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Supreme Court: Grounds on which bail can be cancelled

February 15, 2012 2 comments

Supreme Court of India
Aslam Babalal Desai vs State Of Maharashtra on 15 September, 1992
Equivalent citations: AIR 1993 SC 1, 1993 (1) ALT Cri 265, 1993 (41) BLJR 75
Author: A Ahmadi
Bench: A Ahmadi, M Punchhi, K Ramaswamy
ORDER

A.M. Ahmadi, J.

1. Special leave granted.

2. Can bail granted under the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 (hereafter called ‘the Code’) for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation of the challan (charge-sheet) at any time thereafter? This is the question which we are called upon to answer in the backdrop of the following facts.

3. A complaint was lodged against the appellant and 8 others at Miraj City Police Station, District Sangli alleging commission of offences punishable under Sections 147, 148, 302 and 323 read with Section 149 IPC, in regard to an incident which took place at about 11 p.m. on 8th September, 1990. The appellant was arrested in that connection on the next day i.e. 9th September, 1990. The appellant thereafter made an application before the Sessions Judge, Sangli for being enlarged on bail That application was rejected. The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to Section 167(2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the appellant on bail. After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of Maharashtra moved an application under Section 439(2) of the Code in the High Court for cancellation of bail granted by the Sessions Judge. The High Court by the impugned Order dated 31st March, 1992 cancelled the bail. The High Court was of the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file the charge-sheet within the time allowed and since the investigation revealed the commission of a serious offence of murder, on the ratio of this Court’s decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. These, in brief, are the facts which have a bearing on the question under consideration.

4. Sub-section (1) of Section 167 insofar as it is relevant for our purpose provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the investigating officer not below the rank of Sub Inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and forward the accused to such Magistrate. Sub-section (2) of Section 167 which has bearing on the question under consideration may be extracted at this stage:

167(2) : The Magistrate to whom and accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter:

At this stage we may mention that the State of Maharashtra has not made any amendment in the aforesaid provision. On a plain reading of this sub-section it becomes clear that the Magistrate to whom the accused is forwarded may authorise his detention in such custody as he may think fit for a term not exceeding 15 days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he is required to order the accused to be forwarded to a Magistrate having jurisdiction. Such Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be depending on the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation must be completed and if the same is not completed within the said prescribed period, the accused has a right to be released on bail if he is prepared to and does furnish bail. Where a person in released on bail in such circumstances under the said sub-section, such release must be deemed to be one under the provisions of Chapter XXXIII of the Code which contains provisions in regard to bail and bonds. In the present case, as stated earlier, the appellant had applied for bail before the expiry of the period of 90 days which was refused by the learned Sessions Judge since the offence allegedly committed was of a serious nature. However, unfortunately the investigating agency did not show urgency and did not complete the investigation within the maximum period allowed by the proviso to Section 167(2) and hence on the appellant making an application for release on bail, the learned Sessions Judge had no alternative but to direct that he be released on bail on his executing a bond for Rs. 5,000 with one surety for like amount. Undoubtedly this release was solely on account of the fact that the investigating agency had failed to complete the investigation within the maximum period allowed by the proviso to Section 167(2) i.e. 90 days. This default on the part of the investigating agency enabled the appellant to seek and secure his release on bail. The investigating agency submitted the charge-sheet at a later date and appended the documents subsequent thereto. On the completion of the charge-sheet the investigating agency moved the High Court for cancellation of the bail under Section 439(2) of the Code. The High Court for reasons already stated earlier cancelled the bail and directed that the appellant be taken into custody.

5. Chapter XXXIII of the Code comprises Sections 436 to 450; of these Sections 437 and 439 have relevance so far as the question at issue is concerned. Sub-sections (1) & (2) of Section 437 insofar as relevant provide as under:

437-When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) Such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

Sub-section (5) of Section 437 empowers the Court which has released the person on bail under Sub-sections (1) or (2) to cause his arrest and commit him to custody, if it considers it necessary so to do. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. It will thus be seen from the aforesaid two Sections that while power has been conferred on courts for grant of bail, power has also been conferred for cancellation of bail in fit cases. The language of the proviso of Sub-section (2) of Section 167 specifically states that when an accused person is released on bail for failure to complete the investigation within the time prescribed, every person so released on bail ‘shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of this Chapter’.

