# Smt. Shanti Rani Agarwal v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 44
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Criminal Misc. Bail Cancellation Application No. 172 of 2022
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-rani-agarwal-v-state-of-u-p-anr-50487
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 173(2) & 482 - Indian
Penal Code, 1860 - Sections 147, 387,
420, 467, 468, 471, 447, 504 & 506 -
Constitution of India,1950 - Article 21 -
Application for Bail Cancellation - FIR -
Chargesheet
-
cognizance
was
taken
-
Anticipatory Bail was granted by court till the
filing of charge-sheet - court finds that, it is
admitted to both parties that before order of
bail charge-sheet was already filed - Doctrine of
clean hand - held, any order taken by
suppressing facts is bad and cannot be
sustained as the very foundation is weak, any
subsequent order based on it also cannot be
accorded any sanctity and is also unsustainable
- as such, anticipatory bail order is set aside -
accordingly, instant Bail cancellation application
is allowed.
(Para - 29, 31, 32)

Bail Allowed. (E-11)

List of Cases cited:

## Text

44 INDIAN LAW REPORTS ALLAHABAD SERIES

54.
The
appeal
is
accordingly
dismissed.
----------
(2023) 6 ILRA 44
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Cancellation Application No.
172 of 2022

Smt. Shanti Rani Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ashish Kumar Singh, Sri Imran Ullah

Counsel for the Opposite Parties:
G.A., Sri Nand Lal Pandey, Sri Suyash
Pandey

Criminal Law - Criminal Procedure Code,
1973 - Section 173(2) & 482 - Indian
Penal Code, 1860 - Sections 147, 387,
420, 467, 468, 471, 447, 504 & 506 -
Constitution of India,1950 - Article 21 -
Application for Bail Cancellation - FIR -
Chargesheet
-
cognizance
was
taken
-
Anticipatory Bail was granted by court till the
filing of charge-sheet - court finds that, it is
admitted to both parties that before order of
bail charge-sheet was already filed - Doctrine of
clean hand - held, any order taken by
suppressing facts is bad and cannot be
sustained as the very foundation is weak, any
subsequent order based on it also cannot be
accorded any sanctity and is also unsustainable
- as such, anticipatory bail order is set aside -
accordingly, instant Bail cancellation application
is allowed.
(Para - 29, 31, 32)

Bail Allowed. (E-11)

List of Cases cited:
1. Shivam Vs St. of U.P. & anr., AIR Online 2021 All.
484,

2. S.P. Chengalvaraya Naidu Vs Jagannath, 1994 AIR
853 SC,

3. A.V. Papayya Sastry & ors.Vs Govt. of A.P. & ors.,
Appeal (Civil) No. 5097 of 2004

4. Puran Vs Rambilas & anr., 2001 SCC (Cri) 1124,

5. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., 2022 SCC Online SC 825,

6. Gurcharan Singh Vs St. (Delhi Admn.) reported in
AIR 1978 SC 179,

7. Nityanand Rai Vs St. of Bihar & anr., (2005) 4 SCC
178,

8. Manoj Kumar Khokhar Vs St. of Raj., (2022) 3 SCC
501,

9. Jagjeet Singh Vs Ashish Mishra @ Monu, AIR 2022
SC 1918,

10. Deepak Yadav Vs St. of U.P., AIR 2022 SC 2514,

11. Dolat Ram & ors. Vs St. of Har., (1995) 1 SCC
349,

12. Neeru Yadav Vs St. of U.P.& anr., (2016) 15 SCC
422,

13. Mahipal v. Rajesh Kumar Alias Polia & anr., AIR
2020 SC 670,

14. Colby Furniture Comp., Inc. Vs Belinda J.
Overton, 299 So.3d 259,

15. Holy Family Catholic School Vs Boley 847 So.2d
371 (2002).

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Imran Ullah, learned
counsel for the applicant, Sri Nand Lal
Pandey, learned counsel for the opposite
party no. 2 and Sri V.K.S. Parmar, learned
A.G.A. for the State.
6 All. Smt. Shanti Rani Agarwal Vs. State of U.P. & Anr.
45

2.
The
instant
bail
cancellation
application has been filed on behalf of the
applicant (complainant) with the prayer to
cancel the bail granted to opposite party no.
2 by the court concerned in Case Crime No.
520 of 2020 under Sections 147, 420, 467,
468, 471, 387, 447, 504, 506 IPC, Police
Station George Town, District Prayagraj.

