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1992 DIGILAW 427 (GUJ)

CHANDULAL HARILAL LODHIYA v. STATE

1992-12-28

B.J.SHETHNA

body1992
SHETHNA, J. ( 1 ) THIS Revision Application is filed by the petitioner, who is the original complainant, against the order passed by the learned Addl. Sessions Judge on 8-7-1992 releasing the respondents Nos. 2 to 4-original accused on bail. Original accused No. 1 is the father-in-law, original accused no. 2 is the mother-in-law and original accused No. 3 is the husband of the deceased. ( 2 ) BEFORE dealing with the contentions raised by Mr. Tripathi against the accused-respondent No. 4-husband of the deceased, preliminary objection raised by Mr. Nanavati, learned Advocate appearing for the respondents, is required to be dealt with. Mr. Nanavati submitted that this Revision application is filed by the private party against the order of grant of bail passed by the learned Addl. Sessions Judge and the same has not been challenged by the State by filing application before this Court for cancellation of that bail order. Therefore, this Court should not entertain this Revision application. It is true that the State has not challenged the order of bail passed by the learned trial Judge. But merely because the State has not challenged the same before this Court, it would not be a ground for this Court not to entertain this application filed at the instance of private party. Present petitioner is none else but the original complainant and the unfortunate father of the deceased and if the State will not prefer to file an application for cancellation of bail granted in favour of the accused, then except the complainant who else will come before this Court ? Therefore, in my view, the petitioner could be the best person to approach this Court for cancellation of bail. There is no law which prohibits this Court from entertaining the application for cancellation of bail filed by a private party, when the State has not come before this court against the impugned order of grant of bail passed by the trial Court. There may be more than one reason why the State has not challenged the impugned order of bail and this Court would also not like to go into it. At this stage it is required to be stated that the learned A. P. P. Mr. There may be more than one reason why the State has not challenged the impugned order of bail and this Court would also not like to go into it. At this stage it is required to be stated that the learned A. P. P. Mr. K. C. Shah has also supported the case of the petitioner and urged that bail order passed in favour of the accused-husband must be cancelled, which is in my view, is more than sufficient to do so, if this Court is satisfied that the accusedhusband ought not to have been released on bail. I may also make it clear that even if the learned A. P. P. had not supported the case of the petitioner, even then this Court would have cancelled the bail of the accused-husband, if otherwise this Court was satisfied about the fact that the accused-husband is wrongly released on bail. Thus, there is no substance in the preliminary objection raised by Mr. Nanavati, learned Advocate appearing for the respondents Nos. 2 to 4, that this Court should not entertain this application, which is. filed at the instance of private party in absence of any application filed by the State against the order of grant of bail passed by the learned trial Judge. ( 3 ) MR. Tripathi, learned Advocate appearing for the petitioner, has vehemently submitted that the learned trial Judge has much relied upon the fact that the offence punishable under Sec. 306 of I. P. C. is not punishable with life imprisonment like Sec. 302 of I. P. C. Therefore, the accused could be released on bail. It is true that offence punishable under Sec. 306 of I. P. C. is punishable with maximum punishment of ten years. None the less it can never be said that offence punishable under Sec. 306 is not a serious offence. In my opinion, if it is not more serious than offence of murder punishable under Sec. 302 of I. P. C,, it can never be said that offence punishable under sec. 306 of I. P. C. is less serious than that. None the less it can never be said that offence punishable under Sec. 306 is not a serious offence. In my opinion, if it is not more serious than offence of murder punishable under Sec. 302 of I. P. C,, it can never be said that offence punishable under sec. 306 of I. P. C. is less serious than that. Merely because there is a difference in the punishment for the aforesaid two offences, namely, fur the offence of murder punishable under Sec. 302 it is death or life imprisonment and for the offence punishable under Sec. 305 it is ten years imprisonment, it would not change the gravity and seriousness of offence punishable under Sec. 306. In fact the offence of murder is offence against individual but the offence under Sec. 306 is not only an offence against an individual but it is also against the whole society as well. In fact, this Court in this short sitting of one and half months had come across several such cases where young