# Smt. Sumitra v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Abhai Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sumitra-v-state-of-u-p-ors-43786
- **Pages:** 7

## Text

1566 INDIAN LAW REPORTS ALLAHABAD SERIES
of Sujit Biswas Vs. State of Assam-2013 Cri. L.J. 3140 ( SC) has expressed its view on the same
line that suspicion howsoever strong cannot assume form of proof and a doubt is not a trivial or
mere a probable doubt but a fair doubt based upon reasons and common sense. On careful
consideration of the finding recorded by the trial court we find that the trial court has failed through
and through to take comprehensive view of the various vital facts and circumstances of the case
vis-a-vis the testimony on record and has adopted parochial approach in the face of testimony on
record. Trial court was not expected to act with blind folded eyes on bald statements of prosecution
witnesses without properly scrutinizing the same. Consequently, the finding of conviction recorded
by the trial court in the impugned judgment dated 22.11.1981 passed in Session Trial No.
217/M/1981, under Sections 302, 394 read with Section 397 IPC and 411 IPC arising out of Case
Crime No.12 of 1979 are not sustainable in the eye of law as such and the same is set aside by us.
Consequently, the sentence imposed by the trial court on the appellant is hereby set aside.

40. In view of aforesaid analysis, we find force in the arguments extended on behalf of the
appellant and the grounds urged in support of the appeal and consequently the appeal is allowed
and the appellant is found not guilty for the charges under Section 302, 394 read with Section 397
IPC and Section 411 IPC and is acquitted of the same. The appellant is in jail in this case, he be set
free forthwith, if he is not wanted in connection with any other case after complying with the
provisions of Section 437-A Cr.P.C.

41. A copy of this order be certified to the court concerned for information and necessary
follow up action.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE ABHAI KUMAR, J.

Criminal Misc. Bail Cancellation Application No.- 31600 Of 2013

Smt. Sumitra ...Applicant
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for Applicant:
H.P. Mishra

Counsel for Opposite Parties:
Govt. Advocate, R.K. Shahi

Head Notes:
Criminal Procedure Code, 1973-Sections 437(2) & 439(2)-Cancellation of bail-Grounds for
cancellation-Distinction between grant of bail and cancellation of bail-Bail granted on merits
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as well as on ground of illness-Allegation of false illness-No material to establish suppression
or fraud-Perverse or illegal order-Scope-Section 362 Cr.P.C.-Review/recall barredCancellation not permissible merely because another view possible-Strict parametersApplication dismissed.

Facts:
Opposite party no.3 (accused) was granted bail by the Chief Judicial Magistrate, Deoria, vide order dated
01.10.2013, in Case Crime No. 1775 C/A of 2012, under Sections 419, 420, 467, 468, 471 IPC.

Bail was granted on two grounds:
On merits, considering existence of cross-cases and matter being under investigation.

Under Section 437(2) Cr.P.C., on account of the accused's serious illness observed by the Magistrate
during hearing.

The applicant sought cancellation of bail under Section 439(2) Cr.P.C., alleging that the illness was false
and bail was not justified on merits.

Issue:
Whether bail already granted can be cancelled merely on allegation that the order was erroneous or illness
was falsely projected, in absence of supervening circumstances or material showing misuse of liberty.

Held:
Cancellation of bail-strict parameters: Cancellation of bail amounts to curtailment of personal liberty
and requires strict and cogent grounds, distinct from considerations applicable at the stage of grant of
bail.

Bail granted on merits-no perversity: The Magistrate had assigned reasonable and cogent reasons
for granting bail on merits, including existence of cross-cases and pendency of investigation. No perversity
or non-application of mind was shown.

Bail on ground of illness-finding of fact: The Magistrate had personally observed the medical condition
of the accused in court. Mere bald assertion by the applicant, unsupported by evidence, cannot dislodge such
finding.

Section 362 Cr.P.C.-bar on review: In view of Abdul Basit @ Raju v. Mohd. Abdul Kadir
Chaudhary, (2014) 10 SCC 754, a court granting bail cannot review or recall its order on the ground of
illegality or impropriety.

