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2023 DIGILAW 1398 (ALL)

Zeba Parveen v. State of U. P.

2023-05-23

JYOTSNA SHARMA

body2023
JUDGMENT : 1. Heard Mrs. Zeba Parveen, applicant appears In-person, Sri Rajrshi Gupta and Sri Rizwan Ahmad, learned counsels for the first informant and Sri O.P. Mishra, learned A.G.A. for the State. 2. This bail cancellation application has been moved by the applicant/first informant-Zeba Parveen, with a prayer to cancel the anticipatory bail granted to opposite party no.2 by order dated 21.11.2022 arising out of Case Crime No.0082 of 2022, under sections-328, 376, 506 I.P.C. 3. The facts relevant for the purpose of disposal of this bail cancellation application are as below:- The first informant lodged an F.I.R. naming opposite party no.2 with the allegations that she got married to one Civil Engineer on 27.04.1985; her husband has been staying in Saudi Arab in relation to his job from 2014 to 2017; in 2015 her neighbour introduced her to the accused and they started meeting each other; her husband returned and began staying at Mumbai and she was staying at Kanpur. It is further alleged in the F.I.R. that on 12.02.2018, accused came to her house and administered her some drink laced with certain intoxicating substance; she became half conscious; taking advantage of such a situation, he committed rape on her; he also prepared a video of the act and thereafter assured her that he will marry her and that she should not disclose anything to anybody else. It is alleged in the F.I.R. that thereafter he committed rape on her several times extending threat to make the video viral; he forced her to take divorce from her husband by khula method of “Talaaq”; she obtained divorce on 21.09.2021; he took her to Germany on false assurance of getting married there. Later, he reclined and asked her to stay with him without formal marriage ceremony; she has been sexually exploited on false assurance of marriage, therefore F.I.R. was lodged. On the basis of this F.I.R. (Case Crime No.0082 of 2022), investigation commenced; the opposite party no.2 moved an application for grant for anticipatory bail before the learned Sessions Judge, Kanpur Nagar and was granted the same on 21.11.2022; now the applicant/first informant is before this Court praying for cancellation of anticipatory bail to the opposite party no.2. 4. On the basis of this F.I.R. (Case Crime No.0082 of 2022), investigation commenced; the opposite party no.2 moved an application for grant for anticipatory bail before the learned Sessions Judge, Kanpur Nagar and was granted the same on 21.11.2022; now the applicant/first informant is before this Court praying for cancellation of anticipatory bail to the opposite party no.2. 4. The contentions of the applicant in nutshell are as below:- (I) The opposite party no.2 was granted interim bail/interim protection during the pendency of anticipatory bail application and during that period, on 09.11.2022 she was stalked by four persons who threatened her to stop approaching the lower court; she complained of that incident to the Police Commissioner, Kanpur Nagar. The opposite party no.2 has been extending threats to her through various means to dissuade her from opposing his bail. Therefore, she made another complaint to police on 14.11.2022 and Case Crime No.136 of 2022, under sections-341, 504, 506 I.P.C. has been lodged. (II) The opposite party no.2 made a false promise of marriage to her; he kept on introducing her as his fiancee and to be wife to his friends and relatives all this while; thereafter he abruptly pulled out of such alignment and refused to sign the “Nikaahnama” in front of Kazi and witnesses. Whenever she raised the subject of marriage, he would begin threatening her; she lost her children as well as her former husband because of fraud played on her. 5. Whenever she raised the subject of marriage, he would begin threatening her; she lost her children as well as her former husband because of fraud played on her. 5. In the counter affidavit filed on behalf of the opposite party no.2, in brief it is said that all the allegations in the F.I.R. are absolutely false; the wife of opposite party no.2 filed a complaint against the first informant regarding threat to life and heavy demand made by her; the wife of opposite party no.2 specifically mentioned in her complaint that Zeba Parveen lured her husband to enter into physical relationship and got a video prepared of it; she has been using this incident to blackmail opposite party no.2 to fulfil her demand of illegal money; the opposite party no.2 is wholly innocent; reality is, relations between them were consensual in nature and the opposite party no.2 after sometime decided to withdraw from this relationship; therefore, the first informant lodged this mala fide and malicious F.I.R.; it is said in the counter affidavit that before entering into such relationship, it was decided between them that they will not bring their relations in public domain and that their relations should not disturb their respective families; the first informant was not happy with her first marriage, therefore she obtained divorce from him and the opposite party no.2 has nothing to do with this divorce; the first informant very well knew about the marital status of the opposite party no.2 and this F.I.R. has been lodged with an oblique motive; as far as the complaints filed by the first informant against the opposite party no.2 during the pendency of anticipatory bail application are concerned, the facts were placed before the learned Sessions Judge before final order was passed on his anticipatory bail. 6. Before proceeding to decide this bail cancellation application, it appears necessary to highlight the demarcation line drawn between the powers of the Court where same can be exercised for cancellation of bail from the powers of the Court, where the Court may sit in review of the impugned order granting bail and the limitations imposed on exercise of such powers. 