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2024 DIGILAW 897 (PNJ)

Roshan Lal v. State of Haryana

2024-05-22

SUMEET GOEL

body2024
JUDGMENT Mr. Sumeet Goel, J. (Oral) This order will dispose of aforesaid two petitions filed under Section 439(2) of the Code of Criminal Procedure, 1973 for cancellation of regular bail granted to private respondent(s) vide orders dated 21.07.2022 and 22.08.2022 respectively passed by learned Additional Sessions Judge, Faridabad in FIR No.152 dated 23.03.2022 registered for offences punishable under Sections 498A, 304B, 506 and 34 of IPC at Police Station Dabua, District Faridabad, Haryana. 2. The petitioner is the father of the victim, whose marriage was 09:56 solemnized with Prem Pal on 09.12.2021 according to hindu rites and ceremonies. As per the prime stand of the petitioner (herein), the private respondent(s) along with their family members used to torment and threaten the deceased; in connivance with each other has hanged the deceased to death and hence an FIR ibid got registered by him. 3. Vide impugned order dated 21.07.2022 passed by learned Additional Sessions Judge, Faridabad, the respondent No.2-Gulkandi was granted regular bail; relevant whereof reads as under: "After taking into consideration the facts and circumstances of the case, it is clear that petitioner is a lady aged about 68 years. Main accused Prem Pal i.e., husband of the deceasaed is already in custody. It is also not disputed that in the present case, the deceased died due to hanging. However, it is a moot point whether she committed suicide because of demands of dowry or cruelty thereof at the instance of present petitioner or otherwise, which will be decided at the finality of the trial. Investigation has been completed and police report under Section 173 of Cr.P.C. has been filed on 20.05.2022. The present petitioner is in custody since 28.04.2022 and no useful purpose would be served by further confining her in judicial custody as the completion of the trial would take time. The basic principle of criminal jurisprudence that bail is a rule and jail is an exception, cannot be ignored at this stage. " 3.1 Vide order dated 22.08.2022 passed by Additional Sessions Judge, Faridabad, the respondent No.2-Teeka Ram was granted regular bail; relevant whereof reads as under: "After taking into consideration the facts and circumstances of the case, it is clear that petitioner is brother-in-law of the deceased. Main accused Prem Pal i.e., husband of the deceased is already in custody. " 3.1 Vide order dated 22.08.2022 passed by Additional Sessions Judge, Faridabad, the respondent No.2-Teeka Ram was granted regular bail; relevant whereof reads as under: "After taking into consideration the facts and circumstances of the case, it is clear that petitioner is brother-in-law of the deceased. Main accused Prem Pal i.e., husband of the deceased is already in custody. Co- accused Gulkandi (mother-in-law) has already been released been released on bail by this court vide order dated 21.07.2022. It is also not disputed that in the present case, the deceased died due to hanging. However, it is a moot point whether she committed suicide because of demands of dowry or cruelty thereof at the instance of present petitioner or otherwise, which will be decided at the finality of the trial. Investigation has been completed and police report under Section 173 of Cr.P.C. has been filed on 20.05.2022. The present petitioner is in custody since 13.04.2022 and no useful purpose would be served by further confining him in judicial custody as the completion of the trial would take time. The basic principle of criminal jurisprudence that bail is a rule and jail is an exception, cannot be ignored at this stage. " 4. The afore-said orders dated 21.07.2022 and 22.08.2022 have been challenged by the petitioner (herein)-complainant in CRM-M-47078-2022 & CRM-M-47173-2022 respectively. 5. Learned counsel for the petitioner has argued that the private respondent(s) ought not to have been granted the concession of regular bail by the Sessions Court since there were serious allegations against the said respondent(s). It has been further argued that private respondent(s) are mother-in-law and brother-in-law of the deceased and there are specific allegations with regard to demand of dowry as also giving beatings and hence the Sessions Court ought to have dismissed the regular bail petition(s) filed by the private respondent(s). It has been further argued that the petitioner had spent huge amount of money on the marriage in question and the deceased had died within a period of three months from date of the marriage. Thus, cancellation of the regular bail granted to the private respondent(s) is sought for. 6. Learned counsel appearing for the State has submitted that the challan (report under Section 173 of Cr.P.C.) has been presented by the Police in the concerned Court on 20.05.2022. Learned State counsel has further submitted that, charges against the private respondent(s) were framed on 04.11.2022. Thus, cancellation of the regular bail granted to the private respondent(s) is sought for. 6. Learned counsel appearing for the State has submitted that the challan (report under Section 173 of Cr.P.C.) has been presented by the Police in the concerned Court on 20.05.2022. Learned State counsel has further submitted that, charges against the private respondent(s) were framed on 04.11.2022. It has been further submitted by the learned State