Madhya Pradesh High Court
Ku. Anju Khatri vs Gyanchand And Ors. on 25 May, 1992
Equivalent citations: 1994CRILJ2274
ORDER Shacheendra Dwivedi, J.
1. This case was registered on a letter from the prosecutrix. Ku. Anju Khatri relating to the case registered for an offence under Sections 376/34, I.P.C. wherein, accused Gyanchand and Kamal Jain were apprehended by Police, Vidisha. The two accused having been allowed bail by the trial Court the cancellation thereof and the transfer of the case from the Court of Additional Sessions Judge, Vidisha (Sh P. D. Maran) is prayed. Earlier, on an application being made by accused Gyanchand for bail, this Court having considered all the available material and the circumstances of the case had dismissed the application under a detailed order dated 18-3-91 in Cr. Misc. Case No. 448/91. On facts, the case of co-accused Kamal Jain is also similar and not distinguishable from accused Gyanchand.
2. Later, a further application for bail was made by accused Gyanchand on a special ground of illness of his father, submitting that his presence was required for attending his father, but that too was dismissed on 4-7-91 in Cr. Misc. Case No. 1243/91.
3. A brief narration of facts would facilitate the further discussion. According to prosecution, when prosecutrix Ku. Anju was returning home from her friends' house and happen to pass in front of the house of accused Kamal Jain, the accused persons, whom she used to call as uncle, taking advantage of their position as such, took her upstairs on the pretext of giving her the photo reels. At that time, the mother of accused Kamal was not at home. Prosecutrix was made to enter the room and the accused persons then close the door from inside and undressed her. Thereafter, each of the accused committed rape on her and during the commission of the sexual acts with the prosecutrix, the other accused took photographs. She was put under the fear and a threat was given that if she disclosed the incident, to anyone her naked photographs of the sexual acts would be published in the town.
4. After satisfying their lust, before she would be allowed to leave the house by the accused persons, the mother of accused Kamal returned home and found the prosecutrix weeping. On an enquiry by the lady, the accused persons told to her that she was daughter of the Proprietor of Fine Art Studio and was weeping because of the beating given to her by her parents.
5. When the prosecutrix returned home, she took some poisonous substance in the state of agony and despair. Her father was out of station and on his return he found his daughter, prosecutrix Anju admitted in the hospital where she narrated the incident to her mother, on gaining consciousness. The report of the incident was lodged by her father with the Police. She was medically examined and injuries on her body including the injury on her cheek by teeth bits, were found. Her vaginal swab on test showed that she was subjected to sexual intercourse. Under the circumstances, considering the case diary statements and the material collected by Police during investigation, the bail applications of accused Gyanchand were dismissed as narrated earlier.
6. Subsequently, both the accused persons namely Gyanchand and Kamal Jain moved an application for the grant of bail before the trial Court which was allowed by order dated 31-10-91 granting temporary bail to the accused persons for a period of 15 days. The learned trial Court in the said bail order, referred to the submissions made by the accused persons that accused Gyanchands' father was sick and there was none to look after him, and that the father of accused Kamal having died two years ago and his brothers being in service and posted outside, he was the only earning male member in the family, and therefore, they prayed for the bail, It was further submitted by the accused persons that they were in custody for the last one year and alternatively prayed that if they are not granted bail pending trial, they be released on temporary bail.
7. The learned trial Court on consideration of arguments and the submissions made by the accused found that "PRAKARAN MEN SAKSHYA BHI PURI HO CHUK1 HAI" (whereas the material witness of prosecution remained to be examined) and therefore, found that there was no likelihood of the accused persons influencing the prosecution witnesses and also for the reason of the Diwali festival approaching on 5-11-91, directed their temporary release on bail.
8. On 15-11-91, when the case was next taken up in hearing the learned trial Court, though was informed that the application of bail was dismissed by this Court on merits and also on the ground of sickness of a member of family of accused, allowed the bail to accused persons during trial. There orders dated 31-10-91 and 15-11-91 are impugned in this Court.
9. The prosecutrix has in her letter-petition prayed for cancellation of bail by setting aside the impugned order and has also submitted that in the facts and circumstances, the conduct and approach adopted by the learned trial Court in the matter go to demonstrate that justice may not be done to her. Although, there are serious allegations also on the integrity of the Judge, but those cannot be considered without an enquiry. Prosecutrix has in the circumstances also prayed for the transfer of the case from the Court of Shri P.D. Maran, learned Additional Judge, Vidisha, to some other Court.