7. In Abdul Basit @ Raju and Others vs. Mohd. 7. In Abdul Basit @ Raju and Others vs. Mohd. Abdul Kadir Chaudhary and Another, (2014) 10 SCC 754 , the Apex Court referred to its own observations in Gurucharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118 for the purpose of elucidating the positions of law, viz-a-viz of the Court granting and cancelling the bail. The Court observed in para-16 as below:- “16. Section 439 of the new Code confers special powers on the High Court or Court of Session regarding bail. This was also the position under Section 498 CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under subsection (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.” 8. In the same judgement, the Apex Court referred from another judgement in Puran vs. Rambilas, 2001 6 SCC 338 , in para-17 as below:- “17. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] . In the said case, this Court held (SCC p. 345, para 11) that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has mis-conducted himself or because of some supervening circumstances warranting such cancellation. In Narendra K. Amin v. State of Gujarat [ (2008) 13 SCC 584 : (2009) 3 SCC (Cri) 813], the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled the bail granted to the appellant in exercise of power under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. In this case, the High Court had cancelled the bail granted to the appellant in exercise of power under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] has observed that when irrelevant materials have been taken into consideration by the court granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate court and that no review would lie under Section 362 of the Code. In essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same court.” 9. The Supreme Court observed that there is a clear cut distinction between the concept of setting aside an unjustified, illegal or perverse order from cancelling of an order of bail on the ground that the accused has misconducted himself or any new adverse fact having surfaced after the grant of bail. The Apex Court further observed that where the grant of bail is being challenged on the ground of gross misrepresentation of facts, misleading the court and indulging in fraud; in other words, the legality of the grant of bail is under challenge, such determination, though would entail cancelling of bail but such cancelling in effect is entirely different from a situation where the bail is sought to be cancelled on the ground of its misuse. 10. The Apex Court in para-14 of the same judgement enumerated the grounds for cancelling of bail which is as below:- “14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e. the power to cancel the bail granted to an accused person. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e. the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh v. State of Bihar [ (1986) 4 SCC 481 : 1986 SCC (Cri) 511 : 1987 Cri LJ 157].)” 11. From perusal of the contentions raised by the petitioner, it becomes quite clear that cancellation has been sought on two premises. Firstly, that the facts and merits of the case were such that grant of bail was not at all justified. Secondly, on the premise that the opposite party no.2 misused the liberty granted to him during interim protection granted by the court concerned during pendency of anticipatory bail application. 12. Legally, the Court cannot sit like an appellate court/revisional court to review the order of the anticipatory bail. In this case, the first informant has applied for cancellation of bail. Secondly, on the premise that the opposite party no.2 misused the liberty granted to him during interim protection granted by the court concerned during pendency of anticipatory bail application. 12. Legally, the Court cannot sit like an appellate court/revisional court to review the order of the anticipatory bail. In this case, the first informant has applied for cancellation of bail. As is quite clear from the law on this point, the bail once granted can only be cancelled where subsequent to the grant of bail, the accused has misconducted himself or has misused the liberty or protection available to him or on the ground that some new fact has surfaced having important bearing on the case or where the order is arbitrary or perverse or without jurisdiction or is bad in law for some reason of like nature. In this case, though misuse of liberty is one of the grounds for cancellation of bail but at the same time, the burden lies on the State or the party seeking it to prove the same by bringing sufficient material before the Court or to atleast show that allegation as to misuse/misconduct has some substance in it. As far as the present case is concerned, there is an allegation that the opposite party no.2, during the period he was on interim bail/interim protection threatened the victim and she moved a complaint on two occasions i.e. before the Police Commissioner, Kanpur Nagar and before concerned Sessions Judge. In my view, moving of the applications or even filing of F.I.R. is not sufficient to draw the conclusion that infact he threatened the victim and that he misconducted himself. The freedom made available by grant of bail cannot be taken away on inadequate grounds or mere assertions or allegation, the veracity whereof remains to be tested. The liberty, even though on bail is an important fundamental right, which cannot be taken away except by procedure established by law. Moreover, these facts occurred before grant of anticipatory bail and those facts had already been brought to the knowledge of the Sessions Judge before he finally allowed the application. In my view, the applicant has not been able to substantiate the allegations that infact the opposite party no.2 misused the liberty or misconducted himself. 13. Moreover, these facts occurred before grant of anticipatory bail and those facts had already been brought to the knowledge of the Sessions Judge before he finally allowed the application. In my view, the applicant has not been able to substantiate the allegations that infact the opposite party no.2 misused the liberty or misconducted himself. 13. I do not find sufficient ground to interfere in the impugned order granting anticipatory bail to the opposite party no.2 and therefore this bail cancellation application is hereby dismissed.