6. Now before we proceed to deal with the submissions made before us it is necessary to bear in mind the scheme of the Code insofar as it relates to investigation on the criminal law having been set in motion by the filing of a First Information Report. Section 41 empowers any police officer to arrest any person without an order from the Magistrate or without a warrant in the cases catalogued at Clauses (a) to (i) of Sub-section (1) thereof. Section 57 next provides that the person arrested shall not be detained in custody by the police officer for a period longer than that which is reasonable but such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the Magistrate’s court in the absence of a special order under Section 167 of the Code. Article 22(2) of the Constitution also provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a person of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. Sections 154 and 155 enjoin on an officer-in-charge of a police station to record every information relating to a cognizable or a non-cognizable offence. Section 156 empowers an officer-in-charge of a police station to investigate any cognizable offence without a formal order of a Magistrate. Such an investigation can also be undertaken, if empowered by a Magistrate under Section 190 of the Code. Section 157 prescribes the procedure for investigation with which we are not concerned. It is in this backdrop that we must consider the scope and ambit of Section 167 of the Code. It will be seen from the above scheme that the Code expects that once a person is arrested and detained in custody, the investigation must be completed as far as possible within 24 hours. If that is not possible, the arrested or detained person must be produced before the nearest Magistrate before the expiry of 24 hours excluding the time consumed during journey to the Magistrate’s court. If the investigation cannot be completed within the said period of 24 hours, the Magistrate before whom the accused person is produced, whether he has or has not jurisdiction to try the case, can authorise his further detention in custody from time to time for a period not exceeding 15 days in the whole. If he has no jurisdiction to try the case or commit for trial and considers his further detention unnecessary, he must forward the accused to the Magistrate having jurisdiction. Such Magistrate may authorise the further detention of the accused person otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing. But even he cannot authorise the detention of the accused person in custody for a period exceeding 90 days, if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, or 60 days where the investigation relates to any other offence, if the accused person is prepared to furnish bail. In other words if on the expiry of the aforesaid period of 90/60 days, the accused person offers to furnish bail, the Magistrate is bound to release him on bail and such released shall be deemed to be under Chapter XXXIII of the Code. As pointed out earlier Chapter XXXIII which includes Sections 437 and 439 relevant for our purpose empowers the court to release an accused person on bail and at the same time also provides for cancellation of bail in certain eventualities. The legislative history of Section 167 shows that under the Code of 1898 the detention of an accused person in custody was not permitted for a term exceeding 15 days in the whole. This provision was breached by the convenient practice, albeit of doubtful legality, of filing a ‘preliminary’ charge-sheet and then seeking remand under Section 344 (Section 309 under the Code) which really did not come into play during investigation. But it was at the same time realised that in genuine and complex cases the investigation may not be completed within the short period of 15 days even if the investigating agency proceeds with the utmost sense of urgency. The Law Commission had recommended that the period be increased to 60 days but it was apprehended that while this increase would become a rule, yet the practice of doubtful legality of filing a preliminary charge-sheet and seeking remand may not be curbed. The Joint Select Committee, therefore, felt that the maximum period within which the investigation must be completed must be provided in the statute and a right should be conferred on the accused for being released on bail if within the prescribed period the investigation is not completed. It, therefore, while retaining Sub-section (2) of Section 167 in the same language introduced the proviso extracted earlier prescribing the outer limit within which the investigation must be completed. While conferring a right on the accused to be released on bail it stated that the release so granted shall be deemed to be one under the provisions of Chapter XXXIII of the Code. So far as Chapter XXXIII is concerned, Section 437 has since undergone an amendment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment) Act, 1980. It is not necessary to note the background of the amendment but it is sufficient to state that once bail has been granted under that provision it can be cancelled and the accused person can be arrested and committed to custody if the court considers it necessary so to do. That is the import of Sub-section (5) of Section 437 of the Code. The circumstances in which the court will exercise the power of the cancellation of bail have been set out in a number of judgments of this Court to which we will have an occasion to refer a little later. At this stage it is sufficient to state that the Legislature has conferred on the court the power to grant bail as well as to cancel the same. Similarly Sub-section (1) of Section 439 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Sub-section (2) thereof provides that the High Court or the Court of Session may cancel bail and direct that the person released on bail under Sub-section (1) be re-arrested and re-committed to custody. Here again the circumstances under which the court will exercise the power conferred by Section 439(2) will have to be noticed later. This in brief is the scheme of the Code. In the backdrop of this scheme we have to consider the question whether bail once granted under Sub-section (2) of Section 167 of the Code for failure to complete the investigation within the prescribed time can be cancelled on the mere ground that subsequently a charge-sheet has been produced which discloses that the accused person has committed a serious crime punishable with death or imprisonment for life or imprisonment for a term exceeding 10 years.

