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Himachal Pradesh High Court · body

2001 DIGILAW 170 (HP)

VAKIL CHAND CHANDEL v. NIRMALA DEVI

2001-07-30

M.R.VERMA

body2001
JUDGMENT MR. Verma, J.-Since both these petitions for cancellation of bail under Section 439(2) of the Code of Criminal Procedure (hereafter referred to as the Code) arise out of the same case, therefore, are being disposed of by this common order. 2. The brief facts leading to the presentation of these petitions are that an F.I.R. No. 54 of 2001 dated 6.4.2001 under Section 498-A and 306 I.P.C. has been registered against Nirmala Devi (respondent No. 1 in Cr. M.P. (M) No. 566 of 2000) and Ajay Kumar (respondent No. 1 in Cr. M.P. (M) No. 567 of 2001) (hereafter referred to as the respondents) in police Station, Nadaun, District Hamirpur. The prosecution case against them is that Sunita Devi, daughter of the petitioner, was married to Ajay Kumar, respondent, of village Jhalari, Tehsil Nadaun, District Hamirpur. Respondent - Nirmala Devi is the mother of respondent - Ajay Kumar. After the said marriage, Sunita Devi gave birth to a son and a daughter. Respondent Nirmala Devi started taunting Sunita Devi regarding inadequate dowry whereas at the time of the marriage the respondents had refused to accept any dowry. Sunita Devi complained about the aforesaid behaviour to her father and also complained that the behaviour of Nirmala Devi - respondent was cruel to her and that her husband respondent - Ajay Kumar also would take side of his mother -respondent Nirmala Devi. Against this background, Sunita Devi and respondent Ajay Kumar started living separately in a rented house. However, after about a year they again started living with respondent Nirmala Devi. For a few days every-thing went well but thereafter respondent Nirmala Devi started quarrelling with Sunita Devi and also instigated Ajay Kumar to quarrel with her. On April 5, 2001 the petitioner received a telephonic massage at Shimla regarding illness of Sunita Devi. He went to village Jhalari alongwith his wife and when he reached at the house of the respondents he found Sunita Devi lying dead in the kitchen. The petitioner then reported the matter to the police and thus the aforesaid F.I.R. came into being. In the meanwhile, the respondents filed applications under Section 438 Cr. P.C. for grant of anticipatory bail in the Court of the learned Chief Judicial Magistrate, who at the relevant time was exercising the powers of Sessions Judge, Hamirpur. The petitioner then reported the matter to the police and thus the aforesaid F.I.R. came into being. In the meanwhile, the respondents filed applications under Section 438 Cr. P.C. for grant of anticipatory bail in the Court of the learned Chief Judicial Magistrate, who at the relevant time was exercising the powers of Sessions Judge, Hamirpur. Vide order dated 4.7.2001, the learned Chief Judicial Magistrate directed the production of the case records for consideration on 9.4.2001 and further directed that the respondents be not arrested till further orders. It appears that the applications were listed before the learned Sessions Judge on 9.4.2001 who ordered the matter to be posted on 11.4.2001 and directed the S.H.O. concerned to release the respondents on bail in the event of their arrest on their furnishing personal bonds each in the sum of Rs. 10,000/ - with one surety each in the like amount till the date so fixed. When the applications came up for hearing before the learned Sessions Judge on 11.4.2001, after noticing the facts in detail, the learned Sessions Judge found it a fit case for issue of interim directions regarding the release of the respondents on bail till 2.5.2001 with directions to the respondents to continue to associate themselves in the investigation. It appears that on 2.5.2001 the directions regarding interim bail granted to respondents were extended till 8.5.2001. When the applications came up for hearing before the learned Sessions Judge on 8.5.2001, he directed that the directions vide order dated 9.4.2001 shall remain in force till the final report is presented in the Court for the trial of the respondents if any, and the respondents were directed to join investigation as and when so required by the investigating agency. In the meanwhile, the petitioner made further representation to the investigating agency that the daughter had not committed suicide but was done to death. 3. Feeling aggrieved by the orders enlarging the respondents on anticipatory bail, the petitioner has preferred these two petitions praying therein for cancellation of the bail granted to the respondents. 4. I have heard the learned counsel for the petitioner and the respondents and the learned Assistant Advocates General for the State and have also gone through the material placed on record and the investigation records. 5. 4. I have heard the learned counsel for the petitioner and the respondents and the learned Assistant Advocates General for the State and have also gone through the material placed on record and the investigation records. 5. The first question, which arises for determination in these cases , is whether in a State case a private person has the locus-standi to move for cancellation of bail granted to the accused persons. 