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2015 DIGILAW 424 (MP)

Swatantra Tripathi v. State of M. P.

2015-04-13

RAJENDRA MAHAJAN

body2015
JUDGMENT : Rajendra Mahajan, J. 1. The applicant has preferred this application under Section 439(2) of the Cr.P.C. being aggrieved by an order dated 14/03/2013 passed by the 8th Additional Sessions Judge, Jabalpur in miscellaneous criminal case No. 477/2013 Swatantra Tripathi v. State of M.P. & another, by which her application filed under Section 439(2) of the Cr.P.C. is rejected. 2. The facts material for adjudication of the application are as under:-- "2.1 On 10/02/2013, applicant Swatantra Tirpathi made an oral report at Police Station-Garha, Jabalpur stating that she is an advocate by profession and she lives with her mother, brother and sister in Sanjivni Nagar Colony, Garha Jabalpur. In the early morning of 10/02/2013, she was to go to Sharda Mata Mandir, Maihar for offering darshan along with her mother Mohni. At about 4 a.m. she was opening the gate of her house. At that time, she saw two motor cycles stopped near her house. On one motor cycle Shiv Shankar Tripathi, who is respondent No. 2 herein, Ravishankar and Ashish were sitting and on the other motor cycle there was only a rider, whom she does not know by name and face. Respondent Shiv Shankar got off the motor cycle and raised a pistol upon her. On the instigation of Ravishankar, he fired at her with an intention to kill her, but she escaped herself. As a result, she sustained gun shot injury in her left arm. Thereafter, upon exhortation of Ashish, respondent Shiv Shankar fired 2 to 3 rounds. Hearing a loud report of gun-shots, her mother and sister came out of the house. Seeing them, they ran away on their motor cycles. On the basis of oral report of the applicant, an FIR was recorded and the same was registered at crime No. 103/2013 under Sections 307 and 34 of the IPC against the aforesaid. 2.2 On 11/02/2013, the police Garha arrested respondent Shiv Shankar and produced him before Shri Manish Singh Thakur, Judicial Magistrate First Class, Jabalpur with a prayer to grant his two days police remand as the pistol that he used in commission of the offence is to be seized from his possession. On due consideration, the learned Magistrate granted police remand of him till 13/02/2013. 2.3 On 11/02/2013, respondent Shiv Shankar filed a bail application under Section439 of the Cr.P.C. before the Sessions Judge, Sessions Division Jabalpur. On due consideration, the learned Magistrate granted police remand of him till 13/02/2013. 2.3 On 11/02/2013, respondent Shiv Shankar filed a bail application under Section439 of the Cr.P.C. before the Sessions Judge, Sessions Division Jabalpur. His application was registered as Miscellaneous Criminal Case No. 386/2013 Shiv Shankar v. State. The same was made over to the 8th Additional Sessions Judge Jabalpur for adjudication. Vide order dated 12/02/2013, the learned Additional Sessions Judge granted bail to him. 2.4 Feeling aggrieved by the grant of bail to respondent Shiv Shankar, the applicant moved an application under Section 439(2) of the Cr.P.C. for cancellation of bail order dated 12/02/2013, which was registered as Miscellaneous Criminal Case No. 477/2013 Swatantra Tripathi v. State of M.P. & another. Having heard parties to the case, the learned Additional Sessions Judge rejected the application by the impugned order dated 14.03.2013 holding that there is no cogent and solid ground for cancellation of the bail granted to respondent Shiv Shankar. 2.5 It may be noted that the applicant had initially preferred criminal revision against the impugned order. However, on the application of the applicant, this Court has permitted her to convert this revision into M.Cr.C., by an order dated 06.02.2014." 3. The learned applicant herself argued her case. It is submitted by her that respondent Shiv Shankar was granted police remand by the learned JMFC till 13/02/2013. However the police produced him before the learned JMFC on 12/02/2013 stating that there is no need of keeping him in police custody till 13/02/2013. In fact, the police produced respondent Shiv Shankar under the pressure of the District Bar Jabalpur as he is a practicing lawyer at Jabalpur. On the very same day, the learned Additional Sessions Judge heard his bail application under the pressure of the Bar whereas he had already fixed the bail application for hearing on 13/02/2013. The proponing of date of hearing shows that the Bar had brought