Rajasthan High Court - Jaipur
Padam Chand Jain vs State Of Rajasthan And Anr. on 11 January, 1990
Equivalent citations: 1991CRILJ736, 1990(1)WLN284
ORDER M.B. Sharma, J.
1. This is an application for cancellation of bail Under Section 439(2), Cr. P.C. which bail was granted by Shri R. K. Chachan, Addl. Sessions Judge, Jaipur City Jaipur in Cr. Misc. Bail Application No. 473/-89, under his order dated 17th May, 1989. The said bail application was granted in a case Under Sections 306 and 498A IPC, a charge-sheet having been filed after investigation by the police.
2. Before I take up the facts of the case, it be stated that cancellation/bail has been sought on two grounds, firstly, this Court (Hon'ble Kapur, J.) in an application for bail made on behalf of the accused-non-petitioner Under Section 439 Cr. P.C. has declined bail to the accused-non-petitioner in S.B.Cr. Misc. Bail Application No. 1314/1989 Arun Kumar v. State on April 13, 1989 and secondly the grant of bail to the accused-non-petitioner who is the husband of deceased Anjana, was not in accordance with law and was illegal.
3. First the facts, which are these. Marriage of Anjana took place in accordance with Hindu rites on July 10, 1988 with the accused-non-petitioner Arun Kumar son of Shri Kanchanlal, resident of Shastri Nagar, Jaipur. It appears that the relations between the deceased Anjana and Arun Kumar were not cordial for one reason or the other, and a few days before the date of her death, she had gone to the house of her parents and it was on February 17, 1989 at about 9 p.m. that the accused-non-petitioner Arun Kumar along-with others had gone to the house of the parents of deceased Anjana and demanded about Rs. 8,000/- to Rs. 10.000/- from them stating that the said amount was required for running his business. Earlier demands are also said to have been made by the accused, but on February 17, 1989, it is alleged that the parents of Anjana gave out that it was not possible for them to give money. Promising good behaviour with Anjana, they took Anjana to the house of the accused-non-petitioner on February 17, 1989 i.e. day earlier Anjana committed suicide. A report of the incident was lodged by Kanchanlal, father of the accused on February 18, 1989 wherein it was stated that the door was bolted from inside and on being called when there was no response from Anjana it was seen by peeping from the windows that Anjana was hanging. Kanchanlal informed the father of the deceased Anjana and proceedings Under Section 174, Cr. P.C. were conducted and thereafter a report was lodged by Padam Chand, brother of the deceased Anjana to Dy. Superintendent of Police Bani Park, Jaipur on February 21, 1989 and a case was registered and investigation was set in motion.
4. On conducting the autopsy on the dead-body of Anjana on February 19, 1989, it was found that the injury was 24 hours duration before the said examination and it was also found that there was legature marks on her neck. It was also found that there was one superfical mark on the neck of the deceased between eatings and chain and directly oblique upwards. The legature material has not been sent to doctor for examination and the doctor was of the opinion that Anjana of Affixia due to hanging ante-mortem. The Police filed charge-sheet Under Section 498A and Section 306 IPC.
5. Before the aforesaid charge-sheet was filed an application Under Section 439 Cr. P.C. was fled by the accused-non-petitioner seeking bail in this Court and this Court as aforesaid under its order dated April 13, 1989 dismissed the said application. Proceedings Under Section 174 Cr. P.C. were conducted by the Executive Magistrate. The Court observed that --
"But considering the matter as a whole it can be said that so long as the investigation is pending it is not considered appropriate to release this petitioner on bail".
As already stated, charge-sheet was filed on April 26, 1989. It is the practice of this Court that once an application for bail is dismissed by a Bench, and another application for bail is again filed, it has to be listed and decided by the same Judge who had already dismissed the bail application of that accused. But the accused-non-petitioner No. 2 made an application Under Section 439 Cr. P.C. before the learned Sessions Judge Jaipur City and the bail application was considered by Shri Chachan, Addl. Sessions Judge and the said Judge under his order dated May 17, 1989 ordered the release on bail of the accused-non-petitioner.
