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2024 DIGILAW 795 (JHR)

Maimun Khatoon W/o Rizwan Ansari v. State of Jharkhand

2024-09-06

ARUN KUMAR RAI

body2024
JUDGMENT : ARUN KUMAR RAI, J. 1. The instant revision application has been filed against the order dated 20.12.2021, passed by the Court of learned Additional Sessions Judge-VI, Giridih, in Cr. Misc. Petition No. 69 of 2021, arising out of the Mahila P.S. Case No. 14/2020, whereby the Cr. Misc. Petition No. 69 of 2021 for cancellation of bail of O.P. No. 2 has been dismissed. 2. The case record transpires that petitioner-wife lodged FIR being Giridih (Mahila) P.S. Case no. 14/2020 registered under Section 498 A/34 of IPC and Section 3/4 of Dowry Prohibition Act, against her husband/O.P. No. 2 and in-laws alleging therein that petitioner got married with O.P. No. 2 as per Islamic custom on 15.02.2015 and one daughter born out of this wedlock. For about 2 years of marriage, everything was fine and petitioner-wife was kept in a rented accommodation but thereafter, O.P. No. 2-husband stopped paying rent and expenses to petitioner-wife, which prompted her to go her matrimonial home but she was kicked out from the matrimonial home on 25.09.2020 by O.P. No. 2-husband and her in-laws and they demanded Rs.1,00,000/- cash and Hero Honda Motorcycle. 3. During course of investigation, the O.P. No. 2-husband got apprehended and was in judicial custody thereafter when O.P. No. 2-husband filed an application for grant of bail, then at the behest of petitioner-wife, the matter was sent for mediation and matter got amicably settled between the parties and O.P. No. 2-husband was granted regular bail by Additional Sessions Court vide order dated 06.03.2021. Thereafter, this petitioner-wife and her daughter was brought back by O.P. No. 2-husband and they peacefully resided for some time. But again O.P. No. 2-husband started inflicting cruelty upon petitioner-wife which resulted into separation between them. 4. It is alleged that during that period petitioner-wife was forced by O.P. No. 2-husband to withdraw the case and also extended threat that if any witness come forward for giving evidence, then those persons would be implicated in a false case. In view of above said alleged development, petitioner-wife filed cancellation of bail of O.P. No. 2-husband, however, learned Additional Sessions Judge-VI, Giridih rejected the same vide order dated 20.12.2021, against which the present revision. 5. In view of above said alleged development, petitioner-wife filed cancellation of bail of O.P. No. 2-husband, however, learned Additional Sessions Judge-VI, Giridih rejected the same vide order dated 20.12.2021, against which the present revision. 5. It has been submitted on behalf of petitioner that O.P. No. 2-husband has not sticked to his words which was made during mediation and it is also incorporated in the mediation agreement which also bore the signature of both the sides. It has also been pointed out that even O.P. No. 2-husband has not kept the petitioner-wife and her daughter with dignity rather she was forced to withdraw the case and threats were also extended to her. On the aforesaid premise, prayer for cancellation of bail of O.P. No. 2-husband has been made before Additional Sessions Court but the same was erroneously declined. 6. Per contra, learned counsel for the O.P. No. 2-husband and learned Spl. P.P for the State submitted that it is the petitioner-wife, who was/is not interested to live with the O.P. No. 2-husband under the same roof, rather O.P. No. 2-husband is still ready and willing to keep her. As far as allegation of withdrawal of case by the petitioner-wife is concerned, it has been submitted that it is concocted and false story developed on behalf of petitioner-wife only for the purpose with oblique motive to harass O.P. No. 2-husband. 7. Heard at length both the sides and perused the record. This Court has carefully gone through the mediation report and bail order dated 06.03.2021 by which O.P. No. 2-husband has been admitted to bail by the learned Additional Sessions Judge-VI, Giridih. After going through the mediation report, it appears that petitioner-wife as well as O.P. No. 2-husband has undertaken to take care and respect each other. It is alleged by the petitioner-wife that O.P. No. 2-husband had not taken care of her and compelled her to withdraw the case, as such, husband violated the terms and conditions of the agreement. So far violation of the terms and conditions of the agreement is concerned, except the assertion of petitioner-wife, there is no other material available on record. 8. So far violation of the terms and conditions of the agreement is concerned, except the assertion of petitioner-wife, there is no other material available on record. 