6. The High Court and a Court of Session are empowered to direct arrest of a person released on bail and to commit him to custody by virtue of the provisions of sub-Section (2) of Section 439 of the Code, which provides as follows :- "(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 7. It is evident from a bare reading of the above sub Section that it does not provide as to who may apply to the Court for directing arrest of the accused and committing him to custody. In such a situation it can be safely held that a party aggrieved by grant of bail to the accused can apply for cancellation of bail. The prosecution, the State and the person who set the law in motion against the accused can, therefore, be the aggrieved party who may apply for cancellation of bail and their locus-standi to do so cannot be disputed or doubted. 8. In Puran etc, etc, vs. Rambilas & anr. (JT 2001 (5) SC 226) while dealing with a similar question as in hand, the Honble Supreme Court held as under:- "Mr Lalit next submitted that a third party cannot move a petition for cancellation of the bail. He submitted that in this case the prosecution has not moved for cancellation of the bail. He pointed out that the father of the deceased had moved for cancellation of the bail. He relied upon the cases of Simranjit Singh Mann v. Union of India and Another reported in (JT 1992 (5) SC 441 = AIR 1993 SC 280) and Janta Dal, etc. etc. v. H.S. Chowdary and Others, etc. etc. reported in (JT 1991 (3) SC 497 = 1991 (3) SCC 356). He relied upon the cases of Simranjit Singh Mann v. Union of India and Another reported in (JT 1992 (5) SC 441 = AIR 1993 SC 280) and Janta Dal, etc. etc. v. H.S. Chowdary and Others, etc. etc. reported in (JT 1991 (3) SC 497 = 1991 (3) SCC 356). Both these cases dealt with petitions under Article 32 of the Constitution of India whereunder a total stranger challenged the conviction and sentence of the accused. This Court held that neither under the provisions of the Criminal Procedure Code nor under any other statue is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the court after a regular trial. It was held that the petitioner, who was a total stranger, had no locus standi to challenge the conviction and the sentence awarded to the convicts in a petition under Article 32. The principle laid-down in these cases have no application to the facts of the present case. In this case the application for cancellation of bail is not by a total stranger but it is by the father of the deceased. In this behalf the ratio laid-down in the case of R. Rathinam v. State by DSP, District Crime Branch, Madurai District, Madurai and Anr, reported in (JT 2000(1) SC 604 = 2000 (2) SCC 391), needs to be seen. In this case bail had been granted to certain persons. A group of practising Advocates presented petitions before Chief Justice of the High Court seeking initiation of suo motu proceedings for cancellation of bail. The Chief Justice placed the petitions before a Division Bench. The Division Bench refused to exercise the suo motu powers on the ground that the petition submitted by the Advocates was not maintainable. This Court held that the frame of Sub-section (2) of Section 439 indicates that it is a power conferred on the Courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a pubic Prosecutor moves by a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that, therefore, any member of the public, whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in Section 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the petition. It was held that it was always open to the High Court to cancel the bail if it felt that there were sufficient enough reasons for doing so." 9. It is apparent from the above that even any member of the public can move the High Court to remind it of the need to exercise its powers of cancellation of bail suo motu. In the case in hand the applications for cancellation of bail granted to the respondents have been moved by the father of the deceased who set the law in motion by lodging the First Information Report and he is not a total stranger. Therefore, in view of the legal proposition as explained herein-above the applicant has the locus standi to move the present applications. 10. It was contended by the learned counsel for the applicant that the allegations against the accused persons are of serious nature and grant of anticipatory bail to the respondents in such a case is unwarranted and illegal, moreso, in view of the fact that the bail applications moved by the respondents were opposed on the ground that custodial interrogation of the respondents was required. 