Tuesday, 9 April 2013

Cancellation of Bail


Crl.M.C.No.1719/2011 Page 1 of 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C.No.1719/2011
% Judgment reserved on :15th September, 2011
Judgment delivered on:22th September, 2011
GAYATRI DEVI ..... Petitioner
Through: Mr. Mohit Mathur & Mr.Shishir
Mathur, Advs
Versus
STATE & ORS ..... Respondents
Through:Ms.Rajdipa Behura, APP for
State with Inspector Prabhu Dayal,
police station Janakpuri in person.
Mr.Avadh Bihari Kaushik & Mr.Yogesh
Rathee, Advs for respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers
may be allowed to see the judgment? No.
2. To be referred to Reporter or not? No.
3. Whether the judgment should be reported
in the Digest? Yes.
SURESH KAIT, J.
1. Vide the present petition, the petitioner has assailed
the order dated 21.04.2011 passed by learned Additional
Sessions Judge, whereby the respondent No.2/accused has
been admitted on bail. Crl.M.C.No.1719/2011 Page 2 of 20
2. Before adverting to the petition, let briefly recapitulate
the facts.
3. A case under Section 498A/304B Indian Penal Code was
registered against respondent No.2 and his relatives vide FIR
No.324/2009 dated 31.12.2009 at police station Janakpuri,
New Delhi.
4. Initially, respondent No.2 moved an anticipatory bail
application before the Sessions Court which was rejected
vide order dated 20.01.2010.
5. Being aggrieved, he approached this Court and vide
order dated 10.03.2010, the petition of respondent No.2 was
rejected.
6. Thereafter, respondent No.2 moved Special Leave
Petition before the Supreme Court and vide order dated
05.04.2010, respondent No.2 was granted interim relief.
7. Vide order dated 07.01.2011, during the pendency of
the said SLP of respondent No.2, Hon’ble Supreme Court
wanted to see the FSL report, but the same was not
available on the record. Crl.M.C.No.1719/2011 Page 3 of 20
However, during the pendency of the SLP the
investigating agency filed the charge-sheet in the present
case on 13.01.2011. Further, on 28.01.2011, investigating
agency filed the supplementary charge-sheet.
8. After perusing the FSL report; vide order dated
11.02.2011, the Apex Court dismissed the SLP. After which,
respondent No.2 surrendered before the Court and moved a
bail application under Section 439 Code of Criminal
Procedure, same was dismissed by the learned Additional
Sessions Judge vide order dated 07.03.2011.
9. After committal of the case, the investigating officer
Inspector Prabhu Dayal, visited the house of the petitioner
and investigated the incident of threat given by Surat Singh
s/o Sugad Ram, brother of the accused/respondent No.2 to
the son of the petitioner against which, the complaint was
lodged on 09.01.2010 by the son of the petitioner.
10. Respondent No.2 moved another bail application before
the learned Trial Court. After hearing both the parties,
learned Additional Sessions Judge had dismissed the same
vide order dated 07.03.2011.Crl.M.C.No.1719/2011 Page 4 of 20
11. The main pleas raised by learned counsel for petitioner
is that same learned Additional Sessions Judge rejected the
bail application under Section 439 Code of Criminal
Procedure of the respondent No.2 vide its order dated
07.03.2011, whereas, by the impugned order dated
21.04.2011, respondent No.2 was admitted to bail.
12. In the order dated 07.03.2011, learned Additional
Sessions Judge while dismissing the first bail application had
observed as under:-
“Admittedly, deceased Meenu had died
within eight months of her marriage with
the Applicant. As discussed above, there is
sufficient allegation of cruelty and using
abusive language by the Applicant to the
deceased and also physical beatings and
torture by the accused/Applicant to the
deceased as result, she has committed
suicide. There is no doubt that the
allegation against the accused/Applicant
are serious and the gravity of the offence is
not in dispute. The material as discussed
above shows that the accused/Applicant
has allegedly extended threats to the
brother of the deceased after his wife Crl.M.C.No.1719/2011 Page 5 of 20
committed suicide and had died in
unnatural circumstances due to the alleged
mental and physical torture committed by
the accused /Applicant. In these facts and
circumstances, I am of the opinion that in
case the accused/Applicant is released on
bail, there is every likelihood that he may
tamper with the prosecution evidence and
may hamper the fair trial in this case.
