- (1.) NASIMUDDIN, J. Ram Sevak Gupta has moved this application for cancella tion of bail, under sub-section (2) of Sec tion 439 Cr. P. C. read with Section 482 Cr. P. C, of Lai Bahadur Yadav and Rakesh, who were granted bail by this Court on 15-1-1999 and 12-1-1999 respectively in Crl. Misc. Case No. 368 (B) of 1999 and Crlmisc. Case No. 260 (B) of 1999 in Case Crime No. 203 of 1999 under Sections 147, 148, 149, 302, 504 and 506 IPC, Police Station Chinhat district Lucknow. For the same purpose State of U. P. has also moved for cancellation of bail of Lal Bahadur aforementioned accused on the same case.
(2.) LEARNED counsel for the applicant and learned counsel for the State were heard. LEARNED counsel for the accused persons Lai Bahadur Yadav and Rakesh did not appear to argue the case. However, earlier counter-affidavit was filed on be half of the two accused persons by Ram Sharan Pal. Learned VII Addl. Sessions Judge, Lucknow before whom the cancellation of bail in the same matter was moved (being Crl. Misc. Case No. 45 of 1998) (in S. T. No. 1009 of 1997) rejected the application for cancellation of bail vide his order dated 6-5-1999. This order has also been chal lenged by the complainant- applicant. It may be pointed out here at this initial stage that the learned Sessions Judge had rejected the application for cancellation of bail on the ground that the F. I. R. was lodged on 11-2- 1999 by the aggrieved per son in respect of occurrence of 9- 2-1999 although the two accused were in jail on that day, and were released on bail only on 10-2-1999. This mistake, apparent on the face of the record occurred due to the fact that in the heading of the F. I. R. of Crime No. 34of 1999, dated 11-2-1999 the time of occurrence was written by the Police Clerk as 9-2-1999; but actually in the body of the F. I. R. the occurrence of threat etc. , was mentioned to have taken place on the day of the lodging of the FI. R. viz. on 11-2-1999; and it was only by way of reference that the occurrence of 9-2-1999was referred to have taken place about the hurling of the abuses after the parties has come out of the Court Room on the date fixed viz. 9-2-1999. Learned Sessions Judge, therefore, was under some confusion and by some over sight could not read the actual text of the F. I. R. wherein the occurrence was alleged to have taken place on the very day on which the F. I. R. was taken down at the Police Station viz. 11-2-1999. This mistake occurred due to over-sight and is apparent on the face of record. The order passed by the learned VII Addl. Sessions Judge becomes as useless and in effective and misconceived order. Learned counsel for the State as well as the complainant took the Court through the material on record in these two Miscellaneous cases.
(3.) THE main ground Of the com plainant side for cancellation of bail of these two persons is that on 9-2- 1999 the complainant etc. were abused by the ac cused persons. THE occurrence of 11-2-1999 has been narrated in the F. I. R. by the complainant Ram Prakash. Regarding this occurrence an F. I. R. in case Crime No. 34 of 1999 under Sections 147, 504, 506 and 307 IPC was registered and was inves tigated and according to the information at the Bar charge- sheet has been sub mitted and the trial has been pending at present before XIII Addl. Sessions Judge, Lucknow. In that case firstly, the bail was rejected but later on the second applica tion of the bail was allowed by this Court. According to the F. I. R. in case Crime No. 34 of 1999 it is alleged that on 11-2-1999 in the morning 8. 15 a. m. while informant Ram Prakash was coming back to his house after doing some work on his field along with his brother Ram Naresh, then Lai Bahadur and Rakesh accused along with one Mahesh armed with fire arms (Katta) intercepted informant and his brother and opened fires and were ex horting and saying that the prosecution witnesses would be done away with then and there. On noise Ram Naresh and others came there. These three persons then are alleged to have run away hurling threats and abusing on their Honda Motor Cycle towards Kharagpur. The informant suffered gun- shot injuries on his body. On 9-2-1999 the complainant had gone to ap pear as a witness in the case of murder of his brother Ganesh (crime in question in which the two accused were enlarged on bail) and that outside the Court Room also he was abused and threatened by the accused persons. After this case was registered as case Crime No. 34 of 1999 the injured informant was also sent to the hospital for medical examination. The in jury report is Annexure No. 5 to this ap plication which shows multiple fire -arm injuries on the body of Ram Prakash who was medically examined at 11. 15 a. m. on 11-2-1999 itself. The accused persons have denied the occurrence of 9-2-1999 and 11-2-1999 in the counter- affidavit sworn by Ram Sharan Pal on their behalf. Besides criminal history of Lai Bahadur accused, criminal history of accused Tarak Nath and Raghu Nath has been annexed. Lal Bahadur was an accused in case Crime No. 211 of 1986 Police Station under Section 302 IPC etc. Similarly in case Crime No. 129 of 1992 of the same police station he was an accused in an offence punishable under Section 302 IPC etc. In case Crime No. 201 of 1992 this accused was sent be hind bars under the provisions of National Security Act. He was also an accused of murder in case Crime Nos. 202 of 1997 and 203 of 1997. In other cases he was challaned for other offences including _the Arms Act and attempt to commit murder and was also sent under the provisions of the U. P. Gangster Act. While granting bail this Court was apprised of the seriousness of the circumstances prevailing after the commission of the murder registered in case Crime No. 203 of 1997. Therefore, it was observed in Crl. Misc. Case No. 260 (B) of 1999 by this Court". . . . . . . . . . . . but the applicant shall not threaten or make any attempt to win over the witnesses and shall co-operate with expeditious disposal of the trial. At any stage of trial if it is found by the Court that the applicant is deliberately delaying the progress of the same, it shall be open for the Court con cerned to cancel the bail in accordance with law. " Similar observations were made and conditions were imposed in Crl. Misc. Case No. 368 (B) of 1999 aforementioned. There is sufficient material to show that the two accused threatened the prosecu tion witnesses as well as also attacked the informant by means of firearm and injured the star witness Ram Prakash. Charge-sheet has also been filed by the Police in that case. Learned counsel for the com plainant also informed the Court that younger brother of Ram Prakash Gupta has also been murdered on 21-12-2000. However, this fact is not on record. Since the two accused threatened the prosecu tion witness and also attacked him, there fore, it can safely be said that they had misused the liberty of bail. They have also contravened the conditions mentioned in the bail order of the two accused. It is well established that in case where the accused tampers with the evidence and threatens the witnesses then this tampering, threat and attack are sufficient ground for can cellation of bail. It has already been men tioned in the beginning that the learned Sessions Judge had refused to cancel the bail on the grounds which were wrongly read by him and the order was passed due to over-sight. From the allegations and affidavit of the complainant a very good case for cancellation of bail is made out and the bail can easily be cancelled under sub-section (2) of Section 439 Cr. P. C. this Court. The application of the com plainant as well as the application moved by the State of U. P. under the aforemen tioned two Criminal Misc. Case Nos. 365 of 1999 and 539 of 1999 are allowed and the bail granted to Lai Bahadur Yadav on 15-1-1999 and granted to Rakeshon 12-1-1999 by this Court in aforementioned two cases in case Crime No. 203 of 1999 are cancelled. The two accused Lai Bahadur Yadav and Rakesh shall be taken into custody and on being taken into custody their bail bonds shall stand cancelled and the sureties shall stand discharged.;