# Zeba Parveen v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Criminal Misc. Bail Cancellation Application No. 646 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zeba-parveen-v-state-of-u-p-anr-50318
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 -Section 439(2) - Power
to Cancel Bail - Criminal Misc. Bail
Cancellation Application. Held: Bail, once
granted, can only be cancelled where,
subsequent to the grant of bail, the
accused
has
misconducted
himself,
misused the liberty or protection available
to him, or where new facts have surfaced
that have an important bearing on the
case. It can also be cancelled if the order
is arbitrary, perverse, without jurisdiction,
or is bad in law for some other reason of a
similar nature. Though misuse of liberty is
one of the grounds for cancellation of bail,
the burden lies on the State or the party
seeking it to prove this by bringing
sufficient material before the court, or at
least show that the allegations of misuse
or misconduct have some substance. (Para
12)
B. In the instant case there was an
allegation that the opposite party no. 2,
during the period he was on interim
bail/interim protection, threatened the
victim, and she filed complaints on two
occasions
-
i.e.,
before
the
Police
Commissioner, Kanpur Nagar, and before
the concerned Sessions Judge. Held :
Filing of applications or even lodging an
F.I.R. is not sufficient to conclude that the
opposite party no. 2 actually threatened
the victim or misconducted himself. The
freedom granted by the bail cannot be
taken away on inadequate grounds or
mere
assertions
or
allegations,
the
veracity of which remains to be tested.
The liberty, even when on bail, is an
important
fundamental
right,
which
cannot
be
taken
away
except
by
procedure established by law. Moreover,
these facts occurred before the grant of
anticipatory bail, and those facts had
already been brought to the knowledge of
54 INDIAN LAW REPORTS ALLAHABAD SERIES
the Sessions Judge before he finally
allowed the application. Applicant not able
to substantiate the allegations that the
opposite party no. 2 misused the liberty or
misconducted himself. (Para 12)
Dismissed. (E-5)
List of Cases cited:

## Text

6 All. Zeba Parveen Vs. State of U.P. & Anr.
53
eyes of law, as such, it cannot be sustained.
The said orders dated 1.11.2021 and
25.2.2022 are whimsical and perverse. Any
order taken by suppressing facts is bad and
cannot be sustained. As the very foundation
is weak, any subsequent order based on it
also cannot be accorded any sanctity and is
also
unsustainable.
The
judgements
referred by learned counsel for the opposite
party no. 2 do not apply to the present case
as he has not come to the court with clean
hands and has taken the orders by
concealing the facts, as such, the order
dated 25.2.2022 is set aside and quashed.

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

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

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Bail Cancellation Application No.
646 of 2022

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

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

Counsel for the Opposite Parties:
G.A., Sri Rajrshi Gupta, Sri Raizwan Ahmad
A. Criminal Law - Code of Criminal
Procedure, 1973 -Section 439(2) - Power
to Cancel Bail - Criminal Misc. Bail
Cancellation Application. Held: Bail, once
granted, can only be cancelled where,
subsequent to the grant of bail, the
accused
has
misconducted
himself,
misused the liberty or protection available
to him, or where new facts have surfaced
that have an important bearing on the
case. It can also be cancelled if the order
is arbitrary, perverse, without jurisdiction,
or is bad in law for some other reason of a
similar nature. Though misuse of liberty is
one of the grounds for cancellation of bail,
the burden lies on the State or the party
seeking it to prove this by bringing
sufficient material before the court, or at
least show that the allegations of misuse
or misconduct have some substance. (Para
12)
B. In the instant case there was an
allegation that the opposite party no. 2,
during the period he was on interim
bail/interim protection, threatened the
victim, and she filed complaints on two
occasions
-
i.e.,
before
the
Police
Commissioner, Kanpur Nagar, and before
the concerned Sessions Judge. Held :
Filing of applications or even lodging an
F.I.R. is not sufficient to conclude that the
opposite party no. 2 actually threatened
the victim or misconducted himself. The
freedom granted by the bail cannot be
taken away on inadequate grounds or
mere
assertions
or
allegations,
the
veracity of which remains to be tested.
The liberty, even when on bail, is an
important
fundamental
right,
which
cannot
be
taken
away
except
by
procedure established by law. Moreover,
these facts occurred before the grant of
anticipatory bail, and those facts had
already been brought to the knowledge of
54 INDIAN LAW REPORTS ALLAHABAD SERIES
the Sessions Judge before he finally
allowed the application. Applicant not able
to substantiate the allegations that the
opposite party no. 2 misused the liberty or
misconducted himself. (Para 12)
Dismissed. (E-5)
List of Cases cited:
1. Abdul Basit @ Raju & ors. Vs Mohd. Abdul
Kadir Chaudhary & anr., (2014) 10 SCC 754
2.
Gurucharan
Singh
Vs
State
(Delhi
Administration), (1978) 1 SCC 118

