REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1972 of 2022

(Arising out of SLP(Crl.) No.9508/2022]

BHURI BAI Appellant(s)

VERSUS

THE STATE OF MADHYA PRADESH Respondent(s)

JUDGMENT

Dinesh Maheshwari,J.

Leave granted.

2. This appeal is directed against the judgment and

order dated 10.02.2022, as passed by the High Court of

Madhya Pradesh at Gwalior Bench in M.Cr.C. No. 46653/2021,

that was registered under Section 439(2) of the Code of

Criminal Procedure, 1973 (‘CrPC’), for suo motu powers

exercised by the High Court in its order dated 07.09.2021

passed in M.Cr.C. No. 41406/2021.

3. By the order impugned, the High Court has proceeded

to cancel the bail granted to the appellant by the First

Additional Sessions Judge, Jaura, District Morena, in the

order dated 05.08.2021, as passed in Bail Application No.

357/2021.

4. Briefly put, the relevant background aspects of the

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matter are as follows:

The appellant is one of the accused persons in the

case arising from FIR No. 96/2020 for offences under

Sections 304B, 498A read with Section 34 of the Indian

Penal Code, 1860 (‘IPC’) and Sections 3/4 of the Dowry

Prohibition Act, 1961. The accusations have been that the

deceased, who was married to the son of the appellant, was

being subjected to physical and mental tortures for demand

of dowry after the marriage and ultimately, on 11.09.2020,

she died by hanging under unusual circumstances; and a

suicide note in the handwriting of the deceased was found,

implicating her husband and in-laws, including the present

appellant–the mother-in-law.

5. The prayer of the appellant for grant of pre-arrest

bail was rejected by the Sessions Court on 18.10.2020.

However, thereafter, the High Court granted pre-arrest bail

to the sister-in-law of the deceased on 02.11.2020 and

then, the Trial Court granted pre-arrest bail to the

brother-in-law of the deceased on 18.11.2020. It is also

noticed that on behalf of the appellant, twice over

attempts were again made to seek pre-arrest bail but the

applications moved in that regard, being M.Cr.C. No.

48592/2020 and M.Cr.C. No. 7199/2021, were dismissed as

withdrawn, respectively on 11.12.2020 and 16.02.2021.

Ultimately, the charge-sheet was filed on 13.12.2020. Until

that time, the appellant was not apprehended and it was

mentioned in the charge-sheet that she was absconding.

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6. In relation to this case, husband of the appellant

was also arrested, who was granted regular bail on

23.11.2020. However, the appellant surrendered only on

16.07.2021; and a supplementary chargesheet was also filed

on 02.08.2021.

7. Thereafter, the regular bail application (No.

357/2021) moved on behalf of the appellant was considered

by the First Additional Sessions Judge, Jaura, District

Morena and was allowed on 05.08.2021, essentially with

reference to the facts pertaining to the grant of pre-

arrest bail to two of the co-accused persons and regular

bail to the other co-accused–husband of the appellant.

8. When the record stood thus, with grant of bail to the

co-accused persons including the appellant, the son of the

appellant (husband of the deceased) moved a second

application for bail before the High Court, being M.Cr.C.

No. 41406/2021. The said application was considered by the

High Court on 07.09.2021 and one of the submissions made

before the High Court had been that the previous bail

application of the said accused was rejected on the ground

that his mother (the present appellant) was absconding. It

was sought to be contended on behalf of the said appellant

that his mother had surrendered on 16.07.2021 and was

granted bail by the aforesaid order dated 05.08.2021.

9. The High Court proceeded to examine the said order

dated 05.08.2021 and took exception against the same, for

the reason that the Trial Court had not adverted to a

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relevant fact that the present appellant was absconding and

was arrested only on 16.07.2021. Though, with reference to

the nature of accusations, the High Court proceeded to

reject the bail plea of the son of the appellant (husband

of the deceased) but at the same time, ordered a separate

case to be registered while issuing notice to the present

appellant to show-cause as to why the bail order dated

05.08.2021 be not recalled. Hence, the said suo motu case

bearing No. 46653/2021 came to be registered and finally

came to be decided by the impugned order dated 10.02.2022.

10. In the impugned order dated 10.02.2022, the High

Court took note of the allegations and the fact that the

appellant was arrested only on 16.07.2021 i.e.,

approximately ten months after the death of the deceased

and seven months after filing of the charge-sheet against

co-accused persons; and in fact, she surrendered only after

her husband was granted bail. A submission was made before

the High Court on behalf of the appellant that all the

members of the family were either on run or were in jail

and it was left to the appellant to look after the minor

child of the deceased and, therefore, she surrendered only

after her husband was released, when she could hand over

the child to him. The High Court was not impressed with

this submission for the reason that no such fact was

mentioned in the application seeking bail, as filed before

the Sessions Court.

11. The High Court, in the impugned order, also took note

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of the fact that its directions for ensuring service of

notice were not adequately complied with and then, even the

requisite explanation was not forthcoming and hence, the

Director General of Police was required to file his

affidavit of explanation. The High Court reproduced all

the contents of the affidavit filed by the Director General

of Police as regards the steps taken in the matter and

other corrective steps being taken on the administrative

side.

12. Having taken note of the assurance stated by the

learned Advocate General in the matter for taking

corrective steps in the department, the High Court reverted

to the facts of the present case and referred to a decision

of this Court in the case of Manoj Kumar Khokhar v. State

of Rajasthan (Criminal Appeal No.36/2022) as regards the

parameters in exercise of power for granting bail. Having

reproduced a few passages from the said decision, the High

Court stated its conclusion that in the light of the said

judgment, the bail granted to the present appellant could

not be given a stamp of judicial approval. Thus, the High

Court proceeded to set aside the order dated 05.08.2021 and

thereby, cancelled the bail granted to the appellant.

