Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 756 (RAJ)

Mst. Jubeda v. State of Rajasthan

2006-03-04

GOPAL KRISHAN VYAS

body2006
Judgment G.K. Vyas, J.-By the impugned order passed on 25.01.2006, the Judicial Magistrate (Ist Class) No. 2, Sujangarh allowed the application of the State filed under Section 437(5), CrPC, in Criminal Case No. 85/2005 and issued warrant of arrest cancelling the bail granted earlier to the petitioners. Aggrieved against the said order, the petitioners have filed the present petition under Section 482, CrPC praying for restoration of the bail bonds. 2. Facts of the case indicate that FIR was registered with police at P.S. Chhapar (Distt. Churu) alleging offence against the petitioners under Section 498-A, IPC. The petitioners preferred application for bail under Section 437, CrPC, and they were allowed bail. 3. It is alleged in the FIR registered on the complaint of Salma Bano, daughter-in-law of Petitioner No. 1 Smt. Jubeda and sister-in-law of Petitioner No. 2 Khatija that the petitioners gave ill-treatment to her and always used to say that Arif (husband of the complainant) would contract nikah with another girl despite the fact that her husband Arif was ready and willing to keep her. As per allegation, on 25.05.2005, at about 7.00 AM, both the petitioners entered into her room and poured kerosene upon her and lit fire which resulted in serious burn injuries sustained by her. After investigation, the police filed challan under Section 498-A, IPC on 29.06.2005 specifically mentioning that no offence under Section 307, IPC, is made out against the accused. Before that, on 27.06.2005, the petitioners were granted bail under Section 437, CrPC. 4. The injured Salma Bano died on 28.07.2005. On the event of death of the injured, the prosecution filed subsequent charge-sheet adding offence under Section 302, IPC and, thereafter, moved application under Section 437 (5), CrPC for cancellation of bail. As indicated above, the trial Court allowed the application and cancelled the bail granted to the petitioners. 5. It is contended by learned Counsel for the petitioners that the subsequent challan adding offence under Section 302, IPC is not permissible to be filed under Section 173, CrPC. inasmuch as after completion of the investigation the police had already filed report under Section 173(2), CrPC on 29.06.2005 for offence under Section 498-A, IPC and there is no provision under Section 173, CrPC to permit the prosecution to file another charge-sheet adding offence under Section 302, IPC. inasmuch as after completion of the investigation the police had already filed report under Section 173(2), CrPC on 29.06.2005 for offence under Section 498-A, IPC and there is no provision under Section 173, CrPC to permit the prosecution to file another charge-sheet adding offence under Section 302, IPC. It is vehemently contended that even offence under Section 307, IPC was not made out at the time of filing the initial charge-sheet, therefore, without any provision of law, because the injured subsequently died after one month of filing the challan, offence under Section 302, IPC could not be added. 6. It is further contended that earlier, the investigation having been conducted by the police and no offence under Section 307, IPC was made out against the petitioners, the Court granted bail to the petitioners under Section 437, CrPC and, thereafter, if subsequent challan is filed adding offence under Section 302, IPC the liberty already granted to the petitioners on bail under Section 437 of the Code cannot be snatched away by way of passing order upon the application filed by the prosecution. 7. It is argued by learned Counsel for the petitioners that discretion lies with the Court under Section 437 (5),CrPC by virtue of the provision that any Court which has relased a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. By its very language Sub-section (5) of Section 437 of the Code makes it clear that the provision is discretionary and not mandatory. If the benefit of bail under Section 437, CrPC is granted to the petitioners and no contravention of the provisions of law is suggestible against the petitioners there cannot be any occasion for passing order under Sub-section (5) cancelling the bail. He submits that of course the power vests in the Court to bring into play the provisions of Sub-section (5) for cancellation of bail already granted but, being discretionary power, the Court must indicate justifiable reasons for doing so and unless the circumstances so warrant the Court cannot cancel the bail and issue warrant of arrest. It is submitted that for the said purpose there must be satisfaction of the Magistrate. 8. It is submitted that for the said purpose there must be satisfaction of the Magistrate. 8. In support of his contentions, learned Counsel for the petitioners placed heaving reliance upon the Judgment of the Supreme Court, reported in 1995 (1) SCC 349 , Dolat Ram & Ors. vs. State of Haryana, contending 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 bases. It is argued that the grounds for cancellation of bail are broadly 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 the material on record about the possibility of the accused absconding is yet another reason justifying the cancellation of bail. But, bail 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 bail during the trial. 9. It is contended that no condition of bail granted to the petitioners has been flouted by them but the impugned order has been passed only on the ground that subsequent charge-sheet has been filed for offence under Section 302, IPC due to the death of the burn-injured complainant after one month of filing the challan. 10. Learned Counsel for the petitioner then drew the attention of the Court towards Judgment s of this Court rendered in the cases of Sukhvinder Singh & Ors. vs. State of Rajasthan, 1993 CrLR (Raj.) 822 and Motilal & Ors. vs. State of Rajasthan, 1987 (Suppl.) RCC 347. It is argued that order of arrest can be passed by the Court which has granted bail under Section 437, CrPC but, as per the language of Section 437 (5), the impugned order is a cancellation order which is not permissible under Sub-section (5) of Section 437, CrPC. vs. State of Rajasthan, 1987 (Suppl.) RCC 347. It is argued that order of arrest can be passed by the Court which has granted bail under Section 437, CrPC but, as per the language of Section 437 (5), the impugned order is a cancellation order which is not permissible under Sub-section (5) of Section 437, CrPC. Learned Counsel for the petitioners drew my attention to the proviso to Sub-section (1) of Section 437 which says even if accused is not entitled to bail under Section 437(1) under Clauses (i) and (ii), such person may be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. He contended that