# Shefali Kaul v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 9 ILRA 1277
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-30
- **Case number:** Crl. Misc. Bail Cancellation Appl. No. 463 of 2021
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shefali-kaul-v-state-of-u-p-ors-opp-parties-49052
- **Pages:** 5

## Headnote

Law
-
Code
Of
Criminal
Procedure, 1973 (2 of 1974) - Section 439
(2) - Bail Cancellation - High Court power
to entertain an application for cancellation
of bail is not taken away merely because
of pendency of an application u/s 482
Cr.P.C. challenging an order passed by the
Sessions Judge holding that the bail
cancellation application ought to be filed
before the Magistrate (Para 9)

Bail order was passed keeping in view the fact
that the accused persons and the informant had
entered into a settlement as per which the
accused persons paid Rs. 40 lacs to the
informant, in part performance of the settlement
and they issued post dated cheques of the
balance amount to the informant - accused
persons categorically stated before court that
they would follow the terms of settlement - bail
cancellation application filed as the cheques
which had been given by the accused persons
were dishonored for the reason that payment
had been stopped by the drawer Held - accused
persons'
subsequent
conduct
in
issuing
instructions to their bank for stopping payment
of the cheques amounts to the accused persons
resiling from the conditions which formed the
basis of the bail order - subsequent conduct of
the opposite party in trying to go to Bahrain and
threatening the informant, is a clear violation of
the conditions incorporated in the bail order that
the accused persons will not go outside the
boundaries of the country and they will not
influence the witnesses - Accused respondents,
bail cancelled they were directed to surrender
before the Court concerned (para 15, 16, 18)

Allowed. (E-5)

List of Cases cited:

## Text

9 All. Shefali Kaul Vs. State of U.P. & Ors.
1277
(2022) 9 ILRA 1277
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Cancellation Appl. No. 463 of
2021

Shefali Kaul ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Ms. Katyayini, Sri Pankaj Shukla

Counsel for the Opp. Parties:
G.A., Anuj Srivastava, Sri Syed Imran Ibrahim

Criminal
Law
-
Code
Of
Criminal
Procedure, 1973 (2 of 1974) - Section 439
(2) - Bail Cancellation - High Court power
to entertain an application for cancellation
of bail is not taken away merely because
of pendency of an application u/s 482
Cr.P.C. challenging an order passed by the
Sessions Judge holding that the bail
cancellation application ought to be filed
before the Magistrate (Para 9)

Bail order was passed keeping in view the fact
that the accused persons and the informant had
entered into a settlement as per which the
accused persons paid Rs. 40 lacs to the
informant, in part performance of the settlement
and they issued post dated cheques of the
balance amount to the informant - accused
persons categorically stated before court that
they would follow the terms of settlement - bail
cancellation application filed as the cheques
which had been given by the accused persons
were dishonored for the reason that payment
had been stopped by the drawer Held - accused
persons'
subsequent
conduct
in
issuing
instructions to their bank for stopping payment
of the cheques amounts to the accused persons
resiling from the conditions which formed the
basis of the bail order - subsequent conduct of
the opposite party in trying to go to Bahrain and
threatening the informant, is a clear violation of
the conditions incorporated in the bail order that
the accused persons will not go outside the
boundaries of the country and they will not
influence the witnesses - Accused respondents,
bail cancelled they were directed to surrender
before the Court concerned (para 15, 16, 18)

Allowed. (E-5)

List of Cases cited:

1. Sanjay Chandra Vs CBI, (2012) 1 SCC 40

2. Satender Kumar Antil Vs Central Bureau of
Investigation 2022 Scc OnLine SC 825

3. Emperor Vs H. L. Hutchinson AIR 1931 All
356

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Ms. Katyayni and Sri Pankaj
Shukla, the learned counsel for the
applicant, Sri Dinesh Kumar Srivastava, the
learned Additional Government Advocate,
Sri Syed Imran Ibrahim, the learned
counsel for the accused - respondents and
perused the record.

