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2005 DIGILAW 188 (RAJ)

Rekha Poddar v. State of Rajasthan

2005-01-20

HARBANS LAL

body2005
Judgment Harbans Lal, J.-This petition under Section 439(2), CrPC seeks cancellation of bail granted to non-petitioner Nos. 2 and 3 by the learned Additional Chief Judicial Magistrate, Dantaramgarh in FIR No. 80/2004 PS Dantaramgarh, District Sikar. 2. The relevant facts necessary for the disposal of this petition are that a report came to be lodged by the petitioner against non-petitioners No. 2 and 3 Ram Gopal and Deepak for offences under Sections 498-A and 406, IPC. Apprehending their arrest in connection with said case, non-petitioners No. 2 and 3 moved an anticipatory bail application before the learned Sessions Judge, Sikar who dismissed the same on 06.08.2004 on the ground that recovery of the articles of dowry was yet to be effected. They were arrested on 010.2004 and produced before the aforesaid Court on 010.2004 with the request for judicial custody remand for non-petitioner No. 3 and police custody remand for non-petitioner No. 2 as he had allegedly given an information that the dowry articles were lying in Bisau and Mumbai. The Court refused the police custody remand of non-petitioner No. 2 and remanded him also to judicial custody alongwith non-petitioner No. 3. They applied for bail under Section 437, CrPC which was granted by the Court. 3. Aggrieved by the said order, the petitioner has approached this Court directly on the ground that the order dated 010.2004 granting bail to non-petitioners No. 2 and 3 is ex facie illegal arbitrary and against the settled principles of law. The learned Sessions Judge had afforded an opportunity to non-petitioners No. 2 and 3 to return the dowry articles which they did not do. So, the grant of bail to them without recovery of the dowry articles is abuse of the process of the Court. Denial of reasonable opportunity to the police to recover the dowry articles will adversely affect the case. It is also alleged that the Court below has not assigned any reason for refusal of the opportunity of recovery of the dowry articles. 4. Non-petitioners No. 2 and 3 have pleaded in their reply that the aforesaid false case has been lodged against them with a view to harass them and their family members. the petitioner herself left the matrimonial home without any reasonable cause and took away her gold and other articles with her while leaving the matrimonial home. 4. Non-petitioners No. 2 and 3 have pleaded in their reply that the aforesaid false case has been lodged against them with a view to harass them and their family members. the petitioner herself left the matrimonial home without any reasonable cause and took away her gold and other articles with her while leaving the matrimonial home. Non-petitioners No. 2 had not given any information as alleged with regard to the articles of dowry and no articles of dowry were to be recovered from him. After their arrest on 010.2004 the police made a thorough search of their house but no dowry articles were recovered. As a matter of fact, this marriage was solemnised through Internet so there was no question of giving any dowry in the marriage. 5. I have heard at length learned Counsel for the parties and learned Public Prosecutor for the State. I have also perused the case diary and other relevant documents placed before me. 6. It may be stated at the outset that the instant petition seeks quashing and setting aside of the order dated 05.01.2004 granting bail to non-petitioner Nos. 2 and 3 by the learned ACJM Dantaramgarh. It does not seek quashing of the order dated 010.2004 refusing remand by the learned Magistrate. A bare perusal of the petition demonstrates that the real grievance of the petitioner is that the recovery of dowry articles having not been made order of granting bail is unsustainable. Infact, even if the order of granting bail is recalled and cancelled as prayed the order of refusal of the police custody remand of non-petitioner No. 2 will stand and the grievance of the petitioner would not be redressed. The petitioner ought to have challenged the order of refusal of police custody remand for non-petitioner No. 2 which she has not done and the same could not be challenged under the provisions of Section 439(2) of the Code of Criminal Procedure, 1973. 7. It is well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled unless there are very cogent and overwhelming grounds and circumstances to do so. It is well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled unless there are very cogent and overwhelming grounds and circumstances to do so. The Apex Court has laid down in the case of Aslam Babalal Desai vs. State of Maharashtra, AIR 1993 SC 1 , some of the grounds for cancellation of bail and the order of refusal of police custody remand to the accused is not one of them. Admittedly, the petitioner has neither pleaded nor proved any one or more of the grounds laid down for cancellation of bail. The petitioner has also failed to show that the judicial discretion exercised by the learned Magistrate is improper or illegal. The alleged offences are tariable by a Magistrate of Ist Class and are not punishable with death of life imprisonment. The learned Magistrate was well within his powers to grant bail in such a case and in the facts and circumstances of the case, the granting of bail to the accused non-petitioners who had been remanded to judicial custody could not be found fault with. 8. This apart, the contention of the learned Counsel is that non-petitioner No. 2 had given information about the dowry articles. The recovery could be effected pursuant thereto by the police and the accused accompanying the police for effecting the recovery of dowry articles as per the information does not appear to be imperative. The recovery of dowry articles even when the accused is granted anticipatory bail is held to be a valid recovery. Besides this, the petitioner has proper legal remedies available under Section 27 of the Hindu Marriage Act and Section 7 of the Family Courts Act for getting her "Stridhan" if any, from non-petitioners and non-recovery of the dowry articles thus cannot be said to adversely affect the outcome of the case against the non-petitioners. 9. Thus, in view of the foregoing discussion, there is no valid and cogent ground to cancel the bail granted to non-petitioners No. 2 and 3. 10. Consequently, this petition for cancellation of bail being devoid of merit and substance deserves to be and is hereby dismissed.