counsel that the petitioner has also submitted a complaint to C.M. Window, Faridabad against the private respondent(s) and after proper enquiry into the said complaint, no threat perception of any kind has been found against the private respondent(s), after being enlarged on regular bail. 7. Learned counsel appearing for respondent No.2 (in both cases) has argued that the private respondent(s) have been falsely implicated in the present case. It has been further argued that the allegations pertaining to demand of dowry are false and concocted. Furthermore, there is no evidence available on record which would suggest that the deceased committed suicide on account of demand of dowry or cruelty at the instance of private respondents. Moreover, after being extended the concession of regular bail, the private respondent(s) have been regularly appearing before the trial Court and have not misused the said concession. 8. I have heard the learned counsel for the parties and have gone through the available records of the case. 9. It would be apposite to refer herein to a judgment passed by this Court titled as Dinesh Madan v. State of Haryana and another passed in CRM-M-9029-2023, decided on 17.05.2024; relevant whereof reads as under:- "12. The concept of "cancellation of bail" is statutorily manifested in terms of Section 439 (2) of 1973 Code. This concept was embodied in the earlier statute i.e. 1898 Code as well albeit with difference(s). The ratio decidendi of judgment in case of Gurcharan Singh (supra) makes it clear that, in the 1898 Code, the bail granted by the High Court could be cancelled only by it & bail granted by a Sessions Court could be cancelled by such Sessions Court only. However, Section 439(2) of 1973 Code has vested power to cancel bail which has been granted "under this chapter" upon both the High Court as also the Sessions Court. However, Section 439(2) of 1973 Code has vested power to cancel bail which has been granted "under this chapter" upon both the High Court as also the Sessions Court. The words "under this Chapter" relates to Chapter XXXIII of Cr.P.C. of 1973 & hence the unequivocal result thereof is that the High Court as also the Sessions Court have requisite powers to cancel "any bail" granted by "any Court" by way of powers vested racy and under this Chapter. In other words; the High Court is well empowered to cancel a bail granted by itself or by a Sessions Court or by the Court of a Magistrate while the Sessions Court is empowered to cancel a bail granted by High Court or by itself or by a Magistrate. However, a Sessions Court can cancel bail granted by High Court only on account of supervening/new circumstances or on account of misconduct of such accused or on account of violation of any condition(s) imposed by the High Court while granting bail. The Magistrate can, of course, cancel bail granted by him but he cannot cancel a bail granted by High Court or Sessions Court except when such accused has violated/contravened any condition(s) imposed upon by such High Court or Sessions Court while granting bail to such accused. This position, is indubitable, as a Magistrate has been vested with powers for cancellation of bail only in terms of Section 437(5) of 1973 Code whereas the High Court and Sessions Court have been vested with powers under Section 439 of Cr.P.C., of 1973 to cancel "any bail granted under Chapter XXXIII of 1973 Code". 12.1 Section 439(2) of Cr.P.C., 1973 deals with "any person who has been released on bail under this Chapter" i.e. Chapter XXXIII of 1973 Code, which engirths in itself, Section 438 of the Code (provision envisaging anticipatory bail/pre-arrest bail) as well. Hence such power operates in realm of all kinds of bails, whether regular bail or anticipatory bail. Ergo, there is no conceptual difference between cancellation of regular bail and cancellation of anticipatory bail except that a Magistrate will not have statutory power to cancel an anticipatory bail granted by High Court or Sessions Court. 12.2. At this juncture, it would be profitable to consider an issue often springing up before Courts. Ergo, there is no conceptual difference between cancellation of regular bail and cancellation of anticipatory bail except that a Magistrate will not have statutory power to cancel an anticipatory bail granted by High Court or Sessions Court. 12.2. At this juncture, it would be profitable to consider an issue often springing up before Courts. Petition(s) labelled as plea(s) for "cancellation of bail" are filed in Court(s), more often than not, whether such applicant is actually seeking "cancellation of bail" on account of the accused misusing the grant of bail or on account of any supervening developments disentitling such accused to remain on bail OR where the plea raised is that, the bail ought not to have been granted at all vide the impugned order, in the factual conspectus of such case. The 1973 Code neither stipulates the words "cancellation of bail" nor "setting-aside of a bail order" but only stipulates the words "any person who has been released on bail be arrested and committed to custody". There is no gainsaying that there is a foundational difference between "cancellation of bail" and "setting-aside of a bail order"; a difference which, by way of simile, can be said to be as stark as between chalk and cheese. The Hon'ble Supreme Court in cases of Ranjit Singh (supra) and Neeru Yadav (supra) has incontestably articulated that "cancellation of bail" is sought for on account of supervening circumstances/subsequent developments/misconduct of accused etc. whereas "setting-aside of a bail order" is sought for by laying challenge to the said bail order on ground of it being perverse or based on irrelevant material(s). The parameters for consideration of the two are, accordingly, different and contrastive. 