2. The present application has been
filed seeking cancellation of the order dated
21.10.2020
passed
by
the
learned
Additional Sessions Judge, Court No.1,
Mathura in Bail Application No. 2832 of
2020 whereby the accused ? respondent
nos. 2 to 7 have been granted bail in Case
Crime No.312 of 2020, under Sections 406,
420, 467, 468, 120-B IPC, Police StationNauhjheel, District Mathura.

3. The aforesaid order states that the
accused persons were produced before the
Court from jail and they had given an
application stating that they had taken the
money in question from the applicant in the
year 2016; that they had entered into a
settlement / MOU with the informant; that
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
they had paid a sum of Rs. 40 lacs only to
the informant in part performance of the
settlement and they had issued post dated
cheques to the informant in respect of the
balance amount and they further stated that
they would follow the terms of the
settlement. The order further records that
the informant also gave an application
stating that she was satisfied with the
settlement made by the applicants and the
cheques given by them and she had no
objection to the bail being granted. The
Court further recorded that a perusal of the
documents indicated that the accused
persons had issued a promissory note
stating that ten cheques have been issued to
the informant and a compromise has been
arrived, a settlement has been entered into
between the parties and the MOU had been
executed and the accused persons stated
that they would follow the terms of the
MOU. The Court further recorded that the
informant had also filed an application
stating that she was satisfied by the promise
made by the applicant and she had no
objection against grant of bail to the
accused person.

4. After noting the aforesaid facts, the
learned
Additional
Sessions
Judge
observed that keeping in view the facts and
circumstances of the case and without
going into merits of the case, there was
sufficient ground for granting bail to the
applicant. After the aforesaid narration and
discussion, the Court proceeded to write the
operative portion of the order stating that
the applicants be released on bail on
furnishing a personal bond of Rs. 02 lacs
and two sureties of the same amount and an
undertaking be obtained from them that
during trial they will not go outside the
boundaries of the country, they will not
influence the witnesses and will remain
present in the Court.

5. On 24.12.2021, the present
application
has
been
filed
seeking
cancellation of the order dated 21.10.2020.
In the affidavit filed in support of the bail
application, it has been stated that the
accused persons have not complied with
the conditions mentioned in the order
passed by the court below, as the cheques
which had been given by the accused
persons were presented to the bank and
same were dishonored for the reason that
payment had been stopped by the drawer.

6. On the aforesaid allegations, the
applicant filed an application before the
learned Additional Sessions Judge, Court
No.1, Mathura praying for cancellation of
the bail granted to the accused persons.
However, the aforesaid application has
been rejected by means of an order dated
08.09.2021 holding that the offences with
which the accused persons have been
charged, are all triable by a Magistrate and
the trial was not pending before the
Sessions Court. The Court further held that
the only conditions imposed in the bail
order were that the accused persons will not
go outside the boundaries of the country,
they will not influence the witnesses and
they will remain present on the dates fixed
in the trial. The court held that the
conditions imposed in the bail order are not
related to the Court of Sessions but are
related to the Court of Magistrate and,
therefore, the application for cancellation
of bail on the ground of non compliance
with the conditions would lie before the
concerned court.

7. At the outset, Sri Ibrahim, the
learned
counsel
for
the
accused
-
respondents has raised a preliminary
objection that the applicant has challenged
the aforesaid order by means of filing an
application under Section 482 Cr.P.C. No.
9 All. Shefali Kaul Vs. State of U.P. & Ors.
1279
20896 of 2021 before this Court, which is
still pending. During pendency of the
aforesaid application, the applicant has
filed
the
present
application
for
cancellation of the bail and, therefore, the
present application seeking cancellation of
bail is not maintainable.

8. Refuting the aforesaid submission,
the learned counsel for the applicant has
submitted that in view of the provision
contained in Section 439 (2) Cr.P.C., only a
High Court or a Court of Sessions may
direct that any person who has been
released on bail, be arrested and be taken
into custody and a Magistrate does not have
jurisdiction to entertain such an application.
He has submitted that the application under
Section 482 Cr.P.C. has been filed only
against the direction given by the Learned
Additional Sessions Judge in the order
dated 08.09.2021 to the effect that the
application for cancellation of bail would
lie before the Magistrate.

