# Viparna Gaur (In Person) v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 1249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Criminal Misc. Bail Cancellation Application No. 302 of 2019
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/viparna-gaur-in-person-v-state-of-u-p-anr-45766
- **Pages:** 24

## Headnote

(A) Criminal law - Bail cancellation -
Code of Criminal Procedure, 1973 -
Section 439 - Special powers of high
court or court of session regarding bail -
Indian Penal Code, 1860 - Sections 147,
302, 307, 504, 506, 120-B - Rejection of
bail
stands
on
one
footing
but
cancellation of bail is a harsh order since
it interferes with liberty of individual and
must not be lightly resorted to - While
considering degree of burden of prove lie
upon
prosecution
or
complainant/Informant,
when
an
application
for
cancellation
of
bail
moved, is not to the extent of proving by
a mathematical certainty or beyond
reasonable doubt but it must establish
its case by showing on a preponderance
of
probabilities
that
accused
has
attempted or may attempt to or tamper
or has tampered with witnesses - It may
also be proved by test of balance of
probabilities that accused has abused his
liberty or it may show that there is
reasonable apprehension that he will
interfere with course of justice. Para14,16

Violating conditions of bail, opposite party 2
intimidated and threatened applicant - in
respect whereof Informant/Applicant lodged
report under Section 506 IPC at Police Station
- Opposite party 2 made another attempt of
identifying Informant/ Applicant with his
associates with an intention to eliminate her -
in respect whereof FIR was lodged - not
appearing in trial, delaying the same by
absenting on false and artificial reason - filed a
false application under Section 156(3) Cr.P.C.
before Chief Judicial Magistrate, against
Informant/Applicant and others - placed
documents,
which
shows
that
he
has
intimidated
witnesses
and
met
them
repeatedly to influence them - violated terms
and conditions of bail with impuginity and
without being deterred in any manner. Para -
6

HELD:- Accused/opposite party 2 is not only
contacting witnesses but also involving Police
officials to influence witnesses and this is a
serious aspect. 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.
Para-42

Bail Cancellation Application allowed.(E7)

List of cases cited:-
1250 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,998 of 77,235. This is a partial read: ask again with offset=39998 for what follows._

6 All. Viparna Gaur Vs. State of U.P. & Anr.
1249

8.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of
High Court Allahabad and shall make a
declaration of such verification in writing.

26. The order dated 20.05.2020
passed by this court stands corrected and
replaced by the present order.

27. The correction application is
allowed.
----------
(2020)06ILR A1249
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Bail Cancellation Application No.
302 of 2019

Viparna Gaur ...Applicant(In Person)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
In Person

Counsel for the Opposite Parties:
A.G.A., Sri Pankaj Satsangi

(A) Criminal law - Bail cancellation -
Code of Criminal Procedure, 1973 -
Section 439 - Special powers of high
court or court of session regarding bail -
Indian Penal Code, 1860 - Sections 147,
302, 307, 504, 506, 120-B - Rejection of
bail
stands
on
one
footing
but
cancellation of bail is a harsh order since
it interferes with liberty of individual and
must not be lightly resorted to - While
considering degree of burden of prove lie
upon
prosecution
or
complainant/Informant,
when
an
application
for
cancellation
of
bail
moved, is not to the extent of proving by
a mathematical certainty or beyond
reasonable doubt but it must establish
its case by showing on a preponderance
of
probabilities
that
accused
has
attempted or may attempt to or tamper
or has tampered with witnesses - It may
also be proved by test of balance of
probabilities that accused has abused his
liberty or it may show that there is
reasonable apprehension that he will
interfere with course of justice. Para14,16

Violating conditions of bail, opposite party 2
intimidated and threatened applicant - in
respect whereof Informant/Applicant lodged
report under Section 506 IPC at Police Station
- Opposite party 2 made another attempt of
identifying Informant/ Applicant with his
associates with an intention to eliminate her -
in respect whereof FIR was lodged - not
appearing in trial, delaying the same by
absenting on false and artificial reason - filed a
false application under Section 156(3) Cr.P.C.
before Chief Judicial Magistrate, against
Informant/Applicant and others - placed
documents,
which
shows
that
he
has
intimidated
witnesses
and
met
them
repeatedly to influence them - violated terms
and conditions of bail with impuginity and
without being deterred in any manner. Para -
6

HELD:- Accused/opposite party 2 is not only
contacting witnesses but also involving Police
officials to influence witnesses and this is a
serious aspect. 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.
Para-42

Bail Cancellation Application allowed.(E7)

List of cases cited:-
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
1. State (Delhi Administration) Vs Sanjay
Gandhi, (1978) 2 SCC 411