PROSECUTION STORY:

3. The informant Smt. Shanti Rani
Agarwal lodged an FIR at P.S. George
Town on 30.9.2020 stating that she had
purchased the plot no. 8/49 at C.Y.
Chintamani Road, George Town, Prayagraj,
from its original owner Dr. Pant. Adjacent
to it, Anil Dwivedi @ Gulab Dwivedi had
purchased a plot of dimension 30 x 72 ft. in
resale. Subsequent to it, opposite party no.
2 Anil Dwivedi had illegally taken
possession on the part of the land of the
informant and had even undertaken illegal
construction. On being objected by the
informant, the opposite party no. 2 is stated
to have threatened the applicant/informant
alongwith his associates and had even
demanded a ransom of Rs. 15 lakhs. The
said illegal construction was ordered to be
demolished by the Prayagraj Development
Authority. The opposite party no. 2 is stated
to have prepared forged documents and is
stated to have again demanded ransom
from her.

RIVAL CONTENTIONS:

CONTENTIONS ON BEHALF OF
THE APPLICANT:

4. Learned counsel for the applicant
has stated that after lodging of the FIR, the
final report (charge sheet) was submitted by
the investigating agency on 25.1.2021 and
the cognizance was taken on 2.2.2021. The
applicant challenged the said charge sheet
and the order of cognizance by filing a
petition under Section 482 Cr.P.C. as
Application No. 10351 of 2021 before this
Court and it was dismissed on merits vide
order dated 6.10.2021.

5. The opposite party no. 2 filed an
anticipatory bail application before the
Sessions Judge, Allahabad, which was not
pressed and was dismissed as such.

6. Subsequent to it, the applicant
moved
the
second
anticipatory
bail
application before the Sessions Judge,
Allahabad,
which
was
allowed
by
Additional Sessions Judge, Court No. 1,
Allahabad vide order dated 23.12.2021
till the filing of the final report (charge
sheet). The said order was taken by the
applicant by concealing the fact that
already the charge sheet was filed on
25.1.2021 and the cognizance had been
taken by the court on 2.2.2021 and even
the petition under Section 482 Cr.P.C.
was dismissed on 6.10.2021.

7. Learned counsel has further stated
that subsequent to it, the opposite party
no. 2 challenged the said order of this
Court dated 6.10.2021 passed in the
petition filed under Section 482 Cr.P.C.,
by filing Special Leave to Petition
(Criminal) No. 9987 of 2021, which was
dismissed by the Supreme Court on
5.1.2022.
46 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The applicant moved the third
anticipatory bail application before the
Sessions Judge, Allahabad, which was
allowed by the Additional Sessions Judge,
Court No. 1, Allahabad vide order dated
25.2.2022, by taking into consideration the
fact that the applicant was already granted
bail till submission of final report (charge
sheet), as such, he was also entitled for
anticipatory bail till conclusion of trial.

9. Learned counsel has next stated that
the said order has been granted as the
opposite party no. 2 has played fraud with
the court, as such, is a nullity. No sanctity
can be accorded to the said order as the first
order on merits passed by this Court on the
second anticipatory bail application of the
applicant dated 1.11.2021 was taken by
keeping the court in dark about the fact that
the final report (charge sheet) had already
been filed.