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Mrs. Zeba Parveen, applicant
appears In-person, Sri Rajrshi Gupta and
Sri Rizwan Ahmad, learned counsels for
the first informant and Sri O.P. Mishra,
learned A.G.A. for the State.

2. This bail cancellation application
has been moved by the applicant/first
informant- Zeba Parveen, with a prayer to
cancel the anticipatory bail granted to
opposite party no.2 by order dated
21.11.2022 arising out of Case Crime
No.0082 of 2022, under sections- 328, 376,
506 I.P.C.

3. The facts relevant for the purpose of
disposal of this bail cancellation application
are as below:-

The first informant lodged an
F.I.R. naming opposite party no.2 with the
allegations that she got married to one
Civil Engineer on 27.04.1985; her husband
has been staying in Saudi Arab in relation
to his job from 2014 to 2017; in 2015 her
neighbour introduced her to the accused
and they started meeting each other; her
husband returned and began staying at
Mumbai and she was staying at Kanpur. It
is further alleged in the F.I.R. that on
12.02.2018, accused came to her house and
administered her some drink laced with
certain intoxicating substance; she became
half conscious; taking advantage of such a
situation, he committed rape on her; he
also prepared a video of the act and
thereafter assured her that he will marry
her and that she should not disclose
anything to anybody else. It is alleged in
the F.I.R. that thereafter he committed rape
on her several times extending threat to
make the video viral; he forced her to take
divorce from her husband by khula method
of "Talaaq"; she obtained divorce on
21.09.2021; he took her to Germany on
false assurance of getting married there.
Later, he reclined and asked her to stay
with
him
without
formal
marriage
ceremony; she has been sexually exploited
on false assurance of marriage, therefore
F.I.R. was lodged.

On the basis of this F.I.R. (Case
Crime No.0082 of 2022), investigation
commenced; the opposite party no.2 moved
an application for grant for anticipatory
bail before the learned Sessions Judge,
Kanpur Nagar and was granted the same
on 21.11.2022; now the applicant/first
informant is before this Court praying for
cancellation of anticipatory bail to the
opposite party no.2.

4. The contentions of the applicant in
nutshell are as below:-

(I) The opposite party no.2 was
granted interim bail/interim protection
during the pendency of anticipatory bail
application and during that period, on
09.11.2022 she was stalked by four persons
who threatened her to stop approaching the
6 All. Zeba Parveen Vs. State of U.P. & Anr.
55
lower court; she complained of that
incident to the Police Commissioner,
Kanpur Nagar. The opposite party no.2 has
been extending threats to her through
various means to dissuade her from
opposing his bail. Therefore, she made
another complaint to police on 14.11.2022
and Case Crime No.136 of 2022, under
sections- 341, 504, 506 I.P.C. has been
lodged.

(II) The opposite party no.2 made
a false promise of marriage to her; he kept
on introducing her as his fiancee and to be
wife to his friends and relatives all this
while; thereafter he abruptly pulled out of
such alignment and refused to sign the
"Nikaahnama" in front of Kazi and
witnesses. Whenever she raised the subject
of marriage, he would begin threatening
her; she lost her children as well as her
former husband because of fraud played on
her.