2. Madhukar Purshottam Jondkar Vs Talab
Haji Hussain 60 Bombay Law Reporter 465

3. Raghubir Singh Vs St. of Bihar, (1986) 4
SCC 481

4. Manjit Prakash & ors. Vs Shobha Devi &
anr., (2009) 13 SCC 785

5. Pooja Bhatia Vs Vishnu Narain Shivpuri &
ors., (2014)13 SCC 492.

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

7. Prahlad Singh Bhati Vs NCT, Delhi , (2001)
4 SCC 280

8. Chaman Lal Vs St. of U.P., (2004) 7 SCC
525

9. Ram Govind Upadhyay Vs Sudarshan Singh
, (2002) 3 SCC 598

10.
CBI,
Hyderabad
Vs

Subramani
Gopalakrishnan & ors. , (2011) 5 SCC 296

11. State Represented by the C.B.I. vs. Anil
Sharma , (1997) 7 SCC 187

12. Padmakar tukaram Bhavnagare and Ors.
vs. The State of Maharashtra and Ors., (2012)
13 SCC 720

13. State of Maharashtra and Ors. vs. Pappu,
(2014) 11 SCC 244

14. Neeru Yadav vs. State of U.P. , (2014)16
SCC 508

15. Virupakshappa Gouda and Ors. Vs. The
State of Karnataka and Ors. , (2017) 5 SCC
406

16. Sanjay Chandra vs. Central Bureau of
Investigation , (2012) 1 SCC 40

17.
Prasanta
Kumar
Sarkar
vs.
Ashis
Chatterjee and Anr.,(2010) 14 SCC 496

18. Dataram Singh vs. State of Uttar Pradesh
and Ors.,(2018) 3 SCC 22

19. State of Orissa and Ors. Vs. Mahimananda
Mishra and Ors. ,(2018) 10 SCC 516,

20. X vs. The State of Telangana and Ors.,
(2018)16 SCC 511

21. Seema Singh vs. Central Bureau of
Investigation and Ors., (2018) 16 SCC 10

(Delivered by Hon'ble Sudhir Agarwal,
J.)

1. Heard Ms. Viparna Gaur in
person, Sri N.I.Jafri, Senior Advocate,
assisted by Sri Pankaj Satsangi, learned
counsel for accused opposite party 2 and
Sri Ratan Singh and Sri Udit Chandra,
learned A.G.A. for State.

2. This is an application under
Section 439 of Code of Criminal
Procedure, 1973 (hereinafter referred to
as
"Cr.P.C.")
filed
by
Informant/Applicant with the prayer to
cancel bail granted to Accused / Opposite
Party 2, Prem Chandra Sharma, vide
order dated 26.04.2017 in Criminal Misc.
Bail Application No.41324 of 2016 in
Sessions Trial No.566 of 2016 arising
from Case Crime No.337 of 2016 under
Sections 147, 302, 307, 504, 506, 120-B
IPC, Police Station Ujhani, District
Budaun.

