# Yogesh Kumar Garg v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-18
- **Case number:** Criminal Misc. Bail Cancellation Application No. 475 of 2024
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-kumar-garg-v-state-of-u-p-anr-54529
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 406, 504,
506 & 120B - Against grant of bail -
Maintainability - Jurisdiction - The Code of
Criminal Procedure, 1973 - Section 362 -
Applicant/first
informant
moved
bail
cancellation application before Sessions
Court on ground that conditions imposed
by Court of Sessions for grant of bail had
not complied with inasmuch as amount of
Rs.42 lacs as undertaken by opposite
party No. 2 to be deposited not deposited
and only Rs.4 lacs deposited during
pendency of bail cancellation application -
Application rejected - Impugned order.
(Para 3, 4)

Held, applicant already approached Court
of Sessions seeking cancellation of bail
granted u/s 439 (2) Cr.P.C - The Court of
Sessions refused to cancel bail already
granted - In opinion of Court, applicant
having exercised his option to seek
cancellation u/s 439 (2) Cr.P.C. before
Court of Sessions can't now approach High
Court by moving another bail cancellation
application u/s 439 (2) Cr.P.C - Thus,
order passed by Court of Sessions can be
challenged
before
High

Court
in
application u/s 482 Cr.P.C. (Para 15, 19)

Bail cancellation application dismissed. (E13)

List of Cases cited:

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES
Information of the same was given by the
bank to the payee, Pankaj Singh, on
16.12.2017. After that, a registered notice
was sent to the applicant by the Advocate
of payee Pankaj Singh through registered
post on 8.1.2018, which was received by
the applicant on 9.1.2018. However,
despite the expiry of 15 days from the date
of service, the cheque amount was not paid
by the applicant. Therefore, the complaint
was
filed
against
the
applicant
on
12.2.2018 by Pankaj Singh through his
power of attorney holder Ranveer Singh,
also the father of Pankaj Singh. From a
perusal of the impugned complaint, it is not
in dispute that impugned complaint was
filed by the power of attorney holder of
payee Ranveer Singh in his own name
instead of filing in the name of complainant
Pankaj Singh, which is not permissible
under
the
law
as
observed
above.
Therefore, this Application deserves to be
allowed.

27. Accordingly, the application u/s
482 No. 28869 of 2024 is allowed. The
impugned proceeding arising out of Case
No. 602 of 2018 (Ranveer Singh vs.
Jitendra Kumar Mangla), under Section
138 N.I. Act, P.S. Hariparvat District Agra
is
hereby
quashed.
However,
the
complainant, Pankaj Singh, is at liberty to
file a fresh complaint in accordance with
law.
---------
(2024) 12 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Criminal Misc. Bail Cancellation Application No.
475 of 2024

Yogesh Kumar Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Siddhartha Srivastava

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 406, 504,
506 & 120B - Against grant of bail -
Maintainability - Jurisdiction - The Code of
Criminal Procedure, 1973 - Section 362 -
Applicant/first
informant
moved
bail
cancellation application before Sessions
Court on ground that conditions imposed
by Court of Sessions for grant of bail had
not complied with inasmuch as amount of
Rs.42 lacs as undertaken by opposite
party No. 2 to be deposited not deposited
and only Rs.4 lacs deposited during
pendency of bail cancellation application -
Application rejected - Impugned order.
(Para 3, 4)

Held, applicant already approached Court
of Sessions seeking cancellation of bail
granted u/s 439 (2) Cr.P.C - The Court of
Sessions refused to cancel bail already
granted - In opinion of Court, applicant
having exercised his option to seek
cancellation u/s 439 (2) Cr.P.C. before
Court of Sessions can't now approach High
Court by moving another bail cancellation
application u/s 439 (2) Cr.P.C - Thus,
order passed by Court of Sessions can be
challenged
before
High

Court
in
application u/s 482 Cr.P.C. (Para 15, 19)

Bail cancellation application dismissed. (E13)

List of Cases cited:

1. Himanshu Sharma Vs St. of M.P. reported in
2024 (4) SCC 222

2. Gurcharan Singh Vs St. (UT of Delhi) reported
in 1978 (1) SCC 118, (Para 16)
12 All. Yogesh Kumar Garg Vs. State of U.P. & Anr.
29
3. Puran Vs Rambilas & anr. with Shekhar & anr.
Vs St. of Maha. & anr. reported in 2001 (6) SCC
338, (Para 16, 17)