10. Learned counsel has stated that in
light of the judgement of this Court passed
in Shivam vs. State of U.P. and Another1,
the applicant was not entitled for bail, as
such, he has concealed the very fact to get
that order. Paragraphs 43(6) and (8) of the
aforesaid
judgement
state
that
the
anticipatory bail cannot be granted to an
accused after submission of charge sheet:-

"(6) Where there exists a civil
remedy but on the same set of allegations,
civil wrong and criminal wrong both are
made out and charge-sheet has been
submitted only regarding the criminal
wrong,

(8) Where the accused has
unsuccessfully challenged the charge-sheet
before this Court or any proceedings are
pending before this Court regarding the
charge
sheet
submitted
against
the
accused;"

11. Learned counsel has also placed
reliance on paragraph 45 (vi) of Shivam vs.
State of U.P. and Another (supra) wherein
it is opined that the clear pleading should
be made in the anticipatory bail application
that after submission of charge-sheet, the
applicant has not approached any court and
no such proceeding is pending.

12. Learned counsel has placed
reliance on the judgement of the Apex
Court passed in S.P. Chengalvaraya Naidu
vs. Jagannath2, wherein it has been held as
under:-

"The principle of "finality of
litigation" cannot be pressed to the extent of
such an absurdity that it becomes an engine of
fraud in the hands of dishonest litigants. The
courts of law are meant for imparting justice
between the parties. One who comes to the
court, must come with clean hands. We are
constrained to say that more often than not,
process of the court is being abused. Propertygrabbers, tax-evaders, bank-loan-dodgers and
other unscrupulous persons from all walks of
life find the court-process a convenient lever to
retain the illegal-gains indefinitely. We have no
hesitation to say that a person, who's case is
based on falsehood, has no right to approach
the court. He can be summarily thrown out at
any stage of the litigation."

13. Learned counsel has placed
reliance on the judgement of the Apex
6 All. Smt. Shanti Rani Agarwal Vs. State of U.P. & Anr.
47
Court passed in A.V. Papayya Sastry &
others vs. Governmnet of A.P. & Others3,
wherein it has been held as follows:-

"It is thus settled proposition of
law that a judgment, decree or order
obtained by playing fraud on the Court,
Tribunal or Authority is a nullity and non
est in the eye of law. Even the Chief Justice
Edward Coke proclaimed "Fraud avoids
all
judicial
acts,
ecclesiastical
or
temporal".

14. It was also opined in the said
judgement that a judgement, decree or
order obtained by fraud by the first Court
or by the final court has to be treated as a
nullity by every Court, superior or inferior.
It can be challenged in any Court at any
time, in appeal, revision, writ or even in
collateral proceedings. Lord Denning had
observed that in the leading case of Lazarus
Estates Ltd. v. Beasley, (1956) 1 All ER 341
: (1956) 1 QB 702 : (1956) 2 WLR 502,
that "No judgment of a court, no order of a
Minister, can be allowed to stand, if it has
been obtained by fraud."

15. Learned counsel has placed
reliance on the judgement of the judgement
of the Apex Court passed in Puran vs.
Rambilas and another4,wherein it was
held as under:-

"11. Further, it is to be kept in
mind that the concept of setting aside the
unjustified illegal or perverse order is
totally different from the concept of
cancelling the bail on the ground that the
accused has misconducted himself or
because of some new facts requiring such
cancellation. This position is made clear by
this Court in Gurcharan Singh v. State
(Delhi Admn.) reported in AIR 1978 SC
179. In that case the Court observed as
under:-

"If, however, a Court of Session
had admitted an accused person to bail, the
State has two options. It may move the
Sessions
Judge
if
certain
new
circumstances have arisen which were not
earlier known to the State and necessarily,
therefore, to that Court. The State may as
well approach the High Court being the
superior Court under S. 439 (2) to commit
the accused to custody. When, however, the
State is aggrieved by the order of the
Sessions Judge granting bail and there are
no new circumstances that have cropped up
except those already existing, it is futile for
the State to move the Sessions Judge again
and it is competent in law to move the High
Court for cancellation of the bail. This
position follows from the subordinate
position of the Court of Session vis-a-vis
the High Court."