the pressure upon the learned Additional Sessions Judge. It is also argued by her that while hearing the bail application, the learned Additional Sessions Judge had not considered the facts and circumstances of the case and the fire arm injury sustained by her in right perspective. The proponing of date of hearing shows that the Bar had brought the pressure upon the learned Additional Sessions Judge. It is also argued by her that while hearing the bail application, the learned Additional Sessions Judge had not considered the facts and circumstances of the case and the fire arm injury sustained by her in right perspective. In fact, the learned Additional Sessions Judge has granted bail to respondent Shiv Shankar only on the ground that he is a practicing lawyer and much more under the pressure of the Bar. Therefore, the bail order was not based on proper appreciation of the facts and circumstance of the case. It is also argued by her that at the time of hearing on the application moved by her under Section 439(2) of the Cr.P.C. for cancellation of the bail, she brought following facts to the knowledge of the learned Additional Sessions Judge that respondent Shiv Shankar had sexually exploited her for more than 3 years on the promise of marriage with her and later he reneged on his promise having satisfied his sexual lust. When she strongly mounted protests at various levels against his mischievous promise, two unknown offenders at his behest threw acid at her in order to brow beat her so that she could not raise protests. She lodged a report of the said incident to Mahila Police Station, Jabalpur. Upon her report, the Mahila Police registered a crime against respondent Shiv Shankar and others at crime No. 14/13 under Sections 294, 323, 313, 493, 506 Part-II and 34 of the IPC. She also brought into the knowledge of the learned Additional Sessions Judge that as a result of gun-shot injury, she remained hospitalized from 10/02/2013, the date of incident, to 20/02/2013. But the learned Sessions Judge has not considered all these facts in the impugned order. Therefore, the impugned order dated 14.03.2013 and the bail order dated 12.02.2013 are bad in law and deserve to be set-aside. 4. Per Contra, the learned counsel appearing for respondent Shiv Shankar has strongly refuted the allegations levelled by the applicant that the bail order dated 12.02.2013 passed by the learned Additional Sessions Judge under the pressure of the Bar. Therefore, the impugned order dated 14.03.2013 and the bail order dated 12.02.2013 are bad in law and deserve to be set-aside. 4. Per Contra, the learned counsel appearing for respondent Shiv Shankar has strongly refuted the allegations levelled by the applicant that the bail order dated 12.02.2013 passed by the learned Additional Sessions Judge under the pressure of the Bar. It is argued by him that the bail order is passed on due consideration of the facts and circumstances of the case mainly on the ground that the applicant has sustained a simple gun shot injury on her non vital part of the body i.e. left arm, the police had recovered the weapon of offence at the instance of respondent Shiv Shankar, he is not having any criminal antecedents and he has permanent abode at Jabalpur. It is also argued by him that at the time of hearing on bail application respondent Shiv Shankar had neither concealed/suppressed any material facts nor misled the learned Additional Sessions Judge. Thus, the bail order passed by the learned Additional Sessions Judge is based on objective assessments of the facts and circumstances of the case. It is also argued by him that respondent Shiv Shankar never misused the liberty or misconduct himself till the date of arguments before this Court having been on bail. It is also argued by him that the applicant has not given any instance to prove that respondent Shiv Shankar has misused the liberty granted by the bail or he has been interfering with the course of justice. Hence, the impugned order is just and proper. In fact, the applicant's only grievance is that respondent Shiv Shankar has refused to marry her and feeling aggrieved thereby she has implicated him in the aforesaid criminal cases and filed this application to harass him. On the basis of the aforesaid arguments, the learned counsel has prayed for dismissal of the application. 5. Learned Panel Lawyer has left the matter at the discretion of this Court. However, he admits that there is no evidence worth the name on record that respondent Shiv Shankar misused the liberty granted by the bail order dated 12/02/2013. 