brides have lost their valuable lives within a span of less than seven years of their married life. This type of incidents are increasing rapidly in our society and if the Courts will not become strict in its approach and continue to remain liberal, like in the present case, in releasing such accused-husband on bail, then such incidents would go on increasing and it would not be brought under control either by the State or by the Society. Therefore, the reason assigned by the learned trial Judge in releasing the accused on bail is totally unjust and, therefore, the impugned order of bail passed in favour of the accused-husband is required to be quashed and set aside. ( 4 ) MR. Tripathi, learned Advocate, has rightly submitted that the learned trial Judge has erred in relying upon the judgment of the Supreme Court in Bhagirafhsinhs case ( AIR 1984 SC 372 ). It was a case under Sec. 307 of I. P. C. wherein the learned trial Judge exercised his discretion and released the accused on bail, which was cancelled by the High Court on different considerations. The Supreme Court held in that case that once the discretion is properly exercised by the trial Court then High Court should not lightly interfere with the said discretion. The Supreme Court held in that case that once the discretion is properly exercised by the trial Court then High Court should not lightly interfere with the said discretion. It can only interfere with said order if the accused has tried to tamper with the evidence or jump the bail. I agree with the submission made by Mr. Tripathi that the judgment of Bhaglraihsmks case could not have been relied upon by the trial Court for releasing the accused on bail. In this case the offence under Sec. 306 of I. P. C. is registered against the accused, and the discretion is wrongly exercised by the learned trial Judge in favour of the accused. However, Mr. Nanavati, learned Advocate for the respondents accused, has heavily relied upon the said judgment and submitted that once the trial Court has granted the bail it can be cancelled only if it is alleged that the accused has tampered or tried to tamper with the prosecution evidence or jumped or tried to jump the bail. In this case the petitioner has not come out with that case and, therefore, this application should be dismissed. In my view, the judgment of Supreme Court in Bhagirafhsinhs case would not come to the rescue of the respondents-accused in this case. Because, as pointed out earlier, the learned trial Judge has totally misdirected himself and wrongly exercised the discretion in favour of the accused. Once it is found that there is a prima facie strong case against the accused for the serious offence punishable under Sec. 306 of I. P. C. bail should be refused. In fact, in its later decision in case of Shahzad hasan Khnn v. Ishfiaq Hasan Khan, reported in 1987 (2) SCC 684 the supreme Court has held that in view of the seriousness of the offence bail should be refused. Of course that was a case under sec. 302 of I. P. C. In its subsequent decision in case of State of maharashtra v. Captain Buddhikota Subha Rao. Of course that was a case under sec. 302 of I. P. C. In its subsequent decision in case of State of maharashtra v. Captain Buddhikota Subha Rao. reported in 1990 SCC (Cri.) 126 the Supreme Court has clearly observed that, "this decision has to be made, mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc. , "in this case if the respondent No. 4 is allowed to remain on bail it will have a wrong impact on society. In case of Arvindkumar J. Gupta v. State of Gujarat, reported in 1990 (1) GLR 623 this Court has also taken the same view that such offences are on the increase and if bail applications in such serious offences are taken lightly it will have its impact on the society and the bail was refused to the accused, who was charged for the offences punishable under Sees. 306 and 498a of I. P. C. In this case the learned Judge has erred in holding that, "the suicide was committed by deceased Naina because of some incident between herself and her husband could not be said to be a serious offence, for which the accused could not be released on bail as the offence is not punishable with imprisonment of life". This approach of the learned Judge is totally perverse. Having come to the conclusion that the learned trial Judge has wrongly exercised his discretion in favour of the accused, then other considerations, namely, that the accused is not likely to jump the bail or tamper with the prosecution evidence, become totally irrelevant and the bail of the accused must be cancelled. If the learned judge had refused the bail, this Court would have never granted bail. Therefore, under the aforesaid circumstances, no other order, except the order of cancelling the bail can be passed by this Court in this application and. accordingly this application has to be allowed. If the learned judge had refused the bail, this Court would have never granted bail. Therefore, under the aforesaid circumstances, no other order, except the order of cancelling the bail can be passed by this Court