6. It was contended by the learned counsel for the petitioner that the complainant petitioner has filed this application for cancellation of bail in an offence Under Section 306 and 498A IPC, a charge sheet has been filed against the accused and from the material on record even prima facie a case Under Section 304B IPC is made out against the accused-non-petitioner and in these circumstances it may be possible for the trial court to frame a charge Under Section 304B IPC. That apart a writ petition has been filed in this court and after hearing counsel for CBI the writ petition has been admitted and it is pending in this court. Learned counsel contends that there is sufficient material on record and at any rate from the letter produced on record the fact that golden churis of deceased Anjana had been mortgaged by the accused-non-petitioner and it was the parents of deceased Anjana who after paying the amount had redeemed the ornaments is established. He therefore contends that from the evidence itself it is clear that it was a dowry death and, that apart from the report lodged by the brother of deceased and other material on record it has been clear that on February 17, 1989 Anjana was in the house of her parents, the accused had gone there, demanded some money from the parents of Anjana, brought Anjana on promise of good behaviour with her, and on the next day Anjana was found dead in the room of the house of the accused-non-petitioner. Learned counsel contends that the demand of dowry may or may not be but the fact that the amount was demanded from the parents of the deceased Anjana is established and the parents of Anjana gave out that it was not possible for them to pay the said amount. The death of Anjana took place within 7 months from the marriage and she was allegedly subjected to harassment in connection with demand of dowry and therefore it is a dowry death. Learned counsel for the petitioner contends that so far as charge Under Section 304B IPC is concerned, he has already filed a Writ Petition to seek transfer investigation. That apart if the charge has not been framed at the time of hearing charges, it will be open to the learned Public Prosecutor to address the court to add a charge Under Section 304B IPC and even if a charge is framed, it can be altered at any time before the pronouncement of judgment and when such a request by the learned Public Prosecutor is made the court is bound to apply its mind and pass order in accordance with law. As already stated earlier, it is not proper for me to say whether a case under Section 304B IPC is made out or not. I may make it clear that this court has only referred to the facts and the learned trial court will not be prejudiced in the case while coming to the conclusion whether a case Under Section 304B IPC is made out or not against the accused-non-petitioner. But it was a case Under Section 306 and 498A IPC and this Court had dismissed the bail application Under Section 39 Cr. P.C. and had applied its mind. It has already been said that this Court had dismissed of the earlier bail application on April 13, 1989. The charge-sheet has been filed on April 26, 1989. Therefore, it can be said that the learned Addl. Sessions Judge has allowed bail on the material on which this Court had disallowed the bail, no doubt observing that the matter is under investigation.
7. The question is as to whether if on certain material without any change of circumstances, and it may be stated that filing of charge-sheet cannot be considered to be a change of circumstance, this court had disallowed bail, whether the propriety demands and whether it was proper for the learned Sessions Judge to allow the bail to the accused? It may be stated that the practice of this court is that if an application Under Section 438 or 439, Cr. P.C. is dealt with by a Judge of this Court and then the second bail application of that accused is filed, then the said bail application is to be placed before the same Judge who has already dismissed his bail application. I have no doubt in my mind that on the same material if this Court has already dismissed an application for bail filed by an accused, the learned Sessions Judge should not allow that bail application. The Supreme Court in the case of State of Maharashtra v. Chaptain Buddhikota Subha Rao, AIR 1989 SC 2292, which was a case where some bail applications were put in the High Court, one set of bail applications was dismissed by one learned Judge of the High Court, but other bail application made thereafter to the other Judge who had enlarged the accused on bail only after two days after the dismissal of earlier bail application and it was nobody's case that during those two days drastic changes had taken place necessitating the release of the accused on bail. The Court said that at page SC 2295; AIR 1989 --
"Before the ink was dry on Puranik J's order it was upturned by the impugned order. It is not as if the Court passing the impugned order was not aware of the decision of Puranik J. in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realise is that in Criminal Application No. 375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic change which is of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all the earlier orders including the one rendered by Puranik J. only a couple of days before in the absence of any substantial change in the fact-situation."
I am therefore of the opinion that in the fact-situation of the present case where the earlier bail application had been dismissed by this Court, the judicial propriety demanded that the learned Sessions Judge should not have allowed the bail to the accused-non-petitioner.
8. I am of the opinion that in the facts and circumstances of the case, the order of the learned Sessions Judge allowing bail to the accused-non-petitioner cannot be sustained.
9. Consequently, I allow this application for cancellation of bail, set aside the order of the learned Sessions Judge dated May 17, 1989 and cancel the bail granted by the learned Sessions Judge to the accused-non-petitioner. The accused-non-petitioner shall surrender, or he shall be taken into custody. Thereafter, he will be free to move this Court for bail again and as and when the bail application is filed by the accused-non-petitioner it shall be placed for disposal before the learned Judge of this Court who had earlier dismissed his bail application.
10. In the present case Mr. R. K. Chachan has not acted fairly and judiciously in allowing bail to the accused to whom this Court had earlier declined bail. His conduct needs examination on administrative side. A copy of this order may be sent to Hon'ble Chief Justice for taking such action as he may deem fit.