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2005 DIGILAW 382 (JHR)

Jharkhand High Court On Its Own Motion Through Tuku Banerjee v. State Of Jharkhand

2005-05-17

AMARESHWAR SAHAY

body2005
ORDER Amareshwar Sahay, J. 1. By the Court.-The Vigilance Cell of this Court received a letter written by Smt. Tuku Banerjee, wherein it was prayed to probe as to how her accused- husband was granted bail by the S.D.J.M. Dhanbad. She stated that she had lodged a complaint before the Court of the Chief Judicial Magistrate, Dhanbad against her husband Sandeep Banerjee, father-in-law Magaram Banerjee and Mother-in-law Malati Banerjee for commission of the offence under Sections 498-A IPC and 3/4 of the Dowry Prohibition Act. In the said case cognizance has also been taken under the aforesaid sections of the Indian Penal Code. After the cognizance the accused Sandeep Banerjee appeared and he was released on bail by the SDJM. 2. Pursuant to the said letter, a report was called for from the District Judge, Dhanbad by the Vigilance Cell. After perusal of the report of the District Judge, the matter was referred to the judicial side to determine whether the bail granted to the accused Sandeep Banerjee (husband of the complainant) be cancelled or not. Accordingly, the present criminal writ was registered. 3. By order dated 9/11/2004 the complainant-wife as well as the accused- husband were noticed. Both the parties appeared through their respective counsels and filed their respective affidavits. 4. From the statements made in the affidavit filed on behalf of the complainant Smt. Tuku Banerjee, it appears that she has alleged that she was married to the accused Sandeep Banerjee and because of the demand of dowry she was tortured and physically assaulted by her husband and the in-laws due to which she received several injuries and then ultimately, she left her matrimonial home on 09/03/2003. It was further alleged that her father had to pay an amount of Rs. 1,90,000/- (Rupees one lakh ninety thousand only) by Bank Draft as dowry to her in-laws. The husband thereafter, filed Matrimonial Suit No. 23/03 on 10/03/2003 at Asansol with prayer to dissolve the marriage between the parties and for a decree for divorce. Accordingly, it was stated that Sandeep Banerjee the husband did not deserve to be released on bail and, therefore, the bail granted by the SDJM be cancelled. 5. Mr. Delip Jerath, learned counsel appearing for the complainant Smt. Tuku Banerjee relied on the following decisions in support of the case of the complainant:- (1) Rambilash and Anr. v. Shekhar and Ors. 5. Mr. Delip Jerath, learned counsel appearing for the complainant Smt. Tuku Banerjee relied on the following decisions in support of the case of the complainant:- (1) Rambilash and Anr. v. Shekhar and Ors. reported In (2001) 6 SCC 338 . (2) Chaman Lal v. State of U.P. and Anr. reported in (2004) 3 Crimes 225 (SC). (3) Ram Govind Upadhyay v. Sudarshan Singh and Ors. reported in (2002) 3 SCC 598 . 6. In the counter affidavit filed on behalf of the accused-husband Sandeep Banerjee, it has been stated that the present criminal writ initiated suo moto by the High Court is not maintainable and if the complainant-wife was aggrieved by the order of the SDJM granting bail to the accused husband, she could have availed the remedy under Section 437(5) of the Cr PC for cancellation of bail. It has further been stated that the invocation of Article 227 of the Constitution of India was not justified in the present case because the trial Court by order dated 15/6/2004 granted bail to the husband Sandeep Banerjee in exercise of the power conferred under the Code of Criminal Procedure Code, and that also after considering the relevant facts, as well as the judgment of the High Court and the Supreme Court of India. It has been sub-mitted by Mr. Indrajeet Sinha, learned counsel appearing on behalf of the accused-husband Sandeep Banerjee after relying on the decision of the Supreme Court in the cases of Dolat Ram and Ors. v. State of Haryana reported in 1995 SCC (Cri) 237, Subhendu Mishra v. Subrat Kumar Mishra and Anr. reported in 1999 Cr LJ 4063 (SC), Biman Chatterjee v. Sanchita Chaterjee and Anr. reported in 2004 SCC (Cri) 814 and in the case of Maninder Kaur and Ors. v. Teja Singh reported in 2001 (1) East Cr C 42 (SC) that no case for cancellation of bail granted to the accused husband is made out. 7. Now, I shall discuss the decisions cited on behalf of the complainant O.P. No. 5. 8. In the case reported in (2001) 6 SCC 338 it has been held that an order granting bail passed by ignoring the material and evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. 8. In the case reported in (2001) 6 SCC 338 it has been held that an order granting bail passed by ignoring the material and evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. Such ground for cancellation is different from the ground that the accused misconducted himself of some new facts call for cancellation. It has further been held in the said decision that an application for cancellation of bail can be filed either by the State or any aggrieved party and the High Court is a superior Court in hierarchy of Courts and it cannot exercise the jurisdiction under Section 439(2) of the Cr PC for cancellation of bail in relation to the bail orders passed by the Court of Sessions or by any Magistrate. The law laid down by the Supreme Court in para 10 of the judgment of the aforesaid case are as under :- "Generally speaking, the grounds for cancellation of bail 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. However, 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 that 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 trial Court has to be corrected." 9. The judgment in the case of Chaman Lal v. State of U.P. and Anr. 