even if the accused is alleged to be guilty of an offence punishable with death or imprisonment for life, bail may be granted if such person is below sixteen years of age or is a woman or is sick or infirm. He further contended that once the bail has been granted to the petitioners, in the light of the provisions of law, the same cannot be cancelled. He submitted that in the present case, the bail earlier granted to the petitioners has been cancelled only on account of application of the prosecution without alleging contravention of the conditions of bail which is not permissible under Section 437 (5), CrPC. 11. Per contra, learned Counsel for the complainant invited attention of the Court to the facts in the case that earlier there was dying declaration recorded on 25.05.2005 and though challan was filed under Section 498-A, IPC and police filed report under Section 173, CrPC, that no offence under Section 307, IPC is made out but subsequently, after the death of the injured, it was open to the prosecution under Section 173(8), CrPC, to file supplementary charge-sheet. Sub-section (8) of Section 173 of the Code of Criminal Procedure reads as under:- “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).” with reference to above provision, it is contended that the prosecution has even right to file supplementary charge-sheet and there is no bar to do so even after filing report under Section 173(2). He contended that after the subsequent charge-sheet having been filed, obviously the offence is triable by the Court of Sessions and the trial Magistrate has no jurisdiction to proceed with the trial, therefore, the learned trial Court has rightly passed order under Section 437 (5), CrPC, because after filing of the initial charge-sheet the injured died and the prosecution after taking into account the entire evidence came to the conclusion that the petitioners have committed offence under Section 302, IPC. He further contended that the powers under Sections 439(2) and 437(5) of the Code are similar and the Court can exercise power for cancellation of bail. Learned Counsel for the complainant invited my attention to various Judgment s of the Supreme Court. Citing the Judgment s reported in AIR 2001 SC 1444 , Prahlad Singh Bhati vs. NCT of Delhi and 1998 RCC 386, Hanuman Singh vs. State of Rajasthan, he contended that there was sufficient evidence for prosecuting the petitioners for offence under Section 302, IPC on the basis of the material collected by the prosecution. He vehemently argued that where the offence alleged is punishable with death or imprisonment for life the Magistrate must generally refrain from considering application for bail under Section 437, CrPC. 12. The learned Public Prosecutor supported the order impugned. 13. I have carefully gone through the material on record as well as Judgment s cited by learned Counsel for the parties. 12. The learned Public Prosecutor supported the order impugned. 13. I have carefully gone through the material on record as well as Judgment s cited by learned Counsel for the parties. In the case on hand, it is significant to mention that bail under Section 437, CrPC, was allowed by the Magistrate after taking into account the entire material on record on 27.06.2005 and, thereafter, on 29.06.2005, challan was filed for offence under Section 498-A, IPC and, in the report filed under Section 173(2), the police opined that no offence under Section 307, IPC is made out; meaning thereby, that the investigating agency was of the opinion that till 29.06.2005 the petitioners were not guilty for commission of any offence under Section 307, IPC. Thus, the clear case of the prosecution at the time of filing of the initial challan after investigation was that the petitioners had no intention to kill the deceased and taking into account the entire material on record the bail application was allowed. 14. Thereafter, on 28.07.2005, Smt. Salma Bano died. Again, investigation was conducted and the police filed supplementary charge-sheet on 210.2005. I have also perused the papers of the supplementary charge-sheet. In this charge-sheet two documents were annexed. One is the post-mortem report and another is “Fird Surat-hal”. The reason for filing the supplementary charge-sheet is given that the injured Salma Bano died due to burn injuries and, therefore, the case is clearly for offence under Section 302, IPC, in view of the dying declaration recorded on 25.05.2005 though the same does not bear signature. Obviously, the dying declaration dated 25.05.2005 was on record even at the time of deciding the bail application under Section 437, CrPC on 27.06.2005. If the prosecution was of the opinion that no offence under Section 307, IPC was made out upto filing of the initial challan then the same dying declaration could not be the basis for filing the subsequent charge-sheet under Section 302, IPC. 15. The impugned order reveals that the Court has not found any violation of the conditions of bail granted to the petitioners. The order has been passed only because subsequent charge-sheet for offence under Section 302, IPC has been filed. As per Section 437(5), CrPC, there is no such power vested in the Court to cancel the bail order. 15. The impugned order reveals that the Court has not found any violation of the conditions of bail granted to the petitioners. The order has been passed only because subsequent charge-sheet for offence under Section 302, IPC has been filed. As per Section 437(5), CrPC, there is no such power vested in the Court to cancel the bail order. The discretion exercisable under Sub-section (5) of Section 437, CrPC to pass an order of arrest the person to whom bail was granted under Section 437, CrPC, requires justifiable reasons to be recorded and satisfaction of the Court for the necessity to do so. The Judgment s cited by learned Counsel for the complainant would not bear upon the set of facts and circumstances in the present case. In Prahlad Singh Bhati vs. N.C.T., Delhi & Anr. (Supra), the case did not lie under the exceptions provided under proviso to Sub-section (1) of Section 437 and the Supreme Court clearly held that generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The petitioners are women and the proviso attached to Section 437(1) provides that in the case of women the Magistrate has power to grant bail even though the offence is punishable with death or imprisonment for life, as such. The facts of the present case clearly reveal that there was no occasion for the Magistrate to proceed to cancel the bail granted to the petitioners under Section 437, CrPC. If at all the prosecution intended for cancellation of the bail that should have been in consonance with the provisions of law. 16. In the result, the petition is allowed. The impugned order is quashed. The bail bonds of the petitioners stand restored.