16. It was laid down in this judgement
that even the complainant being an
aggrieved person, can move the bail
cancellation application. Learned counsel
has stated that any party seeking relief from
a court has to come with clean hands and as
such, in light of the aforesaid judgements,
any order garnered by playing fraud with it,
has no sanctity in law and is thus, liable to
be set aside.

17. Learned counsel has stated that as
the second bail application was taken by
playing fraud with it, and the third
anticipatory bail application was based on
48 INDIAN LAW REPORTS ALLAHABAD SERIES
the second anticipatory bail, as such, said
order dated 25.2.2022 is a nullity and is
liable to be set aside.

CONTENTIONS ON BEHALF OF
OPPOSITE PARTY NO. 2:

18. Learned counsel for the opposite
party no. 2 has vehemently argued that the
informant (applicant herein) should have
brought the said fact of fraud, if any, to the
notice of the court concerned and he has
wrongly assailed the said order before this
court.

19. Learned counsel has next stated
that the prosecution was granted ample
time and the impugned orders are detailed
orders, as such, and have attained finality.
The applicant has not misused the said
orders granted to him. There is no criminal
history of the applicant and no FIR or even
NCR has been instituted against him
subsequent to the said orders dated
1.11.2021 and 25.2.2022.

20. Learned counsel has stated that it was
the duty of the prosecution to bring all the
material facts before the Court. The prosecution
itself has failed to bring to the notice of the Court
the factum of the petition filed under Section 482
Cr.P.C. by the opposite party no. 2. Learned
counsel has next stated that the bail cancellation
application should have been moved by the State
and the complainant cannot be allowed to initiate
bail cancellation proceedings.

21. Learned counsel has also placed
reliance on the judgement of the Apex
Court passed in Satender Kumar Antil vs.
Central Bureau of Investigation and
another5, wherein it has been opined that
the court has ample powers to recall its
orders, so the application should have been
moved
before
the
Sessions
Judge,
Allahabad itself.

22. Learned counsel has placed much
reliance on the judgement of the Apex
Court passed in Gurcharan Singh and
others vs. State (Delhi Administration)6,
wherein it was held that ordinarily, the
High Court will not use its discretion to
interfere with an order of bail granted by
Sessions Judge in favour of an accused. It
has been held as under :-

"25. The question of cancellation
of bail u/s. 439(2), Cr. P. C. of the new
Code is certainly different from admission
to bail u/s. 439(1), Cr. P. C. The decisions
of the various High Courts cited before us
are mainly with regard to the admission to
bail by the High Court under section 498,
Cr. P.C. (old). Power of the High Court or
of the Sessions Judge to admit persons to
bail under section 498, Cr. P.C. (old) was
always held to be wide without any express
limitations it], law. In considering the
question of bail justice to both sides
governs the judicious exercise of the court's
judicial discretion. The only authority cited
before us where this Court cancelled bail
granted by the High Court is that of The
State v. Captain Jagjit Singh(1). The
Captain was prosecuted along with others
for conspiracy and also under section 3
and 5 of the Indian Official Secrets Act,
1923 for passing on official secrets to a
foreign agency. This Court found a basic
error in the order of the High Court in
treating the case as falling under section 5
6 All. Smt. Shanti Rani Agarwal Vs. State of U.P. & Anr.
49
of the Official Secrets Act which is a
bailable offence when the High Court
ought to have proceeded on the assumption
that it was tinder section 3 of that Act
which is a non-bailable offence. It is
because of this basic error into which the
High Court fell that this Court interfered
with the order of bail granted by the High
Court.

26. In the present case the
Sessions
Judge
having
admitted
the
appellants to bail by recording his reasons
we will have to see whether that order was
vitiated by any serious infirmity for which it
was right and proper for the High Court, in
the interest of justice, to interfere with his
discretion in granting the bail.

27. Ordinarily the High Court
will not exercise its discretion to interfere
with an order of bail granted by the
Sessions Judge. in favour of an accused."

