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CASE NO.:

Appeal (crl.) 599 of 2001

Appeal (crl.) 600 of 2001

PETITIONER:

PURAN, SHEKHAR AND ANR.

Vs.

RESPONDENT:

RAMBILAS & ANR., STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 03/05/2001

BENCH:

M.B. Shah & S.N. Variava

JUDGMENT:

S. N. VARIAVA, J.

Leave granted.

Heard parties.

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These two Appeals are against an Order dated 24th

January 2001, by which the High Court has cancelled bail,

which had been granted to the Petitioner by the Additional

Sessions Judge, Nagpur, by his Order dated 13th November,

2000. Briefly stated the facts are as follows :

The Petitioner got married to one Puja Agrawal on 24th

November, 1999. On 2nd of September, 2000 i.e. within a

year of the marriage the said Puja Agrawal met with her

death on 2nd of September, 2000. The Petitioner has been

charged with offences under Sections 498-A and 304-B of the

Indian Penal Code. Along with the Petitioner three other

ladies had also been charged. Those ladies were granted

bail by an Order dated 11th September, 2000. A Petition

challenging that Order has been rejected on 20th October,

2000.

The evidence prima facie suggests the following:- at the

time of the marriage there was a demand of dowry for Rs. 5

lacs including Rs. 2 lacs in cash; that the father of the

deceased has spent Rs. 7 lacs on marriage; that about a

month prior to the death of the said Puja a demand of Rs. 1

lac was made; that the father of the said Puja had offered

Kisan Vikas Patra worth Rs.30,000/- to the Petitioner, which

had been refused; that whenever the deceased came to the

parents' home she was not wearing any ornaments; that even

at the time of her death she was not wearing any ornaments

not even her "Mangalsutra". The deceased was eight months

pregnant at the time of her death. From the scene of

offence, two handkerchiefs, two small cotton balls and one

bigger cotton ball were found. Pieces of broken bangles

were found. The wire of telephone was found broken. The

telephone was found on the bed. There were electric burn

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injuries over the left index finger, middle finger, thumb,

palms and back of palms upto base. Bone of left index

finger was exposed and charred. Base of left index finger

was swollen, distal part of left index finger was bluish in

colour, surrounded by reddish area. There were electric

burn injuries over right supramammary region oval shaped 7

cm x 4 1/2 cm. Centre of the burnt area was blackened and

hard measuring 5 cm. x 3 1/2 cm. Blisters were found

present over lateral aspect of left thigh, upper 1/3rd , 5

cm. x 1 1/2 cm. and 2 cm. Anterior to this injury, as

also over lateral aspect of right thigh, upper 1/3rd.

Besides this, abrasions were found on the right side of

back, over infra scapulas region.

We have heard the parties. Mr. Lalit has argued this

Appeal at great length. We have given anxious consideration@@

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to his submissions but for reasons set out hereafter are@@

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unable to accept them.

Mr. Lalit submitted that one of the reasons why the

High Court set aside bail was that the Additional Sessions

Judge had not referred to any material circumstance on

record and had not given any reasons. He submitted that the

High Court was wrong in so observing. He submitted that the

same Additional Sessions Judge had earlier granted bail to

the ladies by his Order dated 11th September, 2000. He

pointed out that, whilst so granting bail, the Additional

Sessions Judge had given very cogent reasons. He submitted

that against that Order a Petition had been filed in the

High Court. He submitted that even though the High Court

rejected the Petition, the High Court observed as follows :

"I agree with the learned Counsel appearing on behalf of

the complainant that while granting bail the learned Judge

ought not to have ventured to discuss the merits or demerits

of the evidence collected against the accused persons.

Probably he was not aware or he was not remined of the

advice given by the Apex Court in the case of Niranjan Singh

& another vs. Prabhakar Rajaram Kharote and Others reported

in AIR 1980 S.C. 785 wherein detailed examination of the

evidence and elaborate documentation of the merits of the

case while passing orders on bail application was

deprecated."