7. We may now notice the case law on the subject. In Bashir and Ors. v. State of Haryana the FIR lodged against eleven

persons disclosed the commission of an offence punishable under Sections 302/149 IPC. Eight of the eleven accused persons were released on bail but the bail application of the remaining three persons were rejected on the ground that they were the authors of the fatal injuries. The High Court too declined to grant them bail. However, as the challan was not filed within the time prescribed the remaining three accused were also released on bail under Section 167(2) of the Code. Subsequently the police filed the challan and thereupon all the eleven accused were committed to stand trial before the Session Court. An application for cancellation of the bail of the three accused persons whose bail was earlier rejected was moved on the ground that they were released under Section 167(2) for failure to file the challans within the prescribed time and since the challans were filed, the Court should cancel their bail. The Sessions Judge allowed the application and ordered cancellation of the bail on the ground that on the filing of the challans the court had jurisdiction to do so. The High Court dismissed the appeal. Thereupon this Court was moved by special leave on the plea that once the bail is granted under Section 167(2) of the Code it cannot be cancelled on the mere filing of a challan but could be cancelled only under Section 437(5) of the Code. This Court after examining the relevant provisions to which we have adverted hereinabove concluded as under:

The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under Section 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a chargesheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the court should proceed on the basis that he has been deemed to have been released under Sections 437(1) and (2).

(emphasis supplied)

It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person under Section 167(2) is equated to his release under Chapter XXXIII of the Code.

8. In Raghubir Singh and Ors. etc. v. State of Bihar a similar question came up for consideration. In that case on the night between 29th/30th November, 1984 the Security Police Patrol on duty near Jogbani Check Post on the Indo Nepal Border intercepted a speeding jeep with five occupants, one of them being a dismissed IPS officer. He was wanted. A detention order under the National Security Act was passed against him but could not be executed as he had gone underground. On being questioned they initially refused to disclose their identity and the manner in which they behaved aroused suspicion. One of the security officers however identified the IPS officer and on search of their baggage a substantial cash was found with one of the occupants. A number of documents and other articles were also seized which established the identity of the fleeing IPS officer. On the basis of the information derived from the seizure of various documents, cash, etc., an FIR was registered for offences under Sections 121A, 123, 124A, 153A, 165A, 505 and 120B IPC and Section 5(3) of the Prevention of Corruption Act. However, before the submission of the charge-sheet the preventive detention order was served on the IPS officer and he was removed to Bhagalpur jail. The other four persons were also similarly detained in the same jail. These persons applied for bail under the proviso to Section 167(2) of the Code. The learned Magistrate granted bail but imposed a condition that the surety should be residents of Araria town. Ultimately these persons could secure sureties from Araria but could not be released as the preventive detention orders were in force. Subsequently the surety of all the five persons appeared in court and prayed to be discharged, whereupon the learned Magistrate passed an order discharging him and issued formal warrants of arrest under Section 444(2) of the Code. At this stage the detention order against the IPS officer came to be quashed. Subsequently the charge-sheet was filed in the court of the learned Magistrate by the police. The bail application of four of the accused was rejected and the High Court confirmed the same. The case was thereafter transferred to the Special Judge (Vigilance), Patna. The IPS officer moved an application offering cash security but it was rejected on the ground that the High Court had already rejected the application of the other four accused persons. The case was later transferred to the Special Judge, Bhagalpur. When the matter came to this Court one of the grounds urged was that the High Court as well as the Special Judge were wrong in holding that the order of the Magistrate directing them to be released on bail under Section 167(2) had come to an end by the passage of time particularly after cognizance of the case was taken. Dealing with this contention this Court examined the scope of Section 167 read with Sections 437 and 439 of the Code and the ratio of the decision in Bashir’s case and proceeded to observe as under:

The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interefere with the due course of administration of Justice, or evasion or attempt to evade the course of justice or abuse of the liberty granted to him…. 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 chargesheet, 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. In the last mentioned case, one would expect very strong grounds indeed.