Cancellation on merits-limited scope: Though a bail order can be examined on merits if it is perverse
or passed ignoring material evidence (Puran v. Rambilas; Brij Nandan Jaiswal v. Munna Jaiswal), the
present case does not satisfy those conditions.

No supervening circumstances: No allegation of misuse of liberty, tampering with evidence, influencing
witnesses, or evasion of trial was made out.

RESULT:
The bail cancellation application is misconceived and dismissed.

The court below is directed to expedite the trial and conclude the proceedings at the earliest.
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(Delivered by Hon'ble Abhai Kumar, J.)

1. Heard learned counsel for the parities and perused the record.

2. This Criminal Misc. Bail Cancellation has been moved by Smt. Sumitra against Ajay
Kumar, who was granted bail by I/c Chief Judicial Magistrate, Court No. 17, Deoria, vide order
dated 01.10.2013, passed in Case Crime No. 1775 C/A of 2012, under Section 419, 420, 467, 468,
471 IPC, Police Station Kotwali, District Deoria.

3. Opposite party no.3 was wanted in above case and he surrendered before the Magistrate
Court and was taken into custody and after hearing of the bail application he was released on bail,
on two grounds, first on merit and secondly under Section 437(2) Cr.P.C. on the ground that
opposite party no.3 was severely ill at the time of hearing of the bail application. He also got fits in
the court room itself. He was constantly vomiting and was in a dire state.

4. Learned counsel for the applicant argued that accused-opposite party no.3 was not ill at
all and he was granted bail on the ground of false pretext that he was ill, and it is also contended by
him that bail upon merit was not granted.

5. Whereas learned counsel for the opposite party no.3 has vehemently argued that no
ground for bail cancellation has been made out. It is also argued by him that there is an alternative
remedy, which can be availed by the applicant before the Magistrate concerned itself or before
Sessions Judge.

6. After hearing at length I find that bail application allowed by the learned Magistrate was
on both counts, firstly upon merits, and it is categorically stated by the Magistrate that there are
cross-cases. First information report against the applicant was also lodged by him. It is also
observed by the learned Magistrate that it is a matter of investigation. So I think that cogent reasons
have been given by the learned Magistrate, and I don't find any reason to interfere on the ground of
merits, in the bail order of the learned Magistrate.

7. So far bail granted on the ground of illness it can very will be said that learned
Magistrate observed in so many words about the general condition of the accused-opposite party
no.3 at that time, and by mere saying by the applicant that the accused-opposite party no.3 was not
ill at that time, is cannot be accepted. Some concrete evidence should have been provided by him.
So there is no ground to interfere in the impugned bail order.

8. Moreover, bail cancellation is a matter of curtailment of liberty of any person who was
earlier granted bail. So strict norms are needed to cancel the bail. From the facts it is clear that
nothing has been concealed by the opposite party no.3 from the court concerned.

9. Hon'ble Apex Court in the case of 'Abdul Basit alias Raju and others Vs. Mohd.
Abdul Kadir Chaudhary and another, (2014) 10 SCC 754' has clearly held that granted bail
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cannot be cancel as in view of express bar contained in Section 362 Cr.P.C. Hon'ble Apex Court
has also observed that a distinction between review/recall of the order granting bail from
cancellation of bail order and has held that the Court granting bail cannot review its order on the
ground of it being illegal, unjustified or perverse. So the contention of the opposite party that
application should have moved bail cancellation application under Section 437 (2) Cr.P.C. is not
tenable certainly. The power granted to the High Court and Sessions Court are to be invoked in
such matters, hence Section 439 (2) is relevant in case under which application for cancellation of
bail is being moved.