in this application and. accordingly this application has to be allowed. ( 5 ) IT is also required to be stated that the accused persons, who are charged with the offence punishable under Sec. 306 of I. P. C. , would ordinarily be having their family and would be very well settled in their life and, therefore, there will be little scope of they being jumping the bail. Secondly, whatever would be the evidence would be that of the close relatives of the deceased and, therefore, there is also a little scope of accused making an attempt to tamper with the prosecution evidence. Thus, these two things would be the common feature, which would be found in almost all such cases in favour of the accused persons who are charged with the offence punishable under sec. 306 of I. P. C. If the aforesaid ratio of Bhagiralhsmhs case (supra) has to be applied in this type of cases also, then practically in no case, the accused persons, who are charged with the serious and heinous offence like Sec. 306 of I. P. C. could be denied bail and almost all of them have to be released on bail by the trial Court itself. And, in that case if any application for cancellation of bail is preferred either by the State or by the private party, who may be father or close relative of the deceased, this Court can never interfere with the bail order granted in favour of the accused. I am afraid in that case what will happen ? If the submission made by Mr. Nanavati, based upon the judgment of the Supreme Court in Bhagirathsinhs case (supra) is accepted,then it will give free licence to the husband and his close relatives to ill-treat and torture his wife, which would lead to the wife to commit suicide, which can never be permitted by this Court. In our cultured society when the wife commits suicide due to torture by her husband and relatives, is not an individual offence but it is offence against the society also. Such crime is nothing but a revolt against the society. In our cultured society when the wife commits suicide due to torture by her husband and relatives, is not an individual offence but it is offence against the society also. Such crime is nothing but a revolt against the society. In my view, it would be the duty of the Court to become as strict as it is possible while dealing with cases of such nature like Sees. 304b and/or Sec. 306 of I. P. C. and ordinarily bail should be refused to such accused persons. ( 6 ) COMING to the facts of this case, it clearly appears that there is a very strong prims facie case against the accused-husband for the offence punishable under Sec. 306 of I. P. C. Taking into consideration the averments made in the complaint as well as the police paper and the fact that accusedhusband was very much present at the time of incident, it would be sufficient for this Court to cancel the bail granted in favour of the accused-husband, i. e. , respondent No. 4. ( 7 ) LASTLY, Mr. Nanavati submitted that the scope of the Revision application is very limited and, therefore, this Court should not interfere in its revisional jurisdiction. It is true that this petition is labelled as Criminal revision Application. In fact it is an application for cancellation of bail and this Court has to exercise its powers under Sec. 439 of Cr. P. C. and not under Sec. 401 of Cr. P. C. Even if this application is to be treated as Revision under Sec. 401 of Cr. P. C. , even then this Revision application has to be allowed because as stated earlier, the learned trial judge has misdirected himself in exercising his discretion in favour of the accused on totally irrelevant grounds. Therefore, the impugned order of bail is required to be quashed and set aside by this Court also in its revisional jurisdiction under Sec. 401 of Cr. P. C. Therefore, is there no substance in this contention raised by Mr. Nanavati and it fails and rejected. ( 8 ) IN view of the above discussion, the order passed by the learned addl. Sessions Judge releasing the respondent No- 4-Kantilal Parshottam on bail has to be quashed and set aside. Accordingly, this Revision Application is allowed and the impugned order passed by the learned Addl. Nanavati and it fails and rejected. ( 8 ) IN view of the above discussion, the order passed by the learned addl. Sessions Judge releasing the respondent No- 4-Kantilal Parshottam on bail has to be quashed and set aside. Accordingly, this Revision Application is allowed and the impugned order passed by the learned Addl. Sessions judge releasing the respondent No. 4-Kantilal Parshottam on bail is quashed and set aside. The accused shall surrender to custody forthwith. Rule is made absolute accordingly qua respondent No. 4-Kantilal Parshottam and rule is discharged qua respondents Nos. 2 and 3. At this stage Mr. Nanavati, learned Advocate for the respondents Nos. 2 to 4, requested to stay this order for some time, to enable the respondent No. 4 - Kantilal Parshottam to approach the higher Court. Therefore, respondent No. 4-Kantilal Parshottam shall surrender to custody on or before 20-1-1993, failing which non-bailable warrant shall be issued against him at once. .