8. Before proceeding further, it is required to be noted that the Hon’ble Supreme Court in the case of Biman Chatterjee vs. Sanchita Chatterjee and another, (2004) 3 SCC 388 has held that bail granted cannot be cancelled solely on the ground of failure to keep terms and conditions of the compromise. Paragraph no. 7 of the judgment read as follows: “7. Having heard the learned counsel for the parties, we are of the opinion that the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise. Though in the original order granting bail there is a reference to an agreement of the parties to have a talk of compromise through the media of well-wishers, there is no submission made to the court that there will be a compromise or that the appellant would take back his wife. Be that as it may, in our opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfilling the terms of such compromise does not arise. That apart, non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of 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. 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 trial 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.” Also, in case of Bhuri Bai v. State of M.P. 2022 SCC Online SC 1779, the Hon’ble Apex has categorically held that power of cancellation of bail should be exercised with extreme care and cancellation cannot be ordered on the violation of conditions imposed. Paragraph no. 20 of the judgment reads as follows: “20. It had not been the case of the prosecution that the appellant had misused the liberty or had comported herself in any manner in violation of the conditions imposed on her. We are impelled to observe that power of cancellation of bail should be exercised with extreme care and circumspection; and such cancellation cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail. In other words, the powers of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused and in fact, in a case where bail has already been granted, it’s upsetting under Section 439(2) Cr.P.C. is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case. In the matter of the present nature, in our view, over-expansion of the issue was not required only for one reason that a particular factor was not stated by the Trial Court in its order granting bail.” Further, Hon’ble Apex court in case of Pritpal Singh v. State of Bihar, 2001 SCC Online SC 123 has held that cancellation of bail on the basis of violation of terms of compromise is untenable and result into the abuse of the process of court, Paragraph no. 5 of the judgment read as follows: “5. The Magistrate cancelled the bail granted to the appellant solely on the ground that the terms of the compromise had not been complied with. To say the least, the ground on which the petition for cancellation of bail was made and was granted is wholly untenable. 5 of the judgment read as follows: “5. The Magistrate cancelled the bail granted to the appellant solely on the ground that the terms of the compromise had not been complied with. To say the least, the ground on which the petition for cancellation of bail was made and was granted is wholly untenable. It is our view that the order if allowed to stand will result in abuse of the process of court. The High Court clearly erred in maintaining the order. Therefore, the order passed by the Magistrate cancelling the bail and the order of the High Court confirming the said order are set aside. The bail order is restored. The appeal is allowed.” Also, in the case of Dolat Ram v. State of Haryana, (1995) 1 SCC 349 , it has been held by the Hon’ble Supreme Court that once bail granted cannot be cancelled in a mechanical manner. Paragraph no. 4 of the judgment reads as follows: “4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so 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 grounds for cancellation of bail, broadly (illustrative and not 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 of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.” 9. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.” 9. In the light of above legal proposition, it is settled law that in case of non-compliance of certain terms and conditions of the compromise/ settlement, bail granted to the petitioner cannot be cancelled. 10. Now adverting to facts of the present case, this Court finds that there is allegation against O.P. No. 2-husband that he is not keeping the petitioner-wife with full of her dignity and he is compelling her to withdraw the case lodged against him by the petitioner. This Court is of considered view that uncorroborated assertion of petitioner-wife and the legal proposition as propounded by the Hon’ble Supreme Court in aforesaid judgments, the bail granted to the O.P. No. 2-husband cannot and should not be cancelled. 11. In view of aforesaid discussion, this Court does not find any error in the impugned order dated 20.12.2021 passed by learned Additional Sessions Judge-VI, Giridih, whereby learned Court declined to cancel the bail granted to O.P. No. 2-husband vide order dated 20.12.2021 in Cr. Misc. Petition No. 69 of 2021. 12. In the result, the instant application being Cr. Revision No. 271 of 2022 is dismissed and accordingly, disposed of.