Punjab-Haryana High Court
Crm-M-34512-2013 vs State Of Punjab And Others on 16 May, 2014
CRM-M-34512-2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. CRM-M-34512-2013
Rupeet Swani
..... Petitioner
Versus
State of Punjab and others
..... Respondents
2. CRM-M-44302-2013
Parneet Singh Swani
..... Petitioner
Versus
State of Punjab and another
..... Respondents
Date of decision: 16.05.2014
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. RS Rai, Senior Advocate with
Mr. Anurag Arora, Advocate
for the petitioner (in CRM-M-34512-2013) and
for respondent No. 2 (in CRM-M-44302-2013).
Mr. CS Brar, DAG, Punjab.
Mr. Ramesh Gupta, Senior Advocate with
Mr. Harmandeep Singh Saini, Advocate
for respondents No. 2, 3 and 5 (in CRM-M-34512-2013) and
for the petitioner (in CRM-M-44302-2013).
R.P. NAGRATH, J.
By this common order two petitions bearing CRM-M-34512- 2013 and CRM-M-44302-2013 are being disposed of. In CRM-M- 34512-2013, prayer made by the complainant/petitioner-Rupeet Swani, Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -2- under Section 439 (2) read with Section 482 Cr.P.C., is for quashing/setting aside the order dated 1.10.2013 (Annexure P-15) passed by the learned Additional Sessions Judge, Mohali and for cancellation of the bail granted to private respondents No. 2 to 4. Respondent No. 2- Kirandip Siwani in this petition is the husband of respondent No. 4- Harvinder Kirandip Swani and they are parents of Respondent No. 3- Harjiv Singh Swani and respondent No. 5-Parneet Singh Swani. Respondent No. 5 (petitioner in CRM-M-44302-2013) is husband of the petitioner. In CRM-44302-2013, Parneet Singh Swani has sought pre-arrest bail under Section 438 Cr.P.C.
2. Both these petitions arise out of FIR No. 115 dated 6.9.2013 registered under Sections 406/498-A/323/324/506/120-B IPC (Sections 307 IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 added lateron) at Police Station Balongi, District SAS Nagar, Mohali. The facts are being extracted from CRM-M-34512-2013.
3. I have heard learned Senior counsel for the petitioner, learned Senior Counsel for private respondents No. 2, 3 and 5, the State counsel and carefully gone through the record.
4. The learned Senior counsel for the petitioner submitted that the private respondents were arrested on 12.9.2013 at Mumbai in execution of warrants of arrest issued by the Court of Magistrate at Mohali. They were produced before the Additional Chief Metropolitan Magistrate, Mumbai for transit remand at 1.25 p.m. The respondents applied for transit bail under Section 439 read with Section 482 Cr.P.C. before the Bombay High Court. The factum of filing bail was brought to Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -3- the notice of Additional Chief Metropolitan Magistrate, Mumbai. The Bombay High Court allowed the application vide order dated 12.9.2013 (Annexure P-9) and it was directed that the respondents be released on bail on furnishing PR bonds in the sum of ` 15,000/-. They were also directed to furnish cash security in the like amount. The interim bail was to remain in force for a period of two weeks from 12.9.2013 during which the respondents could approach the appropriate Court and seek necessary orders. Since the High Court of Bombay had directed the release of the respondents after furnishing P.R. Bonds as referred to in the order before the Cuffe Parade Police Station, Sub-Inspector Nikka Ram who headed the police party to arrest the respondents was directed to produce them before the police of Cuffee Parade Police Station in order to make compliance of the order passed by the Bombay High Court.
5. It was vehemently contended that private respondents have taken recourse to hitherto unknown procedure in seeking bail resulting into making mokery of the whole system. The private respondents initially applied for the grant of anticipatory bail under Section 438 Cr.P.C. before the learned Additional Sessions Judge, Mohali on 18.9.2013 but that application was dismissed without going into the merits vide order dated 23.9.2013 (Annexure P-11) observing that the petitioners (respondents No. 2 to 5) were arrested in the case and enlarged on interim bail by the Bombay High Court, so the remedy for them was only to seek regular bail under Section 437 or Section 439 Cr.P.C.