3. A First Information Report
(hereinafter referred to "FIR") was
lodged
by
Informant/Applicant
on
24.5.2016 at 8:25 P.M., at Police Station
Ujhani, District Budaun under Sections
147, 304, 504, 323, 506, 120-B IPC
alleging that Informant/Applicant's sister
Sadhna Sharma and family had a long
enmity with Accused Shravan Kumar son
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1251
of
Mahipal
Gupta,
Guddu
alias
Sudhanshu
son
of
Mahendra
Nath
Sharma, Munna alias Brajendra Nath
Sharma son of Brajraj Sharma, Kamal
Sharma son of Raghuveer, all are
residents of Police Station Ujhani, District
Budaun, and, Bhure son of Akhtar,
resident of Police Station Bilsi, District
Budaun.
On
23.5.2016,
Informant/Applicant's sister Km. Sadhna
Sharma, In-charge D.G.C. (Criminal),
District Judgeship Budaun came to
District Court alongwith her servant
Bihari
on
Scooty
Activa,
bearing
registration No.UP 24N-9744 where case
of Bhure was fixed in Budaun Judgeship.
In the evening, at around 5:30 P.M., while
Km. Sadhna Sharma was coming back on
Scooty as a Pillon Rider, and Scooty was
being driven by servant Bihari, near
Balaji Temple, a car was waiting in which
accused was sitting and Kamal Sharma
was on driving seat. They chased Scooty
and near Jirauliya Village, hit the Scooty
resulting in Scooty rider namely Bihari
and Informant/Applicant's sister Km.
Sadhna Sharma fell on the road. Accused
thereafter passed vehicle over Km.Sadhna
Sharma with intention to kill her. They
stopped vehicle near Bihari and said to
kill Bihari also but at the same time some
passengers came and accused ran away.
Bihari with the help of persons gathered,
brought Km. Sadhna Sharma to District
Hospital where she died. On receiving
information, Informant/Applicant came to
hospital at 11 P.M. and lost control over
her seeing her sister dead. Thereafter, she
made arrangement for her cremation and
then came to Police Station for registering
report. She also believed that in the entire
incident and conspiracy, BSP MLA
Yogendra Sagar was also involved.
During investigation, Police recorded
statements of Shamshad, Raju and Girish
Mishra, who disclosed name of opposite
party 2 that he was the kingpin who
conspired murder of Km.Sadhna Sharma
through contract killers. Shamshad, Raju
and Girish Mishra disclosed names of
opposite party 2 P.C.Sharma alias Prem
Chand Sharma, Mastana alias Abdul
Navi,
Pintu
alias
Munendra
alias
Narendra, Mohabbat alias Sajid, Yasin
alias Baba and Ishrat. Police then arrested
Mastana
and
Yasin,
whose
names
surfaced
in
commission
of
crime
including co-accused Raju and Girish.
They confessed their guilt of having
committed
crime
and
disclosed
complicity of opposite party 2 Prem
Chand Sharma stating that he had hatched
entire conspiracy of murder of Km.
Sadhna Sharma. Opposite party 2 is a
powerful political person having money
and muscle power. He had contested
Assembly Election in 2012 from Bilsi
Vidhan Sabha. Since local Police of
Ujhani was under his pressure and
influence, therefore on the complaint of
Informant/Applicant, investigation was
transferred to Crime Branch, Bareilly on
22.07.2016.
On
the
same
day,
Investigating Officer, in his investigation,
excluded names of all six accused persons
named
in
FIR.
During
further
investigation, Raju Girish, Mastana and
Yasin also disclosed involvement of
Kamlesh Sharma wife of Prem Chand
Sharma, Sharvan Gupta (accused named
in FIR) and Shraddha Gupta wife of
Sharvan Gupta for hatching conspiracy of
murder of Km. Sadhna Sharma. The
statements were corroborated by Call
Detail Records of all accused persons and
other
statements
of
witnesses.
Investigating
Officer
consequently
submitted charge sheet on 23.09.2016 and
supplementary
charge
sheets
on
17.10.2016
and
15.11.2016
naming
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Raju alias Riyaz, Girish Mishra,
Abdul Nabi alias Mastana, Yasin alias
Baba, P.C.Sharma alias Prem Chand
Sharma, Israt, Mohabbat alias Sajid and
Pintu alias Munendra. On 29.12.2018, in
supplementary charge sheet filed by
Investigating Officer of Crime Branch,
Breilly, Sharvan Gupta, Kamlesh Sharma
and Shraddha Gupta were named.

4. Chief Judicial Magistrate Budaun
taking cognizance, summoned accused
persons on 21.12.2019. Sri Vinod Kumar.
Station House Officer, Ujhani was
favouring accused, inasmuch as, on
03.01.2019 without any authority or
information to Crime Branch, Bareilly,
who was Investigating the case, reached
Ram
Murty
Hospital,
Bareilly
and
accepted bail bond of absconder accused
Kamlesh on the ground that she was ill.
When
Informant/Applicant
made
complaint, accused Kamlesh Sharma
appeared in Court on 28.01.2019 and
prayed that she should be sent to District
Hospital, Budaun but it was rejected and
her bail application was rejected by
Sessions
Judge.
She
moved
bail
application before this Court, which was
granted by this Court.

5. Opposite party 2 also moved bail
application before this Court i.e. Criminal
Misc. Bail Application No.41324 of 2016,
which was allowed and bail was granted
vide order dated 26.04.2017 but following
conditions were imposed :

"i) The applicant shall not
tamper with the prosecution evidence.

ii) The applicant shall not
threaten or harass the prosecution
witnesses.

iii) The applicant shall appear
on the date fixed by the trial court.

iv) The applicant shall not
commit an offence similar to the offence
of which the applicant is accused, or
suspected of the commission, of which
applicant is suspected.

v) The applicant shall not
directly make any inducement, threat or
promise to any person acquainted with
the facts of the case so as to dissuade the
applicant from disclosing such facts to
the Court or to any police officer or
tamper with the evidence."

(Emphasis added)

6. Violating conditions of bail,
opposite
party
2
intimidated
and
threatened applicant on 15.12.2017 in
respect
whereof
Informant/Applicant
lodged report dated 16.12.2017 at 4:14
P.M. under Section 506 IPC at Police
Station Civil Lines, District Budaun.
Opposite party 2 made another attempt of
identifying Informant/ Applicant with his
associates with an intention to eliminate
her and this incident took place on
06.07.2019 in respect whereof FIR being
Case Crime No.250 of 2019 was lodged
on 08.07.2019 at Police Station Civil
Lines, District Budaun. He is not
appearing in trial, delaying the same by
absenting on false and artificial reason;
has filed a false application under Section
156(3) Cr.P.C. before Chief Judicial
Magistrate,
Budaun,
against
Informant/Applicant
and
others
vide
application dated 13.08.2019 wherein has
placed documents, which shows that he
has intimidated witnesses and met them
repeatedly to influence them. This all
show that he has violated terms and
conditions of bail with impuginity and
without being deterred in any manner.

