Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 730 (JHR)

VIVEK RAI v. STATE OF JHARKHAND

2006-06-20

D.K.SINHA

body2006
Judgment : ( 1 ) THE petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure for quashing the impugned order dated 24-3-2006 passed by the learned Sessions Judge, Bokaro in Cr. Misc. Petition No. 24 of 2005 whereby and whereunder the prayer for bail of the petitioner was cancelled in connection with the complaint Case No. 330 of 1999 pending in the Court of the S. D. J. M. Bokaro and with the prayer that the petition is permitted to remain on bail. ( 2 ) THE brief fact of the case is that the petitioner was married to the opposite party no. 2, Sunita Rai on 3-7-1998 at Bokaro Steel city and after marriage the opposite party no. 2/complainant went to her matrimonial home at Allahabad. After two days staying in her matrimonial home, her father-in-law on the plea that her father was solvent to pay and demanded Rs. 1. 5 lakhs which was supported by both of her Nanad. It is alleged that a sum of Rs. 4,50,000/- was demanded as dowry before the marriage. Though her father was not in a position to pay such huge amount but from his retiral benefits he got a draft of Rs. 3,41,000/- prepared on 18-5-1998 and sent to the father of the petitioner which was accepted on certain terms. When the opposite party No. 2/ complainant appraised the matter relating to demand of dowry by her in laws before her husband, he also reiterated the demand besides, he raised demand of a Maruti car to be brought from her parental house. On the 3rd day no food was provided to her and on the 4th day she was pressurized by her father-in-law to convey on telephone to her parents about the demand raised by them. On such receiving telephonic message her father and brother came to Allahabad to whom she narrated all the facts and after putting land on mortgage her father obtained rs. 1,50,000/- and paid it to the accused persons and only then the opposite party no. 2/complainant was allowed to go with her father after retaining all her Jewelleries and it was cautioned that she would be allowed in her matrimonial home only on the delivery of a Maruti Car by her father. 1,50,000/- and paid it to the accused persons and only then the opposite party no. 2/complainant was allowed to go with her father after retaining all her Jewelleries and it was cautioned that she would be allowed in her matrimonial home only on the delivery of a Maruti Car by her father. When the petitioner used to visit the parental home of the opposite party No. 2, he used to reiterate the demand of car and also used to torture the opposite party No. 2/complainant mentally and physically. In New Delhi also where the petitioner was posted, the opposite party No. 2/complainant was subjected to torture for the car. It is alleged that the petitioner used to confine her in the house under lock and key whenever used to go out on his job and used to return in the state of intoxication. No arrangement was made for preparation of food in the house and she was brutally assaulted and mentally tortured by him and her physical condition, therefore, day by day deteriorated. During the Durga Punja her father-in-law as well as sister-in-laws visited New Delhi and they also tortured and reiterated the demand of Rs. two lakhs for purchasing a maruti Car. On 1-10-1998 at the instance of the petitioner-husband, Vevek Rai, her father-in-law after pouring K. Oil on her body attempted to set on her fire with the help of her sister-in-laws but she screamed and out of fear of the neighbours the occurrence could not be given effect to and she any how could inform her parents. On such information her brother came to New Delhi with a sum of Rs. 50,000/- and delivered it to her father-in-law. As the physical and mental condition of the opposite party No. 2 deteriorated, she was brought to Bokaro and after treatment her mental condition came to normalcy and after sometime thepetitioner with his father came to Bokaro and put pressure for payment of balance amount to which her father expresssed inability to pay such huge amount and she was again mentally tortured. Her husband lastly visited bokaro on 17-10-1999 and reiterated the demand of Rs. two lakhs by putting pressure but as her father expressed inability to pay the same, the accused persons including petitioner was attempted to assault her. Her husband lastly visited bokaro on 17-10-1999 and reiterated the demand of Rs. two lakhs by putting pressure but as her father expressed inability to pay the same, the accused persons including petitioner was attempted to assault her. The matter was informed to the police station but without any action hence the complaint case No. 330 of 1999 was filed before the Chief Judicial Magistrate, Bokaro and cognizance of the offence was taken under section 498a of the Indian Penal Code as well as 3/4 of the Dowry Prohibition Act. ( 3 ) THE petitioner was admitted on bail vide Bail Petition No. 196 of 2003 by the 3rd Additional Sessions Judge, Bokaro on the affirmation of the opposite party No. 2 that good feeling has prevailed between the parties, as such the accussed-petitioner may be enlarged on bail so that he may bring back his wife, Sunita Rai to lead a happy conjugal life. Accordingly, the petitioner was admitted to bail on executing bail bonds with the observation, "since the bail of the petitioner is being disposed of solely on the ground of compromise without touching the merit of the case, as such in event of any hesitation on the part of the accused-petitioner to follow the undertaking given to the complainant in the Court to keep her with full dignity and honour, the complainant, sunita Rai will be at her liberty to move for cancellation of his bail. Let a copy of this order be sent to the Court of S. D. J. M. Bokaro for needful. ( 4 ) IN the meantime, a petition for divorce being Divorce Petition No. 136 of 2006 was filed by the petitioner herein before the Principal judge, Family Court, Allahabad under section 13 (l) (l-a),13 (l) (l-b) of the Hindu marriage Act, 1955 which was subsequently transferred to Bokaro by the Apex Court. Thereafter the petition for discharge of the accussed-petitioner, which was preferred