11. The State though has not challenged the grant of bail to the accused by filing any application or revision petition but during the hearing of these applications it was submitted by the learned Asstt. Advocate General that the orders granting bail to the respondents are bad in law and the custodial interrogation of the respondents is required in the facts and circumstances of the case. 12. Advocate General that the orders granting bail to the respondents are bad in law and the custodial interrogation of the respondents is required in the facts and circumstances of the case. 12. The learned counsel for the respondents, while supporting the bail orders, has contended that the material on record did not justify custodial interrogation of the respondents and they have rightly been ordered to be released on anticipatory bail. The learned counsel has further contended that bail once granted cannot be cancelled unless supervening circumstances justifying the cancellation are show. Elaborating the contention the learned counsel contended that in the present case there is no allegation that the respondents have misused the concession of bail in any manner whatsoever, therefore, there is no compelling reason to cancel the bail granted to them. It was further contended that there is no perversity or illegality in granting the bail to the respondents and even the State was satisfied of those orders and did not file any application (s) for cancellation of the bail granted to the respondents. 13. The learned counsel for the respondents has cited various decisions of the Apex Court and various High Courts to support the submissions that bail once granted cannot be cancelled unless supervening circumstances justifying the cancellation of bail are Clearly made out. It is not necessary to refer to such decisions here because the proposition of law in support whereof those have been relief upon is well settled and there cannot be any dispute with such proposition viz. that bail once lawfully granted cannot and should not be cancelled unless supervening circumstances justifying cancellation of bail exist. Such circumstances must be such which must render it no longer conclusive to a fair trial. 14. The cancellation of bail already granted to the respondents however is not under challenge on the ground of any supervening circumstance having come into being after the grant of the bail. On the contrary the case of the petitioner is that the bail granted to the respondents is liable to be cancelled for the reason that the orders granting such bail are outcome of illegal exercise of the discretion in granting pre-arrest bail whereas the case against the respondents was of the nature that bail could not and should not have been granted to the respondents in a routine manner. In brief it is legality of the orders granting pre-arrest bail to the respondents which has been called in question. 15. Be it stated that existence of supervening circumstances justifying cancellation of bail is not the only ground for cancellation of bail. As and when it is found that the orders granting bail is bad in law, such illegality in passing the bail order will be a good ground to cancel the bail illegally granted and moreso in the case of pre-arrest bail. 16. In Puran etc. etc. vs. Rambilas & Anr. etc. etc., (J.T. 2001 (5) SC 226), the Honble Supreme Court held as follows :- "Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram & Ors. vs. State of Haryana reported in (JT 1995 (I) 127 = 1995 (I) SCC 349). In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly 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. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and the too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trail Court has to be corrected. 17. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trail Court has to be corrected. 17. The grant of bail is not a matter of routine particularly in serious offences punishable with severe punishment. It is more so in case of pre-arrest bail. Before granting such bail the Court must apply its mind to the facts and circumstances of the case and strike a balance between the liberty of the subject and the ends of criminal justice administration. 18. This Court while dealing with the purpose and scope of grant of anticipatory bail under Section 438 of the Code in Surinder Kumar Sikand vs. State of H.P., (2000 Cri. L.J. 4207) held as under:- "The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dishonour him. Therefore, the provisions of Section 438 cannot be applied mechanically." 19. In Directorate of Enforcement and another vs. P.V. Prabhakar Rao, (1997) 6 SCC 647, the Apex Court held as under:- "Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurbaksh Singh (1980) 2 SCC 565; 1980 SCC (Cri) 465 which has settled the position well-neigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Section, after exercising its judicial discretion wisely. The Constitution Bench in Gurbaksh Singh said thus: (SCC p. 584, para 21). "21.......A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it s required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail." 20. It is evident from the above settled position in law that pre-arrest bail is meant to save innocent persons from being harassed on false or flimsy accusations. The Court while considering grant or rejection of per-arrest bail has to keep in view the paramount consideration of interest of justice striking a balance between the liberty of the subject and interest of the society. It has to record its reasons in support of its final order accepting or rejecting the plea for pre-arrest bail and it cannot grant such bail as a matter of routine. 