4. Rajesh Kumar & anr. Vs St. of U.P. & ors.,
(Crl. Misc. Case No. 5572 of 2015), decided on
7.1.2016

5. Surendra Kumar Singh Vs St. of U.P. through
Home Secretary Government of U.P. Lucknow &
ors., (Case No. 275 of 2016), decided on
26.5.2015

6. Narendra Kumar Amin Vs St. of Guj. reported
in 2008 (13) SCC 584

7. Ranjit Singh Vs St. of M.P. reported in 2012
(16) SCC 797, (Para 19)

8. Smt. Rukhsana Vs St. of U.P. & anr., (A482
Cr.P.C. No. 14905 of 2012), (Para 4), decided on
23.04.2013

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1.
This
is
a
Bail
Cancellation
Application seeking the cancellation of bail
granted to the opposite party No. 2,
namely, Kuna Kapoor son of Vinod Kapoor
by the Sessions Court vide order dated
23.12.2022.

2.
The
learned
Sessions
Court,
Ghaziabad while granting bail to the
opposite party No. 2 imposed a condition
that the opposite party would pay a sum of
Rs.42 lacs out of the outstanding amount of
Rs.4 crores and 37 lacs to the applicant/first
informant within two months.

3. The bail cancellation was sought
by the applicant herein by moving a bail
cancellation
application
before
the
Sessions Court, Ghaziabad on the ground
that the conditions imposed by the Court
of Sessions for grant of bail had not been
complied with inasmuch as the amount of
Rs.42 lacs as undertaken by the opposite
party No. 2 to be deposited had not been
deposited and only a sum of Rs.4 lacs
was deposited that too during the
pendency
of
the
bail
cancellation
application.

4. The leaned Sessions Court vide
order dated 10.9.2024 rejected the bail
cancellation application placing reliance
upon the various decisions of the Apex
Court.

5. The applicant/first informant had
approached this Court with the following
prayer:-

"It is therefore most humbly and
respectfully prayed that this Hon'ble
Court may kindly be pleased to cancel the
bail granted to opposite party No. 2 by
setting aside the order dated 10.9.2024
passed by Shri Nishant Maan, Addl.
District Judge/FTC-2, Ghaziabad in Bail
Cancellation Application No. 178 of 2023
(Yogesh Kumar Garg versus Kunal
Kapur) in connection with FIR No. 472 of
2022, under Sections 420, 467, 468, 471,
406, 504, 506 & 120B IPC, PS-Kotwali,
District Ghaziabad."

6. This Court vide order dated
11.12.2024 had made a specific query
from the learned counsel for the applicant
to the effect as to whether after rejection
of the bail cancellation application by the
Sessions
Court,
a
bail
cancellation
application would lie before this Court
under Section 439 (2) Cr.P.C. or the
applicant herein may pursue remedies
against
the
order
dated
10.9.2024
rejecting the bail cancellation application
before the appropriate forum, the learned
counsel for the applicant sought time to
address on the said aspect.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

7. I have heard Shri Siddharth
Srivastava,
learned
counsel
for
the
applicant/first informant in support of the
bail cancellation application as also Shri S.
K. Rai, learned AGA-I for the Staterespondent and have perused the records.

8. Shri Siddharth Srivastava, learned
counsel for the applicant has invited the
attention of this Court to the provisions of
Section 439 (2) Cr.P.C. to submit that the
power to cancel bail already granted has
been conferred to the Court of Sessions as
also to the High Court. In the case at hand,
the Sessions Court has refused to cancel the
bail granted by it to the opposite party No.
2 and as such, the bail cancellation
application can be considered by this Court
in exercise of the powers conferred under
Section 439 (2) Cr.P.C. He accordingly
contends that the instant bail cancellation
application
before
the
Court
is
maintainable. Reliance is placed upon the
decision of the Apex Court in the case of
Himanshu
Sharma
versus
State
of
Madhya Pradesh reported in 2024 (4) SCC
222 for the proposition that bail granted to
an accused can only be cancelled if the
Court is satisfied that after being released
on bail the accused has flouted the
conditions of bail order. Reliance is also
placed upon a decision of the High Court of
Hyderabad for the State of Telengana and
Andhra Pradesh reported in 2014 SCC
Online Hyd. 1643 (2014)) 3 ALT (Crl.)
112 for the proposition that an application
under Section 439 (2) Cr.P.C. would be
maintainable before this Court despite
rejection of an application under Section
439 (2) Cr.P.C. before the Court of
Sessions.