13. The next aspect that craves attention is as to what are the factors relevant for considering of a plea for "cancellation of bail" or "setting-aside of a bail order. " At the very outset; it deserves to be noted that, it is too far well settled a principle to be ratiocinated upon, that consideration(s) for grant of bail vis.-a-vis. cancellation/setting-aside thereof are entirely different. 14. " At the very outset; it deserves to be noted that, it is too far well settled a principle to be ratiocinated upon, that consideration(s) for grant of bail vis.-a-vis. cancellation/setting-aside thereof are entirely different. 14. In a plea seeking "cancellation of bail"; such applicant ought to show, primarily, subsequent supervening circumstances such as accused having endeavored to influence/intimidate witness(s) or accused having violated bail condition(s) or accused having committed another offence(s) or accused having secured bail by misrepresenting/concealing material fact(s) or bail having been granted in ignorance/violation of statutory provisions and factors of akin nature. The Hon'ble Supreme Court in the case of Himanshu Sharma (supra) has delineated the nature and kind of such factors as have been stated by this Court hereinabove. 14.1. Further, the Hon'ble Supreme Court in the case of Sanjay Gandhi (supra) has enounced regarding the nature and degree of burden upon the applicant (seeking cancellation of bail). The plea of such an applicant has to be tested on the anvil of preponderance of probabilities & such an applicant is not required to prove, beyond reasonable doubt, the facts pleaded by him in support of such a plea. 15. In a plea seeking "setting-aside of a bail order"; the factors required to be considered are as to whether bail has been granted on relevant consideration(s); grounds required to be evaluated for grant of bail have been duly factored into the order granting bail and other factors of akin nature. The Hon'ble Supreme Court in the case of Jagjit Singh (supra) has held that the High Court or Sessions Court can set-aside an order granting bail passed by an inferior Court if such order is based on irrelevant considerations, order granting bail has resulted in miscarriage of justice etc. It goes without saying that the High Court or Sessions Court; while dealing a plea for setting-aside a bail order; sits in a jurisdiction, which is akin to appellate jurisdiction & hence it can look into the veracity and propriety of the order (granting bail) from all the perspectives. However, a Court while dealing with such a plea, ought not to substitute its own opinion with the one expressed in the impugned order. 16. It would not be pragmatic to even attempt to lay-down exhaustive parameters in this regard as every case, especially a criminal case, is sui generis. However, a Court while dealing with such a plea, ought not to substitute its own opinion with the one expressed in the impugned order. 16. It would not be pragmatic to even attempt to lay-down exhaustive parameters in this regard as every case, especially a criminal case, is sui generis. Such a quixotic attempt ought to be avoided as no inexorable formulae can be laid down in this regard. 17. As an epilogue to above discussion, the following principles emerge: I. (i) There is a conceptual distinction, between "cancellation of bail " & "setting-aside of a bail order". In a plea seeking "cancellation of bail"; the factors required to be considered are akin to supervening circumstances/events or mis-conduct of accused whereas in a plea seeking "setting-aside of a bail order"; the factors required to be considered are akin to the order in question being unjustified or illegal or not based on relevant consideration(s). In other words, a plea seeking "setting aside of a bail order" is more in the nature of laying challenge to an order granting bail before a superior Court upon merits thereof. (ii) It would be pragmatic as also desirable, for the cause of ease and clarity, that a plea filed under Section 439 of Cr.P.C., 1973 clearly states as to whether the plea is for"cancellation of bail" or for "setting aside of a bail order. " or on both accounts. II. Plea seeking cancellation of Regular Bail. (i) A High Court has power to cancel regular bail granted by itself or by a Sessions Court or by a Magistrate's Court. (ii) A Sessions Court has a power to cancel regular bail granted by High Court or by itself or by a Magistrate's Court. However, the Sessions Court can cancel regular bail granted by High Court only where the accused has violated any condition(s) imposed by the High Court (while granting bail) or on account of such accused having misused liberty granted to him by trying to influence witness(s) or having tried to delay trial by absenting himself or having committed another offence(s) while on bail and other factors of akin nature. In other words, a Sessions Court can cancel bail granted to an accused by High Court only on account of such like supervening/subsequent events but cannot adjudicate upon veracity of the High Court order (whereby bail was granted to such accused.) (iii) A Magistrate