SURENDRA SINGH,J. - (1.) THE applicant by way of filing this application under Section 439(2) of Code of Criminal Procedure has sought to cancel the bail granted to opposite party nos. 2 and 3, namely, Yashoverdhan Singh and Shiv Baran Singh in Case Crime No.301 of 2007 under Sections 302, 307 and 120-B I.P.C. Police Station Ghatampur, District Kanpur, setting aside both the orders dated 11.9.2007 and 27.9.2007 passed by the learned Sessions Judge, Kanpur Dehat.
(2.) THE background facts in nutshell are as follow; The applicant, lodged the F.I.R. under Sections 302, 307 and 120-B I.P.C. at Police Station Ghatampur, District Kanpur Nagar vide Case crime No.301 of 2007 on 29.4.2007 at about 9.45 P.M. regarding the incident alleged to have taken place on the same day at about 6.30 P.M. Opposite party nos. 2 and 3 were named in the F.I.R. inclusive of three other persons, namely, Jai Vardhan Singh, Smt. Neelam Devi and wife of Jai Vardhan Smt. Sheela. As per the F.I.R. on 29.4.2007 at about 6.30 P.M. while the applicant along with his father (deceased) and some other family members were present in the house, Yashovardhan alias Lalji (Opposite party no.2), his brother, namely, Jai Vardhan alias Bauna sons of Shiv Baran Singh (retired Judge) came to the door of the applicant and started hurling fusillade abuses to the deceased Virendra Kumar Singh and when he asked them to desist from abusing opposite party no.2 Jai Vardhan and their father Shiv Baran Singh (opposite party no.3) and Smt. Neelam wife of opposite party no.3 armed with pharsa, sword, axe, Tamancha and lathies made assault at the deceased with the result he sustained grievous injuries on the head and fell down. The applicant's brother Navneet Singh (Fauzi) came to rescue, then above named persons made assault on him also resultantly he sustained several injuries on his vital parts of body. It is further alleged that the applicant, injured Navneet Singh, the applicant's mother, sister and bhabhi Rekha Singh have witnessed the occurrence. It is further submitted that entire incident has occurred due to conspiracy of the wife of Jai Vardhan, brother of the opposite party no.2. During the course of investigation, statement of certain witnesses were recorded under Section 161 Cr.P.C. As per the statement of the witnesses recorded under Section 161 Cr.P.C., opposite party nos. 2 and 3 were alleged to have been armed with pharsa while Jai Vardhan is said to be armed with an axe and country-made pistol and were admitted to bail vide order dated 28.8.2007 and bail application of the opposite party nos. 2 and 3 was also admitted by the learned Sessions Judge vide orders dated 11.9.2007 and 27.9.2007 respectively which is the subject matter of challenge in this application before this Court. Learned counsel for the applicant has submitted that from the perusal of the F.I.R. as well as statements of the eye-witnesses recorded under Section 161 Cr.P.C., it is apparent that opposite party nos. 2 and 3 along with other co-accused persons had brutally committed murder of Virendra Kumar Singh (father of the applicant) and caused several grievous injuries to Navneet Singh (brother of the applicant). The medical evidence in no way is at variance with the ocular version. He has further submitted that after a long period of absconding opposite party nos. 2 and 3 surrendered before the court concerned and moved an application for bail before the learned Sessions Judge, Kanpur Dehat by concealing and suppressing so many facts with specific plea of parity of bail order of Jai Vardhan indisputably granted by this Court. Learned Sessions Judge without appreciating the evidence which was produced before him passed the cryptic and illegal order releasing the opposite party nos. 2 and 3 on bail. He next argued that after they were released on bail both of them started regularly and continuously advancing threats to the applicant as well as his family members and further forcing the informant to leave the village along with family members and also started compelling the witnesses of the incident to turn down from their statements and further giving threats that if they will not turn down from their statements, then all of them will have to face the consequences. He next argued that keeping in view above facts and circumstances of the case, the orders dated 11.9.2007 and 27.9.2007 granting bail to the opposite party nos. 2 and 3 are absolutely illegal, unjust and perverse as such deserve to be set aside by this Court.
(3.) HOWEVER , this application has been opposed by Sri R.B. Singhal, learned counsel for the opposite party nos. 2 and 3. He has contended that the parameters for granting bail and cancellation of bail are entirely different as has been laid by Hon'ble Apex Court in several cases. In the present application for cancellation of bail, there is no reference of any supervening circumstance and only analysis of materials which were considered by the trial court to grant bail were highlighted. He further submits that once bail has been granted, it should not be cancelled mechanically. He placed reliance on the decision of Hon'ble Apex Court in the case of Panchanan Mishra versus Digambar Mishra and others 2005 Supreme Court Cases (Criminal) Volume 1, 660, State of U.P. Versus Amar Mani Tripathi 2005 Supreme Court Cases (Criminal) 1960, Daulat Ram Versus State of Haryana, Supreme Court Cases (Criminal) 237.;