Proceeding further while dealing with the facts on hand this Court observed:

The order for release on bail was not an order on merits but was what one may call an order-on-default, an order that could be rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months. Probably for that reason, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the chargesheet. The question is should we now send the matter down to the High Court to give an opportunity to the prosecution to move that court for cancellation of bail? Having regard to the entirety of the circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage.

It will thus be seen that this Court came to the conclusion that once an order for release on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time and on the mere filing of the charge-sheet at a subsequent date. The order for release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under Sections 437(5) or 439(2). This Court then set out the grounds on which generally bail once granted could be cancelled and then proceeded to state that in the peculiar facts and circumstances of the case it would not be justified in interfering with the impugned order. Therefore, the final order which the court made was in the backdrop of the special facts and circumstances of the case.

9. In Rajinikant’s case (supra), Shetty, J. sitting singly during vacation was concerned with a case in which the accused persons were arrested on 23rd March, 1988 by the officers of the Narcotic Control Bureau at Bombay. They were produced before the Additional Chief Metropolitan Magistrate, New Delhi and were remanded to judicial custody till 12th April, 1988. The remand order was subsequently renewed from time to time. On 10th May, 1988 the accused moved for bail and while the said application was pending, a charge-sheet was submitted on 23rd June, 1988 for the commission of offences under Sections 21, 23 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985. On 22nd July, 1988 the accused filed an application for bail under Section 167(2) of the Code on the ground that the charge-sheet had been filed after the expiry of the period of 90 days. The learned Magistrate by his order dated 29th July, 1988 enlarged them on bail. The prosecution sought cancellation of the bail but the learned Magistrate did not accede to that request whereupon the High Court of Delhi was moved under Section 439(2) read with Section 482 of the Code. In that application the nature of offence committed, the part played by the accused, the gravity of the offence, etc., were set out. It was also mentioned that two of the accused persons had earlier absconded and as such the investigation could not be completed within the time prescribed by the proviso to Section 167(2) of the Code. The High Court following the dicta of Raghubir Singh’s case cancelled the bail. It was against this order that the accused approached this Court by special leave under Article 136 of the Constitution. Shetty, J. after considering the provisions of Section 167(2) read with Chapter XXXIII of the Code and in particular Sections 437(5) and 439(2) came to the following conclusion:

An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court’s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled.

10. On this line of reasoning the learned Judge upheld the order of the High Court and refused to interfere. It may here be mentioned that this Court’s decision in Bashir’s case was not placed before the learned Judge.

11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in Clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is to over-see the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under Sub-section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under Sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the invest ting agency to complete the investigation promptly and within the statutory time-frame. The deeming fiction of correlating the release on bail under Sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh’s case the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Sections 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of invistigation, (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. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

12. In State (Delhi Admn.) v. Sanjay Gandhi this

Court observed rejection of bail when bail is applied for is one thing; cancellation of a bail already granted is quite another. It is easier to reject a bail application in a non-bailable case then to cancel a bail once granted. That is because cancellation of bail interferes with the. liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law. This Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.

13. In Bhagirathsinha S/o Mahipat Singh Judeja v. State of Gujarat this Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily-available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. It is wrong to think that bails secured by virtue of the proviso (a) to Section 167 is an underserved one. To so think is to doubt the legislative wisdom in prescribing the outer limit for filing the charge-sheet and to ignore the legislative history. As pointed out earlier the legislative history of Section 167 shows that by proviso (a) the detention period was enhanced to a maximum of 90 days from 15 days earlier allowed. When the Legislature made it obligatory that the accused shall be released on bail if the charge-sheet is not filed within the outer limit provided by proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. It would not be permissible to interfere with the legislative mandate on imaginary apprehensions, e.g., an obliging investigation officer deliberately not filing the charge sheet in time, as such misconduct can be dealt with departmentally. To permit the prosecution to have the bail cancelled on the mere filing of the charge-sheet is to permit the-police to trifle with individual liberty at its sweet will and set at naught the purpose and object of the legislative mandate. The paramount consideration must be to balance the need to safeguard individual liberty and to protect the interest of administration of justice so as to prevent its failure. In the present case the High Court cancelled the bail solely on the ground that the bail was granted on technical grounds and the investigation revealed that there was eye-witness account disclosing the commission of a serious offence of murder. In its view the ratio of Rajnikant Jeevanlal Patel’s case applies to the case with full vigour. We find it difficult to agree.