Therefore, seeing the gravity of the offence
and in totality of the facts and
circumstances of the case, I do not find any
ground for granting bail to the
accused/Applicant. The application is
accordingly, dismissed. Copy of this order
be sent along with the Trial Court record.
Accused/Applicant be produced before
Ld.ACMM (West) on 08.03.2011 at
10.00am. Copy of the order be given dasti.”
13. Thereafter, learned Additional Sessions Judge granted
bail to respondent No.2 after spending 45 days in jail on the
second bail application moved by respondent No.2, has
observed as follows:-
“On 31.03.2011 2nd bail application was
moved by the accused seeking bail on the
ground that there are new ground for Crl.M.C.No.1719/2011 Page 6 of 20
consideration by this Court for granting bail
because there is no apprehension of threat
to the witness at all. It is further argued
that deceased committed suicide because
of depression and not because of any
alleged harassment and torture by the
accused persons; the arrest of the accused
was stayed by the Hon’ble Apex Court and
during investigation he has not misused the
same in any manner and has regularly
joined the investigation till the filing of the
charge-sheet; he would not threat the
witnesses in any manner during trial and he
being government employee posted as
Section Officer in Ramjas College,
University of Delhi is having no chance of
absconding or fleeing from justice and as
such in the given facts and circumstances
he prayed for grant of regular bail.”
14. It has also been recorded by learned Additional
Sessions Judge that Investigating Officer of the case
Inspector Prabhu Dayal of police station Janakpuri, New
Delhi has filed reply giving details of allegations as
mentioned in the charge-sheet. In the last para he had
stated that on 19.01.2010, a PCR call regarding a threat was Crl.M.C.No.1719/2011 Page 7 of 20
received at police station vide DD No.18A and said DD was
marked to HC Khazan Singh, who conducted the inquiry and
had filed the said DD as untraced by recording DD No.51B
dated 09.01.2010. It is further recorded that the brother of
the deceased had also made a written complaint on
09.01.2010 to the SHO, Janakpuri, New Delhi, wherein, he
had been allegedly threatened by Surat Singh brother
of respondent No.2 either to withdraw the criminal case
instituted against his brother and mother otherwise his
family will be ruined.
15. The Trial Court has also recorded that Shri Vivek
Kumar, brother of deceased who is practicing advocate
assisted Ld Addl. PP for the State.
16. After hearing both the parties, it is observed by learned
Additional Sessions Judge, that in the order dated
07.03.2011 there was an inadvertent observation by this
court wherein it is stated that contents of the alleged
suicide note dated 28.06.2009 had been verified and
confirmed by the FSL report. On perusal of the FSL report
dated 09.11.2010, it revealed that the handwriting Q1 toCrl.M.C.No.1719/2011 Page 8 of 20
Q5 which is in Hindi & contents of the alleged suicide note
could not be tallied with A1 & A2 admitted
handwriting of the deceased collected during
investigation by the IO.
17. Learned Additional Sessions Judge has also recorded
submission of learned counsel for accused that on that day
despite conclusion of the investigation, there was no
admissible evidence in the form of a suicide note against
respondent No.2 and because of the verification of the
signature, and of alleged questioned writing in Q1 to Q5
could not be attributed to be the handwriting of the
deceased.
18. Learned Additional Sessions Judge has also recorded
that respondent No.2/accused had been joining the
investigations till the filing of the charge-sheet and witness
Shri Vivek Kumar and other family members have been
examined and their supplementary statements were
recorded during the investigation and they have not alleged
anything about the threats as allegedly stated in the
complaint dated 09.01.2010. Crl.M.C.No.1719/2011 Page 9 of 20
19. It is also recorded by learned Additional Sessions Judge
that statement of Shri Vivek Kumar on 26.04.2010 had
revealed nothing about the threat.
20. Regarding the contents of the FSL report and nonverification of the contents of the alleged suicide note,
learned APP had submitted that the brother of the deceased
Shri Vivek Kumar had stated that there were sufficient hand
writing of the deceased in Hindi, but the police had never
asked them to supply the same. In case police wanted the
handwriting of the deceased in Hindi, that could be given for
investigation and comparison of the contents of the suicide
note, allegedly written in Hindi and signed in English by the
deceased.
21. Admittedly, the suicide note left by the deceased is in
Hindi, whereas, the signature thereon of the deceased are in
English.