10. Be that as it may be, it is settled by catena of decisions that the parameter for grant of
bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the Cr.P.C.
can be cancelled where (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) 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. It is also well settled that even if two views are possible,
once the bail has been granted, it should not be cancelled (Jayendra Saraswathi Swamigal v.
State of T.N. (2005) 2 SCC 13 and Nityanand Rai v. State of Bihar, (2005) 4 SCC 178). The
Constitution Bench of the Supreme Court has considered the scope of power of the High Court
under Section 439(2) of the Cr.P.C. in Gurcharan Singh v. State (Delhi Administration) and
other, (1978) 1 SCC 118 and catalogued the principles governing the powers of the Courts
granting and cancelling bail in paragraph 16 of the report which reads as under:-

"16. Section 439 of the new Code confers special powers on High Court or Court of
Session regarding bail. This was also the position under Section 498, Cr. P.C. of the old Code.
That is to say, even if a Magistrate refuses to grant to bail to an accused person, the High Court or
the Court of Session may order for grant of bail in appropriate cases. Similarly under Section
439(2) of the new Code, the High Court or the Court of Session may direct any person who has
been released on bail to be arrested and committed to custody. In the old Code, Section 498 (2)
was worded in somewhat different language when it said that a High Court or Court of Session
may cause any person who has been admitted to bail under sub ?section (1) to be arrested and may
commit him to custody. In other words, under Section 498 (2) of the old Code, a person who has
been admitted to bail by the High Court could be committed to custody only by the High Court.
Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session
that could commit him to custody. This restriction upon the power of entertainment of an
application for committing a person, already admitted to bail, to custody, in lifted in the new Code
under Section 439(2). Under Section 439 (2) of the new Code High Court may commit a person
released on bail under Chapter XXXIII by an Court including the Court of Section to custody, if it
thinks appropriate to do so. It must however be made clear that a Court of session cannot cancel a
bail which has already been granted by the High Court unless new circumstances arises during the
progress of the trial after an accused person has been admitted to bail by the High Court. It,
however, a Court of Session had admitted an accused person to bail, the State has two options. It
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
may move the Session Judge it 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 Section 439 (2) to commit the accused to custody. When
however, the State is aggrieved by the order of the Session Judge grating bail and there are no new
circumstances that have cropped up except those already existed, it is futile for the State to move
the Session 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--vis the High
Court.?

11. Similarly in the matter of Puran vs. Rambilas and another, (2001) 6 SCC 338 the
Supreme Court has held that the concept of setting aside, unjustified, illegal or perverse order is
absolutely different from cancelling an order of bail on the ground that accused has misconducted
himself or because of some supervening circumstances warranting such cancellation.

12. All the seven points elaborated above are in connection to the circumstances that can
developed after granting of bail, and bail can be cancelled on the above grounds. The case in hand
is different, in this case, it is contended that the order itself is not maintainable on merits and is
perverse.

13. Hon'ble Apex Court in so many words has clearly stated that if the bail order is not fit
enough on merits then it can be cancelled.

14. The High Court of Jharkhand in the case of 'Jharkhand High Court on its own Motion
through Tuku Banerjee Vs. State of Jharkhand and others, reported in 11 (2005) DMC545,
[2005(3) JCR41(Jhr)]' has discussed the law regarding bail cancellation, on the ground of merits.
The para 8 of the judgement is relevant, which is reproduced herein below:-

"8. In the case reported in (2001) 6 SCC 338 it has been held that an order granting
bail passed by ignoring the material and evidence on record and without giving reasons, would be
perverse and contrary to principles of law. Such an order would itself provide a ground for moving
an application for cancellation of bail. Such ground for cancellation is different from the ground
that the accused misconducted himself of some new facts call for cancellation. It has further been
held in the said decision that an application for cancellation of bail can be filed either by the State
or any aggrieved party and the High Court is a superior Court in hierarchy of Courts and it cannot
exercise the jurisdiction under Section 439(2) of the Cr PC for cancellation of bail in relation to
the bail orders passed by the Court of Sessions or by any Magistrate. The law laid down by the
Supreme Court in para 10 of the judgement of the aforesaid case are as under :-

"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 concession granted to the accused in any manner. However, these
instances are merely illustrative and not exhaustive. One such ground for cancellation of bail
would be where ignoring material and evidence on record a perverse order granting bail is passed
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1571
in a heinous crime of this nature and that too without giving any reasons. Such an order would be
against principles of law. Interest of justice would also require that such a perverse order be set
aside and bail be cancelled. It must be remembered that such offences are on the rise and have a
very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the
trial Court has to be corrected."