He submitted that in view of these observations the

learned Additional Sessions Judge did not given reasons

whilst granting bail. He submitted that in these

circumstances the Additional Sessions Judge cannot be

faulted. He submitted that the High Court could not cancel

bail on this ground. We see no substance in this

contention. Giving reasons is different from discussing

merits or demerits. At the stage of granting bail a

detailed examination of evidence and elaborate documentation

of the merits of the case has not to be undertaken. What

the Additional Sessions Judge had done, in the Order dated

11th September, 2000 was to discuss the merits and de-merits

of the evidence. That was what was deprecated. That did

not mean that whilst granting bail some reasons for prima

facie concluding why bail was being granted did not have to

be indicated. Mr. Lalit next submitted that the High Court

has itself not given reasons but has mechanically set aside

the order of the bail. We see no substance in this

submission. The High Court has correctly not gone into

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merits or demerits of the matter. The High Court has noted

that evidance prima-facie indicated demand of dowry. The

High Court has briefly indicated the evidence on record and

what was found at the scene of the offence. The High Court

has indicated that evidance prima facie indicated that a

demand for Rs. 1 lac was made just a month prior to the

incident in question. The High Court has stated that the

material on record suggested that the offences under

Sections 498-A and 304-A were prima facie disclosed. The

High Court has concluded that the material on record, the

nature of injuries, demand for Rs. 1 lac and the other

circumstances were such that this was not a fit case for

granting bail. Thus the High Court has given very cogent

reasons why bail should not have been granted and why this

unjustified erroneous Order granting bail should be

cancelled.

Mr. Lalit next submitted that once bail has been

granted it should not be cancelled unless there is evidence

that the conditions of bail are being infringed. In support

of this submission he relies upon the authority in the case

of Dolat Ram & Ors. vs. State of Haryana reported in 1995

(1) S.C.C. 349. In this case it has been held that

rejection of bail in a non-bailable case at the initial

stage and the cancellation of bail already granted have to

be considered and dealt with on different basis. It has

been held that very cogent and overwhelming circumstances

are necessary for an order directing the cancellation of the

bail already granted. It has been held that generally

speaking the grounds for cancellation of bail broadly 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. It is, however, to be noted that

this Court has clarified that these instances are merely

illustrative and not exhaustive. One such ground for

cancellation of bail would be where ignoring material and

evidence on record a perverse order granting bail is passed

in a heinous crime of this nature and that too without

giving any reasons. Such an order would be against

principles of law. Interest of justice would also require

that such a perverse order be set aside and bail be

cancelled. It must be remembered that such offences are on

the rise and have a very serious impact on the Society.

Therefore, an arbitrary and wrong exercise of discretion by

the trial court has to be corrected.

Further, it is to be kept in mind that the concept of

setting aside the unjustified illegal or perverse order is

totally different from the concept of cancelling the bail on

the ground that accused has misconducted himself or because

of some new facts requiring such cancellation. This

position is made clear by this Court in Gurcharan Singh v.

State (Delhi Admn.) reported in AIR 1978 SC 179. In that

case the Court observed as under:-

"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 S. 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

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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-a-vis the High Court.

It must be mentioned that in support of the above

submission Mr. Lalit had also relied upon the authorities

in the cases of Subhendu Mishra vs. Subrat Kumar Mishra and

another reported in 1999 Crl.L.J. 4063, State (Delhi

Administration) vs. Sanjay Gandhi reported in (1978) 2

S.C.C. 411 and Bhagirathsinh s/o Mahipat Singh Judeja vs.

State of Gujarat reported in 1984 (1) S.C.C. 284. These

need not be dealt with separately as they are of no

assistance in a case of this nature where bail has been

cancelled for very cogent and correct reasons.

Our view is supported by the principles laid down in the

case of Gurcharan Singh & Others, etc. vs. State (Delhi

Administration) reported in 1978 (1) S.C.C. 118. In this

case it has been held, by this Court, that under Section

439(2), the approach should be whether the order granting

bail was vitiated by any serious infirmity for which it was

right and proper for the High Court, in the interest of

justice, to interfere. Mr. Lalit next submitted that a

third party cannot move a Petition for cancellation of the

bail. He submitted that in this case the Prosecution has

not moved for cancellation of the bail. He pointed out that

the father of the deceased had moved for cancellation of the

bail. He relied upon the cases of Simranjit Singh Mann vs.

