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2014 DIGILAW 36 (JK)

Kanta Devi v. Sansar Chand

2014-02-03

JANAK RAJ KOTWAL

body2014
JUDGMENT Janak Raj Kotwal, J.- 1. This is a petition under section 561A of the Code of Criminal Procedure (for short the Code) seeking to quash and set aside the two identical orders of even date, 13.06.2013, passed by the learned Judicial Magistrate (3rd Additional Munsiff), Jammu, in File Nos. 123 & 124, whereby respondents Sansar Chand and Deep Mala respectively have been released on bail after their arrest in connection with FIR No. 46/2013 of Police Station, Janipur for commission offences under sections 306,498A/34 RPC. Heard. I have perused the record. 2. Relevant facts briefly are these: 3.1 On 23.05.2013, one Radhu Sharma (hereinafter the deceased) set herself unto fire in her house at Janipur Colony, Jammu. She was admitted in Government Medical College Hospital, Jammu. On the same day, Police Station, Janipur got source information of this occurrence. Offence under section 309 RPC was, thus, registered as FIR No. 46/2013 and investigation entrusted to Mr. Jaipal Singh ASI. The Investigating Officer on the same day recorded statement of the deceased in terms of section 161 of the Code. She stated that she had set herself ablaze after pouring Kerosene to commit suicide because of harassment being met to her by her father-in-law Sansar Chand and 'Devrani' Deep Mala (herein respondents 1 & 2, to be referred to as the accused). Deceased succumbed to her burn injuries so offences under sections 306, 498A/34 RPC were added to the case. It was found on investigation that deceased was married to Ashwani Sharma, S/O accused, Sansar Chand some 13/14 years back. Their marriage procreated two daughters. Ashwani Kumar was not keeping good health and expenses of entire family were being borne by accused Sansar Chand. This had created routine tension in the family. On the day of occurrence, when the deceased was cooking food, accused Sansar Chand abused her. On this, the deceased doused herself with kerosene and committed suicide. Charge sheet against both the accused has been laid and committed to the learned 1st. Additional Sessions Judge, Jammu. 3.2. Record reveals that accused Sansar Chand was arrested on 25.05.2013 and accused Deep Mala on 09.06.2013. They have been released by the learned Judicial Magistrate (3rd Additional Munsiff) on bail vide separate orders of the even date which are impugned in this petition. Petitioner No. 1 is mother of the deceased, petitioner Nos. Additional Sessions Judge, Jammu. 3.2. Record reveals that accused Sansar Chand was arrested on 25.05.2013 and accused Deep Mala on 09.06.2013. They have been released by the learned Judicial Magistrate (3rd Additional Munsiff) on bail vide separate orders of the even date which are impugned in this petition. Petitioner No. 1 is mother of the deceased, petitioner Nos. 2 to 4 are her sisters and petitioners Nos. 5 & 6 are her brothers. 3. Having regard to the grounds on which the petitioners have assailed the impugned orders and seek to quash them, I may first paraphrase the sequence of proceedings leading to the passing of the impugned orders by the learned Magistrate (3rd Additional Munsiff), Jammu, (hereinafter to be referred as the Duty Magistrate) and also underline some important aspects in this regard. 4.1 Accused Sansar Chand was arrested on 25.5.2013. On 28.5.2013, application for bail was moved on his behalf, which came to be assigned to the Court of the Forest Magistrate, Jammu. Record on the file of this application reveals that learned Forest Magistrate obtained a report from Police Station, Janipur and asked the prosecutor to file objections and produce the CD File. On 06.06.2013, Senior Prosecuting Officer produced the CD file. Learned Forest Magistrate after perusal of the CD file on that day, ordered listing of the bail application on 08.06.2013 for arguments. Record does not reveal that the file was taken up on 08.06.2013. After that, courts in Jammu District closed for summer break with effect from 10.06.2013, whereas 09.06.2013 was Sunday. 4.2 In the meantime, co-accused Deep Mala was arrested on 09.06.2013. On 10.06.2013, an application for bail was moved on her behalf before the Duty Magistrate (3rd Addl. Munsiff). Learned Duty Magistrate called for the report from Police Station, Janipur, which was received on the same day. This report, however, was not made by the Investigating Officer of the case but by the Mohar Head Constable of the Police Station. On the same day, learned Magistrate sought objections from the Chief Prosecuting Officer without fixing future date in the file. 4.3 On 11.06.2013, an application for bail was moved on behalf of accused, Sansar Chand, also before the same Duty Magistrate. It was stated in this application that report in the matter has been called in the application of co-accused Deep Mala. 4.3 On 11.06.2013, an application for bail was moved on behalf of accused, Sansar Chand, also before the same Duty Magistrate. It was stated in this application that report in the matter has been called in the application of co-accused Deep Mala. Pendency of the earlier application before the Forest Magistrate was not revealed in this application. Learned Magistrate, without calling police report in this application, straightway directed the Chief Prosecuting Officer to file objections, without fixing future date in the file. 4.4. Objections on behalf of the State seem to have been filed jointly in both the applications. Learned Magistrate took up and allowed both the applications on 13.06.2013 by separate but identical orders and released both the accused on bail. 4.5. On 26.06.2013, that is, after summer break, counsel for accused, Sansar Chand, made a statement before learned Forest Magistrate for not pressing the earlier bail application, which was therefore, dismissed. 