# Subhash Chandra Jha v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 1272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Crl. Misc. Bail Cancellation Application No. 77 of 2020
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-jha-v-state-of-u-p-anr-45768
- **Pages:** 7

## Headnote

A. Indian Penal Code, 1860-Sections
420,406, Indian Stamp Act, 1899Sections
69,
Uttar
Pradesh
Apartment
(Promotion
of
Construction,
Ownership
&
Maintenance) Act, 2010 & Code of
Criminal
Procedure,
1973-Section
439(2)-application-bail cancellationrejection-Cancellation of bail can be
done in cases where bail has been
granted and the order suffers from
serious
infirmities
which
would
result in miscarriage of justice, the
court while granting bail ignores
relevant material showing prima
facie involvement of the accused or
it
takes
into
account
irrelevant
material which has no relevance to
the question of grant of bail to an
accused-the court below is just and
proper in granting the bail to the
accused-hence,
no
interference
requires.(Para 4 to 12)

B. The object of bail is to secure the
appearance of the accused person at
his trial. The object of bail is neither
punitive nor preventative. The courts
owe more than verbal respect to the
principle that punishment begins
after conviction, and that every man
is deemed to be innocent until duly
tried and duly found guilty. (Para
7,8,9)

The application is dismissed. (E-6)

List of Cases Cited:-

## Text

1272 INDIAN LAW REPORTS ALLAHABAD SERIES
a notice, when the High Court will ask
me, I will explain it there.

x x x x x

Munendra - but on that day, you
didn't tell me when I asked you what the
evidences were ? Then you asking Dr. Amit
what was the evidence? Now may be you do
not want to tell me what the evidence is? If
you want to help me, tell me what the
evidence is, and then I will speak to him
whether an innocent has been implicated or a
guilty has been caught. This will be decided
when evidences exist.

P - See dear, I have said so much,
now, I am asking you to listen me carefully
that I have messaged it to Aparna on
WhatsApp that I have the evidences and I
have everything, ok ?

Munendra-
Brother, brother, please listen, listen...it does
not matter to me what message you sent to
Viparna Ji and what not, and that I have
evidence, when you want help from me to the
effect that I should talk to Viparna; you want
it from Viparna Ji that I have evidence (sic.),
then you are telling to Amit that you have
evidence, then tell please, you tell (me), (I)
will talk today itself right now.

P- No, I just want that you call him,
I will come, you will be present.

Munendra- No, the matter of
calling would be discussed later on, you
accept one thing that the death has been
caused, she was the eldest lady in this family,
amongst all in the home; the entire family
became orphan, there are old mother,
disabled sister, mentally disabled; the only
girl is doing everything, and how the poor girl
is managing the same, only she must be
knowing, isn't it?

x x x x x x

Munendra- You too are admitting
that the death has been caused.

P- I am admitting, the death has
been caused; I have collected some evidences,
therefore I am stating.

(English Translation by Court)

42. The above conversations show that
opposite party 2 is not only contacting
witnesses but also involving Police officials to
influence witnesses and this is a serious
aspect. In my view, such a person if continue
to remain on bail, there is every likelihood of
trial being influenced and may not proceed
fairly and objectively. I refrain myself in
making further observations as it may
prejudice trial but have no hesitation in
holding that it is a fit case where bail granted
to accused opposite party 2 cannot be held to
be a valid exercise of discretion and bail
deserves to be cancelled.

43. Application is accordingly
allowed. Bail order dated 26.04.2017
passed by this Court in Criminal Misc.
Bail Application No.41324 of 2016,
whereby opposite party 2, Prem Chandra
Sharma son of Late Banshidhar Sharma,
has been enlarged on bail, is hereby
cancelled. The accused-opposite party 2
shall surrender in Court below on
20.03.2020. If not, Police shall ensure
arrest of accused-opposite party 2 and
send him jail. Trial Court shall expedite
trial and make all endeavour to complete
it within a year.
----------
(2020)06ILR A1272
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. Bail Cancellation Application No. 77
of 2020

Subhash Chandra Jha ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
6 All. Subhash Chandra Jha Vs. State of U.P. & Anr. 1273
Counsel for the Applicant:
Sri Santosh Kumar Giri

Counsel for the Opposite Parties:
A.G.A.