does have the power to cancel a regular bail granted by him in terms of Section 437(5) of Cr.P.C. 1973. However, a Magistrate does not have the power to cancel regular bail granted by the High Court or Sessions Court except in a situation wherein the accused has violated any condition(s) imposed upon him when granted such bail by the High Court or the Sessions Court. (iv) In case cancellation of a regular bail granted by the Sessions Court is sought for; such plea ought to be ordinarily filed before the Sessions Court itself. However, since there is concurrent jurisdiction of the High Court as also Sessions Court in terms of Section 439(2) of Cr.P.C. 1973, the filing of such a plea straight away before the High Court is not ipso facto barred. At the same time, it would be expedient that such a plea (filed straight away before the High Court) must show cogent reason(s) for not approaching the Sessions Court in the first instance. (v) The factors for consideration in a plea for cancellation of a regular bail are whether the accused has misused liberty granted to him by trying to influence witness(s) or has tried to delay trial or has committed another offence(s) while on bail, whether the accused has flouted the cancellation of bail, whether bail was procured by misrepresentation or fraud or concealing relevant material and similar factors of akin nature. There is no gainsaying that above factors are only illustrative in nature as it is not axiomatic to exhaustively enumerate them. (vi) Where such plea raises ground(s) that bail has been granted on account of misrepresentation offacts or a fraud having been played on Court which has granted bail or concealment of material/relevant facts; it would be expedient that such plea be filed, in the first instance itself, before the Court which had granted bail in question. (vii) The degree and nature of proof required to be shown by an applicant (seeking cancellation of regular bail) is that of preponderance of probabilities and not one of being beyond reasonable doubt. III. Plea seeking setting-aside of regular bail order. (vii) The degree and nature of proof required to be shown by an applicant (seeking cancellation of regular bail) is that of preponderance of probabilities and not one of being beyond reasonable doubt. III. Plea seeking setting-aside of regular bail order. (i) A plea seeking "setting-aside of a bail order" has to be essentially filed in the Court, superior to the one which has granted bail. (ii) In case setting-aside of a bail order granted by the Magistrate's Court is sought for, such plea ought to be ordinarily filed before the Sessions Court. However, since there is concurrent jurisdiction of the High Court as also Sessions Court in terms of Section 439(2) of Cr.P.C. 1973, the filing of such a plea straight away before the High Court is not ipso facto barred. At the same time, it would be expedient that such a plea (filed straight away before the High Court) must show cogent reason(s) for not approaching the Sessions Court in the first instance. (iii) For setting-aside a bail order passed by a Sessions Court; such plea, but of-course, will have to be filed before the High Court. IV. Plea seeking cancellation of anticipatory bail/pre-arrest order (i) A High Court has power to cancel an anticipatory bail granted by it or by a Sessions Court. (ii) A Sessions Court has power to cancel an anticipatory bail granted by High Court or earlier granted by it. However, the Sessions Court can cancel anticipatory bail granted by High Court only where the accused has violated any condition(s) imposed by the High Court (while granting such bail) or on account of such accused having misused liberty granted to him by trying to influence witness(s) or having tried to delay trial by absenting himself or having committed another offence(s) while on bail and other factors of akin nature. In other words, a Sessions Court can cancel anticipatory bail granted to an accused by High Court only on account of such likes supervening/subsequent events but cannot adjudicate upon veracity of the High Court order (whereby such bail was granted to such accused.) (iii) In case cancellation of an anticipatory bail granted by Sessions Court is sought for; such plea ought to be filed ordinarily before Sessions Court itself. However, since there is concurrent jurisdiction of the High Court as also Sessions Court in terms of Section 439(2) of Cr.P.C. of 1973, the filing of such a plea straight away before the High Court is not barred. At the same time, it would be expedient that such a plea (straight away filed before High Court) must show cogent reasons for not approaching the Sessions Court in first instance. (iv) The factors for consideration in a plea for cancellation of an anticipatory bail are whether the accused has misused liberty granted to him by trying to influence witness(s) or has tried to delay trial or has committed another offence(s) while on bail, whether accused has flouted the cancellation of bail, whether bail was procured by misrepresentation or fraud or concealing relevant material, and similar factors of akin nature. There is no gainsaying that above factors are only illustrative in nature as it is not axiomatic to exhaustively enumerate them. (v) Where such plea raises ground(s) that bail has been granted on account of misrepresentation offacts or a fraud having been played on Court which has granted bail or concealment of material/relevant facts; it would be expedient