1 2025:CGHC:20527 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 18.02.2025 Order Delivered on 05.05.2025 CRMP No. 592 of 2020 Atish Upadhyay S/o Nagendra Upadhyay Aged About 21 Years R/o House No. 303, Sadak - 4, Ward No. 11, Shanti Nagar Supela, Bhi- lai, Police Station Supela, Tahsil And District Durg Chhattisgarh. ... Petitioner versus 1 - Smt. Neha Thadani W/o Sunny Thadani Aged About 24 Years R/o House No. 280, Sadak - 4, Shanti Nagar, Bhilai, Police Station Supela, Tahsil And District Durg Chhattisgarh. 2 - State Of Chhattisgarh Through District Magistrate, Durg, District Durg Chhattisgarh. ... Respondents -------------------------------------------------------------------------------------------- For Petitioner : Mr. T.K. Jha, Advocate For Respondent : Mr. Vipin Tiwari, Advocate For State : Ms. Pragya Shrivastava, Dy. Govt. Advocate -------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge CAV Order 1. The present criminal miscellaneous petitioner filed under Section 482 of the Cr.P.C. being aggrieved by reversing the order of Judicial Magistrate First Class, Durg dated 09.08.2019 passed in remand proceeding and cancelling the bail of petitioner by Additional Sessions Judge, Durg in Miscellaneous Cr. Case No. 46 of 2019 dated 19.02.2020 under the provisions of Section 439(2) of Code of Criminal Prodecure. 2 2. Relevants facts of the case are such that the petitioner was arrested in connection with Crime No. 814/2019 for the offence punishable under sEction 294, 506, 507, 454 and 354 of the IPC by the outpost Vaishali Nagar, Police Station Supela and was produced before the Judicial Magistrate First Class, Durg on 04.07.2019. Thereafter the petitioner moved an application for grant of bail under Section 437 of the Code of Criminal Procedure which was allowed by the Judicial Magistrate First Class with four conditions. The petitioner furnished the bail bond of Rs. 20,000/- and was released on bail by the learned Judicial Magistrate First Class, Durg. Respondent filed an application for cancellation of bail before the Judicial Magistrate First Class on the ground that after being released on bail the petitioner threatened her and lodged an FIR. Learned Judicial Magistrate First Class, called the report from the concerned Station House Officer perused the report and held that the alleged offence said to have been committed by the petitioner is doubtful and rejected the application for cancellation of bail filed by respondent no. 1 vide order dated 09.08.2019. Respondent no. 1 again filed an application against the order dated 09.08.2019 before the Session Court, Durg under the provisions of Section 439(2) of Cr.P.C. Learned Additional Sessions Judge allowed the application filed under Section 439(2) of the Code of Criminal Procedure and reversed the order of the Judicial Magistrate First Class, passed on 04.07.2019. 3. Learned counsel for the petitioner contended that the learned Additional Sessions Judge has overlooked the fact that the independent witness Umesh Sharma had given an affidavit in the court of Judicial 3 Magistrate First Class, that no incident has been taken place in his presence. That the learned Judicial Magistrate First Class, passed the order on the sound grounds and its reversal caused breach of personal liberty of the petitioner. He also submitted that the police did not give opportunity of hearing to the petitioner before giving report to the court. Hence the present criminal miscellaneous petition deserves to be allowed and the order dated 19.02.2020 passed by the Additional Sessions Judge, Durg be set aside in the interest of justice. In order to substantiate his facts he relied upon the judgment passed by this Court in Cr.M.P. No. 469 of 2015 vide order dated 27.07.2015 in which it was held that cancellation of bail filed under Section 439(2) of the Cr.P.C., it would amount to review/recall of bail order, which impermissible, in the light of express bar contained in Section 362 of the Cr.P.C. which bars the jurisdiction of this court to alter or review the bail order or judgment except to correct a clerical or arithmetical error. 4. Learned counsel for respondent no. 1 opposes the prayer made by the learned counsel for the petitioner and stated that after due diligence Additional Sessions Judge, Durg has reversed the order and canceled the bail of the petitioner. 5. Learned counsel for respondent no. 2/State also opposes the prayer made by the learned counsel for the petitioner and supports the order passed by the Additional Sessions Judge, Durg. 6. I have heard learned counsel for the respective parties and perused the record with utmost circumspection. 