7. Manner in which opposite party 2
is violating terms and conditions on
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1253
which bail has been granted, has been
detailed in paras 16 to 26 of affidavit filed
in support of bail cancellation application,
which are reproduced as under :

"16. That in spite specific
directions issued by this Hon'ble Court
while considering prayer for bail of
respondent No.2 i.e. P.C.Sharma, who he
again and again intimidated and insulted
to induce the informant with intend to
inflict threat of her personal life and
liberty. As such the informant lodged an
NCR against the respondent no.2 on
17.12.2017 U/s 506 IPC with respect to
the incident occurred on 15.12.2017 at
17.:15 hours. In the said NCR the
respondent no.2 inflicted threat against
the informant because the informant
consistently pursuing her sister's murder
case against the respondent no.2 P.C.
Sharma. Accordingly the respondent no.2
is wanted to not pursue her case by the
informant otherwise she may be face dire
consequences. The contents of allegation
may be verified from the FIR itself. Copy
of NCR bearing No.274/2017 dated
17.12.2017 is being filed here with and
marked as Annexure No.5 to this affidavit.

17. That again the respondent
no.2 trying to identified the informant
with his associates with intention to
eliminate her on 06.07.2019 when she
pursuing her case before the court. In the
court premises, the respondent no. 2
identified the informant with intention to
kill her and teach her lession to not
pursue her remedy against him. The copy
of FIR bearing Case Crime No.250/2019
dated 08.07.2019 is being filed herewith
and marked as Annexure No.6 to this
affidavit.

18. That it is a consistent case
of the prosecution that the P.C. Sharma is
habitual lecher and developed illlicit
relation with various persons to achieve
their goals. In fact the said allegation was
verified by the co-accused Kamlesh
Sharma who is the wife of P.C. Sharma
and alleged that she was keep mum since
last several years to save her skin and her
wards future but her husband P.C.
Sharma assault her and attempted to
commit murder with her on 25.07.2019
when after taking liquor he was assaulted
her repeatedly by his belt. The manner in
which she was assaulted by her husband
P.C. Sharma narrated in her FIR which
demonstrates that the P.C.Sharma is
habitual offender and violated the terms
and conditions of bail granted by this
Hon'ble Court. The Kamlesh Sharma
lodged FIR against her husband P.C.
Sharma who is the respondent no.2 in the
present bail cancellation applicant for an
offence of attempt to commit her murder.
The copy of FIR bearing Case Crime No.
277/2019 dated 25.07.2019 is being filed
here with and marked as Annexure No.7
to this affidavit.

19. That the third condition
imposed by this Hon'ble Court against the
respondent no.2 to appear on the date
fixed by the Trial Court. Now the
respondent
no.2
consistently
seeks
adjournment before the trial court in S.T.
No. 566/2016 (State vs. P.C.Sharma &
Ors.) U/s 307, 302 IPC registered at P.S.
Ujhani, District Budaun. The respondent
through his counsel to mislead the court,
endorsed section 304-B IPC in place of
section 307 and 302 IPC, so that his
applications seeking adjournments may
not be used for cancellation of his bail
application before this Hon'ble Court.
Ultimately on 26.08.2017 the resondent
no.2 corrected the said offence alleged
against him and transcribed the correct
section U/s 302, 120-B IPC and seeks
adjournment for his non appearance. The
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
copy of applications dated 24.07.2017,
02.08.2017, 26.08.2017 and 08.09.2017
are being collectively filed here with and
marked as Annexure No.8 to this affidavit.

20. That in application dated
08.0.2017 the informant pointed out
before the Trial Court that the accusedrespondent no. 2 consistently absconding
in the court proceeding related to case
crime no. 268/2017 U/s 2/3 Gangster Act
and avoid the court process issued by the
Gangster Court. It is further pointed out
that proceeding of proclamation U/s 82
Cr.P.C. was issued against him. Pursuant
to the orders of Gangster Court, the
concerned Police Station declared P.C.
Sharma as a absconder of Rs.5000/-. It is
further pointed out that the respondentaccused deliberately absent from the
court proceeding to avoid the court
proceeding
and
seeks
regular
adjournment
by
filing
adjournment
application. Accordingly the informant
prayed that the Trial Court may pleased
to direct the accused-respondent no.2 to
appear before the court on the next date
fixed, otherwise the trial court may forfeit
his personal bail bond and sureties. Upon
the said application the Trial Court is
directed to place on record and be listed
on the next date i.e. 12.09.2017 along
with the Court's order sheet. The copy of
application dated 08.09.2017 is being
filed here with and marked as Annexure
No.9 to this affidavit.