23. Learned counsel has also placed
reliance on the judgement of the Apex
Court in the case of Nityanand Rai vs.
State of Bihar and Another7, wherein the
bail cancellation order passed by the High
Court was set aside by the Apex Court.

24. Learned counsel has further placed
reliance on the judgement of the Apex
Court in the case of Union of India vs.
K.A. Najeeb8, wherein it was opined that
the liberty guaranteed by Article 21 read
with Part III of the Constitution of Indian
covers within its protective ambit not only
due procedure and fairness but also access
to justice and a speedy trial. The parameters
for granting and cancelling of bail were
distinguished in it, whereby it was stated
that the bail once granted by the trial court
may be cancelled by the same court only in
case of new circumstances/evidence, failing
which, it would be necessary to approach
the higher court exercising appellate
jurisdiction.

25. In the case of Manoj Kumar
Khokhar vs. State of Rajasthan9, it was
opined by the Apex Court that the rights of
the informant/victim are to a limited extent
and they cannot be extended to overtake the
State to challenge the bail order.

CONCLUSION:

26. The Supreme Court in Jagjeet
Singh vs Ashish Mishra @ Monu10,
dealing with the question of the 'right of
the victim' to be heard, has categorically
expressed "Victims certainly cannot be
expected to be sitting on the fence and
watching
the
proceedings
from afar,
especially when they may have legitimate
grievances. It is the solemn duty of a court
to deliver justice before the memory of an
injustice eclipses."

27. The Supreme Court in the case of
Deepak Yadav vs State of U.P.11, has dealt
with the issue as follows:

"30.This Court has reiterated in
several instances 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 the concession of bail during trial.
Having said that, in case of cancellation of
50 INDIAN LAW REPORTS ALLAHABAD SERIES
bail,
very
cogent
and
overwhelming
circumstances are necessary for an order
directing cancellation of bail (which was
already granted). A two-Judge Bench of
this Court in Dolat Ram And Others v.
State of Haryana12 laid down the grounds
for cancellation of bail which are:-

(i) interference or attempt to
interfere
with
the
due
course
of
administration of Justice

(ii) evasion or attempt to evade
the due course of justice

(iii) abuse of the concession
granted to the accused in any manner

(iv)
Possibility
of
accused
absconding

(v) Likelihood of/actual misuse of
bail

(vi) Likelihood of the accused
tampering with the evidence or threatening
witnesses.

31. It is no doubt true that
cancellation of bail cannot be limited to the
occurrence of supervening circumstances. This
Court certainly has the inherent powers and
discretion to cancel the bail of an accused even
in the absence of supervening circumstances.
Following are the illustrative circumstances
where the bail can be cancelled:-

a) Where the court granting bail
takes into account irrelevant material of
substantial nature and not trivial nature
while ignoring relevant material on record.

b) Where the court granting bail
overlooks the influential position of the
accused in comparison to the victim of
abuse or the witnesses especially when
there is prima facie misuse of position and
power over the victim.

c) Where the past criminal record
and conduct of the accused is completely
ignored while granting bail.

d) Where bail has been granted
on untenable grounds.

e) Where serious discrepancies
are found in the order granting bail thereby
causing prejudice to justice.

f) Where the grant of bail was not
appropriate in the first place given the very
serious nature of the charges against the
accused which disentitles him for bail and
thus cannot be justified.

g) When the order granting bail
is apparently whimsical, capricious and
perverse in the facts of the given case.