6. It was further contended that on 24.9.2013, private Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -4- respondents No. 2 to 5 had filed CRM-M-32262-2013 under Section 482 Cr.P.C. for quashing of the FIR which was directed to be listed on 3.10.2013 and in the meanwhile, it was ordered that petitioners be not arrested. That quashing petition was ultimately dismissed by this Court on 5.10.2013. Copy of the order dated 5.10.2013 is Annexure P-16. Respondents No. 2 to 5 adopted a device in filing fresh application for bail under Section 439 Cr.P.C. during operation of the stay and regular bail was allowed to respondents No. 2 to 4 vide order dated 1.10.2013 (Annexure P-15) passed by the learned Additional Sessions Judge, SAS Nagar Mohali, whereas the prayer of husband i.e. respondent No. 5 who is the petitioner in CRM-M-44302-2013 was dismissed. Learned Senior counsel submits that this is beyond the canons of law to grant regular bail to respondents on 1.10.2013. It is further submitted that when the quashing petition filed by the private respondents was taken up for hearing on 25.9.2013, there was an argument on behalf of the respondents that amicable settlement of the dispute can be explored. Learned Senior counsel pointed out that despite dismissal of the application for bail of respondent No. 5-husband of the petitioner, he was not taken into custody and he walked out of the Court. Therefore, CRM-M-44302-2013 filed by respondent No. 5 with a prayer for grant of pre-arrest bail before this Court under Section 438 Cr.P.C. is also not maintainable.
7. On the other hand, learned Senior counsel for private respondents No. 2, 3 and 5 who is also appearing for the petitioner in CRM-M-44302-2013 submitted that the bail once granted by the lower Court can be cancelled only on the specific grounds of interference or Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -5- 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. It was further contended that this is not an appeal against the order granting bail by the Sessions Court but only for the cancellation of bail. The learned senior counsel referred to the facts of the case to contend that the petitioner- complainant has come up with totally an incorrect version simply to harass the respondents. It is urged that marriage was performed about 10 years before registration of the FIR and the incidents stated in the FIR are highly improbable and unacceptable.
8. It may be stated that initially reply to CRM-M-34512-2013 was filed by respondents No. 2 to 4 but subsequently from 13.1.2014, when the matter was listed, representation was made only for respondents No. 2, 3 and 5.
9. On giving my thoughtful consideration and going through record, it seems that the controversy in fact was the matrimonial dispute but over-zealousness which the parties exhibited has created a difficult situation and attempt has been made to rely more on technicalities than the merits of the case. To understand the entire issue, it would be appropriate to briefly describe the facts of the case which have emerged from material on record.
10. Marriage of the petitioner with respondent No. 5 was solemnized on 18.10.2003. It was stated that an amount of ` 80-90 lacs was spent in the marriage. Various gift items and huge cash amount was given to the respondents from time to time. A female child was born to Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -6- the petitioner on 29.10.2004. It was also stated by the petitioner that birth of a daughter brought a host of demands from respondents and they started expecting even more cash from the parents of petitioner. In paragraph No. 2.23 of the petition, it is stated that father-in-law and brother-in-law of the petitioner even assured her parents that they would allocate some defined share in their business by proper documentation in the favour of the petitioner. There are also allegations about respondent No. 5 the husband, having developed illicit affair with a lady.
11. Coming straight to the facts stated in the FIR, it was stated by the petitioner that on 2.9.2013, in the morning, husband of the petitioner, her brother-in-law and parents of her husband gave her beating and they demanded cash amount of ` 2 crores because they intended to open a factory. The husband took a knife from the house, mother-in-law and brother-in-law put a chunni across the neck of the petitioner and started tightening her neck and father-in-law caught-hold of her legs. Her husband attacked the complainant with knife. She raised her left arm resulting into injury on her upper arm. The petitioner agreed for the money upon which the private respondents let her off. The petitioner told the entire incident to her father expressing apprehension that she would be killed. Her father told the petitioner to come to Mohali. She boarded a plane and came to her parental house with grievous injuries on her person. Brother of the petitioner took her to the hospital at about 4.30 p.m. on the same day and admitted her there. The police went to the hospital, recorded statement of the petitioner and took into possession copy of the MLR. On the basis of this statement, DDR No. 22 dated Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -7- 3.9.2013 (Annexure P-4) was recorded at Police Station Balongi, District SAS Nagar, Mohali. It was recorded in the said DDR that MLR described 6 injuries.
12. FIR (Annexure P-2) was registered on the basis of this statement on 6.9.2013 at Police Station Balongi, for offences under Sections 406/498-A/323/324/506/120-B IPC. However, the petitioner made a supplementary statement before the police on 9.9.2013 that her husband sprinkled alcohol on her and lit a match-stick and threw it on the petitioner due to which her hair were burnt upon which offencs under Section 307 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 were also added.