22. Learned Additional Sessions Judge on the basis of the
above discussion, had reached the conclusion that
respondent No.2/accused stated to be a government
employee working as Section Officer in Ramjas College, Delhi Crl.M.C.No.1719/2011 Page 10 of 20
University. His mother Smt.Maya Devi, co-accused had
already been admitted on bail. At the time of death,
deceased was living with her parents since 28.11.2009 i.e.
about a month before the death.
23. Learned counsel for the petitioner has drawn the
attention of this Court to the suicide note, which is in Hindi,
however, the signature and few words in between are
written in English. He further submitted that the Trial Court
has gone wrong on the version that there is no report of the
FSL on the suicide note, which was in Hindi, therefore,
learned Additional Sessions Judge has formed his opinion on
a wrong premise.
24. Further submits that there was no change of
circumstances in the present case and same learned
Additional Sessions Judge dismissed the bail application of
the respondent No.2 before sending him to jail.
25. Learned counsel for the petitioner has relied upon the
decision Kalyan Chandra Sarkar Vs.Rajesh Ranjan
@Pappu Yadav & Ors 2004 SCC (Cri) 1977 wherein it
held as under:-Crl.M.C.No.1719/2011 Page 11 of 20
“Before concluding, we must note though
an accused has a right to make successive
applications for grant of bail the court
entertaining such subsequent bail
applications has a duty to consider the
reasons and grounds on which the earlier
bail applications were rejected. In such
cases, the court also has a duty to record
what are the fresh grounds which persuade
it to take a view different from the one
taken in the earlier applications. In the
impugned order we do not see any such
fresh ground recorded by the High Court
while granting bail. It also failed to take into
consideration that at least on four
occasions order refusing bail has been
affirmed by this Court and subsequently
when the High Court did grant bail, this
Court by its order dated 26th July, 2000
cancelled the said bail by a reasoned order.
From the impugned order, we do not notice
any indication of the fact that the High
Court took note of the grounds which
persuaded this Court to cancel the bail.
Such approach of the High Court, in our
opinion, is violative of the principle of
binding nature of judgments of superior
court rendered in a lis between the same Crl.M.C.No.1719/2011 Page 12 of 20
parties, and in effect tends to ignore and
thereby render ineffective the principles
enunciated therein which have a binding
character.”
26. Additionally relied upon Prakash Kadam Vs.
Ramprasad Vishwanath Gupta: (2011) 6 SCC 189
wherein it has been observed as under:-
“16. The Sessions Court granted bail to the
appellants but that has been cancelled by
the High Court by the impugned judgment.
17. xxx xxx xxx
18. In considering whether to cancel the
bail the court has also to consider the
gravity and nature of the offence, prima
facie case against the accused, the position
and standing of the accused, etc. If there
are very serious allegations against the
accused his bail may be cancelled even if
he has not misused the bail granted to him.
Morevoer, the above principle applies when
the same court which granted bail is
approached for cancelling the bail. It will
not apply when the order granted bail is
appealed against before an appellant/
Revisional Court. Crl.M.C.No.1719/2011 Page 13 of 20
19. In our opinion, there is no absolute
rule that once bail is granted to the
accused then it can only be cancelled if
there is likelihood of misuse of the bail. The
factor, though no doubt important, is not
the only factor. There are several other
factors also which may be seen while
deciding to cancel the bail.”
27. Learned counsel for respondent No.2 has argued that
since 28.11.2009, deceased was with her parents because
on 01.12.2009, there was the marriage ceremony of the
brother of deceased. Admittedly, respondent No.2 attended
the ring ceremony on 30.11.2009. Somehow, due to some
altercation which took place with the brother of the
deceased; he did not attend the marriage on 01.12.2009.
28. Learned counsel for respondent No.2 has drawn
attention of this Court to DD No.17A dated 13.09.2009,
wherein, no allegations of demand of dowry have been
recorded. He has further referred the statement of SI D. K.