5. In the counter affidavit filed on
behalf of the opposite party no.2, in brief it
is said that all the allegations in the F.I.R.
are absolutely false; the wife of opposite
party no.2 filed a complaint against the first
informant regarding threat to life and heavy
demand made by her; the wife of opposite
party no.2 specifically mentioned in her
complaint that Zeba Parveen lured her
husband to enter into physical relationship
and got a video prepared of it; she has been
using this incident to blackmail opposite
party no.2 to fulfil her demand of illegal
money; the opposite party no.2 is wholly
innocent; reality is, relations between them
were consensual in nature and the opposite
party no.2 after sometime decided to
withdraw from this relationship; therefore,
the first informant lodged this mala fide
and malicious F.I.R.; it is said in the
counter affidavit that before entering into
such relationship, it was decided between
them that they will not bring their relations
in public domain and that their relations
should not disturb their respective families;
the first informant was not happy with her
first marriage, therefore she obtained
divorce from him and the opposite party
no.2 has nothing to do with this divorce;
the first informant very well knew about
the marital status of the opposite party no.2
and this F.I.R. has been lodged with an
oblique motive; as far as the complaints
filed by the first informant against the
opposite party no.2 during the pendency of
anticipatory bail application are concerned,
the facts were placed before the learned
Sessions Judge before final order was
passed on his anticipatory bail.

6. Before proceeding to decide this
bail cancellation application, it appears
necessary to highlight the demarcation line
drawn between the powers of the Court
where
same
can
be
exercised
for
cancellation of bail from the powers of the
Court, where the Court may sit in review of
the impugned order granting bail and the
limitations imposed on exercise of such
powers.

7. In Abdul Basit @ Raju and
Others
vs.
Mohd.
Abdul
Kadir
Chaudhary and Another, (2014) 10 SCC
754, the Apex Court referred to its own
observations in Gurucharan Singh vs.
State (Delhi Administration), (1978) 1
SCC 118 for the purpose of elucidating the
positions of law, viz-a-viz of the Court
granting and cancelling the bail. The Court
observed in para-16 as below:-

"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
CrPC of the old Code. That is to say, even
56 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 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-à-vis
the High Court."

8. In the same judgement, the Apex
Court referred from another judgement in
Puran vs. Rambilas, 2001 6 SCC 338, in
para-17 as below:-

"17.
In
this
context,
it
is
profitable to render reliance upon the
decision of this Court in Puran v. Rambilas
[(2001) 6 SCC 338 : 2001 SCC (Cri) 1124]
. In the said case, this Court held (SCC p.
345, para 11) 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
supervening
circumstances
warranting
such
cancellation. In Narendra K. Amin v. State
of Gujarat [(2008) 13 SCC 584 : (2009) 3
SCC (Cri) 813] , the three-Judge Bench of
this Court has reiterated the aforesaid
principle and further drawn the distinction
between the two in respect of relief
available in review or appeal. In this case,
the High Court had cancelled the bail
granted to the appellant in exercise of
power under Section 439(2) of the Code. In
appeal, it was contended before this Court
that the High Court had erred by not
appreciating the distinction between the
parameters
for
grant
of
bail
and
cancellation of bail. The Bench while
6 All. Zeba Parveen Vs. State of U.P. & Anr.
57
affirming the principle laid down in Puran
case [(2001) 6 SCC 338 : 2001 SCC (Cri)
1124] has observed that when irrelevant
materials
have
been
taken
into
consideration by the court granting order
of bail, the same makes the said order
vulnerable and subject to scrutiny by the
appellate court and that no review would
lie under Section 362 of the Code. In
essence, this Court has opined that if the
order of grant of bail is perverse, the same
can be set at naught only by the superior
court and has left no room for a review by
the same court."

9. The Supreme Court observed that
there is a clear cut distinction between the
concept of setting aside an unjustified,
illegal or perverse order from cancelling of
an order of bail on the ground that the
accused has misconducted himself or any
new adverse fact having surfaced after the
grant of bail. The Apex Court further
observed that where the grant of bail is
being challenged on the ground of gross
misrepresentation of facts, misleading the
court and indulging in fraud; in other
words, the legality of the grant of bail is
under
challenge,
such
determination,
though would entail cancelling of bail but
such cancelling in effect is entirely
different from a situation where the bail is
sought to be cancelled on the ground of its
misuse.