13. There was a serious argument raised for the respondents about interpolation in the MLR by adding injury No. 6 subsequently, which was not originally there. In this regard observations were made by this Court in the order dated 5.10.2013 (Annexure P-16) passed in the quashing petition No. CRM-M-32262-2013 that if it is so it would be a serious matter but that controversy was not commented upon being a disputed fact. However, learned State counsel has not come up with a clear stand so far, on that issue.
14. It may be stated that the petitioner having first gone to the Jaslok Hospital, Mumbai before coming to Chandigarh also came into light in the quashing petition. Along with the reply, the respondents have produced the record of Jaslok Hospital, Mumbai, dated 2.9.2013 with regard to treatment of the petitioner. The history of patient noted in the record was that the petitioner had a fall in the bathroom resulting in pain Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -8- over her left shoulder including neck. Pain was also there on the left wrist including arm. It is submitted that the seat of all the injuries found on the person of the petitioner was recorded by the Jaslok Hospital in the record Annexure R-2/3 but there was no injury with regard to singeing of hair found as injury No. 6 in the MLR (Annexure P-3) relied upon by the petitioner. The petitioner having first gone to Jaslok Hospital, Mumbai on 2.9.2013 is admitted in paragraph 2.38 of the instant petition. It is stated that she got first aid treatment in the Jaslok Hospital but there is no assertion to challenge correctness of the observations made in record of the said hospital.
15. Learned senior counsel for the petitioner contended that it is a settled principle that an application for bail would lie only if the accused is in custody. To support this contention reliance is placed upon Nirmal Jeet Kaur Vs. State of Madhya Pradesh and another 2004 (7) SCC 558. It was submitted that the private respondents were arrested by Mumbai Police and they could apply for bail only under Section 439 Cr.P.C. In Nirmal Jeet Kaur's case (supra) Hon'ble Supreme Court held as under:-
"14. The crucial question is when a person is in custody, within the meaning of Section 439 Code of Criminal Procedure? When he is duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order, or having offered himself to the Court's jurisdiction Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -9- and submitted to its orders by physical presence. No lexical dexterity nor presidential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold to an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law."
16. The facts of Nirmal Jeet Kaur's case (supra) were that respondent No. 2 filed an application for protection in terms of Section 438 Cr.P.C. and Jabalpur Bench of Madhay Pradesh High Court disposed of the application on 15.5.2003 on certain terms including that respondent No. 2 may approach the appropriate court within a period of four weeks for regular bail. The regular bail of respondent No. 2 was rejected by the Judicial Magistrate Ist Class, Jabalpur and on 5.6.2003, prayer for bail was made before Sessions Court, Jabalpur but that was also rejected. However, respondent No. 2 filed an application in terms of Section 439 Cr.P.C. on 7.6.2003 before the High Court which was listed Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -10- before the Vacation Bench on 12.6.2003 and the matter was adjourned to 16.6.2003 when the High Court passed the following order:-
"This Court on 15-5-2003 in M. Cr. C. No. 2890/2003 allowed the application for bail for a period of four weeks. Looking to the nature of the case, the application of ad-interim anticipatory bail is hereby allowed on the condition of furnishing a personal bond of Rs. 20,000/- with one surety of the like amount to the satisfaction of the Station Officer In-charge concerned."
17. However, the criminal miscellaneous petition in terms of Section 439 Cr.P.C. was still pending in the High Court. Hon'ble Supreme Court thus held as under:-
"20. For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddins' case (supra) the protection in terms of Section 438 is for a limited duration during which the regular court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between order under Sections 438 and 439 shall be rendered meaningless and redundant.
21. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -11- case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto Higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner.
22. In the aforesaid background, the protection given to the Respondent No. 2 by the High Court while the application under Section 439 of the Code is pending is clearly unsustainable. Respondent No. 2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for disposal. We are very sure that the High Court will take up the matter for disposal in accordance with law immediately after the Respondent No. 2 is in custody as required under Section 439 of the Code. We make it clear that we are not expressing any opinion on the merits of the matter. The appeal is allowed to the extent indicated."
18. Learned senior counsel for the petitioner also referred to the judgment of Apex Court in Adri Dharan Das Vs. State of West Bengal 2005 (4) SCC 303 in order to contend that Section 439 Cr.P.C. can be invoked only when the accused is in custody. The Apex Court held as under:-
"12. In view of the clear language of Section 439 Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -12- and in view of the decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision.
14. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner.
15. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence. Use of the Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -13- expression 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been made out of for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -14- be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device is secure the individual's liberty' it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed."