14. We sum up as under:

The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons’ liberty has been interfered with by the police arresting him without a court’s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to Section 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant’s case to the extent it is inconsistent herewith does not, with respect, state the law correctly.

15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court’s view in the case of Bashir & Raghubir (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant’s case our endeavour is to clear the same and set the controversy at rest.

16. For the above reasons this appeal is allowed and the impugned order of the High Court is set aside. The matter is remitted to the High Court for reconsideration and disposal on merits in the light of the legal position hereinabove stated.

M.M. Punchhi, J.

17. I have read with admiration the neat analysis and exposition of law in the judgment prepared by my learned brother Ahmadi, J. but respectfully, though regretfully, I have opted to differ.

18. The question, as it appears to me, which requires determination in this appeal rather is (in contrast to the one posed by brother Ahmadi, J.) whether an order granting bail under the proviso to Sub-section (2) of Section 167 of the CrPC, 1973 (hereafter called the Code) for failure to complete the investigation within the period prescribed thereunder, after the presentation of the challan (charge-sheet) can be recalled or reviewed and on what grounds?

19. The facts giving rise to the instant appeal appear in detail in the judgment prepared by my learned brother Ahmadi, J. and those need not bear repetition. The culled out provisions of the Code too, so far relevant to the facts of the instant case figuring in the said judgment would also bear no reproduction. It is to the case law developed by this Court that I venture to give an explanation which differs with the views thereon expressed by my learned brother Ahmadi, J.

20. A three-member Bench of this Court in State (Delhi Administration) v. Sanjay Gandhi made the following elemental

distinction in defining the nature of exercise while cancelling bail:

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another, It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail Necessarily involves the review of a decision already made and can by and large by permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

(emphasis supplied)

21. The view of this Court ever since has been that when a decision of bail already made on merit, after due deliberation, is required to be reviewed on prayer for cancellation of bail, it would require the exercise to be undertaken with the necessary care and circumspection. Sanjay Gandhi’s case arose in the backdrop of Section 439(2) of the Code whereunder the High Court or Court of Session can direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power of the High Court or Court of Session to cancel bail is exercisable vis-a-vis an order passed by the High Court or the Court of Session under Sub-section (1) of Section 439, as the case may be, as also to an order of bail passed by a Court other than the High Court or the Court of Session under Sub-sections (1) & (2) of Section 437 of the Code. Bail orders under the aforesaid provisions by the very nature are decisions on merit and if a review is attempted a strong case has to be made out so as to secure cancellation of bail. Hence the apparent distinction in the approach of the Court while granting bail and cancelling bail. This field is covered entirely by judge-made law.

22. The Code designedly classifies offences bailable as well as non-bailable. Whereas bail is the rule in the case of bailable offences, in non-bailable offences it is left to the discretion of the Court. Designedly, serving a purpose, is the power of arrest and detention as an integral part of the investigating process and that of the trail. This is because a civilized society has to preserve on the one hand an individual’s personal dignity and on the other the general interests of the society at large and the concept of bail is an inter-position between the two, seeing through both without under-mining one or the other. The Constitution and our laws are so designed so as to safeguard and protect personal liberty from Governmental power and to authorise the collective use of State power permitting arrest and detention of an individual to ensure amongst others, domestic tranquillity and security of public and State. Hence the see-saw for and against bail witnessed in courts. The tests to be applied by courts in granting bail is by reference to many considerations, such as the nature of the accusation, the evidence in support thereof, the severity of punishment on conviction which would entail; the character, behaviour, means and standing of the accused etc. etc. But alongside is the larger interest of the State to be kept in view in granting or refusing bail. By no means are the afore-mentioned factors exhaustive. There may be ether considerations which may be determinative for taking one view or the other. The Court is obligated, all the same, to strike a balance. The decision of the Court after consideration of the afore factors and other of the like conceivable results in a verdict judicial in character capable of being reviewed or altered again by a judicial exercise within judicially set out parameters. A bail order-on-default is, as goes the coined expression, a specie apart which involves no such deliberation and so cannot, in my understanding, be equated with bail orders passed on merit by a Court, other than a High Court or a Court of Session, under Sub-sections (1) & (2) of Section 437 or such a bail order passed by the High Court or Court of Session under Sub-section (1) of Section 439 of the Criminal Procedure Code. Such a Compulsive bail by the thrust of Section 167(2) can in no event be termed as a decision on merit to which the distinctive approach as given in Sanjay Gandhi’s case is to play its significant part when effort to cancel bail is attempted.