A. Indian Penal Code, 1860-Sections
420,406, Indian Stamp Act, 1899Sections
69,
Uttar
Pradesh
Apartment
(Promotion
of
Construction,
Ownership
&
Maintenance) Act, 2010 & Code of
Criminal
Procedure,
1973-Section
439(2)-application-bail cancellationrejection-Cancellation of bail can be
done in cases where bail has been
granted and the order suffers from
serious
infirmities
which
would
result in miscarriage of justice, the
court while granting bail ignores
relevant material showing prima
facie involvement of the accused or
it
takes
into
account
irrelevant
material which has no relevance to
the question of grant of bail to an
accused-the court below is just and
proper in granting the bail to the
accused-hence,
no
interference
requires.(Para 4 to 12)

B. The object of bail is to secure the
appearance of the accused person at
his trial. The object of bail is neither
punitive nor preventative. The courts
owe more than verbal respect to the
principle that punishment begins
after conviction, and that every man
is deemed to be innocent until duly
tried and duly found guilty. (Para
7,8,9)

The application is dismissed. (E-6)

List of Cases Cited:-

1. Raghubir Singh Vs St. of Bih. (1986) 4
SCC 481
2. Dataram Singh Vs St.of U.P. (2018) 3
SCC 22

3. Sanjay Chandra Vs C.B.I, (2012) 1 SCC
40

4. Manoranjan Singh @ Gupta Vs C.B.I,
(2017) 5 SCC 218

5. Prasanta Kumar Sarkar Vs Ashis
Chatterjee & anr. (2010) 14 SCC 496

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Santosh Kumar Giri,
learned counsel for the applicant, the
learned A.G.A and perused the record.

2. This is an application preferred
under Section 439 (2) of the Code of
Criminal Procedure, 1973 for cancelling
the bail of Yuvraj Singh, the opposite
party no. 2 which has been allowed by the
Chief Judicial Magistrate, Bareilly vide
order dated 29.11.2019 in Case Crime
No. 629 of 2018 under Sections 420, 406
of the Indian Penal Code, 1860 under
Section 69 of Indian Stamp Act, 1899 &
under Section 25 of Uttar Pradesh
Apartment (Promotion of Construction,
Ownership & Maintenance) Act, 2010
registered at Police Station Baradari,
District Bareilly.

3. Learned counsel for the applicant
argued that the opposite party no. 2 is the
Director
of
Alliance
Builders
and
Construction Limited, Bareilly. He had
developed a colony in the year 2007 in
the name of Super City in Bareilly in
which the first informant and others took
flats and paid money for it. It is further
argued that in the present matter a suit has
been filed by the accused himself which
was after lodging of the F.I.R. The filing
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
of the said suit was a mischievous act of
the accused just in order to take benefit of
the same in the present matter. It is
further argued that the court below erred
in allowing the bail application of the
accused by overlooking the fact that
during investigation sufficient evidence
has been collected against the accused
and as per the law laid down by the Apex
Court it is for the trial court to weigh the
statement and the evidence collected
during investigation and arrive at its own
conclusion. To make an enquiry into
reliability
and
genuineness
of
the
allegations made in the First Information
Report and the material collected during
investigation on the basis of which
charge-sheet is submitted at the time of
deciding a bail application is not a proper
appreciation by the court below and the
court below overstepped its jurisdiction. It
is further argued on the basis of
averments in para 10 of the affidavit that
though the opposite party no. 2 / accused
has delivered the possession of the land /
house in dispute several years back, but
sale deed has not been executed by him.
Further on the pleading in para 11 of the
affidavit it is argued that the opposite
party no. 2 did not have title of the said
property and hence he could not have
executed any sale deed in favour of the
allottees. It is then argued as per para 12
of the affidavit that the intention of the
opposite party no. 2 / accused was
dishonest from the very inception itself.
The petition for quashing of charge-sheet
dated 24.12.2018 in the matter has been
dismissed by a co-ordinate Bench of this
Court vide order dated 01.10.2019, the
copy of which is annexed as Annexure- 2
to the affidavit. It is then argued that on
the basis of para 15 of the affidavit that
opposite party no. 2 / accused surrendered
on the same day i.e. on 29.11.2019,
moved his bail application on the same
day which has been allowed on the same
day itself. It is further argued that the
opposite party no. 2 / accused after being
released on bail is misusing the liberty of
bail and is also tampering with the
prosecution witnesses. It is thus argued
that the present matter is a heinous and a
grievous criminal case and as such the
bail granted to opposite party no. 2 is
liable to be cancelled.

