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2004 DIGILAW 2 (CHH)

P. K. Roy v. State of Chhattisgarh

2004-01-05

L.C.BHADOO

body2004
ORDER 1. The applicant has moved this petition under Section 439 (2) of the Cr.P.C. for cancellation of order granting regular bail to respondents 2 & 3 by the Chief Judicial Magistrate, Bilaspur, vide order dated 28.07.2003. 2. Facts leading to filing of this petition are that the applicant's daughter namely, Sangeeta's marriage was solemnized with respondent No.2 Animesh Bhattacharya on 12.12.2000. Respondent No.3 is mother of respondent No.2. On 08.01.2003 Sangeeta died of asphyxia on account of hanging by neck while she was residing with respondent No.2 at his residence and it is said that three anti-mortem injuries were found on the body of deceased Sangeeta. When the applicant, who is father of Sangeeta, came to know about this fact, he immediately rushed to Bajaj Nursing Home, Bilaspur, where respondent No.2 had taken Sangeeta for treatment. On reaching the nursing home he found that Sangeeta's body was lying in the auto rickshaw and Bajaj Nursing Home refused to admit Sangeeta, thereafter, the body was taken to the Government Hospital where, the doctor declared her brought dead. The applicant at about 10.30 p.m. on the same day lodged a report in the Police Station: Tarbahar, Bilaspur, with the allegations that Sangeeta has committed suicide on account of harassment and physical torture by accused persons for bringing dowry and to meet the demand of Rs.1,00,000/- of accused persons for the purpose of starting business of brother-in-law of respondent No.2. 3. Accordingly, a case Crime No.13/2003 under Sections 498- A & 306 read with Section 34 of the I.P.C. was registered. During the investigation, respondents 2 & 3 moved an application for anticipatory bail before the Court of Sessions Judge, Bilaspur. As the Sessions Judge, Bilaspur was on leave that application was taken up and heard by the 4th Additional Sessions Judge, Bilaspur and after hearing the parties, he disposed of that bail application vide order dated 07.06.2003 and allowed the bail application of respondents 2 & 3 and they were directed to be released on anticipatory bail on their furnishing a personal bond to the tune of Rs.8,000/- each and a surety in the likewise amount to the satisfaction of the Police Officer, against which the applicant moved an application for cancellation of bail granted to respondents 2 & 3, but the same was dismissed by the 4th Additional Sessions Judge vide order dated 23.07.2003. When after completion of the investigation, charge sheet was filed by the Police against the accused persons in the Court of Chief Judicial Magistrate, the learned C.J.M. vide order dated 28.07.2003 granted regular bail to respondents 2 & 3 mentioning therein that the bail has already been ordered by the 4th Additional Sessions Judge on 07.06.2003. The applicant again moved the learned C.J.M. under Section 437 (5) of the Cr.P.C. for cancellation of bail, but vide order dated 02.08.2003, the learned C.J.M. rejected that application also. 4. Notices of this application were issued to the State and respondents 2 & 3 and they are represented by their respective counsel. I have heard the learned counsel for the parties. 5. Learned counsel for the applicant argued that as per the facts of the case, as applicant's daughter Sangeeta died within two years from the date of marriage in unnatural circumstances by committing suicide on account of harassment and physical torture and cruelty, therefore, prima facie offence under Section 304-B of the I.P.C. was made out instead of offences under Sections 498-A & 306 of the I.P.C. Therefore, order of the learned C.J.M. is perverse, as such the bail should be cancelled. He further argued that the ground taken by the C.J.M. that bail has already been granted by the learned 4th Additional Sessions Judge is not legal and on the contrary, the learned C.J.M. after filing the charge sheet ought to have considered the material on record and he should have decided the bail application on the merits of the case based on the material available on record as anticipatory bail could have been granted only till the filing of the charge sheet. 6. On the other hand, the learned counsel for respondents 2 & 3 submitted that the learned 4th Additional Sessions Judge granted bail after perusal of the material available on record and based on the evidence of the prosecution. The applicant himself and the mother, sister and uncle of deceased Sangeeta in their second statements under Section 161 of the Cr.P.C. specifically mentioned that no demand of dowry was made by respondents 2 & 3 and Sangeeta was happy at her matrimonial house and she was never subjected to harassment and cruelty. Therefore, the witnesses changed their statements, which were made by them at the time of registration of the case. Therefore, the witnesses changed their statements, which were made by them at the time of registration of the case. However, statements of these witnesses were again recorded in which they reverted back to their original statements. Moreover, the applicant himself filed an affidavit showing that no demand of dowry was made by the accused persons and he said that he has taken all the ornaments of her daughter, therefore, the learned Additional Sessions Judge had rightly allowed the bail application of respondents 2 & 3. Learned counsel for respondents 2 & 3 further argued that since the order passed by the 4th Additional Sessions Judge was not for a particular period, therefore, order of the C.J.M. is valid. He further argued that order of the C.J.M. is based on the order passed by the learned 4th Additional Sessions Judge and the applicant has not challenged the order of cancellation of bail order passed by the 4th Additional Sessions Judge. Therefore, on this ground only this application deserves to be dismissed. 