Ultimately, Hon'ble Supreme Court, in the aforesaid judgment held as under:-
"19. We make it clear that while upholding the rejection of the prayer in terms of Section 438 of the Code, we are not expressing any opinion on the merits of the case. When the bail application is moved in terms of Section 439 of the Code before the concerned Court the same shall be considered in its proper perspective in accordance with law. Let the appellant, as submitted by learned counsel for him, appear in the Court of learned SDJM, Alipore on 17th March, 2005. If an application for bail is moved, the learned SDJM would do well to dispose it of on the day it is filed. In Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -15- case the prayer for bail is rejected and as stated by learned counsel for the appellant an application for bail is filed before learned District and Sessions Judge, 24, Parganas South, West Bengal on 17th March, 2005, the said Court would do well to dispose of the application as early as practicable, preferably by 19th of March, 2005. If it is filed at a later date, the learned District and Sessions Judge would make an effort to dispose it of within three days of its filing. Learned counsel appearing for the State has undertaken that all relevant records shall be produced before the Court dealing with the bail application and no adjournment shall be asked for on the ground of non-availability of records."
19. Hon'ble Supreme Court in the subsequent judgment in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others 2011 (1) SCC 694, however, held as under:-
134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra)1, it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 Code of Criminal 1 Gurbaksh Singh Sibbia and others Vs. State of Punjab, (1980) 2 SCC 565. Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -16-
Procedure would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia's case (supra) clearly observed that it is not necessary to re-write Section 438 Code of Criminal Procedure therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 Code of Criminal Procedure granting bail cannot be curtailed.
135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra2, K.L. Verma v. State and Another3, Adri Dharan Das v. State of West Bengal4 and Sunita Devi v. State of Bihar and Another5 (supra)."
20. Under the circumstances of the present case, would it be required that respondents No. 2 to 4 who have been granted bail by the trial Court to appear before the same Court with a direction to decide the application on the same day which the facts of the case as already highlighted should be the ultimate direction in case the impugned order is set aside? The facts of the instant case are quite unusual and unique and 2 Salauddin Abdulsamad Shaik Vs. State of Maharashtra, 1998 (2) RCR (Criminal) 96. 3 K.L. Verma Vs. State (1998), 9 SCC 348.
4 Adri Dharan Das Vs. State of West Bengal, 2005 (2) RCR (Criminal) 32. 5 Sunita Devi Vs. State of Bihar, (2005) 1 SCC 608.
Kataria Rishu2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -17- it cannot be possibly held that the interim bail granted by the Bombay High Court would dis-entitle the private respondents to seek bail before the Sessions Court within the time permitted therein.
21. It would be relevant to refer to Section 81 of the Criminal Procedure Code (Cr.P.C.) which effectively deals with the proposition in hand. Section 81 Cr.P.C. reads as under:-
81. Procedure by Magistrate before whom such person arrested is brought. -- (1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to such court:
Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security as the case may be, and forward the bond, to the court which issued the warrant:
Provided further that if the offence is a non- bailable one, it shall be lawful for the Chief Judicial Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -18- Magistrate (subject to the provisions of section
437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-
section (2) of section 78 to release such person on bail.
(2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71.
22. The 2nd proviso to Section 81 Cr.P.C. would be applicable in a case where warrants of arrest issued under Section 78 of the Code for execution outside the jurisdiction. Sub-section (2) of Section 78 Cr.P.C. says that the Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.
23. The order of interim bail which was valid for two weeks from 12.9.2013 and it enabled the petitioner (in CRM-M-44302-2013) and private respondents (in CRM-M-34512-2013) to apply for regular bail before the Sessions Court within aforesaid time. Therefore, the learned Sessions Court should not have rejected their application for bail initially filed on 18.9.2013 within the aforesaid period of two weeks on mere technicality of nomenclature as it was framed under Section 438 Cr.P.C. The same could have been treated on merits in terms of Section 439 Cr.P.C.
Kataria Rishu2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -19-
24. In the reply of respondents, it is categorically stated that when application under Section 439 Cr.P.C. was filed they remained physically present in the Court of Additional Sessions Judge, SAS Nagar Mohali, for surrendering to the custody of said Court and were identified by their counsel. The respondents again presented themselves in the Court of Additional Sessions Judge, on 30.9.2013 at the time when final arguments on application were addressed. It is further stated that arguments on the regular bail application were addressed not only by the counsel for private respondents but also by the Additional Public Prosecutor for the State and the counsel for the complainant. The private respondents also made a statement before the Additional Sessions judge, on 1.10.2013 in the pre-lunch session.