9. Per contra, Shri S. K. Rai, learned
AGA-I vehemently opposing the instant
bail cancellation application submits that
the same is not maintainable and the
remedy available to the applicant herein is
to assail the order dated 10.9.2024 passed
by the Court of Sessions in a 482 Cr.P.C.
application. Reliance is placed upon the
decision of the Apex Court in the case of
Puran versus Rambilas and another with
Shekhar and another versus State of
Maharasthra and another reported in 2001
(6) SCC 338 as also two decision of the coordinate Bench of this Court in Crl. Misc.
Case No. 5572 of 2015 (Rajesh Kumar
and another versus State of U.P. and
others) decided on 7.1.2016 and in the
Case No. 275 of 2016 (Surendra Kumar
Singh versus State of U.P. through Home
Secretary Government of U.P. Lucknow
and others) U/s 482/378/407 Cr.P.C.
decided on 26.5.2015.

10. I have given my anxious thoughts
to the submissions made by learned
counsels for the parties and have gone
through the rulings cited at the Bar.

11.The scope of power under Section
439 (2) Cr.P.C. conferred upon a High
Court has been considered by the Apex
Court in the case of Gurcharan Singh
versus State (UT of Delhi) reported in
1978 (1) SCC 118. Their Lordships have
succinctly
explained
the
provisions
regarding cancellation of bail under the
Cr.P.C. culled out the differences from the
Code of Criminal Procedure, 1898 (old
Code) and elucidated the position of law
viz-a-viz powers of the Courts granting the
cancelling the Bail. The Apex Court in Para
16 of Gurcharan Singh (supra) observed
as under:-

"16. Section 439 of the new Code
confers special powers on the High Court
or Court of Session regarding bail. This
was also the position under Section 498
12 All. Yogesh Kumar Garg Vs. State of U.P. & Anr.
31
CrPC of the old Code. That is to say, even
if a Magistrate refuses to grant 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 subsection (1) to be arrested
and may commit him to custody. In other
words, under Section 498(2) of the old
Code, a person who had 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, is lifted in the new Code
under Section 439(2). Under Section
439(2) of the new Code a High Court may
commit a person released on bail under
Chapter XXXIII by any court including the
Court of Session 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 arise during the progress of
the trial after an accused person has been
admitted to bail by the High Court. 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
Section 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 existed, 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."

12. The Apex Court in Puran versus
Rambilas reported in 2001 (6) SCC 338
has held that the concept of setting aside an
unjustified, illegal or perverse order is
absolutely different from cancelling an
order of bail on the ground that the accused
has misconducted himself or because of
some supervising circumstances warranting
such cancellation. In Narendra Kumar
Amin versus State of Gujrat reported in
2008 (13) SCC 584, the Apex Court while
reiterating the principle laid down in Puran
versus Rambilas (supra) drew a distinction
between the two in respect of relief
available in view or appeal. In the said
case, the High Court had cancelled the bail
granted to the appellant in exercise of
power under Section 439 (2) Cr.P.C. In
appeal, it was contended before the Apex
Court that the High Court had erred by not
appreciating the distinction between the
parameters
for
grant
of
bail
and
cancellation of bail. The Apex Court
observed that when irrelevant materials
have been taken into consideration by the
Court granting order of bail, the same
makes the order vulnerable and subject to
scrutiny by the Appellate Court and that no
review would lie under Section 362 of the
Code. In essence, the Apex Court opined
that if the order of grant of bail is perverse,
32 INDIAN LAW REPORTS ALLAHABAD SERIES
the same can be set at naught only by the
superior Court and has left no room for a
review by the same Court.

13. Yet again, the Apex Court in
Ranjit Singh versus State of M.P. reported
in 2012 (16) SCC 797 reverberating the
aforesaid principle observed as under:-

"19. ? There is also a distinction
between the concept of setting aside an
unjustified, illegal or perverse order and
cancellation of an order of bail on the
ground that the accused has misconducted
himself
or
certain
supervening
circumstances warrant such cancellation. If
the order granting bail is a perverse one or
passed on irrelevant materials, it can be
annulled by the superior court."

14. From the above, it is culled out
that the concept of setting aside an
unjustified, illegal or perverse order is
different from the concept of cancellation
of a bail on the ground of accused's
misconduct or new adverse facts having
surfaced after the grant of bail which
require such cancellation and consequently
an order granting bail can only be set aside
on the grounds of being illegal or contrary
to law by the Court superior to the Court
which granted the bail and not by the same
Court.