9. Having considered the aforesaid
submissions, and keeping in view the
provision contained in Section 439 (2)
Cr.P.C., I am of the view that this Court has
power to entertain the application for
cancellation of bail and this power is not
taken away merely because of pendency of
an application under Section 482 Cr.P.C.
challenging the order dated 08.09.2021
passed by the Sessions Judge holding that
the application ought to be filed before the
Magistrate. Therefore, I find no force in the
preliminary objection raised by the learned
counsel for the accused - respondents and
the same is turned down.

10. The learned counsel for the
applicant has submitted that the order dated
21.10.2020 granting bail to the accused -
respondents had been passed without going
into the merits of the application, merely
taking into consideration the application
filed by the accused - respondents stating
that they have entered into a settlement
with the informant; that they have already
paid Rs. 40 lacs to her and they have issued
post dated cheques in respect of the balance
amount and also keeping in view the fact
that the informant had filed an application
stating that she was satisfied with the
promise made by the applicants and by the
cheques given by them. The accused ?
respondents have violated the aforesaid
settlement by issuing a direction to the
Bank to stop payment of the cheques given
under the settlement and, therefore, the
order dated 21.10.2020 is liable to be
cancelled.

11. Per contra, the learned counsel for
the accused - respondents has submitted
that the bail order was passed only subject
to the conditions that the applicant will
furnish a personal bond of Rs. 02 lacs and
two sureties of the like amount; that they
will not leave the country and and that they
will not influence the witnesses and also
they will appear before the Trial Court on
the date fixed. He has further submitted
that there is no allegation that the accused
persons have violated any of the conditions
imposed on the applicant in the bail order.
He has submitted that it was not a condition
of bail that the accused persons will pay the
balance amount of the settlement, regarding
which they had issued cheques to the
informant.

12. It is a fundamental principle of
law that any document, be it a statute, a
judgment or order of the Court, a pleading,
a contract, has to be read as a whole and an
order passed by a Court cannot be read in a
piece - meal manner by picking up a
passage and reading it by isolating it from
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
the other part, which forms the foundation
of passing the order.

13. The order dated 21.10.2020
contains a narration that the accused
persons had filed an application stating that
they had entered into a settlement with the
informant, they had paid Rs. 40 lacs to the
informant as part of the settlement amount
and they have issued post dated cheques for
the balance amount and they have stated
that they would follow the terms of the
settlement. The informant has also filed an
application expressing her satisfaction with
the terms of settlement and the Court has
passed an order for granting bail to the to
the accused respondents keeping in view
the aforesaid facts and circumstances. It
cannot be said that the terms of the MOU
are not relevant for deciding the application
for cancellation of bail on the ground that
its terms had not been incorporated in the
operative part of the bail order. In fact, the
terms of the settlement / MOU form the
basis of the order dated 21.10.2020.

14. In the rejoinder affidavit filed on
behalf of the applicant, it has been stated
that although a condition has been imposed
in the bail order that the accused persons
will not leave the country during pendency
of the trial, the opposite party no.7 tried to
flee the country. He was trying to depart to
Bahrain from Indira Gandhi International
Airport, New Delhi by Flight No. AL-939
on 22.01.2021 and an intimation to this
effect has been sent to the applicant by the
immigration department through an SMS, a
print out whereof has been annexed as
annexure no. RA-1 to the rejoinder
affidavit. It has further been stated in the
rejoinder affidavit that the opposite party
no.7 has assaulted the applicant for
threatening him for not pursuant the case
and an FIR bearing Case Crime No. 1054
of 2021 has been lodged by the informant
in Police Station-Phase-3, District Gautam
Budh Nagar in this regard, a copy whereof
has been annexed as annexure no. RA-2.
The learned counsel for the applicant has
stated that accused ? respondent nos. 6 and
7 have been arrested in pursuance of Case
Crime No. 1054 of 2021.

