide order
dated 17.05.2024 and none of the grounds
contained the violation of the terms and
conditions which was fixed by learned
concerned court while extending bail in
favour of the respondent no. 2 and the
anticipatory bail can only be denied, if the
accused had been absconding despite
summons, non-bailable warrants as well as
proclamation under Section 82 Cr.P.C. and
2 All. Rajesh Kumar Sharma Vs. State of U.P. & Ors.
101
the order of extension of anticipatory bail
granted in favour of respondent no. 2 can
only be cancelled when the conditions
recorded in the order granting anticipatory
bail have been violated or there is
substantial
evidence
to
indicate
that
respondent no. 2 has misused the liberty
granted, has obstructed the course of justice
or has committed further crimes. However,
in the present case, no such incident has
occurred and no such evidence has been
brought on record to indicate violations of
any such conditions which have been laid
down by Hon'ble Apex Court from time to
time.

8. A judgment of Hon'ble Supreme
Court has also been relied by learned
counsel for respondent no. 2 i.e. Abdul
Basit vs. Mohd. Abdul Kadir Chaudhary,
2014 (10) SCC 754 which has been relied
upon by judgments of this Court while
dismissing cancellation of anticipatory bail
petition in Crl. Misc. Bail Cancellation
Application no. 646 of 2022 (Zeba Parveen
vs. State of U.P. and another), wherein it
has been held that under chapter XXXIII
Section 439(1) empowers the High Court
as well as the Court of Session to direct any
accused person to be released on bail.
Section 439(2) Cr.P.C. empowers the High
Court to direct any person who has been
released on bail under chapter XXXIII of
the Code be arrested and committed to
custody i.e. the power to cancel the bail
granted to an accused person. Generally,
the grounds for cancellation of bail broadly
are, (i) the 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) attempt 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. These grounds are
illustrious and non-exhaustive. Where bail
has been granted under the proviso to
Section 167(2) for the default of the
prosecution
is
not
completing
the
investigation in sixty days after the defect
is cured by the filing of charge sheet, the
prosecution may seek to have the bail
cancelled on the ground that there are
reasonable grounds to believe that the
accused has committed a non-bailable
offence and that it is necessary to arrest
him and commit him to custody. However
in the last mentioned case, one would
expect
very
strong
ground
indeed.
(Raghubir Singh vs. State of Bihar, [(1986)
4 SCC 481].

9. Learned counsel for respondent
no. 2 submitted that undisputedly petitioner
had been participating in the investigation
and extending his full cooperation despite
order of stay of arrest having been granted
by this Court in Writ Petition no. 13160 of
2023. It is also submitted by learned
counsel
for
respondent
no.
2
that
respondent no. 2 approached this Court
under Section 482 Cr.P.C. bearing no. 8717
of 2024 on 12.03.2024, assailing the charge
sheet and subsequently due to backlog of
cases, the interim application could finally
be heard and decided and a stay was
granted on the proceedings of the lower
court
vide
order
dated
20.08.2024.
Therefore the bailable warrant had also
been issued during pendency of the
aforesaid application under Section 482 and
this fact was duly before the court below at
the time of passing orders sought to be
impugned and as such in the light of above
it is submitted by learned counsel for
102 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 2 that the present petition is
completely frivolous and an abuse of
process of law and therefore is liable to be
dismissed with cost.

10. Sri Anand Sagar Dubey, learned
AGA-I who appeared on behalf of State
submitted his written submission but the entire
averments and facts along with relied upon
judgments are the same one which he submitted
in Petition under Article 227 no. 13987 of 2024
since petition no. 13987 of 2024 (connected)
and 15602 of 2024 (present) were clubbed with
each other and heard together and as such in
both the petitions the stand of the learned AGA
was the same.

Observations and Conclusion

11. After hearing the rival submissions
extended by learned counsel for the parties, it is
crystal clear that one hand petitioner is
challenging extension of bail in favour of
respondent no. 2 and in the connected petition
petitioner was supporting direction contained in
order which impugned the present petition,
meaning thereby petitioner is seeking bail
cancellation through the instant petition but at
the same time intended to restore direction
passed by learned Additional Sessions JudgeII/Special Judge, SC/ST Act, Gautam Buddha
Nagar which is available in the impugned order
through which the direction was issued to reinvestigate the matter for ascertaining role of
respondent no. 3.

12. As per the procedure, bail
cancellation application can only be preferred
under Section 439(2) Cr.P.C. but in the instant
matter cancellation of bail has been sought
through challenging order through which bail has
been extended in favour of respondent no. 2. It is
a trite law that while seeking bail, it is only the
bail cancellation order which is not amenable for
putting into challenge before higher court. The
grant of bail is not an order which has been
adjudicated on the basis of pleadings exchanged
but it is extension and grant for ensuring personal
liberty ensured as per procedure on the basis of
certain conditions and as such the prayer made
through the instant petition is not maintainable
wherein certain part has been prayed to be
restore and consideration of grant of anticipatory
bail has been sought to be set aside.

13. The procedure has not mandated
for seeking cancellation of bail through
preferring petition under Article 227 of the
Constitution of India and the prayer made in the
instant petition for seeking quashing the order
dated 17.05.2024 only to the extent insofar as it
considers the non-bailable offences against the
respondent no. 2 as bailable and granted
anticipatory bail to the respondent no. 2 cannot
be considered since the same is directly seeking
cancellation of the bail as extended in favour of
respondent no. 2.

14. In view of the aforementioned facts
and circumstances, and in the light of the
discussions made above and by giving highest
regard to the judgments rendered by Hon'ble
Apex Court and the judgment passed by this
Court, relying upon the verdict of Hon'ble Apex
Court, the instant petition stands dismissed
accordingly.
----------
(2025) 2 ILRA 102
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 1287 of 2025

Anil Kumar Srivastava ...Applicant
Versus
C.B.I./S.C.B. Lko. & Ors.
 ...Opposite Parties