32. In Neeru Yadav v. State of
Uttar Pradesh And Another 13 the accused
was granted bail by the High Court. In an
appeal against the order of the High Court,
a two-Judge Bench of this Court examined
the precedents on the principles that guide
grant of bail and observed as under :-

"12...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
6 All. Smt. Shanti Rani Agarwal Vs. State of U.P. & Anr.
51
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"

13. We will be failing in our duty
if we do not take note of the concept of
liberty and its curtailment by law. It is an
established fact that a crime though
committed against an individual, in all
cases it does not retain an individual
character. It, on occasions and in certain
offences, accentuates and causes harm to
the society. The victim may be an
individual, but in the ultimate eventuate, it
is the society which is the victim. A crime,
as is understood, creates a dent in the law
and order situation. In a civilised society, a
crime disturbs orderliness. It affects the
peaceful life of the society. An individual
can enjoy his liberty which is definitely of
paramount value but he cannot be a law
unto himself. He cannot cause harm to
others. He cannot be a nuisance to the
collective. He cannot be a terror to the
society; and that is why Edmund Burke, the
great English thinker, almost two centuries
and a decade back eloquently spoke thus:

"Men are qualified for civil
liberty, in exact proportion to their
disposition to put moral chains upon their
own appetites; in proportion as their love
to justice is above their rapacity; in
proportion as their soundness and sobriety
of understanding is above their vanity and
presumption; in proportion as they are
more disposed to listen to the counsel of the
wise and good, in preference to the flattery
of knaves. Society cannot exist unless a
controlling power upon will and appetite be
placed somewhere; and the less of it there
is within, the more there must be without. It
is ordained in the eternal constitution of
things, that men of intemperate minds
cannot be free. Their passions forge their
fetters." [ Alfred Howard, The Beauties of
Burke (T. Davison, London) 109.]

.......

17. That apart, it has to be
remembered that justice in its conceptual
eventuality
and
connotative
expanse
engulfs the magnanimity of the sun, the
sternness of mountain, the complexity of
creation, the simplicity and humility of a
saint and the austerity of a Spartan, but it
always remains wedded to rule of law
absolutely
unshaken,
unterrified,
unperturbed and loyal.

.......

37. There is certainly no straight
jacket formula which exists for courts to
assess an application for grant or rejection
of bail but the determination of whether a
case is fit for the grant of bail involves
balancing of numerous factors, among
which the nature of the offence, the severity
of the punishment and a prima facie view
of the involvement of the accused are
important. This Court does not, normally
interfere with an order passed by the High
Court granting or rejecting bail to the
accused. However, it is equally incumbent
upon the High Court to exercise its
discretion
judiciously,
cautiously
and
strictly in compliance with basic principles
laid down in a catena of judgments by this
Court.
52 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The Apex Court in Mahipal v.
Rajesh Kumar Alias Polia and Another14
held that: -

"17. Where a court considering
an application for bail fails to consider
relevant factors, an appellate court may
justifiably set aside the order granting bail.
An appellate court is thus required to
consider whether the order granting bail
suffers from a non-application of mind or is
not borne out from a prima facie view of
the evidence on record. It is thus necessary
for this Court to assess whether, on the
basis of the evidentiary record, there
existed a prima facie or reasonable ground
to believe that the accused had committed
the crime, also taking into account the
seriousness of the crime and the severity of
the punishment."

29. The clean hands doctrine states
that one "who comes into equity must come
with clean hands." This doctrine requires
the court to deny equitable relief to a party
having violated good faith with respect to
the subject of the claim. The purpose of the
doctrine, as elucidated in Colby Furniture
Company, Inc. v. Belinda J. Overton15 is
to prevent a party from obtaining relief
when that party's own wrongful conduct
has made it such that granting the relief
would
be
against
equity
and
good
conscience.

30. The clean hands doctrine is an
affirmative defense that the defendant may
claim as has been held in Holy Family
Catholic School v. Boley16, that the
plaintiff's abuse of the account necessitated
a finding that the plaintiff had "unclean
hands" and that requiring the defendant to
continue granting relief would be against
good conscience.