21. The facts in brief regarding listing of the bail applications of the respondents under Section 438 of the Code as passed on different dates have already been noticed in para 2 ante. The Investigating Officer was directed to be present on 9.4.2001 alongwith records. The order passed by the Sessions Judge on 9.4.2001 and the police records show that the. Investigating Officer alongwith case records was present in the Court but without hearing the applications were adjourned to 11.4.2001 while directing the respondents to join investigation as also their release on interim bail till 11.4.2001 but without assigning any reason for adjournment when the records of investigation-were available for perusal. 22. Investigating Officer alongwith case records was present in the Court but without hearing the applications were adjourned to 11.4.2001 while directing the respondents to join investigation as also their release on interim bail till 11.4.2001 but without assigning any reason for adjournment when the records of investigation-were available for perusal. 22. On 11.4.2001 after noticing the facts of the case and holding that this was a case for the issue of directions for anticipatory bail, the applications were still not finally disposed of and instead the interim bail order and directions to the accused to join investigations were repeated and made effective upto 2.5.2001. The reasons for this course of action given by the learned Sessions Judge in his orders dated 11.4.2001 are as follows:- "Sh. Bakil Chand in his statement on the basis of which FIR have been registered has not spelt out the time and the year that when the deceased had complained against Smt. Nirmala Devi to him regarding the cruel behaviour and taunt regarding inadequate dowry: What were nature of the taunt have also not been spelt out by Shri Bakil Chand to ascertain whether those taunts were sufficient in ordinary course of nature to instigate the deceased to commit suicide. The cruelty in the behaviour of Nirmala Devi is also not spelt out as no particular over act is attributed by Bakil Chand to have been done by Smt. Nirmala Devi for instigating the deceased Sunita Devi to commit suicide." 23. It may be pointed out here that the allegations made by the father of the deceased disclosed commission of offences punishable under Sections 498-A and 306 I.P.C. The offences so disclosed were of grave nature and for one of such offences i.e. offence punishable under Section 306 I.P.C. the punishment is severe. In view of this, thorough perusal of investigation records was called for. However, the aforesaid reasons of the learned Sessions Judge are based entirely on that statement of the petitioner on the basis of which the F.I.R. came into being. Minor details of an occurrence are not to be necessarily given in the F.I.R. It appears that the learned Sessions Judge did not look into the other material collected by the Investigating Agency by 11.4.2001. A detailed statement of the petitioner under Section 161 Cr. P.C. was recorded by the Investigating Officer on 6.4.2001 . Minor details of an occurrence are not to be necessarily given in the F.I.R. It appears that the learned Sessions Judge did not look into the other material collected by the Investigating Agency by 11.4.2001. A detailed statement of the petitioner under Section 161 Cr. P.C. was recorded by the Investigating Officer on 6.4.2001 . On the same day statement of his wife Jogindra Kumari had been recorded. Statement of one Nand Lal was recorded on 7.4.2001. Thus these statements and corresponding zemnis were available on record on 11.4.2001. This material on record referred to in the police report submitted to the Court prima-facie revealed that respondent Nirmala Devi had been treating the deceased with Cruelty since long regarding her not bringing dowry and also in respect of her work. Ultimately in December, 1999 the deceased and respondent Ajay Kumar were turned out of house and had to start living in rented accommodation. The petitioner had to give them house hold articles after purchasing the same from Nadaun Bazar. The deceased and her husband thus lived in rented accommodation for 13 months i.e. upto January, 2001. It also prima-facie emerges from such material available on record and the police report that thereafter they were pursuaded to return to their house. Thus respondent Ajay Kumar and the deceased had returned to their house only about two months or so before the occurrence. It is also prima facie made out that after their return to their house respondent Nirmala Devi and Ajay Kumar started mal-treating the deceased. These facts which prima facie emerged from the material available by 11.4.2001 prima facie pointed an accusing finger towards the respondents. The learned Sessions Judge, however, did not care to refer to this material. 