21. That on 12.09.2017 the
Trial
Court
issued
N.B.W.
against
P.C.Sharma because the court is of the
view that the no counsel appearing on
behalf of accused P.C. Sharma. The said
finding of fact is against the record
because the adjournment application filed
on behalf of P.c. Sharma is being
preferred by one Vivek Sharma counsel,
represented
before
the
court
on
24.07.2017, 02.08.2017 and filed his
vakalatnama on 08.08.2017. Thereafter
again adjournment application was filed
on behalf of P.C. Sharma by Rohtash
Saxena Advocate on 26.08.2017 and
08.09.2017. As such the Trial Court
without perusal of an application passed
an order on 12.09.2017 and recorded
perverse finding which is against material
available on record.

22. That in application dated
26.09.2017 the informant pointed out
before the Trial Court that the accusedrespondent no.2 consistently absconding
in the court proceeding related to case
crime no.268/2017 U/s 2/3 Gangster Act
and avoid the court process issued by the
Gangster Court. It is further pointed out
that proceeding of proclamation U/s 82
Cr.P.C. was issued against him. Pursuant
to the orders of Gangster Court, the
concern Police Station declared P.C.
Sharma as a absconder of Rs.5000/-. It is
further pointed out that the respondentaccused deliberately absent from the
court proceeding to avoid the court
proceeding
and
seeks
regular
adjournment
by
filing
adjournment
application. Accordingly upon the prayer
of informant, the Trial Court pleased to
issue the N.B.W. Against the accusedrespondent no.2 on 12.09.2017 and next
date fixed on 26.09.2017 for appearance
but the accused-respondent no.2 not
appear on 26.09.2017 is being filed here
with and marked as Annexure No.10 to
this affidavit.

23. That in reply to the said
application and order dated 12.09.2017
passed by the Trial Court against P.C.
Sharma, the respondent-accused admitted
in his application dated 05.10.2017 that
he has pursuing his case before the High
Court and suffering illness due to which
against whom the N.B.W. Was issued by
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1255
the court. It is further urged that the said
error was not occurred deliberately, as
such the trial court may pleased to recall
the NBW issued against him. The said
application was allowed by the Trial
Court without keeping in mind of earlier
application filed by his counsel namely
Vivek Sharma and Rohtas Saxena and
accepted
his
explanation
which
is
absolutely false and frivolous and cannot
be accepted by any common prudent man.
The copy of application dated 05.10.2017
is being filed here with and marked as
Annexure No.11 to this affidavit.

24.
That
the
informant
consistently prayed before this Hon'ble
Court that the respondent-accused being
designer of the crime hatched conspiracy
for murder of existing D.G.C. Criminal
Sadhana Sharma to grab her property and
eliminate her. The respondent-accused after
release on bail by this Hon'ble Court
consistently violated the term and condition
of the bail bond and sureties and the
direction issued by this Hon'ble Court. As
such the informant prayed with folded hand
before this Hon'ble Court that his bail
cancellation application may kindly pleased
to allow and direct the Trial Court to taken
into judicial custody so that the fair and
speedy trial be conducted by the trial court
without any biased manner.

25. That it is further relevant to
point out here that just to create pressure
upon the informant and the witnesses
namely Aniruddha Gautam and Munendra
Gangawar as well as the formal witnesses
Gopichand Yadav (I.O.), Surendra Singh
Pawar (I.O.), the accused-respondent no.2
initiated proceeding U/s 156(3) Cr.P.C. for
registration of FIR against them. The said
application was preferred before the C.J.M.
Budaun on 13.08.2019. In the said
application P.C.Sharma appended the
conversation of call recording of taken
place between Gopichand Yadav (I.O.),
Munendra Gangwar (witness), Surendra
Satoriya (witness), Inspector Naresh Pal
Yadav, S.I. A.K.Singh and verified their call
recording by sending pen drive before truth
forensic lab services mark as item no.1 and
after analysis the lab found that the pen
drive mark item no.1 did not contained any
sign of physical damage like cracks scratch
marks and it was in working condition at
the time of examination. However it is
admitted case of the respondent no.2 in his
application u/s 156(3) Cr.P.C. that he
regularly negotiated with the witnesses and
the Investigating Officers with a view to
influence the investigation, threatened the
witnesses and destroy the evidence for that
purposes he has regularly recorded the
conversation taken place between them. As
such on the face of record the respondent
no.2 admitted in h is application U/s 156(3)
Cr.P.C. that he is regularly trying to
threatened and influence the witnesses in
any manner even against whom an
application U/s 156(3) Cr.P.C. was filed to
achieve their goal so that they may not be
deposed their testimony because of his fear
that respondent no. 2 may involved them in
anywhere in false cases. However, the
accused-respondent no.2 who filed the
application u/s 156(3) Cr.P.C. before
C.J.M. Budaun is unable to get any benefit
of the fats given by him in his application
under section 156(3) Cr.P.C., but the
ordinary people fears and trembled by any
court cases falsely imposed upon him. Copy
of application U/s 156(3) Cr.P.C. dated
13.08.2019 along with its annexure and call
recording are being filed here with and
marked as Anneuxre No.12 to this affidavit.