4. The parameters for cancellation
of bail have been laid down by the Apex
Court in large number of cases. In
Raghubir Singh v. State of Bihar (1986)
4 SCC 481 the Apex Court held that bail
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.

Apart from the above grounds
for cancellation of bail it is to be kept in
mind
that
rejection
of
bail
and
cancellation of bail are two different
things wherein the cancellation of bail is a
harsh step as it interferes with the liberty
of an individual and thus the same should
not
be
resorted
to
lightly.
6 All. Subhash Chandra Jha Vs. State of U.P. & Anr. 1275

5. Cancellation of bail can be done
in cases where bail has been granted and
the order suffers from serious infirmities
which would result in miscarriage of
justice, the Court while granting bail
ignores relevant material showing prima
facie involvement of the accused or it
takes into account irrelevant material
which has no relevance to the question of
grant of bail to an accused.

6. The Hon'ble Apex Court in the
case of Dataram Singh v. State of U.P.
(2018) 3 SCC 22 held that freedom of an
individual can not be curtailed for
indefinite period, especially when his/her
guilt is yet to be proved. It has further
been held by the Hon'ble Apex Court in
the aforesaid judgment that a person is
believed to be innocent until found guilty.
The Hon'ble Apex Court has held as
under:

"2. A fundamental postulate of
criminal jurisprudence is the presumption of
innocence, meaning thereby that a person is
believed to be innocent until found guilty.
However, there are instances in our criminal
law where a reverse onus has been placed on
an accused with regard to some specific
offences but that is another matter and does
not detract from the fundamental postulate in
respect of other offences. Yet another
important facet of our criminal jurisprudence
is that the grant of bail is the general rule and
putting a person in jail or in a prison or in a
correction home (whichever expression one
may wish to use) is an exception.
Unfortunately, some of these basic principles
appear to have been lost sight of with the
result that more and more persons are being
incarcerated and for longer periods. This
does not do any good to our criminal
jurisprudence or to our society.

3. There is no doubt that the grant
or denial of bail is entirely the discretion of
the judge considering a case but even so, the
exercise of judicial discretion has been
circumscribed by a large number of decisions
rendered by this Court and by every High
Court in the country. Yet, occasionally there is
a necessity to introspect whether denying bail
to an accused person is the right thing to do
on the facts and in the circumstances of a
case.

4.
While
so
introspecting,
among the factors that need to be
considered is whether the accused was
arrested during investigations when that
person perhaps has the best opportunity
to tamper with the evidence or influence
witnesses. If the investigating officer does
not find it necessary to arrest an accused
person during investigations, a strong
case should be made out for placing that
person in judicial custody after a charge
sheet is filed. Similarly, it is important to
ascertain whether the accused was
participating in the investigations to the
satisfaction of the investigating officer
and was not absconding or not appearing
when required by the investigating
officer. Surely, if an accused is not hiding
from the investigating officer or is hiding
due to some genuine and expressed fear
of being victimised, it would be a factor
that a judge would need to consider in an
appropriate case. It is also necessary for
the judge to consider whether the accused
is a first-time offender or has been
accused of other offences and if so, the
nature of such offences and his or her
general conduct. The poverty or the
deemed indigent status of an accused is
also an extremely important factor and
even Parliament has taken notice of it by
incorporating an Explanation to Section
436 of the Code of Criminal Procedure,
1973. An equally soft approach to
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
incarceration
has
been
taken
by
Parliament by inserting Section 436A in
the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane
attitude is required to be adopted by a
judge, while dealing with an application
for remanding a suspect or an accused
person to police custody or judicial
custody. There are several reasons for
this including maintaining the dignity of
an accused person, howsoever poor that
person might be, the requirements of
Article 21 of the Constitution and the fact
that there is enormous overcrowding in
prisons, leading to social and other
problems as noticed by this Court in In
Re-Inhuman Conditions in 1382 Prisons."