25. There is otherwise no quarrel with the proposition that the complainant has a right to file petition for cancellation of bail. Learned Senior counsel for the petitioner relied upon Nasiruddin Vs. State (NCT) Delhi and others 2013 (4) RCR (Criminal) 98 wherein the anticipatory bail granted to the accused persons was cancelled on facts by the Hon'ble Supreme Court. That matter pertained to an incident for attracting serious offence. Another judgment on the subject is Brij Nandan Jaiswal Vs. Munna @ Munna Jaiswal and another 2009 (1) SCC 678 wherein it was held that it is a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It was further held that it was not as if once a bail granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. The Hon'ble Supreme Court Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -20- found the order granting bail seemed to have been mechanically passed in a serious case like murder and without any reasons justifying the grant of bail. The matter was sent back to the High Court after cancelling the bail for deciding the application afresh after the accused surrenders.
26. In Brij Nandan Jaiswal's case (supra) the matter was arising out of grant of anticipatory bail. However, the merits of the instant case are not such that respondents No. 2 to 4 could not have been possibly granted bail.
27. In Dolat Ram and others Vs. State of Haryana 1995 SCC (Criminal) 237 the normal principle, however, held by Hon'ble Supreme Court is as under:-
"4. 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 Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -21- 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 nonbailable case in the first instance and the cancellation of bail already granted."
This principle was also reiterated in Subhendu Mishra Vs. Subrat Kumar Mishra and another 2000 SCC (Criminal) 1508.
28. In view of the aforesaid elaborate discussion, I do not see any ground in the circumstances of the case to cancel the bail granted by the learned Additional Sessions Judge, Mohali, to respondents No. 2 to 4.
29. Coming to the prayer for the grant of pre-arrest bail under Section 438 Cr.P.C. to the petitioner (in CRM-M-44302-2013) who is respondent No. 5 in the instant petition and is the husband of complainant, it is worth stating that the application for grant of bail filed by him under Section 439 IPC was dismissed by the Additional Sessions Judge, Mohali on 1.10.2013. The petitioner initially was granted interim bail by the Bombay High Court for two weeks from 12.9.2013. Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -22- Therefore, it cannot be permissible to the petitioner in CRM-M-44302- 2013 to apply for pre-arrest bail in terms of Section 438 Cr.P.C. The petitioner has to surrender before the Court and apply for regular bail in accordance with law.
30. When this petition (CRM-M-44302-2013) was listed before the Vacations Judge on 2.1.2014, it was submitted that the co-accused have already been granted the concession of anticipatory bail but the pre- arrest bail to the petitioner (in CRM-M-44302-2013) was declined. How such a submission could be made when the petitioner's request for regular bail under Section 439 Cr.P.C. was dismissed.
31. It would also be appropriate to refer to some of the facts relevant for disposal of the prayer made by the husband. In paragraph No. 2.25 of the petition (in CRM-M-34512-2013) it was stated that in the year 2009, the complainant/petitioner learnt that her husband developed illicit relations with the wife of his best friend. He had been constantly avoiding the complainant/petitioner and used to stay out with the lady friend on one pretext or the other. He has been travelling with the said lady friend on the pretext of attending his office at Rajasthan. The complainant caught her husband on several occasions communicating and talking with that lady. One such incident highlighted is dated 10.1.2009. On that day complainant sought response from her husband, but he held her from neck and almost choked her. After that incident, the petitioner came to live with her parents at Mohali on 11.1.2009. A Panchayat was organized in October, 2009 wherein her husband assured not to continue the said relation. After that the complainant went back to the matrimonial Kataria Rishu 2014.05.21 17:47 I attest to the accuracy and integrity of this document CRM-M-34512-2013 -23- home she found that her husband was continuing with the extra marital affair and even travelled with that lady to Dubai and elsewhere while staying in expensive hotels.
32. In CRM-M-44302-2013 filed by respondent No. 5 for grant of pre-arrest bail, it was stated that the complainant-wife had gone to her parents house in January, 2008 without any rhyme or reason and with the intervention of the family she returned to Mumbai. It was also stated that she used to quarrel with him and his family members on petty issues.
33. Anyhow, it must be observed that the moment petition for grant of regular bail filed under Section 439 Cr.P.C. was dismissed by the Sessions Court, Mohali, the husband-petitioner in CRM-M-44302-2013, was bound to surrender before the Magistrate and could apply for bail under Section 439 Cr.P.C. only thereafter.
34. As a sequel to the foregoing discussion, both these petitions bearing CRM-M-34512-2013 and CRM-M-44302-2013 are dismissed.
May 16, 2014 ( R.P. NAGRATH )
rishu JUDGE
Kataria Rishu
2014.05.21 17:47
I attest to the accuracy and
integrity of this document