24. At the place of occurrence apart from pieces of burnt apparels of the deceased, burnt pieces of towel had also been taken in possession vide a recovery memo dated 6.4.2001. The existence of burnt pieces of towel at the place of occurrence is highly suspicious circumstance which ought to have been taken note of, more so when it is coupled with the fact that partially burnt body of the deceased was lying near a gas cylinder and the rubber pipe connecting it with Chullah as is shown in one of the photographs taken on the spot was quite close. From the injured body of the deceased, it can prima facie be visualised that sufficient flames were required to cause the damage sustained by her body. It is also then important to take note of as to why the rubber pipe was not set afire by the flames. It was also available on record that all local witnesses have conveniently concealed the fact that the deceased and respondent Ajay Kumar were at one point of time turned out of the house and were brought back only about two months before the occurrence and have claimed that the deceased was properly and happily adjusted in the family. From this circumstance, it could have been visualised that respondents could manure false version in their defence. It was also available on record that after receipt of information about the incident, respondent Ajay Kumar, instead of coming home, arranged a lineman and got electricity connections disconnected from the main line. Having come to know of the death of the deceased because of burn injuries, none from the family cared to report the incident to the police. Failure to consider all these circumstances render the orders of the learned Sessions Judge passed on 14.4.2001 only routine orders. 25. Once the facts of the case prima facie showed the commission of cognizable offences of the nature and gravity as in hand, and it felt that I the respondents are required for interrogation in the case it was illegal I exercise of the discretion to go on granting interim anticipatory bail to the respondents for unduly long time. 26. The final orders in the applications were not passed even on 2.5.2001 when instead of passing such order the applications were adjourned for 8.5.2001. 27. On 8.5.2001 both the applications for grant of anticipatory bail were finally allowed. The operative part of the order on application of respondent Ajay Kumar reads as follows ;- "From the perusal of the police record, it is revealed that the FIR has been lodged by Shri Wakeel Chand, who is retired Head Constable. There is no allegation against the applicant, Ajay Kumar, except the accusation that he used to listen to his mother in preference to his wife. On the basis of this sort of evidence, it appears to be a fit case where direction under Section 438 Cr. P.C. should be issued." 28. There is no allegation against the applicant, Ajay Kumar, except the accusation that he used to listen to his mother in preference to his wife. On the basis of this sort of evidence, it appears to be a fit case where direction under Section 438 Cr. P.C. should be issued." 28. The order in case of respondent Nirmala Devi reads as follows :- "From the perusal of the police record, it is revealed that the F.I.R. has been lodged by Shri Wakeel Chand, who is retired Head Constable. The allegation against the applicant/accused is to the effect that she used to taunt the deceased daughter of the complainant, Wakeel Chand, on account of insufficient dowry. On the basis of this sort of evidence, it appears to be a fit case where direction under Section 438 Cr. P.C. should be issued." 29. It is evident from the above orders that these are based entirely on the perusal of F.I.R. without application of mind to the material available on record. It has altogether been ignored that by that time the petitioner had made more serious allegations about the death of his daughter. In any case, once the commission of the offences under Sections 498-A and 306 I.P.C. was made out and the facts and circumstances warranted interrogation of the respondents, pre-arrest bail could not be lawfully granted in a case as in hand. The orders granting anticipatory bail to the respondents, are therefore, illegal deserve to be cancelled. 30. It may be pointed out here that the prosecution has constantly been opposing the bail applications and even on 8.5.2001 the Investigating Officer submitted that the respondents were required for custodial interrogation. No doubt the State has not applied for cancellation of bail granted to the respondents but the stand of the State even before this Court is that custodial interrogation of the respondents is necessary in the facts and circumstances of the case. Therefore, the respondents cannot take benefit of the State having not applied for cancellation of bail to them. 31. In view of the above discussion, I am of the view that the anticipatory bail granted to the respondents vide orders dated 8.5.2001 passed by the learned Sessions Judge in bail application Nos. Therefore, the respondents cannot take benefit of the State having not applied for cancellation of bail to them. 31. In view of the above discussion, I am of the view that the anticipatory bail granted to the respondents vide orders dated 8.5.2001 passed by the learned Sessions Judge in bail application Nos. 32/2001 titled Ajay Kumar vs. State and bail application No. 31/2001 titled Nirmala Devi vs. State case F.I.R. No. 54 of 2001 under Sections 498-A and 306 I.P.C. registered on 6.4.2001 at Police Station, Nadaun, being illegal exercise of the discretion is, in each case, liable to be cancelled and is accordingly cancelled. The respondents will surrender before the Officer-in-charge, police Station, Nadaun forthwith who will take them into custody and take further action in the matter in accordance with law. Both the petitions are accordingly disposed of.