7. It is well settled that gravity alone
cannot be a decisive ground to deny bail,
rather competing factors are required to
be balanced by the court while exercising
its discretion. It has been repeatedly held
by the Hon'ble Apex Court that object of
bail is to secure the appearance of the
accused person at his trial. The object of
bail is neither punitive nor preventative.
The Hon'ble Apex Court in Sanjay
Chandra versus Central Bureau of
Investigation (2012) 1 SCC 40 has been
held as under:-

"The object of bail is to secure
the appearance of the accused person at
his trial by reasonable amount of bail.
The object of bail is neither punitive nor
preventative. Deprivation of liberty must
be considered a punishment, unless it can
be required to ensure that an accused
person will stand his trial when called
upon. The Courts owe more than verbal
respect to the principle that punishment
begins after conviction, and that every
man is deemed to be innocent until duly
tried and duly found guilty. Detention in
custody pending completion of trial could
be a cause of great hardship. From time
to time, necessity demands that some
unconvicted persons should be held in
custody pending trial to secure their
attendance at the trial but in such cases,
"necessity" is the operative test. In India ,
it would be quite contrary to the concept
of personal liberty enshrined in the
Constitution that any person should be
punished in respect of any matter, upon
which, he has not been convicted or that
in any circumstances, he should be
deprived of his liberty upon only the
belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from
the question of prevention being the
object of refusal of bail, one must not lose
sight of the fact that any imprisonment
before conviction has a substantial
punitive content and it would be improper
for any court to refuse bail as a mark of
disapproval of former conduct whether
the accused has been convicted for it or
not or to refuse bail to an unconvicted
person for the propose of giving him a
taste of imprisonment as a lesson."

8. In Manoranjana Sinh alias
Gupta versus CBI, (2017) 5 SCC 218,
Hon'ble Apex Court has held as under:

"This Court in Sanjay Chandra
vs. Central Bureau of Investigation
(2012) 1 SCC 40, also involving an
economic
offence
of
formidable
magnitude, while dealing with the issue of
grant
of
bail,
had
observed
that
deprivation of liberty must be considered
a punishment unless it is required to
ensure that an accused person would
stand his trial when called upon and that
the courts owe more than verbal respect
to the principle that punishment begins
6 All. Subhash Chandra Jha Vs. State of U.P. & Anr. 1277
after conviction and that every man is
deemed to be innocent until duly tried and
found guilty. It was underlined that the
object of bail is neither punitive nor
preventive. This Court sounded a caveat
that any imprisonment before conviction
has a substantial punitive content and it
would be improper for any court to refuse
bail as a mark of disapproval of a
conduct whether an accused has been
convicted for it or not or to refuse bail to
an unconvicted person for the purpose of
giving him a taste of imprisonment as a
lesson. It was enunciated that since the
jurisdiction to grant bail to an accused
pending trial or in appeal against
conviction is discretionary in nature, it
has to be exercised with care and caution
by balancing the valuable right of liberty
of an individual and the interest of the
society in general. It was elucidated that
the seriousness of the charge, is no doubt
one of the relevant considerations while
examining the application of bail but it
was not only the test or the factor and
that grant or denial of such privilege, is
regulated to a large extent by the facts
and circumstances of each particular
case. That detention in custody of undertrial prisoners for an indefinite period
would amount to violation of Article 21 of
the Constitution was highlighted."