4. Important aspects, which may be underlined for consideration hereafter, are: (a) Pendency of the earlier bail application before the learned Forest Magistrate was not disclosed in the subsequent bail application moved on behalf of the accused, Sansar Chand, before the learned Duty Magistrate. (b) Neither the police officer, who made report in the bail application of co-accused Deep Mala nor the Prosecutor, who filed joint objections in the two bail applications, had indicated the pendency of the earlier bail application of accused, Sansar Chand. (c) Learned Duty Magistrate in disposing of both the bail application seems to have relied upon the same police report, which was received in the bail application moved on behalf of co-accused, Deep Mala only. (d) Record on the file of the subsequent bail application moved on behalf of accused Sansar Chand before the learned Duty Magistrate contains a copy of police report dated 29.05.2013, which was the report submitted by the Investigating Officer in the earlier bail application pending before the learned Forest Magistrate. (e) Perusal of copy of the report dated 29.05.2013 (supra) would have clearly revealed the filing/pendency of the earlier bail application moved on behalf of accused Sansar Chand before learned Forest Magistrate. This report, however, seems not to have been looked into by the learned Duty Magistrate as it has no mention in the impugned orders 5. (e) Perusal of copy of the report dated 29.05.2013 (supra) would have clearly revealed the filing/pendency of the earlier bail application moved on behalf of accused Sansar Chand before learned Forest Magistrate. This report, however, seems not to have been looked into by the learned Duty Magistrate as it has no mention in the impugned orders 5. A bare look to the sequence of proceedings and the aspects underlined above would show that, while filing the fresh bail application before the learned Duty Magistrate on behalf of accused Sansar Chand, pendency of earlier bail application moved on his behalf before the learned Forest Magistrate was deliberately concealed. This is evident from the fact that the said application was withdrawn as soon as the courts reopened after the summer break. The Investigating Agency as well as the Prosecuting Agency overtly or covertly seem to have contributed their bit in this behalf. Even the learned Magistrate seems, either to have fallen in the trap or to have become party to the unwholesome design of the accused. 6. Experience would show that every action of the Investigating Officer connected with investigation of a case is record in the CD file. That includes sending of reports in bail and other application or remand application to the court too. Report in the earlier bail application moved before the Forest Magistrate was submitted on 29.05.2013. This fact must have been recorded in the CD file and was required to be specifically mentioned in the report submitted by the Police in the application of Deep Mala. This, however, has not been done. In any case, there was the possibility of this having been indicated in the police report on the subsequent application of accused Sansar Chand, had the Duty Magistrate called report in that application which, however was not called. Pendency of the earlier bail application moved on behalf of accused Sansar Chand, therefore, did not come to be reported to the court by the Investigating Agency. Prosecuting Agency, which deals with the cases in the court, too did not disclose this fact in its joint objections to the bail applications. 7. Learned Duty Magistrate on his part did not call report in the bail application of accused, Sansar Chand. Prosecuting Agency, which deals with the cases in the court, too did not disclose this fact in its joint objections to the bail applications. 