HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 23
Case :- U/S 482/378/407 No. – 275 of 2016
Applicant :- Surendra Kumar Singh
Opposite Party :- State Of U.P. Thru. Home Secy. Govt. Of U.P. Lucknow & Ors.
Counsel for Applicant :- Pravin Kumar Verma,Bhola Singh Patel,Shiv Shankar Singh
Counsel for Opposite Party :- Govt. Advocate,Lalit Kishore Pandey,Meenakshi Singh,Shiv Kumar Singh,Ziauddin Khan
Hon’ble Sudhir Kumar Saxena,J.
ORDER
This petition has been filed under Section 482 Cr.P.C. challenging the order dated 22.09.2015 passed by Sessions Judge, Barabanki cancelling the bail of Smt. Ramlali, Smt. Durga, Rajesh Kumar, Anuj Kumar Dwivedi and Surendra Kuwanar Singh, who were granted bail by Sessions Judge, Barabanki on 20th August, 2013.
Submission of learned counsel for petitioner is that ground for cancellation of bail are different from that of refusal to grant bail.
Preliminary objection has been raised by Sri Lalit Kishore Pandey to the effect that this petition under Section 482 Cr.P.C. against the bail cancellation order is not maintainable inasmuch as petitioner has remedy to file fresh bail application.
It is further stated that Hon’ble A.H. Khan, J. vide order dated 07.01.2016 rejected the Crl. Misc. Case No. 5572 of 2015(u/s 482 Cr.P.C.), upholding the order dated 22.09.2015 in respect of Rajesh Kumar and Anuj Kumar Dwivedi, as such, this petition is not maintainable.
Hon’ble Mahendra Dayal, J. has been pleased to dismiss the Criminal Revision no. 691 of 2015 filed against the order dated 22.09.2015 by present petitioner on 20.01.2016 as not maintainable, therefore, present petition is also not maintainable.
From the above, it is apparent that revision of petitioner against order cancelling the bail was not found to be maintainable. Hon’ble A.H. Khan, J. has held that petition under Section 482 Cr.P.C. is maintainable, therefore, earlier dismissal of revision does not prohibit the maintainability of this petition under Section 482 Cr.P.C.
Sri L.K. Pandey stated that bail cancellation order, being interlocutory in nature, even petition under Section 482 Cr.P.C. is not maintainable. He has relied upon the certain decisions.
Hon’ble V.N. Mehrotra, J. in the case of Jitendra Kumar Vs. State of Uttar Pradesh reported in LAWS (ALL)-1994-2-91, has been pleased to hold that petition under Section 482 Cr.P.C. will not be maintainable against order cancelling the bail as petitioners have alternative remedy to move fresh bail application.
This decision has been based upon a decision given in the case of Satendra Kumar Singh Vs. State of U.P. [1988 ACC page 487] wherein this question was not specifically considered. Only casual observation has been made.
In Paragraph 4 of the judgment given in the case of Smt. Rukhsana Vs. State of U.P. and another (application under Section 482 Cr.P.C. no. 14905 of 2012), Hon’ble Ramesh Sinha, J. has been pleased to held as under:
“4. When an order has been passed under Section 439, Cr. P.C. cancelling the bail order recorded under 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.”
Andhra Pradesh High Court In the case of Janapala Krishna Vs. The State of Andhra Pradesh (Crl. Revision Case No. 1804 of 2014) has held that 482 petition is also maintainable. Relevant part of judgment is being reproduced below:
“In fact, a detailed order is passed by this Court regarding remedy is to file application under Section 482 Cr.P.C. and not by revision against the cancellation of bail order, vide order dated 15.09.2014 in Crl. R.C. No. 1506 of 2014. Needless to say, the remedy is to move afresh bail application, or the other remedy if at all to impugn the cancellation order of the bail is only under Section 482 Cr.P.C. for interference within the inherent power of the High Court and not to impugn by maintaining the revision.”
Hon’ble Apex Court in the case of Puran, Shekhar and another Vs. Rambilas and another, decided on 3rd May, 2001 in Criminal Appeal No. 599 of 2001 and Criminal Appeal no. 600 of 2001, has been pleased to held that :
“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. 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].”
From the various judgments of High Courts and Apex Court, it is clear that High Court has inherent power to examine the validity of order passed under Section 439(2) Cr.P.C. Even it has been held by Hon’ble A.H. Khan, J. that petition under Section 482 Cr.P.C. can be maintainable.
Revision has been dismissed by Hon’ble Mahendra Dayal (J) on the ground of maintainability and not on merits. Consequently, preliminary objection raised by petitioner has no force and 482 petition is found to be maintainable.
On merits, it is apparent that sale-deed was executed by Rajesh Kumar and Anuj Kumar Dwivedi not by petitioner, as such, their case is apparently distinguishable.
Let a counter affidavit be filed by respondent no. 4 within six weeks. Learned A.G.A. may also file counter affidavit.
List in third week of July, 2016.
Till then, operation of order dated 22.09.2015, cancelling the bail of present petitioner alone, shall remain stayed.
Order Date:-26/05/2016