7. In the case of Delhi Admn. vs. Sanjay Gandhi reported in AIR 1978 SC 961, the Hon'ble Apex Court held that "rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances. It would no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." As per the settled law, bail granted to accused person can be cancelled either on the breach of conditions of bail order or misuse of liberty by the accused persons. As has been held by the Hon'ble Apex Court in the case of Puran vs. Rambilas and another reported in (2001) 6 S.C.C. 338, even the bail can be cancelled if the order granting bail is perverse and contrary to the principles of law. 8. As has been held by the Hon'ble Apex Court in the case of Puran vs. Rambilas and another reported in (2001) 6 S.C.C. 338, even the bail can be cancelled if the order granting bail is perverse and contrary to the principles of law. 8. Looking to the above law laid down by the Hon'ble Apex Court, if we look into the facts of the present case, the applicant reported the matter on 07.01.2003 to the Police Station: Tarbahar on the ground that his daughter committed suicide because respondents 2 & 3 were demanding clothes and cash and for that purpose they were subjecting her to cruelty. This version was supported by the applicant and uncle of the deceased namely, Sameer Kumar in their statements dated 08.01.2003. But the applicant gave second statement on 17.01.2003 in which he resiled from the previous statement dated 08.01.2003 and stated that he gave the statement dated 08.01.2003 because his mental condition was not perfect, in fact his son-in-law, his mother and sister had never demanded any dowry and they never subjected his daughter to cruelty, but again he changed his statement on 11.06.2003 and supported his earlier statement. Similarly, Sameer Kumar Rai gave three statements and in the second statement he resiled from his previous statement. On 17.01.2003, mother of deceased Sangeeta stated that her daughter and son-in-law were leading peaceful life and there were cordial relations between them, why her daughter committed suicide she does not know, but she used to get angry on small matters. Therefore, the learned Additional Sessions Judge mentioned that the witnesses are changing their versions, hence, it is a fit case in which respondents 2 & 3 should be extended the benefit of bail. Even an affidavit was sworn by the applicant on a stamp paper of Rs.50/- and an agreement was also executed by him in which he stated that he has taken back all the ornaments of his daughter. Therefore, the learned Additional Sessions Judge refused to cancel the bail also. The third statement reverting back to original version was given by these witnesses after grant of bail to the accused persons on 07.06.2003. 9. Therefore, the learned Additional Sessions Judge refused to cancel the bail also. The third statement reverting back to original version was given by these witnesses after grant of bail to the accused persons on 07.06.2003. 9. Therefore, in the given situation, I am of the opinion that when the parents and relatives of deceased Sangeeta themselves had changed their statements and they had stated that Sangeeta and accused persons were maintaining cordial relations between themselves and the accused persons had never demanded dowry, relying upon these statements the 4th Additional Sessions Judge passed the order, therefore, it cannot be inferred that the order is perverse or contrary to law. 10. At the time of granting of bail by the 4th Additional Sessions Judge on 07.06.2003, the third statement of the witnesses were not on record. Only the first statement in which they have supported the prosecution case and the second statement dated 17th to 20th of January, 2003 were on record in which they resiled from the previous statement and said that the accused persons had not demanded dowry and they had not tortured deceased Sangeeta. Based on that the learned Additional Sessions Judge granted bail. However, after granting of bail on 07.06.2003, these witnesses again took summersault on 11.06.2003 and reverted back to the original position and gave their statements supporting the earlier statements recorded on 8th January, 2003. On the date of granting of bail these statements were not before the learned Additional Sessions Judge and after granting of bail on a changed version of the witnesses, in my opinion it was not safe to cancel the bail because these witnesses changed their version twice. As has been held by the Hon'ble Apex Court, rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another, and it is easier to reject a bail than to cancel a bail granted in such a case. As has been held by the Hon'ble Apex Court, rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another, and it is easier to reject a bail than to cancel a bail granted in such a case. As has been