10. The Apex Court in para-14 of the
same judgement enumerated the grounds
for cancelling of bail which is as below:-

"14. Under Chapter XXXIII,
Section 439(1) empowers the High Court
as well as the Court of Session to direct any
accused person to be released on bail.
Section 439(2) empowers the High Court to
direct any person who has been released on
bail under Chapter XXXIII of the Code be
arrested and committed to custody i.e. the
power to cancel the bail granted to an
accused person. Generally the grounds for
cancellation of bail, broadly, are, (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.
These grounds are illustrative and not
exhaustive. Where bail has been granted
under the proviso to Section 167(2) for the
default of the prosecution in not completing
the investigation in sixty days after the
defect is cured by the filing of a chargesheet, the prosecution may seek to have the
bail cancelled on the ground that there are
reasonable grounds to believe that the
accused has committed a non-bailable
offence and that it is necessary to arrest
him and commit him to custody. However,
in the last mentioned case, one would
expect
very
strong
grounds
indeed.
(Raghubir Singh v. State of Bihar [(1986) 4
SCC 481 : 1986 SCC (Cri) 511 : 1987 Cri
LJ 157] .)"

11. From perusal of the contentions
raised by the petitioner, it becomes quite clear
that cancellation has been sought on two
premises. Firstly, that the facts and merits of
the case were such that grant of bail was not
at all justified. Secondly, on the premise that
the opposite party no.2 misused the liberty
granted to him during interim protection
granted by the court concerned during
pendency of anticipatory bail application.
58 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Legally, the Court cannot sit like
an appellate court/revisional court to
review the order of the anticipatory bail. In
this case, the first informant has applied for
cancellation of bail. As is quite clear from
the law on this point, the bail once granted
can only be cancelled where subsequent to
the grant of bail, the accused has
misconducted himself or has misused the
liberty or protection available to him or on
the ground that some new fact has surfaced
having important bearing on the case or
where the order is arbitrary or perverse or
without jurisdiction or is bad in law for
some reason of like nature. In this case,
though misuse of liberty is one of the
grounds for cancellation of bail but at the
same time, the burden lies on the State or
the party seeking it to prove the same by
bringing sufficient material before the
Court or to atleast show that allegation as
to misuse/misconduct has some substance
in it. As far as the present case is
concerned, there is an allegation that the
opposite party no.2, during the period he
was on interim bail/interim protection
threatened the victim and she moved a
complaint on two occasions i.e. before the
Police Commissioner, Kanpur Nagar and
before concerned Sessions Judge. In my
view, moving of the applications or even
filing of F.I.R. is not sufficient to draw the
conclusion that infact he threatened the
victim and that he misconducted himself.
The freedom made available by grant of
bail cannot be taken away on inadequate
grounds or mere assertions or allegation,
the veracity whereof remains to be tested.
The liberty, even though on bail is an
important fundamental right, which cannot
be taken away except by procedure
established by law. Moreover, these facts
occurred before grant of anticipatory bail
and those facts had already been brought to
the knowledge of the Sessions Judge before
he finally allowed the application. In my
view, the applicant has not been able to
substantiate the allegations that infact the
opposite party no.2 misused the liberty or
misconducted himself.

13. I do not find sufficient ground to
interfere in the impugned order granting
anticipatory bail to the opposite party no.2
and
therefore
this
bail
cancellation
application is hereby dismissed.
----------
(2023) 6 ILRA 58
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 3107 of 2023

Dr. Kartikeya Sharma & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Surya Bhan Singh

Counsel for the Opposite Parties:
G.A., Sri Ajay Kumar Shukla

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860-Sections 498-A, 323,
354, 504 & 506 - 3⁄4 D.P. Act-Matrimonial
dispute-In the present case since the
offences alleged against the accused
applicants
were
punishable
with
imprisonment for a maximum period of
seven years, a notice under section 41-A
Cr.P.C.
was
given
to
them
by
the
Investigating Officer, which means that
their custodial interrogation was not
considered necessary by the Investigating
Officer of the case and their personal
liberty was protected till submission of