26. That under the aforesaid
facts and circumstances it is evident that
the respondent no.2 regularly violated the
terms and conditions imposed by this
Hon'ble Court and trying to destroy the
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence by making pressure upon the
witnesses. It is further relevant to point
out here that the respondent no.2 is
regularly influence the witnesses so that
they may not be permitted to deposed
their testimony before the court against
him. As such the free and fair trial and
investigation cannot be conducted in the
said
circumstances
because
the
respondent no.2 has regularly inflicted
threat and making pressure upon the
witnesses including the S.H.O. Ujhani
namely Vinod Kumar who has accepted
the bail bond of his wife under the
pressure of P.C.Sharma."

8. During course of arguments,
Informant/Applicant, who had appeared
in person before Court, placed order
sheets of Trial Court to demonstrate that
opposite party 2 is not attending trial,
avoiding on artificial pretext and also
placed before Court own document filed
by
opposite
party
2
along
with
application filed under Section 156(3)
Cr.P.C. to show the manner in which he
is regularly and constantly contacting
witnesses and trying to influence and
threatening them so as to pursue them
not to adduce evidence against him in
pending trial.

9. Sri N.I.Jafri, Senior Advocate,
assisted
by
Sri
Pankaj
Satsangi,
Advocate, has appeared on behalf of
opposite
party
2.
While
disputing
contention of Informant/Applicant that
opposite party 2 is violating terms and
conditions on which bail has been
granted, he however could not dispute
order sheets showing non appearance of
opposite party 2 in Court below and also
recorded telephonic conversation showing
access of opposite party 2 with witnesses
with the help of local Police also.

10. It is in this backdrop, this Court
has to examine whether opposite party 2
is behaving in a manner so as to justify
cancellation of bail or not?

11. Now before going further in
detail on this aspect, I find it appropriate
to have a bird eye view of judicial
precedents on the question as to in what
circumstances, bail already granted can be
cancelled or must be cancelled.

12. Considerations and relevant
aspects by a Court while granting a bail
are
different
than
those
when
an
application for cancellation of bail has
come up before the Court.

13. A three-Judges Bench of
Supreme
Court
in
State
(Delhi
Administration) vs. Sanjay Gandhi
(1978) 2 SCC 411 had an occasion to
consider an order dated 11.04.1978
passed by Delhi High Court rejecting
Delhi Administration's application for
cancellation of bail of respondent Sanjay
Gandhi. Court observed that rejection of
bail, when bail applied is one thing;
cancellation of bail already granted is
quite another. It is easier to reject a bail
application in a non-bailable case than to
cancel a bail granted in such a case.
Cancellation of bail necessarily involves
review of a decision already made and
can, by and large, be permitted only, if,
by reason of supervening circumstances,
it would be no longer conducive to a fair
trial to allow accused to retain his
freedom during the trial.

14. While considering degree of
burden of prove lie upon prosecution or
complainant/Informant,
when
an
application
for
cancellation
of
bail
moved, is not to the extent of proving by
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1257
a mathematical certainty or beyond
reasonable doubt but it must establish its
case by showing on a preponderance of
probabilities that accused has attempted
or may attempt to or tamper or has
tampered with witnesses. It may also be
proved by test of balance of probabilities
that accused has abused his liberty or it
may show that there is reasonable
apprehension that he will interfere with
course of justice. Court approved Bombay
High Court decision in Madhukar
Purshottam Jondkar vs. Talab Haji
Hussain 60 Bombay Law Reporter 465
that test adopted by the Court would be,
whether material placed before it is such
as to lead to the conclusion that there is a
strong prima facie case that accused if
allowed to be at large he would tamper
with prosecution witnesses and impede
course
of
justice.
Mere
unfounded
apprehension or self imagined threat by
prosecution or Informant-Complainant
would not justify cancellation of bail,
granted to accused.