earlier, was rejected by the Court of S. D. J. M. Bokaro and against which a Criminal Misc. Petition No. 816 of 2004 was preferred before this Court and this Court refused to quash the order of charge framed by the s. D. J. M. with a direction to consider the application of the ladies sympathetically. Petition No. 816 of 2004 was preferred before this Court and this Court refused to quash the order of charge framed by the s. D. J. M. with a direction to consider the application of the ladies sympathetically. It has been submitted that the charge under section 3/4 of the Dowry Prohibition Act against this petitioner and co- accused without obtaining sanction from the Deputy commissioner, Bokaro is illegal. ( 5 ) A petition for cancellation of bail on behalf of the Complainant/opposite party no. 2 under Section 439 (2) Cr. P. C. , was filed on the ground that the petitioner had violated the terms and conditions mentioned in the bail order in the B. P. No. 196 of 2003 under Section 439 of Cr. P. C. whereby and whereunder he was directed to keep his wife with full dignity and honour. A notice was issued to the petitioner. ( 6 ) IT has been urged that 3rd Additional sessions Judge, Bokaro, was not competent to impose any condition upon the petitioner while granting bail as contained in under section 437 (3) of Cr. P. C. which devise that if the offence is punishable for seven years imprisonment or more, the condition may be imposed. But the sentence as prescribed under Section 498a of the I. P. C is for three years imprisonment and fine whereas punishment under Section 3 of Dowry Prohibition act is for six months only as per Bihar act No. 4 of 1976 and therefore, the additional Sessions Judge was not competent to impose any condition upon the petitioner under Section 437 (3) of Cr. P. C. The petitioner relied upon the decision of the Supreme Court reported in 2004 Cr LJ 1451 : (2004 AIR Jhar HCR 1460 ). The Honble Supreme court in Biman Chatterjee v. Sanchita chatterjee held that non-fulfillment of the terms of the compromise cannot be the basis of granting or cancelling a bail. Learned counsel further submitted that grant of bail under the Criminal Procedure Code is governed by the provisions therein and does not contemplate on the basis of an assurance of a compromise or cancellation of bail on violation of the terms of such compromise. Learned counsel further submitted that grant of bail under the Criminal Procedure Code is governed by the provisions therein and does not contemplate on the basis of an assurance of a compromise or cancellation of bail on violation of the terms of such compromise. It is not open to the Trial Court or high Court to cancel the same on the ground alien to the grounds mentioned for cancellation of bail under the provision of Code of criminal Procedure as was observed by the honble Supreme Court in Biman Chatterjee case (Supra ). Learned Sessions Judge lost sight of the proposition of law aforesaid while cancelling the bail of the petitioner by the impugned order dated 24-3-2006. Guidelines given by the Honble Supreme Court in Reghuveer Singh v. State of Bihar was not followed and therefore, the impugned order is illegal, arbitrary and without jurisdiction which suffers from manifest errors of law and fact and is liable to be quashed. ( 7 ) IN Daulat Ram v. State of Haryana, reported in (1995) 1 SCC 349 it was held by the Supreme Court that bail once granted should not be cancelled in mechanical manner without considering whether any compelling circumstances have rendered it no longer expedient to allow the accused to retain his freedom by enjoying of bail during the trial. It is trite law that when the bail is granted by the Judicial Magistrate, the Judicial magistrate can cancel the bail. The court of Session can cancel the bail granted under Section 439 (2) of the Code of Criminal Procedure. ( 8 ) IN the present case, the bail was granted to the petitioner by the Additional sessions Judge in Bail Petition No. 196 of 2003 on 27-3-2003 under Section 439 (1) of the Code of Criminal Procedure for the offence under Section 498a of the Indian penal Code as well as under section 3/4 of the dowry Prohibition Act, certainly on certain terms as contained in the concluding paragraph of the bail order, solely on the ground of compromise without touching the merit of the case with the condition that in the event of any hesitation on the part of the accused-petitioner to follow the undertaking given to the complaintant in the Court to keep her with full dignity and honour, the complaintant would be at liberty to move for cancellation of his bail. ( 9 ) THERE is substance in the argument of the learned counsel for the petitioner that the condition imposed by the learned Additional sessions Judge under Section 439 (1) of the Code of Criminal Procedure while granting bail to the petitioner is in contravention to the provision of Section 437 (3) of the Code for the offence under section 498a of the Indian Penal Code in which punishment is prescribed for three years and under Section 3 of the Dowry Prohibition act, six months imprisonment. The charge framed under Section 3 of the Dowry prohibition Act without sanction of the Government as per Bihar Act is illegal, uncalled for and without jurisdiction. In Biman chatterjee v. Sanchita Chatterjee, reported in 2004 Cr LJ 1451 : (2004 AIR Jhar HCR 1460) the Honble Supreme Court held as under (Para 7) : - "the grant of bail under the Criminal Procedure Code is governed by the provision of chapter XXXII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of compromise or cancellation of a bail for violation of the terms or such compromise. What the Court has to bear in mind while granting bail is what is provided for in section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the Trail court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. " ( 10 ) UNDER the facts and circumstances of the case there appears merit in the petition filed under Section 482 of the Code of criminal Procedure. The impugned order dated 24-3-2006 passed by the Sessions judge in Misc. Case No. 24 of 2005 is set aside with a consequential effect. This petition is allowed. Petition allowed. --- *** --- .