13. In challenge to the order so passed by the High

Court, learned counsel for the appellant has argued that

the High Court has taken a too stern a view of the matter

but has not considered that there was no question of the

appellant absconding or running away from the process of

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law, which could be seen from the facts that successively,

the applications seeking pre-arrest bail were moved on her

behalf. It has also been submitted that the appellant could

not surrender earlier under the force of circumstances when

the other members of the family were either in custody or

were on run and that the appellant was the only responsible

person to look after the minor child left by the deceased;

and all this was coupled with the adversities created by

Covid-19 pandemic. Learned counsel would submit that in

the given circumstances, the appellant surrendered before

the Court after her husband was granted bail and in the

distressed condition of the family, her omission to

surrender earlier could not have been regarded as an act of

absconsion. Learned counsel would also submit that in the

circumstances of the case, even the allegations pertaining

to the offences under Section 304B IPC are wanting in

support by cogent material and in any case, when the Trial

Court had granted bail to the appellant, being elderly lady

in 55 years of age and when other accused persons, except

the husband of the deceased, had also been granted such

concession, there was no justification for cancelling the

bail already granted.

14. Learned counsel appearing for the respondent–State

has duly opposed with the submissions that the Sessions

Court had been unjustified in granting bail to the

appellant, and in the given set of circumstances, when the

appellant was not traceable even until filing of the first

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charge-sheet on 13.12.2020, the view as taken by the High

Court cannot be said to be wholly unjustified so as to call

for interference, more particularly looking into the nature

of accusations. It has been submitted that the Trial Court

had granted bail to the appellant in a rather mechanical

manner without considering the material on record and,

therefore, the High Court has been justified in

disapproving the order so passed by the Trial Court.

15. We have given anxious consideration to the rival

submissions and have examined the material placed on record

with reference to the law applicable.

16. In this matter, where daughter-in-law of the

appellant died by committing suicide and with reference to

the material on record, charge-sheet for serious offence

including Section 304B IPC has been filed, unavailability

of the appellant to all the processes of law until

16.07.2021 (the date of surrender/arrest) cannot be

appreciated. However, in the peculiar circumstances of the

case, particularly for the fact that the deceased left a

minor child and none except the appellant was available in

the family to look after the child, it is equally difficult

to say that the appellant has been an absconder or a

fugitive who had been intentionally running away from the

process of law. The challenge thrown at the relevant time

by Covid-19 pandemic also remains a factor which cannot be

ignored altogether. Further, the fact that the appellant is

a lady in 55 years of age cannot be ignored, particularly

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when examining the question of grant of regular bail.

17. The order dated 05.08.2021 as passed by the learned

First Additional Sessions Judge, Jaura, District Morena,

though had not been explicit on all the surrounding factors

but then, the facts were indeed taken into consideration

that two of the co-accused were granted pre-arrest bail

whereas the other co-accused person, husband of the

appellant, was granted regular bail. In the given set of

facts and circumstances, if the Trial Court was satisfied

that the appellant was entitled to be given the concession

of bail while putting her to specific terms and conditions,

the order so passed had neither been suffering from any

fundamental error nor there was any other material factor

for which the bail granted to the appellant was to be

annulled.

18. In our view, even if the High Court had its

reservations in the order so passed by the Trial Court

granting bail to the appellant, particularly when the fact

of long absence of the appellant was not adverted to, it

was yet required to be taken note of by the High Court that

the power being exercised was not that of a regular appeal

or revision but, it was that of cancellation of bail under

Section 439(2) CrPC.

19. It remains trite that normally, very cogent and

overwhelming circumstances or grounds are required to

cancel the bail already granted. Ordinarily, unless a

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strong case based on any supervening event is made out, an

order granting bail is not to be lightly interfered with

under Section 439(2) CrPC.

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, its

upsetting under Section 439(2) CrPC 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.

21. In totality of the circumstances, we are unable to

approve the order impugned setting aside the bail granted

to the appellant.

22. Accordingly, and in view of the above, this appeal

succeeds and is allowed; the impugned order dated

10.02.2022 as passed by the High Court is set aside and the

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order dated 05.08.2021 as passed by the First Additional

Sessions Judge, Jaura, District Morena is restored.

23. It goes without saying that this order shall have no

bearing on the merit consideration of the matter by the

Trial Court.

24. All pending applications stand disposed of.

……………………………………………J.

[DINESH MAHESHWARI]

……………………………………………J.

[SUDHANSHU DHULIA]

New Delhi;

November 11, 2022.

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ITEM NO.44 COURT NO.7 SECTION II-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 9508/2022

(Arising out of impugned final judgment and order dated 10-02-2022

in MCRC No. 46653/2021 passed by the High Court Of M.P At Gwalior)

BHURI BAI Petitioner(s)

VERSUS

THE STATE OF MADHYA PRADESH Respondent(s)

( IA No. 140850/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED

JUDGMENT and IA No. 140845/2022 - EXEMPTION FROM FILING O.T.)

Date : 11-11-2022 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI

HON'BLE MR. JUSTICE SUDHANSHU DHULIA

For Petitioner(s) Mr. Shishir Kumar Saxena, Adv.

Mr. Praveen Swarup, AOR

For Respondent(s) Mr. Yashraj Singh Bundela, Adv.

Mr. Rajesh K. Singh, Adv.

Mr. Gopal Jha, AOR

Mr. Umesh Kumar Yadav, Adv.

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

The appeal is allowed in terms of the signed reportable

judgment.

Pending applications stand disposed of.

(MEENAKSHI KOHLI) (RANJANA SHAILEY)

ASTT. REGISTRAR-cum-PS COURT MASTER

[Signed reportable judgment is placed on the file]

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