Allahabad High Court
Victim Of Fir No. 7/2026 Thru. … vs State Of U.P. Thru. Prin. Secy. Home Lko. … on 23 July, 2026
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:49759
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 92 of 2026
Victim Of Fir No. 7/2026 Thru. Investigating Officer P.S. Masauli Barabanki
.....Applicant(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Shuaib Khan, Mohammad Ahmad
Counsel for Opposite Party(s)
:
G.A.
Court No. - 7
HON'BLE SAURABH LAVANIA, J.
1. Heard the learned counsel for applicant, learned A.G.A. for the State and perused the record.
2. This application has been filed with a prayer to cancel the bail granted to the opposite party No.2/Mohd. Suhail by this Court vide order dated 16.02.2026 passed in Criminal Misc. Bail Application No.1077 of 2026. The order dated 16.02.2026 is extracted herein under :-
” 4. It is next submitted that the F.I.R. is highly belated as according to the same the applicant committed the crime i.e. applicant established physical relations with the victim on 24.06.2025 and the F.I.R. was lodged on 10.01.2026, i.e. after 06 months of the alleged incident. Thus, the delay in lodging the F.I.R. itself is fatal to the story of the prosecution.
5. Learned counsel for the applicant has further submitted that a perusal of the statement(s) of the victim recorded in terms of Section(s) 180 and 183 of BNSS and the contents of the F.I.R. would indicate that the applicant established physical relations with the victim, who was in contact with the applicant for a period of about 03 years on the false pretext of marriage. Thus, if the case of prosecution is taken on its face value then in that eventuality, possibility of conviction of applicant is bleak in view of law settled by the Hon’ble Apex Court in the judgment(s) rendered in the case of Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675; Sonu @ Subhash Kumar vs. State of U.P. and Another, (2021) 7 SCC; Mandar Deepak Pawar vs. State of Maharashtra and Another, 2022 SCC OnLine SC 2110 and Amol Bhagwan Nehul vs. State of Maharashtra and another, 2025 SCC OnLine SC 1230.
6. In these circumstances, the applicant, who has no criminal history and is languishing in jail since 15.01.2026, is entitled to be released on bail. In case of being enlarged on bail, he will not misuse the liberty of bail and will cooperate in trial and would also not influence the prosecution witnesses.
7. Learned A.G.A. has opposed the prayer of the applicant. However, he could not dispute the above contention made by the applicant’s counsel.
8. Considering the arguments advanced by the learned counsel for the applicant, learned A.G.A. and going through the contents of the application, F.I.R., as well as other relevant documents and also that applicant has no criminal history and without going into the merits of the case, this Court is of the view that the application has substance and it is accordingly, allowed.
9. Let the applicant – Mohd. Suhail be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs. 25,000/- and two reliable sureties, out of which one should be of the family members/close relatives, in the like amount to the satisfaction of the court concerned, subject to following conditions:-
(i) The applicant will cooperate with the prosecution during trial.
(ii) The applicant will not tamper with the evidence during trial.
(iii) The applicant will not pressurize/intimidate the prosecution witness(es).
(iv) The applicant shall not commit an offence.
(v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(vi) The applicant shall remain present before the trial court on each date fixed, either personally or through counsel.
(vii) The applicant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.
(viii) The applicant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.
10. In case of default of above conditions it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
11. As this order relates to enlargement of the applicant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order. ”
3. The case of the prosecution, as appears from record, in nutshell is to the effect that rape was committed with the complainant/victim (applicant herein) (in short “prosecutrix”) by the accused namely Mohd. Suhail, on the false pretext of solemnizing the marriage.
4. Learned counsel for the applicant refers the grounds, as indicated in this application, to cancel bail granted to opposite party No. 2 vide order dated 16.02.2026, quoted above. Learned counsel of the applicant stated that it is a fit case for cancellation of bail.
5. The grounds taken in this application are extracted hereinunder:-
“5- That on 24-06-2025 the deponent went to transport Nagar Lucknow with the accused to appear in competitive examination they where the accused has rented a room in transport Nagar where accused forced the deponent to make physical relation upon refusal the accused has mixed some intoxicative substance in food and made sexual relation with the deponent and also made some obscene photos and videos and threatened the deponent that if she tell it to someone then they would get viral her photos and videos.
6- That after this incident the accused has denied to marry with the deponent and continue making physical relation on the pretext of photos and videos.
7- That the deponent having no option left has lodged a first information report bearing First information Report No- 7/2026, Under Section 69, 123, 351(2) B.N.S. at Police Station Masauli, District- Barabanki. A computerized copy of first information report No-to this affidavit. 7/2026 is being annexed herewith as Annexure No.1 to this affidavit.
8- That subsequently the accused has filed bail application before Session Judge Barabanki bearing Bail Application No- 174/2026, which has ultimately rejected on 31-01-2026. A copy of bail rejection order of Session Judge Barabanki dated 31-01-2026 is being annexed herewith as Annexure No.2 to this affidavit.
9- That subsequently the accused has moved his bail application before this Hon’ble Court bearing Bail application No- 1077/2026 which has been allowed by this Hon’ble Court vide order dated 16-02-2026 subject to several conditions. A certified copy of bail order dated 16-02-2026 passed by this Hon’ble Court is being annexed herewith as Annexure No.3 to this affidavit.
10- That after released on bail the accused has started threatening the deponent as well as the witnesess.