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 trial Court has to be corrected." 9. The judgment in the case of Chaman Lal v. State of U.P. and Anr. reported in (2004) 3 Crimes 225 (SC) lays down that while granting bail to an accused the following amongst other circumstances be considered :- (1) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (2) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (3) Prima facie satisfaction of the Court in support of the charge. 10. The order granting bail to an accused must indicate the application of mind and there is a need to indicate in the order, reasons for prima facie concluding while bail was being granted particularly where an accused was charged of having committed a serious offence. 11. In the case of Ram Govind Upadhyay v, Sudarshan Singh and Ors. reported in (2002) 3 SCC 598 it was held that the grant of ball though is a discretion order, but, however, calls for materials of such a discretion in a judicious manner and not as a matter of course. The order for ball bereft of an cogent reason cannot be sustained. The nature of the offence is one of the basic considerations for grant of the bail. More heinous is the crime, the greater is the chance of rejection of the bail. 12. So far as the decisions relied on behalf of the accused husband are concerned, I find that in the case of Dolat Ram and Ors. v. State of Haryana reported in 1995 SCC (Cri) 237 it has been held by the Supreme Court that the rejection of bail in a non-bailable case at the initial state and the cancellation of ball, so granted, have to be considered and dealt with a different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds of cancellation of bail, broadly (illustrative and not exhaustive) 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. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason Justifying the cancellation of bail. However, ball once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of ball during the trial. 13. The above decision of the Supreme Court was followed in the case of Subhendu Misra v. Subrat Kumar Mishra and Anr. reported in 1999 Cr LJ 4063 (SC). 14. In the case of Biman Chaterjee v. Sanchita Chatterjee and Anr. reported in 2004 SCC (Cri) 814 the Supreme Court has held while dealing with a case for cancellation of bail in case lodged under Section 498-A of the Indian Penal Code that the bail granted by the Trial Court cannot be cancelled beyond the grounds for cancellation. 15. In the case of Maninder Kaur and Ors. v. Teja Singh reported in 2001 (1) East Cr C 42 (SC) the Supreme Court has held as follows :- "The basic premise that the case was instituted on complaint, had been over-looked by the High Court. Normally, when a case is Instituted on a complaint, the Court issues summons to the accused to appear in the Court and on such appearance, instead of being arrested, he would apply for ball. Unless there are compelling reasons, the Court would allow the accused to remain on bail at east till the charge is framed Even after charge is framed, the situation would be reconsidered if necessary, whether bail should be cancelled or not. We do not think that the High Court should have expressed on the merits of the case, particularly when the matter had to go for trial." 16. We do not think that the High Court should have expressed on the merits of the case, particularly when the matter had to go for trial." 16. There is no dispute so far as the law laid down by the Supreme Court regarding the cancellation of bail already granted to an accused. 17. The decision in the case of Ram Govind Upadhyay (supra) is no applicable in this case as the said decision is regarding grant of ball after once it was refused. 18. As it appears that in fact the Apex Court has laid down the law regarding cancellation of bail in the case of Dolat Ram and others (supra). The decision has been followed subsequently in several decisions including in the case of Biman Chaterjee (supra) and in the case of Maninder Kaur (supra). 19. Now, coming to the present case, from the order of the SDJM Dhanbad dated 15/6/2004 granting bail to the accused husband, it appears that the learned SDJM has considered the allegations made in the complaint, the argument advanced on behalf of the parties and also considered several decisions and then came to the conclusion that the accused was entitled to bail and, thereby, enlarged him on bail on furnishing sufficient securities. 20. The order of the learned SDJM indicates that he has passed the bail order in conformity with the judgments of the Supreme Court in the case of Ram Bilas and Ors. v. Shekhar (supra) and in the case of Chaman Lal v. State of U.P. (supra) relied on by the complainant as well as the judgment of Apex Court in the case of Dolat Ram (supra). 21. In view of the several decisions of the Supreme Court noticed above and in views of the grounds mentioned in the order granting bail to the accused- husband by the SDJM, Dhanbad, I find that no case whatsoever for cancellation of bail is made out by the Complainant. The learned SDJM was well within his jurisdiction to either grant of bail or to refuse, on the basis of the materials on record. The reasons assigned by the learned SDJM are quite sound and it justifies the grant of bail. 22. Accordingly, having find no merit, the prayer for cancellation of bail granted to the accused-husband is hereby rejected. The impugned order of the SDJM granting bail does not require any interference by this Court. The reasons assigned by the learned SDJM are quite sound and it justifies the grant of bail. 22. Accordingly, having find no merit, the prayer for cancellation of bail granted to the accused-husband is hereby rejected. The impugned order of the SDJM granting bail does not require any interference by this Court. Petition dismissed.