9. The Apex Court in Prasanta
Kumar Sarkar versus Ashis Chatterjee
and another (2010) 14 SCC 496, has laid
down the following principles, while
deciding petition for bail:

(i) whether there is any prima
facie or reasonable ground to believe
that the accused had committed the
offence;

(ii) nature and gravity of the
accusation;

(iii) severity of the punishment
in the event of conviction;

(iv) danger of the accused
absconding or fleeing, if r released on
bail;

(v)
character,
behaviour,
means, position and standing of the
accused;

(vi) likelihood of the offence
being repeated;

(vii) reasonable apprehension
of the witnesses being influenced; and

(viii) danger, of course, of
justice being thwarted by grant of bail.

The object of granting of bail
is to secure the attendance of an accused
in trial. The normal rule is of bail and
not jail. The Court has to keep in mind
the nature of acquisitions, nature of
evidence in support thereof, severity of
punishment, character of the accused
and
the
circumstances
which
are
peculiar to the accused involved in the
matter.

10. Per contra learned A.G.A
opposed the prayer for cancellation of
bail on the ground that the court below
after perusing the entire material came
to a correct and a just decision of
allowing
the
bail
application
and
granting bail to the opposite party no. 2.
It is further argued that the requirement
for cancellation of bail is not made out
and spelled out in any of the paragraphs
of the affidavit. No misuse of bail has
been alleged and even there is no
averment
regarding
the
accused
tampering with evidence. Since chargesheet
has
been
submitted
the
investigation has concluded.

11. In the case in hand it is not the
case of the first informant that irrelevant
considerations have been taken into
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
account while granting bail to the
opposite party no. 2 / accused. The order
granting bail specifically mentions therein
that as per the charge-sheet there is no
reported criminal antecedent of the
accused. There is no averment whatsoever
that
while
the
investigation
was
continuing the accused has tampered or
was
tampering
with
evidence.
The
charge-sheet has been submitted against
the opposite party no. 2 / accused. The
accused
was
not
arrested
during
investigation and a notice under Section
41 (1) of the Code of Criminal Procedure,
1973
was
served
upon
him.
The
allegations as referred to in paragraph 19
and 20 of the affidavit are vague and
without any corroboration whatsoever.
The same are extracted herein below:-

"19. That accused i.e. (opposite
party no. 02) after having being released on
bail is misusing the liberty of bail and is also
tampering prosecution witnesses.

20. That intention of grant of bail is
not to misuse liberty of bail, while in the
present case accused i.e. (opposite party no.
02) after being released on bail is tampering
First Informant / Applicant to prosecute the
Criminal Case against accused i.e. (opposite
party no. 02)."

12. After hearing the learned counsel for
the parties and perusing the material on
record, in my opinion there is no specific
ground which would warrant interference by
way of cancelling the bail of the opposite
party no. 2 granted by the court below. The
discretion as exercised vide order dated
29.11.2019 is just and proper and not
demanding any interference whatsoever.

13. The present bail cancellation
application is thus devoid of any merit
and is hereby, dismissed.
----------

(2020)06ILR A1278
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Transfer Application (Criminal) No. 133 of
2020

Tarun Raj Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Ram Bahadur Singh

Counsel for the Respondents:
A.G.A.

Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 407 - Transfer of
case permissible only when - reasonable
apprehension that justice will not be
done - however, merely making vague
allegation, without any basis/material
on record that there is an apprehension
in the mind of applicant that justice will
not be done - cannot constitute a
legitimate ground to transfer a case from
one court to another court

Applicant/complainant sought transfer of bail
application from Court of Special Judge SC/ST
- alleging accused persons & concerned
Presiding Officer both are Brahmin by caste,
therefore accused will get relief from that
court - Held - allegations leveled wholly vague
& general in nature - not supported by any
material on record - nothing on record to
indicate that the presiding officer did any act
calculated to create such an apprehension in
the mind of the applicant that applicant would
not get justice from Court where case is
pending (Para 10)

Dismissed.
(E-5)