31. It is admitted to both the parties
that the charge sheet was submitted in the
case on 25.1.2021 and subsequently, the
cognizance was taken by the trial court on
2.2.2021. The said final report (charge
sheet) and the summoning order were
challenged by the opposite party no. 2 by
filing a petition under Section 482 Cr.P.C.,
which was dismissed by this Court on
6.10.2021. The anticipatory bail application
of the opposite party no. 2 was allowed by
the court subsequent to the dismissal of the
petition under Section 482 Cr.P.C. on
1.11.2021. The said order was passed by
the concerned court without being apprised
of the fact of the final report (charge sheet)
having been filed and the opposite party no.
2 (applicant therein) having failed in the
petition under Section 482 Cr.P.C. Thus, it
follows from the said order that the said
order was not proper in light of the
judgement of this Court passed in Shivam
vs. State of U.P. and Another (supra), as
the concerned court was kept in dark about
the said facts referred above as it was
mentioned in it that the anticipatory bail
application is being allowed till the
submission of report under Section 173 (2)
Cr.P.C.

32.
The
third
anticipatory
bail
application was allowed by the concerned
court
on
25.2.2022
by
taking
into
consideration the fact that the applicant was
on anticipatory bail till the submission of
final report (charge sheet) and has not
misused it. The third anticipatory bail itself
being based on the second anticipatory bail
order dated 1.11.2021 is itself bad in the
6 All. Zeba Parveen Vs. State of U.P. & Anr.
53
eyes of law, as such, it cannot be sustained.
The said orders dated 1.11.2021 and
25.2.2022 are whimsical and perverse. Any
order taken by suppressing facts is bad and
cannot be sustained. As the very foundation
is weak, any subsequent order based on it
also cannot be accorded any sanctity and is
also
unsustainable.
The
judgements
referred by learned counsel for the opposite
party no. 2 do not apply to the present case
as he has not come to the court with clean
hands and has taken the orders by
concealing the facts, as such, the order
dated 25.2.2022 is set aside and quashed.

33. Accordingly, the instant bail
cancellation application is allowed.

34. However, two weeks' time from
the
date
of
pronouncement
of
this
Judgment is granted to opposite party no. 2
to surrender before the concerned Trial
Court and thereafter it will be open for
opposite party no. 2 to pray for regular bail,
which may be considered in accordance
with law laid down by the Apex Court in
the case of Satender Kumar Antil (supra).
----------
(2023) 6 ILRA 53
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Bail Cancellation Application No.
646 of 2022

Zeba Parveen ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Mrs. Zeba Parveen (In Person)

Counsel for the Opposite Parties:
G.A., Sri Rajrshi Gupta, Sri Raizwan Ahmad
A. Criminal Law - Code of Criminal
Procedure, 1973 -Section 439(2) - Power
to Cancel Bail - Criminal Misc. Bail
Cancellation Application. Held: Bail, once
granted, can only be cancelled where,
subsequent to the grant of bail, the
accused
has
misconducted
himself,
misused the liberty or protection available
to him, or where new facts have surfaced
that have an important bearing on the
case. It can also be cancelled if the order
is arbitrary, perverse, without jurisdiction,
or is bad in law for some other reason of a
similar nature. Though misuse of liberty is
one of the grounds for cancellation of bail,
the burden lies on the State or the party
seeking it to prove this by bringing
sufficient material before the court, or at
least show that the allegations of misuse
or misconduct have some substance. (Para
12)
B. In the instant case there was an
allegation that the opposite party no. 2,
during the period he was on interim
bail/interim protection, threatened the
victim, and she filed complaints on two
occasions
-
i.e.,
before
the
Police
Commissioner, Kanpur Nagar, and before
the concerned Sessions Judge. Held :
Filing of applications or even lodging an
F.I.R. is not sufficient to conclude that the
opposite party no. 2 actually threatened
the victim or misconducted himself. The
freedom granted by the bail cannot be
taken away on inadequate grounds or
mere
assertions
or
allegations,
the
veracity of which remains to be tested.
The liberty, even when on bail, is an
important
fundamental
right,
which
cannot
be
taken
away
except
by
procedure established by law. Moreover,
these facts occurred before the grant of
anticipatory bail, and those facts had
already been brought to the knowledge of