that such plea be filed, in the first instance itself, before the Court which had granted bail in question. (vi) The degree and nature of proof required to be shown by an applicant (seeking cancellation of an anticipatory bail) is that of preponderance of probabilities and not one of being beyond reasonable doubt. V. Plea seeking setting aside of an anticipatory bail/pre-arrest bail order (i) A plea seeking setting aside of an anticipatory bail/pre-arrest bail order by a Sessions Court has to be essentially filed before High Court. (ii) The factor, required to be considered in a plea seeking setting aside of an anticipatory/pre-arrest bail order; is as to whether the impugned order (granting anticipatory bail/pre-arrest bail) has objectively dealt with nature and gravity of allegations against accused, role of accused in the crime(s) alleged, need for custodial interrogation, likelihood of accused influencing the investigation/witnesses, likelihood of the accused absconding from process of justice etc. VI. Where a plea made under Section 439(2) of Cr.P.C. 1973 raises grounds regarding "cancellation of bail" as also for "setting aside of bail order", such plea has to be essentially made before the superior Court. 10. VI. Where a plea made under Section 439(2) of Cr.P.C. 1973 raises grounds regarding "cancellation of bail" as also for "setting aside of bail order", such plea has to be essentially made before the superior Court. 10. The FIR in question was lodged on 23.03.2022 whereinafter investigation was carried out and challan was presented on 20.05.2022. As per the impugned orders, the private respondent(s) were granted the concession of regular bail on 21.07.2022 and 22.08.2022 respectively. A perusal of the impugned orders dated 21.07.2022 and 22.08.2022 respectively clearly shows that all the relevant factors i.e. nature and severity of allegations, likelihood of absconding from the process of justice as also likelihood of private respondents being able to influence the witness(s) has been duly looked into by the Court below. Pursuant to the investigation carried out by the Police, challan (report under Section 173 of Cr.P.C.) was presented on 20.05.2022, charges, during the course of trial, were framed on 04.11.2022 and trial is stated to be underway. Though an apprehension has been raised on behalf of the petitioner (herein) that private respondent(s) may influence the witness(s) or may harass the petitioner (herein) while being on bail; no material worth consideration has been brought forward in this regard. It is, thus, indubitable that said apprehension expressed on behalf of the petitioner is nothing but a bald assertion. Moreover, the petitioner has averred that a complaint before the C.M. Window, Faridabad was filed on 10.08.2022 (copy whereof has been appended as Annexure P-3) wherein it was alleged that the petitioner is being threatened. However, it would be relevant to refer herein to the reply dated 21.01.2023 filed on behalf of the State of Haryana, wherein in para 8 thereof, it has stated as follows: "8. That on 10.08.2022, the petitioner has submitted a complaint to CM, Window, Faridabad against the accused Gukandi (mother-in-law of deceased Rama) and Devi (Nanad of deceased Rama). During the enquiry of said complaint on 03.10.2022 statements of Gulkandi (respondent No.2), Devi (Nanad) and petitioner have been recorded. Said statements were verified by SHO, Police Station Central, Faridabad on 04.10.2022 and no threat perception of any kind has been found made to the petitioner. No such proof of the allegations of threat perception has been produced by the petitioner at the time of enquiry. Said statements were verified by SHO, Police Station Central, Faridabad on 04.10.2022 and no threat perception of any kind has been found made to the petitioner. No such proof of the allegations of threat perception has been produced by the petitioner at the time of enquiry. The allegations levelled by the petitioner have been found baseless and no cognizable offence has been found to be committed by respondent No.2 Gulkandi and Devi, hence said complaint was consigned to record on 04.10.2022. " 10.1 The issue whether there were specific allegations with regard to demand of dowry; giving beatings to the deceased, cannot, of-course, be looked into at this stage & shall be essentially gone into during the course of trial. There is no gainsaying that such issue, cannot be possibly be delved into, in a meticulous manner at the stage of consideration of a plea for grant of regular bail. The orders passed by the Sessions Court are well reasoned speaking orders and cannot be said to be suffering from vice of non-application of judicial mind. This Court, keeping in view the entirety of the facts and circumstances of the case in hand, does not find any good ground to hold that the Sessions Court, while passing the impugned orders has overstepped its jurisdiction or has not exercised the same in right perspective after considering relevant factors. Therefore, the petition in hand deserves dismissal. Decision 11. As a sequel to the above discussion, the present petition filed under Section 439(2) of Cr.P.C. of 1973, seeking cancellation of regular bail orders dated 21.07.2022 and 22.08.2022 respectively passed by learned Additional Sessions Judge, Faridabad, is dismissed. 12. It, indubitably, goes without saying that nothing said hereinabove shall be construed as an expression of opinion on the merits of the case.