6. This Court has anxiously considered the rival submissions and perused the entire material on record. 7. 5. Learned Panel Lawyer has left the matter at the discretion of this Court. However, he admits that there is no evidence worth the name on record that respondent Shiv Shankar misused the liberty granted by the bail order dated 12/02/2013. 6. This Court has anxiously considered the rival submissions and perused the entire material on record. 7. Before entering into the merits of the case, it will be useful to refer to case law when the bail granted under Chapter 33 of the Cr.P.C. may be cancelled under the provisions of Section 439(2) of the Cr.P.C. The following citations are worthy of noticing. 7.1 In the State through the Delhi Administration v. Sanjay Gandhi ( AIR 1978 SC 961 ) the Supreme Court has observed thus in para 13 and 24: Para 13 -"Rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by large be permitted only if by reason of supervening circumstances" Para 24- "The power to take back in custody an accused (under the provisions of Section 439(2) of the Cr.P.C.) who has been enlarged on bail has to be exercised with care and circumspection." 7.2 In Daulatram and others v. State of Haryana (1994 (3) Crimes 1013 : 1995 (1) SCC 349 ), the Supreme court has held as under: "Very cogent and overwhelming circumstances are necessary for cancellation of bail. Bail once granted should not be cancelled in a mechanical manner " 7.3 In Prakash Kadam and others v. Ram Prasad Vishwanath Gupta and another ( 2011 (6) SCC 189 ), the Supreme Court has observed thus:-- "In considering whether to cancel the bail the Court has also to consider to gravity and nature of the offence, prima-facie case against the accused, the position and standing of the accused, if there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him." 7.4 In Pooran v. Ram Vilas and another ( 2001 (6) SCC 338 ), the Supreme Court has observed thus:-- "The concept of setting aside as unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused had misconducted himself are because of some supervening circumstances warranting such cancellation" 7.5 In Ash Mohammed v. Shiv Raj Singh @ Lalla Babu and another [2012 (4) Crimes 144(SC)], the Supreme Court has stated as under:-- "There is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail" 7.6 In Subodh Kumar Yadav v. State of Bihar, (2009) 14 SCC 638 , the Supreme Court has observed thus:-- "If a superior court finds that court granting bail had acted on irrelevant material, or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety e.g. failure to hear Public Prosecutor/complainant where required, order for cancellation of bail can be made (para16)". 7.7 In Bhagirathsinh v. State of Gujarat, 1984 (1) SCC 284 , the Supreme Court has held as under:-- "Cancellation should not be by way of punishment even if prima facie case against the accused is established." 7.8 In Nityanand Rai v. State of Bihar, (2005) 4 SCC 178 , the Supreme Court has stated in following words as to the grounds when the bail may be cancelled. "Grounds for cancellation of bail should be those which arose after the grant of bail and should be referable to the conduct of the accused while on bail." 7.9 In Ramcharan v. State of M.P., (2004) 13 SCC 617 ) the Supreme Court has held on the point of reappreciation of facts while considering on application for cancellation of bail thus:-- "Bail can be cancelled on existence of cogent and overwhelming circumstances but not on reappreciation of the facts of the case." 8. When the law laid down in the aforesaid rulings are applied in the present case, this Court is of the considered view that the learned Sessions Judge has granted bail to respondent Shiv Shankar on due consideration of the facts and circumstances of the case in right perspective. There is no evidence on record that respondent Shiv Shankar has misused the liberty or misconduct himself after being released on bail. Therefore, the learned Additional Sessions judge has not committed any error of the fact or law in rejecting the applicant's application for cancellation of the bail by the impugned order. Further, this Court has also not found any other cogent and convincing ground for cancellation of bail of respondent Shiv Shankar. 9. In the light of the above discussion, the application moved by the applicant is devoid of merits and substance. Hence, it is dismissed. Certified copy as per rules.