15. In Raghubir Singh vs. State of
Bihar (1986) 4 SCC 481, Court said that
grounds for cancellation of bail under
Sections 437(5) and 439(2) are identical,
namely, bail granted under Section 437(1)
or (2) or Section 439(1) can be cancelled
where (i) 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.

16. It was also held that above
grounds
are
illustrative
and
not
exhaustive. Rejection of bail stands on
one footing but cancellation of bail is a
harsh order since it interferes with liberty
of individual and must not be lightly
resorted to.

17. Above decision was followed in
Manjit Prakash and Ors. vs. Shobha
Devi and Anr. (2009) 13 SCC 785 as
also in Pooja Bhatia vs. Vishnu Narain
Shivpuri and others (2014)13 SCC 492.

18. In Pooja Bhatia (supra),
considering conduct of accused i.e.
charge of throwing acid on complainant,
Court held that it was a serious aspect and
therefore, accused is not entitled to
continue with the benefit of bail.

19. In Dolat Ram and others vs.
State of Haryana (1995) 1 SCC 349,
Court said that rejection of bail in a nonbailable
case
at
initial
stage
and
cancellation of bail so granted, has to be
dealt with and considered on different
basis. Very cogent and overwhelming
circumstances are necessary for an order
directing cancellation of bail, already
granted. Court further said that generally
speaking grounds of cancellation of bail,
broadly i.e. illustrative and not exhaustive
are : (i) interference or attempt to
interfere
with
the
due
course
of
administration of justice; (ii) evasion or
attempt to evade due course of justice;
(iii) abuse of the concession granted to
the
accused
in
any
manner;
(iv)
Satisfaction of Court, on the basis of
material placed on record of possibility of
accused absconding.

20. Court also reminded that bail
once granted should not be cancelled in a
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
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 concession of bail
during trial.

21. In Prahlad Singh Bhati vs.
NCT, Delhi (2001) 4 SCC 280 Court said
that while granting bail, nature of
accusations, severity of punishment, if
accusation entails a conviction, nature of
evidence in support of the accusations
should
be
kept
in
mind.
Further,
reasonable apprehensions of witnesses
being tampered with or apprehension of
there being a threat for complainant also
need be weighed by Court. No discussion
of entire evidence to form an opinion
whether evidence would established guilt
beyond reasonable doubt is expected at
the stage of considering matter of bail but
prima facie satisfaction of Court in
support of charge must be there. Lastly,
Court should also consider whether
prosecution has element of genuineness
or there is some fragility. In case of any
doubt as to genuineness, normal course is
to grant bail. To the same effect are the
observation made in Chaman Lal vs.
State of U.P. (2004) 7 SCC 525.

22. In Ram Govind Upadhyay vs.
Sudarshan Singh (2002) 3 SCC 598 it was
held that grant of bail though discretionary in
nature, yet such exercise cannot be arbitrary,
capricious and injudicious. Heinous nature of
crime warrants more caution.

23.

In
CBI,
Hyderabad
vs.
Subramani Gopalakrishnan and others
(2011) 5 SCC 296, in para 23, Court said :

"....that there is difference between
yardstick for cancellation of bail and appeal
against the order granting bail. Very cogent
and
overwhelming
circumstances
are
necessary for an order directing the
cancellation
of
bail
already
granted.
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 concessions granted to the accused in any
manner. These are all only few illustrative
materials. The satisfaction of the Court on the
basis of the materials placed on record of the
possibility of the accused absconding is
another reason justifying the cancellation of
bail. In other words, 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 the trial."

24. Position, influence and resources
of accused have also been held relevant
factors to adjudge whether accused is
likely to interfere with administration of
justice, trial or tamper with witness or
evidence.

25. In State Represented by the
C.B.I. vs. Anil Sharma (1997) 7 SCC
187, anticipatory bail was granted by
Himachal Pradesh High Court and C.B.I.
approached for cancellation of bail stating
that accused was a former Minister of
Himachal Pradesh and being a high
authority in power is likely to disrupt
even investigation but High Court did not
accept application for cancellation of bail.
On appeal, Supreme Court accepted
C.B.I. contention and observed that in
case of such highly influenced political
person,
the
very
interrogation
and
investigation may become a mere ritual
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1259
hence
Court
cancelled
order
of
anticipatory bail.

26.