15. Hon'ble Apex Court in that case held that discretion being used for granting bail should
not be used in due course as and when the matter is of serious nature and discretion should be used
with due diligence and there should be reasons for that:-

16. Hon'ble Apex Court further observed that order granting bail to an accused must
indicate the application of mind and there is a need to indicate in the order, reasons for prima facie
concluding while bail was being granted particularly where an accused was charged of having
committed a serious offence.

17. The Jharkhand High Court in the above matter in para 11 held as follows:-

"11. In the case of Ram Govind Upadhyay v, Sudarshan Singh and Ors. reported
in (2002) 3 SCC 598 it was held that the grant of ball though is a discretion order, but, however,
calls for materials of such a discretion in a judicious manner and not as a matter of course. The
order for ball bereft of an cogent reason cannot be sustained. The nature of the offence is one of
the basic considerations for grant of the bail. More heinous is the crime, the greater is the chance
of rejection of the bail."

18. The matter was further discussed by Hon'ble Apex Court in the case of Brij Nandan
Jaiswal Vs. Munna @ Munna Jaiswal and Anr, reported in Manu/SC/8441/2008, and in para 7
and 8 has held as follows:-

"7. It is now a settled law that complainant can always question the order granting
bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the
only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also.
In our opinion, therefore, the complainant could question the merits of the order granting bail.
However, we find from the order that no reasons were given by the learned Judge while granting
the bail and it seems to have been granted almost mechanically without considering the pros and
cons of the matter. While granting bail, particularly in serious cases like murder some reasons
justifying the grant are necessary.

8. Therefore, without expressing anything on the merits of the bail application, we
would chose to set aside the order granting bail and direct the High Court to decide the application
again. The accused shall immediately surrender within one week from today. If he does not
surrender, a non-bailable warrant shall be issued against him. After his surrender, the bail
application shall be considered by the High Court again."
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
19. From the law laid down by the Hon'ble Apex Court it cannot be said that for
cancellation of bail it is necessary that ground taken on that must arises after the bail was granted
and in the present case the applicant has miserably failed on two counts that any material fact has
been suppressed or trial court has granted bail without going into the merits of the case. As already
observed earlier that the bail of the opposite party was granted on two counts, firstly on merits and
the findings and reasons given by the court concerned was reasonable and justified, and the bail
granted secondly on the ground under Section 437 (2) is also properly discussed, and correctly
observed and no interfere is required by this Court.

20. The facts and grounds which has been taken in the present application for cancellation
of bail under Section 439(2) of the Act, do not disclosed any ground for interference by this Court.

21. The bail cancellation application is misconceived and is hereby dismissed.

22. However, the court below is directed to expedite the trial of the case at the earliest.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal From Order No.- 622 Of 2005

United India Insurance Company Ltd. ...Appellant
versus
Surya Narayan Shukla & Ors. ...Respondents

Counsel For the Appellant:
Tarun Kumar Mishra, Pankaj Pandey, R.B. Pandey

Counsel For the Respondents:
Pankaj Verma, Pankaj Pandey

HEADNOTES:
Motor Vehicles Act, 1988 - Sections 166, 173
Compensation - Fatal accident - Bachelor deceased - Deduction towards personal expenses - Multiplier -
Deceased aged 20 years - Claimants parents - Deduction of 50% mandatory - Multiplier to be applied on
basis of age of deceased and not dependants - Tribunal erred in deducting only one-third and applying
multiplier of 15 - Award modified - Sarla Verma v. DTC, (2009) 6 SCC 121; Reshma Kumari v. Madan
Mohan, (2013) 9 SCC 65; Amrit Bhanu Shali v. National Insurance Co. Ltd., (2012) 11 SCC 738 - Followed.
Appeal by insurer - Claimants entitled to defend quantum without cross-appeal - High Court duty to
determine just compensation - Ranjana Prakash v. Divl. Manager, (2011) 14 SCC 639 - Applied.

FACTS: