Reply by accused to application for cancellation of bail under Section 439(2) CrPC
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
0 of 35 blanks filled
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
STATE OF NCT OF DELHI & ANR.: RESPONDENTS
N.D.O.H.: Date of next date of hearing
REPLY TO THE APPLICATION UNDER SECTION 438(2) CR.P.C. FILED BY APPLICANT / COMPLAINANT SH. Complainant/applicant's name FOR CANCELLATION OF THE ORDER OF BAIL DATED Date of the bail order PASSED BY THIS HON'BLE COURT.
MOST RESPECTFULLY SHOWETH:-
PRELIMINARY SUBMISSIONS / OBJECTIONS:-
1.That the complainant approached the accused for the purchase of the property bearing no. Property number in dispute, Delhi, and the deal was finalised for a total consideration of Total sale consideration amount. A token amount of Token / Bayana amount paid was handed over by the complainant to the accused, which was duly acknowledged by the accused, and a Bayana receipt was executed on the same day, i.e. Date of execution of Bayana receipt, wherein the entire description of the deal was recorded. Thereafter, a part payment of Part payment amount was handed over by the complainant to the accused, since approximately 10% Bayana had been finalised for the total deal, and the stipulated time for making the final payment was fixed as three months, i.e. Stipulated date for final payment. At the time of the execution of the Bayana receipt, the accused conveyed that the sale deed would be executed by one Name of person to execute the sale deed, and since Name of person to execute the sale deed had executed the Bayana receipt with the accused, the accused accepted the Bayana as a token amount from the complainant, while the Bayana receipt had been executed between Name of person to execute the sale deed and the accused.
2.That the complainant was not able to arrange the entire consideration amount on or before Stipulated date for final payment, and in spite of several reminders issued by the accused, the complainant disregarded all such requests. When the stipulated period ending on Stipulated date for final payment had expired, the accused offered to return the complainant's money, since the complainant was a retired police official and the accused did not wish to cause any injustice to him. Several requests were accordingly made to the complainant, but he refused all of them and demanded double the amount of the Bayana, i.e. Amount demanded by complainant.
3.That the complainant threatened the accused with lodging a complaint against him at the Police Station. The accused conveyed that he was ready to return the amount and never refused to do so, but the complainant remained adamant. A status report was also filed before the Court of the Ld. Sessions Judge.
4.That the complainant lodged a false and frivolous complaint against the accused, and during the pendency of the complaint at the Police Station, the SHO concerned asked the complainant several times that the matter was a civil dispute, and that when the accused was ready to return the amount, there was no reason for the complainant to be so adamant in refusing to accept it. However, the complainant did not listen to the SHO or any other police officials, and although the accused was asked to appear at the police station on several occasions, he remained present at all times.
5.That during the investigation pending before the Ld. MM, the accused regularly appeared at the Police Station. The accused has no concern with the alleged criminal offences, and the matter, being civil in nature, has been coloured as a criminal case.
6.That the FIR was registered through an application under Section 156(3) Cr.P.C. read with Section 200 Cr.P.C., lodged by the complainant before the Ld. MM, District court complex Courts, Delhi.
7.That the accused took Bayana of a plot bearing no. Plot number in dispute, Delhi, and it was made clear to the complainant that there existed an earlier Bayana receipt executed by Name of person to execute the sale deed, and it was also communicated that all the files had been notarised by a Notary Public. This position was made clear to the complainant on several occasions, and he readily agreed to purchase the property. He paid the Bayana amount of Token / Bayana amount paid and a part payment of Part payment amount in Month and year of part payment, and the receipt was duly given to him.
8.That the complainant, being a retired police officer, exerted pressure to extract double the Bayana amount in settlement of the matter. The accused was ready to settle the matter and pay the said amount of Settlement amount offered by accused; this fact was reiterated by the accused on every occasion, but the complainant insisted upon double the amount.
9.That the applicant has no locus standi to file the present application for cancellation of the bail order dated Date of the bail order, as he cannot be treated as being on par with the Public Prosecutor. It is for the prosecution to satisfy itself whether, by granting bail, the accused / Respondent no. 2 will interfere with the trial or with the evidence; and if the prosecution finds that the accused is conducting himself prejudicial to the interests of the prosecution, it is open to the prosecution to file an application or to bring the matter to the notice of the Court for cancellation of bail. The statute does not, however, authorise a private person to step into the shoes of the Public Prosecutor and file an application for cancellation of bail under the Cr.P.C.
10.That the present application is absolutely baseless and devoid of merit, and does not disclose any ground whatsoever for cancelling the bail granted by this Hon'ble Court vide order dated Date of the bail order.
11.That the present application moved by the applicant / complainant is not maintainable and is liable to be dismissed on the ground that the Respondent no. 2 / accused has not violated any of the conditions imposed by this Hon'ble Court in its bail order dated Date of the bail order.
12.That the applicant has roped in the Respondent no. 2 into the present case on wholly false grounds and in order to take revenge, as the accused declined to pay double the consideration amount to the applicant. The Respondent no. 2 was, and remains, ready and willing to execute the transfer documents, but it is the applicant who failed to come forward with the balance sale consideration within the stipulated period and instead demanded double the amount.
13.That, subsequent to the grant of bail to the Respondent no. 2 / accused, he has complied with all the terms and conditions of the bail order and has not misused the liberty of bail granted to him by this Hon'ble Court.
14.It is submitted that the present application is moved on the basis that the Respondent no. 2 / accused violated the undertaking given before this Hon'ble Court on Date of the bail order, and on this basis the applicant seeks cancellation / setting aside of the bail order dated Date of the bail order. For the kind perusal of this Hon'ble Court, the answering Respondent no. 2 / accused reproduces the relevant paragraph of the said order:-
“13. The learned counsel for the applicant states that in case the Complainant is ready and willing to accept Settlement amount offered by accused, the same shall be repaid by the applicant within 2 weeks of the demand.”
It is clearly stated therein that "in case the Complainant is ready and willing to accept" the amount, and that it "shall be repaid by the applicant within 2 weeks of the demand". The applicant / complainant, however, never raised any demand for the aforesaid amount of Settlement amount offered by accused upon the answering Respondent. In the absence of any such demand being raised by the applicant, the answering Respondent was unable to fulfil, and/or comply with, the undertaking in the order; hence, there is no violation of the order / undertaking on the part of the answering Respondent in any manner. It is the applicant who harbours a wrongful and mala fide intention to extract double the consideration amount.
15.It is submitted that all the allegations levelled by the complainant in the application under reply are totally false, bald and vague, and there is not even an iota of truth in the application, which has been moved only to further humiliate and harass the answering Respondent.
16.It is submitted that, although the application invokes Section 438(2) of the CrPC, notwithstanding the nomenclature given thereto, it is in substance an application under Section 439(2) of the CrPC. Once the CrPC expressly provides the remedy for cancellation of any bail that has been granted, including bail granted by another criminal court, in accordance with Chapter Chapter number of the Code of Criminal Procedure, an application therefor must be made under Section 439(2) of the CrPC, and the law and conditions applicable to orders under Section 438(2) of the CrPC are to be applied in the light of the facts of the particular case, and not the law applicable to an order under Section 438(2) of the CrPC.
17.It is submitted that the provision for cancellation of bail is contained in Section 439(2), which contemplates that the Court of Session or the High Court may cancel the bail granted to an accused. The said section is reproduced hereunder for ready reference:
SECTION 439(2) – PROVISION EXTRACTED
"439(2) – A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
18.It is submitted that bail is a vital and crucial right of an accused, enshrined within the right to freedom. Once a person has been released on bail, it is only in exceptional circumstances that the courts cancel his bail. The pre-conditions laid down by various courts for the cancellation of bail may be summarised as under:
a.Interference, or an attempt to interfere, with the due course of administration of justice by the accused.
b.Evasion, or an attempt to evade, the course of justice by the accused.
c.Abuse by the accused of the liberty granted to him by the court.
d.Misuse of such liberty by the accused by indulging in similar criminal activity.
e.Interference by the accused with the course of the investigation.
f.Attempts by the accused to tamper with the evidence or the witnesses.
g.Threats issued by the accused to witnesses, or indulgence in similar activities.
19.In the case of Dolat Ram vs State of Haryana; 1995 (1) SCC 349; the Hon'ble Supreme Court of India held as under:-
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted."
20.It is submitted that none of the pre-conditions mentioned in the paragraph above exist in the present case, and hence there is absolutely no basis for this Hon'ble Court to cancel the bail of the accused. In fact, the applicant is actuated with malice, and the application is per se devoid of any merit.
21.In the case of State Through Delhi ... vs Sanjay Gandhi; AIR 1978 SC 961; it has been held as under:-
"Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude-, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused."
22.In the case of Bhagirath Sinha S/o Mahipat Singh ... vs State Of Gujarat; AIR 1984 SC 372; it has been held as under:-
"Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted ill his favour by tampering with evidence."
23.That the payment in question was, by its very nature, in the nature of buying freedom, which is contrary to public policy and the rule of law. That the law relating to bail neither permits the buying of bail nor permits such conditions to be imposed as would defeat the object and intent of the conditions mentioned in Section 438 Cr.P.C.
24.That, for the reasons stated above, there is absolutely no basis for this Hon'ble Court to cancel the bail of Respondent No. 2.
REPLY ON MERITS:-
1.That the contents of paragraph 1 of the application are wrong and are denied. The submissions made in the preliminary objections above may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
2.That the contents of paragraph 2 of the application are wrong and are denied. It is denied that Respondent No. 2 claimed that the purchase of Description of the plot/property would be beneficial to the applicant, as the rates of Description of the plot/property were purportedly likely to rise in the near future. The submissions made in the preliminary objections above may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
3.That the contents of paragraph 3 of the application are wrong and are denied. It is denied that Respondent No. 2 claimed that Description of the plot/property was free from all encumbrances and that the applicant should purchase the same immediately. The submissions made in the preliminary objections above may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
4.That the contents of paragraph 4 of the application are wrong and are denied to the extent that, believing the tall claims of Respondent No. 2, the applicant agreed to purchase Description of the plot/property from Respondent No. 2. It is further denied that, at the time of executing the Name of the receipt or agreement executed, Respondent No. 2 specifically recorded therein that he was the absolute owner of Description of the plot/property. The submissions made in the preliminary objections above may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
5.That the contents of paragraph 5 of the application are wrong and are denied. It is denied that, despite repeated requests, Respondent No. 2 did not furnish a copy of his ownership documents/sale deed on that day, stating that no extra copy thereof was available with him and that he would send a photocopy of the said documents later. The submissions made in the preliminary objections above may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
6.That the contents of paragraph 6 of the application are wrong and are denied. It is denied that the applicant thereafter repeatedly requested Respondent No. 2 to furnish a copy of his ownership documents/sale deed so that the applicant could purchase stamp papers for getting a sale deed executed in his name on the due date. The submissions made in the preliminary objections above may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
7.That the contents of paragraph 7 of the application are wrong and are denied. It is specifically denied that the applicant ultimately told respondent No. 2 that, in case he failed to provide a copy of his ownership documents/sale deed or to return the applicant's money, the applicant would report the matter to the police against him, and that despite this, respondent No. 2 did not provide any copy of his ownership documents/sale deed. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
8.That the contents of paragraph 8 of the application are wrong and are denied. It is specifically denied that, upon repeated pressure, respondent No. 2 provided to the applicant a photocopy of an unregistered sale agreement showing that respondent No. 2 had entered into an agreement to purchase the said plot from its erstwhile owner. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
9.That the contents of paragraph 9 of the application are wrong and are denied. It is specifically denied that, when the applicant pointed out to respondent No. 2 that this was not the same document/registered sale deed which he had shown on 27.03.Year of the date of showing the sale deed (27.03.…) as his ownership document in respect of the said plot, respondent No. 2, in a threatening manner, stated that the said agreement to sell was the only document in his possession as proof of ownership of the said plot. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
10.That the contents of paragraph 10 of the application are wrong and are denied. It is specifically denied that, upon making further enquiries at that stage, the applicant found that respondent No. 2 was not the owner of any such plot, that he had committed fraud upon the applicant by misrepresentation, and that the document, i.e., the alleged agreement to sell provided by respondent No. 2, was forged and fabricated. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
11.That the contents of paragraph 11 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
12.That the contents of paragraph 12 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
13.That the contents of paragraph 13 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
14.That the contents of paragraph 14 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
15.That the contents of paragraph 15 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
16.That the contents of paragraph 16 of the application are a matter of record and need no reply. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
17.That the contents of paragraph 17 of the application are a matter of record and need no reply. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
18.That the contents of paragraph 18 of the application are a matter of record and need no reply. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
19.That the contents of paragraph 19 of the application are wrong and are denied. It is specifically denied that, upon the applicant coming to learn that, since this Hon'ble Court was of the view that when respondent No. 2 was not the owner of the property involved/agreed to be sold by him, it was questionable why he had claimed himself to be the owner thereof and had accepted the earnest money, the Ld. counsel for respondent No. 2 made the submissions alleged before this Hon'ble Court. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
20.That the contents of paragraph 20 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
21.That the contents of paragraph 21 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
22.That the contents of paragraph 22 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
23.That the contents of paragraph 23 of the application are wrong and are denied. It is specifically denied that, sensing that Name of the Investigating Officer, the Investigating Officer of the case, was harbouring some hidden motive and might, at any time, claim that the applicant had not demanded his money and had therefore not called respondent No. 2 to pay the said amount to the applicant, the applicant submitted a written application to the Station House Officer (SHO), requesting that respondent No. 2 be called and directed to pay the said amount to the applicant; that the said application was again marked to Name of the Investigating Officer, the Investigating Officer of the case; and that upon receipt of the said application, the Investigating Officer became angry, abused the applicant (who is a senior citizen of about seventy years of age), and threatened the applicant that he was not bound by any such order of the court, further remarking that although the applicant had reported the matter to the SHO, even if the applicant reported the same to the Deputy Commissioner of Police (DCP), he was not concerned. It is further denied that Name of the Investigating Officer, the Investigating Officer of the case, surprisingly offered to the applicant that only if the applicant gave in writing that he had compromised the matter with respondent No. 2 and would get the FIR in question quashed, would he ask respondent No. 2 to pay the said amount to the applicant. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
24.That the contents of paragraph 24 of the application are wrong and are denied. It is specifically denied that, upon hearing the aforesaid remarks of the Investigating Officer of the case, it became crystal clear that Name of the Investigating Officer, the Investigating Officer of the case, had mala fidely and criminally colluded with respondent No. 2 and was bent upon compelling the applicant to compromise the matter with respondent No. 2. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
25.That the contents of paragraph 25 of the application are wrong and are denied. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
26.That the contents of paragraph 26 of the application are wrong and are denied. It is denied that there is any violation of the undertaking given on behalf of the Respondent No. 2 herein, and consequently, the order dated Date of the undertaking/order referred to in the application is not liable to be set aside, nor is the concession of bail granted by this Hon'ble Court to the Respondent No. 2 herein liable to be withdrawn. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
27.That the contents of paragraph 27 of the application are legal in nature and require no reply on facts. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
28.That the contents of paragraph 28 of the application are wrong and are denied. It is denied that the Applicant herein was first cheated by the Respondent No. 2 herein, and it is further denied that the Investigating Officer of the case and the Respondent No. 2 herein, in collusion with each other, are harassing the Applicant or compelling the Applicant to compromise the matter. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
29.That the contents of paragraph 29 of the application are wrong and are denied. It is denied that there is any violation of the undertaking given by the Respondent No. 2 herein before this Hon'ble Court on Date of the undertaking/order referred to in the application, and it is further denied that the Respondent No. 2 herein procured the order in his favour by misrepresentation, fraud or manipulation. The submissions made in the preliminary objections may kindly be read as part and parcel of the paragraph under reply, as the contents thereof are not being repeated herein for the sake of brevity.
That the prayer clause of the application is without any basis, and the application is therefore liable to be dismissed.
PRAYER:-
In the facts and circumstances of the case, it is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to dismiss the application under reply, being non-maintainable, false, frivolous and baseless, filed by the Applicant/Complainant, with costs, in the interest of justice.
Pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the interest of justice.
Place (for signature block of the Respondent)RESPONDENT NO. 2/ACCUSED
THROUGH
DATED:
ADVOCATE
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL. M.A. NO. Criminal miscellaneous application number OF 20Year of criminal miscellaneous application.
IN
BAIL APPLICATION NO. Bail application number OF 20Year of bail application.
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
STATE OF NCT OF DELHI & ANR.: RESPONDENTS
AFFIDAVIT
Affidavit of Sh. Deponent's name, S/o Sh. Deponent's father's name, aged about Deponent's age years, R/o Deponent's address, do hereby affirm and declare as under:-
1.That I am the Respondent No. 2 in the above-noted matter, am well conversant with the facts and circumstances of the case, and am competent to swear the present affidavit.
2.That the contents of the accompanying Reply to the Application have been drafted by my counsel as per my instructions, and the contents thereof have been duly read over and explained to me in my vernacular language, which I have fully understood; the same are true and correct to my knowledge and belief, and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION :-
Verified at Place of verification of the affidavit on this Date of verification day of Month of verification of the affidavit, 20Year of verification, that the contents of my above affidavit are true and correct to my knowledge, no part of it is false, and nothing material has been concealed therefrom.
DEPONENT