7. Learned Duty Magistrate on his part did not call report in the bail application of accused, Sansar Chand. He did not club the two applications but decided both of them by separate orders purportedly on the basis of report received in the case of Deep Mala. Learned Magistrate did not even show his concern to ascertain the date of arrest of accused, Sansar Chand and as against his arrest on 25.5.2013, recorded in his order that he was arrested on 09.6.2013. Learned Duty Magistrate apparently did not take notice of the copy of report dated 29.5.2013 received in earlier bail application of accused Sansar Chand, which was available in the file before him. 8. Perusal of the minutes recorded in the earlier bail application by the learned Forest Magistrate gives an indication that the said Magistrate had shown a bit disinclination in disposing of the application or granting bail rapidly. He had listed it on 08.6.2013, which was the last working before the summer break and possibility of application not being disposed of on 08.06.2013 could not have been ruled out. It was this backdrop, which might have prompted someone on behalf of accused, Sansar Chand, to approach the Duty Magistrate without disclosing pendency of the earlier bail application and the idea clicked. Learned Duty Magistrate disposed of the application within three days without calling police report in this application and without considering the necessity of examining the record in particular last statement of the deceased by calling the CD file. To say, learned Duty Magistrate disposed of the application and granted bail in haste. 9. The petitioners have invoked inherent jurisdiction of this court under section 561A of the Code to seek quashing of the bail orders contending mainly that by seeking and securing bail from learned Duty Magistrate, accused Sansar Chand has abused process of the court and ends of justice have been defeated by releasing the accused persons on bail in heinous offence under section 306 RPC. In seeking quashment of the impugned orders, petitioners in effect have sought cancellation of the bail granted to the accused persons. 10. Mr. In seeking quashment of the impugned orders, petitioners in effect have sought cancellation of the bail granted to the accused persons. 10. Mr. Vikram Sharma, learned counsel for the petitioners, submitted that it was not permissible for the learned Duty Magistrate to entertain fresh bail application of accused, Sansar Chand, during pending of his earlier application before learned Forest Magistrate and in that, order of bail in his favour is without jurisdiction and illegal. Mr. Sharma argued in this context that neither pendency of earlier bail application was disclosed in the subsequent application nor any reason for filing the subsequent application was disclosed and in that, fraud was played with the court in securing the bail. Mr. Sharma also assailed correctness of both the orders contending that learned Magistrate has granted bail in haste without taking into consideration the seriousness of the occurrence that involved death of a person. He submitted further that a bail order passed in utter disregard of seriousness of the offence is illegal. Mr. Sharma thus concluded that bail secured by accused, Sansar Chand, by playing fraud with the court and thereby abusing process of the court is liable to be cancelled. He submitted further that the impugned orders have been passed without application of mind and in obvious haste by the learned Duty Magistrate may be set aside. Mr. Sharma in order to seek quashing of the orders and cancellation of bail relied upon Puran v. Rambilas, (2001) 6 SCC 338 ( AIR 2001 S.C. 2023 ). 11. Mr. S.K. Anand, learned counsel for respondents, on the other hand supported the impugned orders. Mr. Anand while reading the impugned orders submitted that learned Magistrate has given cogent reasons for releasing both the accused on bail and no case for cancellation of bail in either case is made out. I may, however, point out here that Mr. Anand did not venture to justify filing of fresh bail application before learned Duty Magistrate during pendency of the earlier application before the learned Forest Magistrate. 12. The object sought to be achieved in this petition being cancellation of bail granted to the accused, by invoking the inherent jurisdiction of this Court, it also needs to be considered as to whether a case for cancellation of the bail is made out or not, besides whether the process of the court has been abused and ends of justice defeated. 13. 13. It, however, goes without saying that criteria for cancellation of bail already granted are entirely different than the criteria for refusal of bail. Grant of bail in a non bailable offence is discretion of a court but this discretionary jurisdiction is to be exercised in judicious manner by applying sound judicial principles, which by now are well settled. Court can refuse bail in non bailable offences if in the opinion of the court a case for granting bail is not made out, having regard to the factors, which are well laid down and need not be stated here. Nonetheless, it would be apt to refer to a recent observation of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. : (2010) 8 Supreme 353 : 3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely sanctity of individual liberty and the interest of the society. The Law of bails dovetails two conflicting interests namely on the one hand, the requirement of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. 