held by the Hon'ble Apex Court in the case of Aslam Babalal Desai vs. State of Maharashtra reported in AIR 1993 S.C. 1, "the grounds for cancellation of bail under Sections 437 (5) & 439 (2) are identical, namely, bail granted under Section 437 (1) or (2) or 439 (1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc." In the circumstances, the order granting bail is not perverse and in view of the above principle laid down by the Hon'ble Apex Court, I do not find that any of the grounds mentioned above exist in the present case for cancellation of bail. 11. Now, coming to the second question that in this case the learned 4th Additional Sessions Judge granted bail to the respondents in the mode of regular bail and the learned 4th Additional Sessions Judge has not granted anticipatory bail for limited duration, as has been held by the Hon'ble Apex Court in the case of Salauddin Abdulsamad Shaikh vs. State of Masharashtra reported in (1996) 1 Supreme Court Cases 667 that, "Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on date of its expiry directed the petitioner to move the regular court for bail. That is the correct produce to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted." Therefore, in view of the law laid down by the Hon'ble Apex Court, the learned Additional Sessions Judge ought to have granted bail for a limited period and he should have left the accused persons to approach regular court for grant of regular bail before expiry of that limited period. While granting anticipatory bail the correct approach for the learned 4th Additional Sessions Judge was as laid down by the Hon'ble Apex Court in the above matter. 12. In the present case, the learned Additional Sessions Judge while granting bail under Section 438 (1) of the Cr.P.C. had not granted bail for limited duration. Therefore, the learned Chief Judicial Magistrate was right in granting regular bail based on the order of bail passed by the Additional Sessions Judge on 07.06.2003 and for this, I am fortified by the decision of Madhya Pradesh High Court in the matter of B.L. Verma and others vs. State of M.P. reported in 1979 JLJ 419, in which it has been held in paragraphs 18 & 19 of the order that, "18. In this view of the matter, it can safely be said that the moment a person is released on bail after arrest in compliance with the directions contained in the order passed u/s 438, it would be deemed as if it was a bail granted under sub section (1) of section 437, and therefore, it shall be in operation until cancelled by the Court in accordance with the provisions contained in sub-section (5) of section 437. This conclusion gets buttressed from the provision contained in sub-section (2) of section 439 of the Code which reads as under: - "439. This conclusion gets buttressed from the provision contained in sub-section (2) of section 439 of the Code which reads as under: - "439. Special powers of High Court or Court of session regarding bail. (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." (Emphasis supplied by me) This view, that once when it is held that the person released on bail under section 438 would be deemed to have been released on bail under sub-section (1) of section 437, his bail cannot be cancelled except an specific order under sub-section (5) of section 437, gets support from the decision of their Lordships of the Supreme Court in Bashir and others vs. State of Haryana [1]. 19. The upshot of the foregoing discussion is that the bail of a person bailed out under an order under section 438 would not stand cancelled or cannot be cancelled by a Magistrate merely on the ground that a charge sheet has been filed. It shall remain valid until the conclusion of the trial unless it is cancelled by an appropriate Court under section 437 (5) or 439 (2)." Therefore, in view of the above since the bail order passed by the 4th Additional Sessions Judge on 07.06.2003 under Section 438 (1) of the Cr.P.C. was not for a limited period until the filing of charge sheet, the impugned order granting bail by the Chief Judicial Magistrate based on the order of Additional Sessions Judge dated 07.06.2003 was not illegal or perverse or contrary to law. 13. A point has been raised by the learned counsel for respondents 2 & 3 that the applicant has not challenged the order of the Additional Sessions Judge granting bail and rejecting the application of the applicant for cancellation of bail and the order passed by the C.J.M. is based on that order, therefore, unless the order passed by the A.D.J. is challenged the impugned order cannot be challenged. I find substance in this argument. Previously the applicant had filed a petition before the High Court for challenging the order of the Additional Sessions Judge, but that has been withdrawn and the petition is dismissed as withdrawn. I find substance in this argument. Previously the applicant had filed a petition before the High Court for challenging the order of the Additional Sessions Judge, but that has been withdrawn and the petition is dismissed as withdrawn. In order to cancel the bail granted to respondents 2 & 3, the applicant ought to have challenged the order of the A.D.J. as well as the C.J.M. On this ground also this petition is not maintainable. 14. In the result, I do not find any substance in this petition and the same is liable to be dismissed. The petition is accordingly, dismissed.