23. The mere circumstance that Section 167(2) ordains that every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter does not ipso facto mean that the bail order assumes the content and character of bail orders on merit, of the-kind conceived of in Sub-sections (1) and (2) of Section 437 or Sub-section (1) of Section 439 of the Code. The deeming requirement of Section 167(2) puts the release on bail of such person as if under the provisions of Chapter XXXIII but only for the purposes of that Chapter. In other words, it means that by this fiction the provision is to be read as a part of Chapter XXXIII so that it invites the purposes of that Chapter such as filling of bonds, provision of sureties etc., as also permitting cancellation of bail. It is on the thrust of such inclusion that cancellation under Section 437(5) can be attempted as if fictionally the bail order had been passed under Sub-sections (1) and (2) of Section 437 but not on considerations as if the bail order was on merit. Fiction of this kind cannot be permitted to go to the length of converting an order of bail not on merit as if passed on merit.

24. A seeming diverse view for what I have expressed above is available in a decision of a two-member Bench of this Court in Bashir and Ors. v. State of Haryana . The Bench observed at page 589 as follows:

…As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under Section 437(1) or (2). Section 437(5) empowers the court to direct that the person so released may be arrested if it considers it necessary to do so.

25. Yet the Bench further went on to observe at page 590 as follows:

The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking acting under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it necessary that the court should proceed on the basis that he has been deemed to have been released under Section 437(1) & (2).

(emphasis supplied)

26. The emphasised words are reflective of the view that the court could at that stage after the challan is filed be of the opinion that there appear sufficient grounds for entertaining the view that the accused had committed a non-bailable offences and that it was necessary that he should be arrested and committed to custody. Besides the afore-mentioned ground for cancellation, a ground singularly sufficient and special to an order-on-default, the court may also arrest and commit to custody such person on other grounds judicially noted and others relevant; such as tampering of evidence etc. The later hinted grounds are those grounds which normally weigh with a court while cancelling a merited bail under Section 437(5) when the bail in strict sensu has been granted on merit under Sub-sections (1) & (2) of Section

437. But a deemed bail under Chapter XXXIII, under the thrust of Section 167(2), as is discernible, appears to me on a different footing, permitting cancellation of bail not only on the well known grounds for cancellation of bail but also on the special singular ground on the Court’s entertaining the view that there are sufficient grounds that the accused had committed a non-bailable offence and that it was necessary that he should be arrested and committed to custody. The seeming diversity in Bashir’s case crops up only if it is understood that it takes a bail order under Section 167(2), as if an order on merit under Sub-sections (1) & (2) of Section 437. But if the fiction, as it appears to me, extends to the extent of the bail order being treated as if passed under Chapter XXXIII and that too under Sub-sections (1) and (2) of Section 437 read with the provisions of Section 167(2) as part and parcel of that chapter so that the bail order remains an order passed on default and not on merit, the tangency disappears. And even if this aspect is ignored, Bashir’s case goes on to add a singular and special ground for cancellation of bail granted under Section 167(2) over and above the other well known grounds for cancellation of bail granted under Sub-sections (1) & (2) of Section 437 of the Code. The provision employable in that event again in Section 437(5) of the Code, notwithstanding the text of the provision, for besides that there is no other provision with the Court.

27. The existence of such special ground for cancellation of bail, over and above the well known grounds for cancellation of bail, granted under Section 167(2) of the Code was re-affirmed and repeated in a decision of this Court by a two-member Bench in Raghubir Singh and Ors. etc. v. State of Bihar by stating as follows:

Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution is 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. In the last mentioned case, one would expect very strong grounds indeed.

28. The strong grounds referred in the context obviously are grounds on merits of the case, which are reflective from the formal accusation put in the challan which the accused has to face at the trial.