11- That in continuation of harassment the accused on28-02-2026 just after few days of releasing on bail when the deponent was going to consult her advocate with her friend Nafeesa Bano daughter of Rajjab Ali who is witness in the first information report dated 7/2026 then on 5 pm the accused alongwith some antisocial aliments started stalking them and on 9:00 pm when the deponent reach near Kamta Chauraha then on a lonely place they started beating the deponent and his friend Nafeesa badly upon some hue and cry the accused alongwith his mates flee away and as a result of beating the deponent and Nafees got several injuries. Copies of injury report prescription along with photos are annexed herewith as Annexure No.4 to this affidavit.
12- That the deponent has tried to immediately lodged first information report against the accused but the police authorities refused to lodge first information report then the deponent moved an application under section 173(4) BNSS and ultimately the first information report has been lodged which is second first information report against the accused bearing FIR No-357/2026, U/s- 78, 110, 115(2), 352, 351(3) BNS. A copy of first information section 323 & 506 IPC is being annexed herewith as Annexure No.5 to this affidavit.
13- That the bail application of opp. Party no.2 has been allowed vide order dated 16-02-2026 by this Hon’ble Court which is subject of certain conditions three of them is as follows:-
i. The applicant will cooperate with the prosecution during trial.
ii. The applicant will not temper with the evidence during trial.
iii. The applicant will not pressurize/intimidate the prosecution witnesses.
iv. That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or temper with the evidence.
V. The applicant shall remain present before trial court on each date fixed, either personally or through counsel.
vi. The applicant will not seek any adjournment on the dates fixed for evidence when the witnesess are present in court.
vii. That the applicant shall remain present in person before the trial court on the dates fixed for recording of statement under section 313 Cr.P.C.
14- That it is pertinent to mention here that just after releasing the bail the opp. Party no-2 on 28-02-2026 just after few days of releasing on bail when the deponent was going to consult her advocate with her friend Nafeesa Bano daughter of Rajjab Ali who is witness in the first information report dated 7/2026 then on 5 pm the accused alongwith some antisocial aliments started stalking them and on 9:00 pm when the deponent reach near Kamta Chauraha then on a lonely place they started beating the deponent and his friend Nafeesa badly which is sheer violation of the bail condition mentioned in order dated 16-02-26.
15- That the family of the deponent is living under great fear and terror since the opp. Party no-2 has threatened for life threat.
16- That the aforesaid incidents show the gravity of the incident and the blood triggered eyes of the accomplishers who are bent upon to kill the family of the deponent in nexus with outsiders. The incident is the result of this nexus.
17. That in the present scenario the deponent was threatened by the Opposite Party No.2 to face dire consequences.
18- That the bail has been granted by the Hon’ble Court over looking the statements of deponent which is erroneous in law, when the gravity of the offence is heinous in nature and the opp. party no-2 and their team are continuously threatening the applicant and the life and limb of the applicant is at stake.
19- That the Opposite Party No.2 after getting bail has started continuously threatening the applicant/informant/witnesses and has informed that if he will go against him, then he will face dire consequences. There is possibility of accused to abscond/flee from justice during the trial.”
6. The prayer is to allow the application and cancel bail granted to the respondent No. 2 vide order dated 16.02.2026, quoted above.
7. Considered the aforesaid and also the observations made by the Hon’ble Apex Court on the issue with regard to cancellation of bail, which includes the following judgment:-
7.1 On the issue of cancellation of bail, the Supreme Court in the case of Himanshu Sharma vs. State of Madhya Pradesh, 2024 SCC OnLine SC 187, observed as under:- “11. While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court’s judgment in the case of Abdul Basit (supra). However, we are compelled to note that the ratio of the above judgment favours the case of the appellants. That apart, the judgment deals with the powers of the High Court to review its own order within the limited scope of Section 362 CrPC. Relevant observations from the above judgment are reproduced 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 charge-sheet, 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) 15. The scope of this power to the High Court under Section 439(2) has been considered by this Court in Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118] 16. In Gurcharan Singh case [(1978) 1 SCC 118] this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short “the old Code”) and elucidated the position of law vis–vis powers of the courts granting and cancelling the bail. This Court observed as under: “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 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–vis the High Court.” (emphasis supplied) 17. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas [(2001) 6 SCC 338]. 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], 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 affirming the principle laid down in Puran case [(2001) 6 SCC 338] 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. 18. Reverberating the aforesaid principle, this Court in the recent decision in Ranjit Singh v. State of M.P. [(2013) 16 SCC 797] has observed that: “19. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.” 19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused’s misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court. 20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law. 21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.”
8. Upon due consideration of the aforesaid, this Court finds no force in the instant application. It is for the reason that the ‘Story’ based upon the facts indicated in para(s) 11 and 12 of the affidavit, to the view of this court, has been concocted with oblique motive related to cancellation of bail.
9. Aforesaid is for the reason that averments made in the para(s) 11 and 12 read with FIR dated 03.07.2026 (Annexure No. 5) indicate that the applicant and her friend were brutely beaten by the accused on bail and his associates on 28.02.2026 at 9:00 P.M. and she became unconscious and on other hand the medical documents on record indicate that the applicant was “conscious, oriented and co-operative” and as per the applicant, before Doctor concerned, the alleged incident occurred on 28.02.2026 at 7:00 P.M. and the injury sustained are not grievous in nature.
10. For the foregoing reasons, the instant application is dismissed. Cost made easy.
(Saurabh Lavania,J.)
July 23, 2026
Jyoti/-