14. Bail having been granted, it can be cancelled only if a case for cancellation is made out having regard to the factors, which are certainly other than those to be considered for the purpose of grant/refusal of bail. 15. Concept of cancellation of bail is well engrafted in the Criminal law. Sub-section 5 of Section 497 of the Code (Section 437(5) of the Central Cr.P.C.) empowers the High Court and the Court of Sessions to cancel the bail granted by any court to any person. Besides, it similarly empowers every other court to cancel the bail granted by that court itself. Above all, even if no case for cancellation of bail is otherwise made out, this court has the inherent power to quash an order granting bail if the order is passed in abuse of the process of court. 16. Law as regards cancellation of bail is now well settled. Above all, even if no case for cancellation of bail is otherwise made out, this court has the inherent power to quash an order granting bail if the order is passed in abuse of the process of court. 16. Law as regards cancellation of bail is now well settled. In Dolatram v. State of Harayana, (1995) 1 SCC 349 , the Supreme Court has considered the factors to be taken into consideration while ordering cancellation of bail and has held: 4. Rejection of bail in a non bailable case at me initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the ground for cancellation of bail, broadly (illustrative and no 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 or the possibility of the accused absconding is yet another reason justifying the cancellation of bail. 17. In Puran v. Rambilas, : (2001) 6 SCC 338 ( AIR 2001 S.C. 2023 ), Supreme Court has held that bail would be liable to be cancelled when a perverse order has been passed ignoring material or evidence on record as such an order would be against principle of law. Their Lordships have further held: 10. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has mis-conducted himself or because of some new facts requiring such cancellation. 18. As explained herein above, it can be safely said that bail on behalf of respondent Sansar Chand has been secured by abuse of the process of the court inasmuch as bail application was moved during the vacation before the Duty Magistrate, concealing the pendency of earlier application before a regular court in which there was reason to believe that bail might not be granted readily. Learned Duty Magistrate has granted bail in evident haste without calling report and pursuing the CD file. Learned Duty Magistrate has granted bail in evident haste without calling report and pursuing the CD file. Learned Magistrate intentionally or due to lack of requisite will has ignored information as regards pendency of earlier application, which was available with him. Grant of bail to accused Sansar Chand in these circumstances is not only unjustified but an abuse of the process of the court and such order cannot be allowed to sustain. 19. For all that said and discussed above, impugned order dated 13.6.2013 granting bail to accused Sansar Chand is quashed and bail granted to him is cancelled. Learned trial Court shall secure his presence by issuing appropriate process and remand him to judicial custody. Cancellation of the bail, however, will not come in the way of considering his prayer for bail afresh at an appropriate time. 20. No case for quashing order dated 13.6.2013 as regards accused Deep Mala or cancelling the bail granted to her is made out and the petition to this extent is dismissed. 21. Before closing, I cannot resist the glimpse of a deliberate bench hunting having been made on behalf of accused Sansar Chand. Disposal of this petition in my view cannot be taken as end of the matter. Some of the questions call for explanation and determination on administrative side. These questions are: i) Why in the bail application of accused-Deep Mala police report was prepared and signed by the MHC (Moharar Head Constable) of the Police Station and not by the Investigating Officer of the case, who had submitted report in the earlier bail application of Sansar Chand? ii) Why the prosecutors in their objections to the bail applications did not point out pendency of the earlier bail application moved on behalf of Sansar Chand? iii) Why the learned Duty Magistrate did not feel the necessity of calling separate report in the subsequent bail application moved on behalf of accused Sansar Chand and also did not feel the necessity of examining the CD. File, given that the bail was sought in a serious offence under section 306 RPC, involving death of a person, punishable with imprisonment which extends up to 10 years? and iv) Why the learned Duty Magistrate ignored/did not take into consideration the copy of police report dated 29.05.2013 (supra), which would have indicated the pendency of the earlier bail application. 22. and iv) Why the learned Duty Magistrate ignored/did not take into consideration the copy of police report dated 29.05.2013 (supra), which would have indicated the pendency of the earlier bail application. 22. A copy of this judgment be, therefore, placed before His Lordship, Hon'ble the Chief Justice for information on the administrative side. Record of the trial court along with a copy of this judgment and record of the bail application called from the court of Learned Forest Magistrate, Jammu be remitted back.