4 7. On bare perusal of the order passed by the Magistrate First Class, Durg dated 09.08.2019 (Annexure P/2), it is quite vivid that after due diligence the petitioner was granted bail after furnishing bail bond of Rs. 20,000/- and was released on bail on four major conditions i.e. (1) The accused would remain present on each and every upcoming hearing dates. (2) He will not influence the witnesses in any manner (3) The accused shall not leave the territory of India without the permission of the Court (4) Will not repeat the crime if a report of repeating the crime by the accused is sent to the court from the police station, then the bail of the accused will be considered for cancellation. 8. Further after getting released on bail, the respondent/victim again lodged an FIR against the petitioner bearing FIR No. 0651 (Annexure R-4) stating that when she was going to market along with her father-in-law sitting behind the motorcycle, the accused petitioner came near our motorcycle on an Activa and started abusing us using filthy language and threatened us to kill. He also said that I have been released and now I will see you and went away. After that the respondent went to the concerned Police Station and again lodged an FIR against the accused petitioner. The crime was registered against the accused petitioner for the offence punishable under Section 294 and 506 of the Indian Penal Code. 9. The report was called by the Judicial Magistrate First Class, Durg from the concerned Station House Officer. However, the Judicial Magistrate First Class on finding no such reason to believe that the respondent has been threatened by the accused petitioner held that no 5 such offence said to have been committed by the petitioner and rejected the application for cancellation of bail filed by the respondent vide order dated 09.08.2019 (Annexure P/2). 10. Being aggrieved by the order dated 09.08.2019, respondent filed an application dated 25.09.2019 ( Annexure P/3)under the provisions of Section 439(2) of the Cr.P.C. before the Sessions Court, Durg. Upon which the accused petitioner filed his reply as (Annexure P/4) where he categorically stated that the respondent has lodged a false and fabricated FIR against the present petitioner and prior to this she has filed a false and fabricated complaint against many people which clearly shows her intentions that she do this on a regular basis with a wrong intention. However, learned Additional Sessions Judge allowed the application filed under Section 439(2) of the Code of Criminal Procedure and reversed the order of the Judicial Magistrate First Class, passed on 04.07.2019. 11. Close scrutiny of the facts and circumstances of the case, this court is of the considered view the conditions imposed upon the petitioner specially the condition no. 4 which states that the petitioner will not repeat the crime and if a report of repeating the crime by the accused is sent to the court from the police station, then the bail of the accused will be considered for cancellation. But the petitioner after getting released, violated the condition imposed by the trial court by abusing and threatening the respondent along with her father-in-law. Just because the petitioner did not use any criminal force on the respondent with the intention to outrage the modesty and only used obscene language and 6 threatened to kill , it cannot be assumed that the petitioner has not repeated the crime. Therefore, it is crystal clear that the petitioner has violated the condition no. 4 and used his liberty with an evil intention. 12. It is also pertinent to mention here that the petitioner was convicted for sexual offence against another women in the past as well and has been sentenced to one year nine months for rigorous imprisonment and a fine amount of Rs. 500/- by the Additional Sessions Judge, FTC, Durg, Chhattisgarh for the offence punishable under Section 394, 354, 376(1)(2) of the Indian Penal Code and Section 67(b) of the Information Technology Act, 2000 which proves that the petitioner has a criminal tendency. Due to which the crimes has been repeated by violating the conditions of bail. 13. Hence looking to the peculiar facts and circumstances of the case and specially to the fact that a case was already made out against the petitioner, it cannot be said that the learned Additional Sessions Judge made any illegality, perversity and jurisdictional error by allowing the application filed under Section 439(2) of the Code of Criminal Procedure and reversed the order of the Judicial Magistrate First Class, passed on 04.07.2019. 14. Hence the present criminal miscellaneous petition being devoid of merits, deserves to be and is hereby dismissed. sd/- alfiza (Arvind Kumar Verma) Judge