10. On notice, from this Court the accused persons made their appearance through their counsel, Sarwashri J. P. Gupta and B.R. Sharma, Advocates. On behalf of accused Gyanchand written submissions were also made by way of reply to the application (letter-petition) and counsel for both the parties were heard at length.
11. Counsel for the accused persons have submitted that the considerations are different for grant of bail and for the cancellation after the grant. It is submitted that it may be easy to reject the bail but difficult to cancel, once the benefit of discretion is allowed by the Court in favour of the accused. A number of authorities have also been cited by the counsel for the petitioners.
12. The moot question in this case is whether the learned trial Court was competent to grant bail when in the facts and circumstances, the earlier bail applications were dismissed by this Court, more particularly when there was no substantial or material change in the circumstances in favour of the accused and also when no fresh ground was available and whether the bail granted by the trial Court in the circumstances deserves cancellation.
13. Opposing the prayer by tooth and nail, of the prosecutrix for cancellation of bail, the Senior counsel for the accused Shri J.P. Gupta contended that there was no bar for the grant of bail on the trial Court and that there are two paramount consideration for cancelling the bail. Firstly, if there was apprehension that accused would not be available for trial and secondly if the accused while at liberty is likely to influence the prosecution witnesses, or interfere with the evidence. It is submitted that either of the above considerations do not exist in the present case, and do not call for an interference by this Court.
14. With regard to the above contentions, there could be no dispute as that is the principle laid down by their Lordships of the Supreme Court in Bhagirath Sinh Jadeja v. State of Gujarat, AIR 1984 SC 372 : (1984 Cri LJ 160). But these are not the sole or the exhaustive considerations, when the bail can be cancelled, on once being granted. Truely, it would he difficult to lay down all the possible circumstances in which the bail once granted, can be cancelled. There are various factors which the courts have to bear in mind for cancelling the bail, depending on the circumstances of each case.
15. The present case has different complexion. The application of accused Gyanchand, whose case is similar to that of co-accused Kamal Jain, was dismissed by this Court at the stage when the material available was the statement recorded by the police during investigation but when the application was allowed by the trial Court, the statements of the witnesses recorded on oath supporting the prosecution version had come on record. Even the ground of illness of the father of the accused Gyanchand was considered and rejected by this Court. As such there was no good ground available to the trial Court for releasing the accused on bail, that too in a atrocious offence of gang rape on a girl of tender age by the accused persons whom she used to call as 'Uncle'.
16. The trial Court appears to be impressed by the period of custody of about one year and the approaching Diwali festival. The period of custody itself does not provide a ground for releasing the accused on bail, unless it was found that the accused was not responsible for the delay. In the given case, it was not been so found. The trial is at its fag end and only the evidence of doctor, which is of paramount importance in a gang rape case, remains, to be recorded.
17. The trial Court's impression that the prosecution evidence was over and there was no likelihood of any influence being exercised by the accused persons on prosecution witnesses is perverse. For the approaching Diwali festival the trial Court could not grant bail in charity. The Courts have to do justice with both the parties and a fast approaching festival could not be made a material ground or a relevant consideration in such a case, for releasing an accused on bail, when the prayer of the accused for the grant of bail was otherwise not well merited.
18. This Court cannot be a silent spectator to the subversion of the judicial process. The judicial propriety demands that even the court which rejected the earlier prayer for bail, should not later allow such prayer, unless there be the change in the circumstances or a fresh ground available to such accused, as that too would amount to an arbitrary exercise of judicial discretion. It is beyond my comprehension as to how a subordinate court to such court can be permitted to act in arbitrary manner.
19. In our country there are courts one above the other. The superior court is also entrusted with the control over the one below it, to ensure that the subordinate court functions properly and judiciously in discharge of its duty. A Judge can foul judicial process and administration by misdemeanours while engaged in the exercise of judicial function. It is. therefore, as important for the Superior Court to be vigilant also about the conduct and behaviour of the Subordinate Judge, as a Judge, as it is to administer the law, since both functions are of equal importance in the administration of justice.