15. Having considered the aforesaid facts
and circumstances, I am of the view that
the order dated 21.10.2020 was passed
keeping in view the fact that the accused
persons and the informant had entered into
a settlement as per which the accused
persons had paid Rs. 40 lacs to the
informant and they had issued cheques or
payment of the balance amount, and the
accused persons had categorically stated
that they would follow the terms of
settlement.
The
accused
persons'
subsequent conduct in issuing instructions
to their bank for stopping payment of the
cheques amounts to the accused persons
resiling from the conditions which formed
the basis of the order dated 21.10.2020.
Moreover the subsequent conduct of the
opposite party no.2 in trying to go to
Bahrain and the conduct of the accused
persons in threatening the informant, is a
clear
violation
of
the
conditions
incorporated in the order dated 21.10.2020
that the accused persons will not go outside
the boundaries of the country and they will
not influence the witnesses.The aforesaid
conduct of the accused persons subsequent
to grant of bail to them shows that they
have shown least regard to the process of
law, which makes this an exceptional case
warranting cancellation of the bail order
dated 21.10.2022 passed by the Sessions
Court.

16. In view of the aforesaid
discussion, I find it to be a fit case for
9 All. Pawan Kumar Verma Vs. State of U.P.
1281
exercising the powers of this Court under
Section 439 (2) of the Code of Criminal
Procedure
to
cancel
the
order
dated
21.10.2020 and I direct that the accused
respondents, who had been released on bail by
means of the order dated 21.10.2020 passed by
the Additional Sessions Judge, Court No. 01,
Mathura in Bail Application No. 2832 of 2020
be arrested and committed to custody.

17. The learned counsel for the applicant
states that the accused respondents no. 6 and 7
have already been arrested in connection with
Case Crime No. 1054 of 2021.

18. The other accused ? respondents no.
2 to 5 are directed to surrender before the
Court concerned within a period of three
weeks from today failing which the court
below shall take steps to ensure the
compliance of the orders.
----------
(2022) 9 ILRA 1281
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Appl. No. 47278 of 2021

Pawan Kumar Verma ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri
Shishir
Tandon,
Sri
Gopal
Swaroop
Chaturvedi(Sr. Adv.)

Counsel for the Respondents:
G.A., Sri Krishna Mohan Garg, Sri Rajesh Gupta,
Sri Rajeev Sawhney

Criminal
Law
-
Code
Of
Criminal
Procedure, 1973 (2 of 1974) - Section
439 - Bail - Both the accused and the
informant were claiming ownership of
an immovable property, regarding which
there was a civil litigation pending
between the parties - Although several
photographs taken from the C.C.T.V.
footage
was
annexed
with
counter
affidavit, but there was no photograph
from which it can be inferred that the
applicant assaulted the injured persons -
present case arose out of a sudden
quarrel and scuffle - applicant assaulted
the injured persons with a saw and
screw driver, which are not regular
weapons of assault - it indicates that the
applicant did not have any intention to
cause the incident - all the injuries
suffered by the injured persons were
simple in nature, except two injuries -
Accused/applicant
&
his
son
also
suffered injuries in the incident, but
none
of
the
prosecution
witnesses
mentioned
these
injuries
in
their
statements to the police, which primafacie indicates that they are not truthful
witnesses and are not reliable - On
affidavit under taking was given that in
case the applicant is granted bail, he will
not abscond and he will abide by all the
conditions imposed on him by the Court
-
State
or
the
informant
did
not
presented any facts or circumstances
that
would
suggest
that
the
accused/applicant would abscond or not
appear for trial if released on bail -
Given these factors, the court granted
bail to the accused.

Allowed. (E-5)

List of Cases cited:

1. Sanjay Chandra Vs CBI, (2012) 1 SCC 40

2. Satender Kumar Antil Vs Central Bureau of
Investigation 2022 Scc OnLine SC 825

3. Emperor Vs H. L. Hutchinson AIR 1931 All
356

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1.

Heard
Sri
Gopal
Swaroop
Chaturvedi, Senior Advocate, assisted by