29. Reghubir Singh’s case was followed by a decision of a Vacation Judge of this Court in Rajnikant Jivanlal and Anr. v. Intelligence Officer, Narcotic Control Bureau, New Delhi . It was observed at page 536 as follows:

An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court’s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.

30. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled.

(emphasis supplied)

31. On the analysis of the case law above discussed I have rather come to the conclusion that a compulsive bail order made by a Court under Section 167(2) of the Code being one not on merit, when required to be cancelled after the filing of the challan, would not involve any review of a decision made on merit. Such bail is cancellable if the court has reason to entertain the belief that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. The occasion to grant or refuse bail on merit becomes available to the Court after the filing of the challan because earlier thereto merit of bail could not figure at the time to the grant of compulsive bail. The goal of the court in any event is to strike a judicial balance depending on the exigencies of the situation keeping in view amongst others the claims of personal liberty and the larger interests of the State. It cannot be overlooked that a bail order under Section 167(2) of the Code could even be managed through a convenient investigating officer, however henious be the crime. The Court would have to grant bail under the mandate of law, debarred as it is to see to the merits of the case at that stage. To say that thenceforth the Court is for ever shut to see to the merits of the case, though it otherwise has power to cancel bail, is to deprive it of its elementary function to administer justice and weigh the claims on merit inter se. I would rather loathe for such an interpretation as that would frustrate justice, and would on the other hand let the Court have the power to cancel bail, for once examining the merits of the case in such a situation.

32. The High Court in the instant case when approached for cancellation of bail applied its mind on the merits of the case and had relied in Rajnikant Jeevan Lal’s case (supra). In my view the High Court rightly relied on this decision when Raghubir Singh’s case (supra) was the basis thereof. These two cases have summed up and have drawn the demarcation between bail orders granted on merit and bail granted under the compulsion and thrust of Section 167(2) of the Code and the parameters of cancellation. Challan for prosecution has been filed. I have seen the imputation against the appellant. He is described to be a gang leader who had arrived at the scene of the occurrence along with some others and committed the murder of a man on account of gang rivalry. He is accused of having taken part in it by inflicting wounds on the deceased. The allegations have supportive eye-witnesses. The accusation against the appellant is pointedly there. His role in the crime as an active participant could lead the High Court to entertain the view that the appellant has committed a non-bailable offence which may invite capital punishment or imprisonment for life and that there were sufficient grounds to arrest him and commit him into custody. And on coming to that view. The strong ground for cancellation of bail was made out. The view of the High Court thus seems to me right. For the aforesaid reasons this appeal must fail and is accordingly dismissed.

K. Ramaswamy, J.

33. The illuminating and weighty, but with mutually discordant opinions of my esteemed brethren Ahmadi and Punchhi, JJ., have given me an occasion to have insight into the operational zone of custodial law of the accused during investigation, his entitlement to bail and the resultant consequences. Since the facts in nutshell were narrated by my brother Ahmadi, J. in his judgment, the need to reiterate them is obviated.

34. As prefaced by my brother Ahmadi, the only question in this appeal is whether the liberty had by the accused by statutory operation of the proviso to Section 167(2) of the CrPC, 1973, for short ‘the Code’ ipso facto is co-terminus with the filing of the charge-sheet (challan) under Section 173 of the Code.

35. The laying of the information under Section 154 either orally or in writing of the commission of a cognizable offence sets the Criminal Law in motion and the investigating officer under Section 156 acquires power to investigate into those offences together with non-cognizable offence, if any. As a part of the process of investigation under Section 157, he shall proceed to the spot to ascertain the facts and if necessary, to take measures for the discovery and arrest of the offender. In State of M.P. v. Mubarak Ali , this Court held that “investigation starts after the police officer receives information in regard to an offence under the Code. Investigation consists generally of the following steps (a) proceeding to the spot; (b) ascertainment of the facts and circumstances of the case; and (c) discovery and arrest of the suspected offender. Section 41 empowers, him without an order from a Magistrate and without a warrant, to arrest any person concerning the said cognizable offence or when entertained reasonable suspicion, a reasonable complaint or on having credible information, in the circumstances enumerated thereunder. Section 57(61 of the old Code) entitles the investigation officer to detain the arrested person in custody, but within imposed statutory limit, namely he shall not detain the arrested person in custody for more than 24 hours excluding the requisite time necessary for the journey from the place of arrest to the Magistrate Court.