Singh recorded under Section 161 Code of Criminal
Procedure, wherein, there are no allegations of demand of
dowry. Crl.M.C.No.1719/2011 Page 14 of 20
29. Learned counsel for respondent No.2 has relied upon
Bhagirathsingh Vs. State of Gujarat (1984) 1 SCC 284
wherein it has held as under:-
“In our opinion, the learned Judge appears
to have misdirected himself while
examining the question of directing
cancellation of bail by interfering with a
discretionary order made by the learned
Sessions Judge. One could have
appreciated the anxiety of the learned
Judge of the High Court that in the
circumstances found by him that the victim
attacked was a social and political worker
and therefore the accused should not be,
granted bail but we fail to appreciate how
that circumstance should be considered so
overriding as to permit interference with a
discretionary order of the learned Sessions
Judge granting bail. The High Court
completely overlooked the fact that it was
not for it to decide whether the bail should
be granted but the application before it was
for cancellation of the bail. 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 Crl.M.C.No.1719/2011 Page 15 of 20
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. The
order made by the High Court is
conspicuous by its silence on these two
relevant considerations. It is for these
reasons that we consider in the interest of
justice a compelling necessity to interfere
with the order made by the High Court.”
30. Further relied upon Dolat Ram & Ors Vs. State of
Haryana:(1995) 1 SCC 349 wherein it has been observed
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
delay 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 of Crl.M.C.No.1719/2011 Page 16 of 20
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”.Crl.M.C.No.1719/2011 Page 17 of 20
31. Additionally relied upon Samarendra Nath
Bhattacharjee Vs. State of West Bengal & Another:
(2004) 11 SCC 165 wherein it has been observed that:-
“11.Having heard the learned counsel and
having perused the records of the we
notice that the trial court after looking into
the case diary and other material produced
before it and also noticing the fact that
investigating agency had only sought
judicial remand, and the argument of the
possibility of accused tampering with the
evidence still taking into consideration the
age and ailments of the accused appellant
granted bail on stringent condition.
12. Per contra, the High Court, in our
opinion, has approached the case as if it is
an appeal against the conviction by giving
findings on factual issues which are yet to
be decided which, in our opinion, is too
premature and is likely to prejudice the
trial. For example, this is what the High
Court had to observe at one part of its
judgment that:
"She was battered, abused; above
all, she was wronged in her castle
with which she had unknowingly
built with quick sand and
ultimately, happiness which she Crl.M.C.No.1719/2011 Page 18 of 20
so passionately sought for turned
down to be a teasing mirage for
her."
13. This finding, in our opinion, could be
construed as a finding accepting the
allegation of the complainant which might
prejudice the case of the defence, at any
rate these findings are unnecessary while
considering a petition for cancellation of
bail. That apart since the only ground on
which the cancellation could have been
ordered being the ground of intimidation
which, in our opinion, is not satisfactorily
proved, the High Court erred in cancelling
the bail granted to the appellant.”
32. Indisputably, relief in the second bail application had
been granted to the respondent No.2 after he has spent 45
days in custody. Earlier, the order dated 07.03.2011 was
passed on the premise that FSL report has confirmed the
handwriting of the deceased wherein direct allegations of
physical cruelty and mental cruelty are alleged on
respondent No.2.
33. Vide the impugned order, learned Trial Court has
granted bail on the ground that FSL report dated 09.11.2010; Crl.M.C.No.1719/2011 Page 19 of 20
the handwriting Q1 to Q5 which is in Hindi and the contents
of the alleged suicide note could not be tallied with A1 and
A2. The observation in the FSL report that writing Q1 to Q5
could not be attributed to be handwriting of the deceased.
34. Giving any opinion on the facts of the case at this stage
would prejudice the trial as the matter is still in its infancy.
However, it is well settled that once bail is granted the same
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 trial.
35. In my opinion, at the time of deciding the second bail
application, the changed circumstances before the learned
Trial Court was that, respondent No.2 remained in jail for 45
days.
36. Further, there is no apprehension of absconding by
respondent No.2/accused, as he is employed as Section
Officer in Ramjas College, University of Delhi. The suicide
note was in Hindi; whereas the opinion of the handwriting Crl.M.C.No.1719/2011 Page 20 of 20
expert is only given in regard to the signatures, which are in
English. The co-accused has already been granted bail. It is
noted that respondent No.2 had fully co-operated in the
investigation, with the investigating agency during the
interim relief granted to him.
37. For the reasons stated above I am of the considered
view that no ground to interfere with the impugned order
passed by learned Trial Court is made out. The said order is
a well reasoned order and I conquer with the same.
38. Hence, Criminal M.C.No.1719/201 is dismissed.
39. No costs.
SURESH KAIT, J
September 22th
, 2011
Mk

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