Union of India and another reported in AIR 1993 S.C. 280

and Janata Dal, etc. etc. vs. H.S. Chowdhary and others,

etc. etc. reported in 1991 (3) S.C.C. 356. Both these

cases dealt with Petitions under Article 32 of the

Constitution of India whereunder a total stranger challenged

the conviction and sentence of the accused. This Court held

that neither under the provisions of the Criminal Procedure

Code nor under any other statute is a third party stranger

permitted to question the correctness of the conviction and

sentence imposed by the Court after a regular trial. It was

held that the Petitioner, who was a total stranger, had no

'locus standi' to challenge the conviction and the sentence

awarded to the convicts in a Petition under Article 32. The

principle laid down in these cases have no application to

the facts of the present case. In this case the application

for cancellation of bail is not by a total stranger but it

is by the father of the deceased. In this behalf the ratio

laid down in the case of R. Rathinam vs. State by DSP,

District Crime Branch, Madurai District, Madurai and anr.

reported in 2000 (2) S.C.C. 391, needs to be seen. In this

case Bail had been granted to certain persons. A group of

practising advocates presented petitions before Chief

Justice of the High Court seeking initiation of suo motu

proceedings for cancellation of bail. The Chief Justice

placed the petitions before a Division Bench. The Division

Bench refused to exercise the suo motu powers on the ground

that the petition submitted by the advocates was not

maintainable. This Court held that the frame of sub-section

(2) of Section 439 indicates that it is a power conferred on

the Courts mentioned therein. It was held that there was

nothing to indicate that the said power can be exercised

only if the State or investigating agency or a Public

Prosecutor moves by a petition. It was held that the power

so vested in the High Court can be invoked either by the

State or by any aggrieved party. It was held that the said

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power could also be exercised suo motu by the High Court.

It was held that, therefore, any member of the public,

whether he belongs to any particular profession or otherwise

could move the High Court to remind it of the need to

exercise its power suo motu. It was held that there was no

barrier either in Section 439 of the Criminal Procedure Code

or in any other law which inhibits a person from moving the

High Court to have such powers exercised suo motu. It was

held that if the High Court considered that there was no

need to cancel the bail then it could dismiss the Petition.

It was held that it was always open to the High Court to

cancel the bail if it felt that there were sufficient enough

reasons for doing so. Mr. Lalit next relied upon the

authorities in the cases of Usmanbhai Dawoodbhai Memon and

Ors. vs. State of Gujarat reported in 1988(2) S.C.C. 271,

Amar Nath and others vs. State of Haryana and others

reported in AIR 1977 S.C. 2185 and M/s. India Pipe Fitting

Co. vs. Fakruddin M.A. Baker and another reported in AIR

1978 S.C. 45. Relying on these he submitted that an order

granting bail was an interlocutory order, and the High Court

could not exercise powers under Section 482 of the Criminal

Procedure Code and thus could not cancel Bail. Mr. Lalit

submitted that Section 439 of the Criminal Procedure Code

gives the power of cancellation of bail both to the Sessions

Court and the High Court. He submitted that thus the High

Court and Sessions Court were co-ordinate Courts under this

Section. He submitted that the High Court could not thus

sit in Appeal or Revision over an Order of the Court of

Sessions. He submitted that under Section 439(2), it is

only the orders of the Magistrate, which could be set aside

by the High Court or the Court of Sessions.

We see no substance in this submission. In the

hierarchy of Courts, the High Court is the Superior Court.

A restrictive interpretation which would have effect of

nullifying Section 439(2) cannot be given. When Section

439(2) grants to the High Court the power to cancel bail, it

necessarily follows that such powers can be exercised also

in respect of Orders passed by the Court of Sessions. Of

course cancellation of bail has to be on principles set out

hereinabove and only in appropriate cases. Further, even if

it is an interlocutory order, the High Court's inherent

jurisdiction under Section 482 is not affected by the

provisions of Section 397 (3) of the Code of Criminal

Procedure. That the High Court may refuse to exercise its

jurisdiction under Section 482 on the basis of self-imposed

restriction is a different aspect. It cannot be denied that

for securing the ends of justice, the High Court can

interfere with the order which causes miscarriage of justice

or is palpably illegal or is unjustified. [Re. Madhu

Limaye v. State of Maharasthra (1977) 4 SCC 551 and

Krishnan and Another v. Krishnaveni and Another (1997) 4

SCC 241].

In this case, as indicated above, bail has been cancelled

for very valid and cogent reasons

Accordingly we see no substance in these Appeals. The

same stand dismissed. There will be no order as to costs.