20. Ordinarily, the High Court will not exercise its discretion under Section 439(2) for cancelling a bail granted by the Sessions Judge in favour of an accused, but if bail has been granted to an accused in a non-bailable offence punishable with death or imprisonment for life, in a manner which smacks of arbitrariness, capriciousness or perversity, on the part of the Court of Session in granting such bail, the High Court has not merely the discretion but a duty is laid on it under Section 439(2), Cr. P. C., to cancel the bail and order the accused to be re-arrested.
21. Justice must be administered in such a manner that it is equal to the offender as well as to the complainant and inspires faith of public in the administration of justice. If High Court as a superior Court comes across an order of a lower court exercising discretion conferred under Section 437 or 439 that it has founded its order on irrelevant considerations or on consideration not germane to the issue the power conferred upon the Sessions Court and the High Court under Section 439(2) can be exercised in the interest of justice or else, Section 439(2) of the Code of; Criminal Procedure will be a dead letter.
22. The mere adjudication of controversies and grievances between the parties is not the whole administration of justice, but the superior court is required to have the judicial and disciplinary control on the lower Court, which is as conducive to proper administration of justice as laying down the law or doing justice between the parties.
23. Some Jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable silent command of our judicial system, and those who exercise it should remember that the discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, it must not be arbitrary, vague and fanciful, but legal and regular.
24. Bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court and/or Sessions Court under Section 439(2) of the Code, even if there be no additional circumstances against an accused appearing in the record after the grant of bail, as contended by the counsel for the accused.
25. In the present case the Sessions Judge having admitted the non-applicants to bail on irrelevant considerations after the rejection of the bail application by this Court without there being any fresh ground available to the accused, it amounted to the arbitrary exercise of judicial discretion and as such the order was vitiated by serious infirmity. It would be right and proper for this Court in the interest of justice in suo motu exercise of inherent powers to interfere with such an order of grant of bail.
26. On a survey of the cited authorities on behalf of the accused persons and on anxious consideration to the submissions made in that behalf, I do not find support of the submissions from any of the authorities. In the case of State of M.P. v. Dalipa, (1986 C Cr J (MP) 66), Badriprasad Puran Badhai v. Bala Prasad Mulchand Sahu, (1986 C Cr J (MP) 146) and Rajendra Prasad v. Madan alias Munna (1986 C Cr J (MP) 346), this Court discussed the principles of grant, refusal and also of the cancellation of bail, but in different situation than the present one.
27. In Yadhunath Singh alias Padali v. State (1971 J LJ SN 91), Mansingh v. State (1972 J LJ SN 134), Mangal Singh v. State (1971 (I) MPWN SN 42), Mithun v. State (1987 (I) MPWN SN 45) Vishwanath Singh v. State (1987 (I) MPWN SN 157), Meharban Singh v. State (1988 (II) MPWN SN 114), Kishore v. State (1982 (I) MPWN SN 118) and (1991 (I) MPWN SN 72), this Court granted bail to the accused in the delayed inquiry/trial when it was found that the delay was not attributable to the accused. The cited authorities are not directly on the point and do not squarely cover the question of controversy involved in the present case.
28. But in Gurucharan Singh v. State (Delhi Administration), AIR 1978 SC 179 : (1978 Cri LJ 129) and State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 261 : (1978 Cri LJ 952) the Apex Court cancelled the granted bail. In the later case of Sanjay Gandhi it was observed that (at page 960 of Cri LJ) :-
Section 439(2) of the Criminal P.C. confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chap. XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases.
29. Though, in those cases the bail was cancelled for the act of interference of accused in the trial, yet as discussed-above, that ground not being the sole consideration when bail can be cancelled, by the Court, the peculiar facts and circumstances of the present case do call for this Court's interference with the impugned order.
30. Therefore, in the facts and circumstances of the case, as sequel of above discussion, the order of granting bail passed by the learned trial Court dated 15-11-91 is set aside and the accused persons are directed to be arrested without any loss of time and committed to custody for facing trial. Further in the circumstances, it is just and proper to transfer the trial from the Court of Shri P. D. Maran, Additional Sessions Judge, Vidisha to the Court of Sessions Judge, Vidisha, who in his turn may consider to try the accused persons himself or to make over the case for trial to some other Court of competent jurisdiction.