15.
In
the
case
at
hand,
the
applicant/first informant herein had already
approached
the
Court
of
Sessions,
Ghaziabad seeking cancellation of the bail
granted by it under Section 439 (2) of the
Cr.P.C. The Court of Sessions vide order
dated 10.9.2024 refused to cancel the bail
already granted. In the opinion of the
Court, the applicant having exercised his
option to seek cancellation under Section
439 (2) of Cr.P.C. before the Court of
Sessions cannot now approach this Court
by moving another Bail Cancellation
Application
under
Section
439
(2)
Cr.P.C. A challenge would have to be
made to the orders rejecting the Bail
Cancellation Application and the same
cannot
be
achieved
in
the
present
proceedings.
Had
the
applicant/first
informant approached this Court at the first
instance seeking the cancellation of the bail
granted to the opposite party No. 2 by the
Court of Sessions by its order dated
23.12.2022 invoking the provisions of
Section 439 (2) of Cr.P.C., the application
would be maintainable of Section 439 (2)
of Cr.P.C., the application would be
maintainable.

16. It is an accepted principles of law
that when a matter has been finally
disposed of by a Court, the Court is, in the
absence of a direct statutory provision,
functus officio and cannot entertain a fresh
prayer for relief in the matter unless and
until the previous order of final disposal
has been set aside or modified to that
extent. It is also settled law that the
judgment and order granting bail and order
in the absence of any express provision in
the Cr.P.C., for the same. Section 362 of
the Cr.P.C. operates as a Bar to any such
alteration or review of the cases disposed of
by the Court, the only exception of bail
correction of clerical or arithmetical error
by the Court.

17. A co-ordinate Bench of this Court
in the case of Smt. Rukhsana versus State
of U.P. and another (application under
Section 482 Cr.P.C. No. 14905 of 2012)
was pleased to hold as under:-

"4. When an order has been
passed under Section 439, Cr. P.C.
cancelling the bail order recorded under
12 All. Smt. Suman Devi Vs. Sri Avinash Kumar Yadav, Social Welfare Officer, Fatehpur
33
Section 437 the accused would have two
courses open. It is always this right to move
for bail afresh before the proper forum but
his right to challenge the validity of the
order of cancellation of bail cannot be
taken away simply for the reason that he
has a right to pray for bail again. This
challenge could not be made in a petition
under Section 397, Cr. P.C. as an order
recording bail or its cancellation is but an
interlocutory order and the validity of the
order, therefore, could only be challenged
in a proceeding under Section 482, Cr.
P.C. invoking the inherent powers of the
Court to prevent abuse of process of any
Court or to secure the ends of justice. The
objection of the complainant in this behalf
is thus not tenable and this Court can look
to the validity of the cancellation of bail in
exercise of its powers under Section 482,
Cr. P.C. It must also be indicated that
cancellation of bail is normally to be made
only on the proof of misuse of privilege of
bail
either
by
abscondence
or
by
interference with investigation or by threats
to witnesses."

18. The Hon'ble Apex Court in the
case of Puran and Shekhar and another
(supra) was pleased to hold as under:-

"16.
...............................When
Section 439(2) grants to the High Court
the power to cancel bail, it necessarily
follows that such powers can be exercised
also in respect of Orders passed by the
Court of Sessions. Of course cancellation
of bail has to be on principles set out
hereinabove and only in appropriate
cases.

17. Further, even if it is an
interlocutory order, the High Court's
inherent jurisdiction under Section 482 is
not affected by the provisions of Section
397 (3) of the Code of Criminal
Procedure. That the High Court may
refuse to exercise its jurisdiction under
Section 482 on the basis of self-imposed
restriction is a different aspect. It cannot
be denied that for securing the ends of
justice, the High Court can interfere with
the order which causes miscarriage of
justice or is palpably illegal or is
unjustified. [Re. Madhu Limaye v. State of
Maharasthra (1977) 4 SCC 551 and
Krishnan and Another v. Krishnaveni and
Another (1997) 4 SCC 241]."

19. the validity of the order passed
under Section 439 (2) Cr.P.C. The order
dated 10.9.2024 passed by the Court of
Sessions, Ghaziabad rejecting the Bail
Cancellation Application, at the instance of
the
applicant/First
Informant
can
be
questioned
before
the
Court
in
an
application under Section 482 Cr.P.C. The
instant Bail Cancellation Application is
held to be not maintainable and is
dismissed, leaving it open for the applicant
to assail the order dated 10.9.2024 passed
by the Sessions Court, Ghaziabad in
appropriate proceedings. There shall be no
order as to costs. .
----------
(2024) 12 ILRA 33
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Contempt Application (Civil) No. 6731 of 2024

Smt. Suman Devi ...Applicant
Versus
Sri Avinash Kumar Yadav, Social Welfare
Officer, Fatehpur ...Opposite Party

Counsel for the Applicant:
Sri Bhawesh Pratap Singh