In
Padmakar
tukaram
Bhavnagare and Ors. vs. The State of
Maharashtra and Ors. (2012) 13 SCC
720, Supreme Court while confirming
order of anticipatory bail took into accunt
that accused are aged and rustic, not
influential persons holding high office
who
can
bring
pressure
upon
investigating agency and it is unlikely that
Police
would
find
it
difficult
to
interrogate
them
because
they
are
protected
by
an
order
granting
anticipatory bail. That is how judgment in
State Represented by the C.B.I. vs. Anil
Sharma (supra) was also distinguished.
However,
Court
also
clarified
that
grounds for cancellation of bail, broadly,
are interference or attempt to interfere
with due course of justice or abuse of
concession granted to the accused in any
manner but an order of bail can also be
cancelled where it is found to be perverse,
passed ignoring evidence on record or
taking
into
considering
irrelevant
material. Relying on Dinesh M.N. (S.P.)
vs. State of Gujarat (2008) 5 SCC 66
Court said that such vulnerable bail order
must be quashed in the interest of justice.

27. In State of Maharashtra and
Ors. vs. Pappu (2014) 11 SCC 244,
accused was convicted under Section 302
read with 120-B IPC for hatching
criminal conspiracy in killing of deceased
Inder Bhatija. In appeal, High Court while
admitting appeal, enlarged accused on
bail and this order of bail was challenged
in Supreme Court by the State on the
ground that accused was involved in as
many as 52 cases, out of which 20 cases
offences were registered against him
before going to jail and while he was in
jail; and 32 cases were registered when he
was released by Court on conditional bail.
The defence taken on behalf of accused,
besides other, was that he has already
spent 9 years in jail during pendency of
trial and no witness has supported
prosecution case and that it was a political
rivalry
in
which
he
was
falsely
implicated. Supreme Court said that
reason given by High Court that father
and wife of deceased have turned hostile,
cannot be a ground to grant bail since
there were other witnesses and material
available. High Court should not have
ignored the fact that accused was
involved in as many as 52 cases out of
which 20 were registered before going to
jail and during stay in jail, and whenever
he was on bail or conditional bail, 32
cases were registered. Court also found
that in some cases accused was acquitted
but still 15 trials were pending in which
two cases were under Section 302 read
with 120B IPC. Having said so, Court
observed that since accused was in jail for
9 years and as per pendency, High Court
would have taken a large number of years
in deciding appeal, therefore, Court
should decide appeal expeditiously and
with the above direction, appeal was
allowed and order of bail granted by High
Court was set aside.

28. In Neeru Yadav vs. State of
U.P. (2014)16 SCC 508, this Court had
granted bail to accused for offences
punishable under Sections 147, 148, 149,
302, 307, 394, 411, 454, 506, 120B and
34 IPC on the ground of parity as another
accused Ashok was already enlarged on
bail. The wife of deceased filed appeal for
setting aside order of bail granted by this
Court. Court considered various earlier
authorities and said in para 13 of
judgment as under :
1260 INDIAN LAW REPORTS ALLAHABAD SERIES

"...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 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."

29. Thereafter, referring to 15 cases
registered again accused showing that he
was a history-sheeter and mostly under
Section 302 IPC, order of bail was set
aside. Court observed that there has to be
a balance between personal liberty of an
individual and peace and harmony of
Society. No individual interest can be
allowed to create a concavity in the stem
of social stream otherwise it would bring
chaos and anarchy in the Society.
Relevant observations made in this regard
are reproduced as under :

"....We are not oblivious of
the fact that the liberty is a priceless
treasure for a human being. It is
founded
on
the
bed
rock
of
constitutional right and accentuated
further on human rights principle. It is
basically a natural right. In fact, some
regard it as the grammar of life. No
one would like to lose his liberty or
barter it for all the wealth of the
world. People from centuries have
fought for liberty, for absence of
liberty causes sense of emptiness. The
sanctity of liberty is the fulcrum of
any civilized society. It is a cardinal
value on which the civilisation rests.
It cannot be allowed to be paralysed
and
immobilized.
Deprivation
of
liberty of a person has enormous
impact on his mind as well as body.

A democratic body polity
which is wedded to rule of law,
anxiously
guards
liberty.
But,
a
pregnant and significant one, the
liberty
of
an
individual
is
not
absolute. The society by its collective
wisdom through process of law can
withdraw the liberty that it has
sanctioned to an individual when an
individual becomes a danger to the
collective and to the societal order.
Accent on individual liberty cannot
be pyramided to that extent which
would bring chaos and anarchy to a
society.
A
society
expects
responsibility and accountability from
the member, and it desires that the
citizens
should
obey
the
law,
respecting it as a cherished social
norm. No individual can make an
attempt to create a concavity in the
stem
of
social
stream.
It
is
impermissible. Therefore, when an
individual behaves in a disharmonious
manner ushering in disorderly things
which the society disapproves, the
legal consequences are bound to
follow. At that stage, the Court has a
duty. It cannot abandon its sacrosanct
obligation and pass an order at its
6 All. Viparna Gaur Vs. State of U.P. & Anr.
1261
own whim or caprice. It has to be
guided by the established parameters
of law." (emphasis added)