36. Section 57, is supplemental to and effectuates the constitutional mandate of Article 22(2) that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Clause (3)(b) lifts the rigour when the person is arrested under the provision of the Code or preventive detention law providing for preventive detention. In other words the precious personal liberty would be deprived only according to law. The intendment of Section 57 appears to be that investigation needs completion without 24 hours, but in practice and invariably it is difficult to complete the investigation within 24 hours. As its supplement Section 167(1) arms the investigating officer, when there are grounds to believe that the information is well founded, he shall forthwith transmit to the nearest Judicial Magistrate, a copy of the entries in the diary of the case and shall also forward the accused to such Magistrate and seek an order extending the custody. Sub-section (2) thereto empowers the Magistrate whether he has or has not jurisdiction to try the case, if he thinks fit to extend the detention of the accused from time to time and authorise the detention of the accused in the custody. So, however, it shall not exceeding 15 days as a whole. If he has no jurisdiction to try the case or committing it for trail and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. The proviso thereto further enjoins that the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police beyond the period of 15 days only, if he is satisfied that adequate grounds exist for doing so. But, however, he is enjoined that no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding (i) 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years; (ii) 60 days, where the investigation relates to any other offence. On his satisfying that the period of 90 or 60 days, as the case may be, has been expired the accused shall be released on bail if he is prepared to and does furnish the bail. Every person, so released on bail, shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter. Under Clause (b) of Sub-section (2) of Section 167 production of the accused before the Magistrate is mandatory before authorising detention of the accused in custody under that section.

37. It is thus clear that during the investigation the police officer without a warrant from the Magistrate is entitled to keep the accused in police custody for 24 hours from the time of such arrest excluding the time necessary to produce him before a Magistrate. An additional 15 days detention in police custody is allowed by operation of Sub-section (2) of Section 167. However, the proviso enables the investigating officer to continue in an appropriate case, the investigation and also obtain detention (police custody or judicial custody) to a maximum of 90/60 days based on the nature of offences. On its failure to complete the investigation and filing the charge-sheet under Section 173, the law mandates the Magistrate to have the accused relased, if he is prepared to and does furnish the bail. The expression “the accused person shall be released on bail” indicates the legislative mandatory duty of the Magistrate to release the accused on bail. By operation of explanation 1 to Section 167(2), notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody ‘so long as he does not furnish bail’. The object underlying the proviso is to prevent the police of the laxity in investigation and detention of the accused in the police or judicial custody, during the investigation. The law obviously disfavours the detention of the accused in the custody of the police and if further detention within the outer limit is necessary, the reason for such detention in writing shall be laid before the Magistrate concerned and the detention is not a matter of course. Whenever the further detention was asked for and is necessary, the Magistrate shall be satisfied from the report of the investigation in the diary, which is the source. The power of remand during investigation was an integral part of process which is meant to be exercised to aid collection of evidence. However, the proviso puts an embargo on the power of the magistrate to extend remand on expiry of 90/60 days.

38. Proviso to Section 167(2) was introduced for the first time under the Code. The reason appears to be, as stated by the Law Commission’s report and statement of objects and reasons that Section 167(2) was honoured more in breach than in observance and that the police investigation takes a much longer time. A practice of doubtful legality had grown whereby police filed a preliminary charge-sheet and moved the court for remand under Section 309(344 of old code), which he is not entitled to apply to such remand during investigation. The power for completion of the investigation with police or judicial custody of the accused after 15 days was thus extended up to 90/60 days, as the case may be under Clauses (i) and (ii) of the Clause (a) of the provision to Sub-section (2) of Section 167. This was meant to expedite investigation and to inculcate the sense of its urgency. The proviso enjoins the Magistrate that the accused shall be released from detention on bail. Such a release is by fiction of law as if one under Chapter XXXIII which includes Section 437 and Section 439 which empowers the Court of Session and the High Court to release the accused on bail and also power to cancel the bail so granted. Brother Ahmadi, J. extracted the relevant provisions of cancellation of bail and considered the subject with which I agree. So there is no need for my separate discussion in that behalf as well.

39. In Natabar Parida and Ors. v. State of Orissa [1975] Crl. L.J. 1212 a two judge Bench, at the earliest considered, the scope of the proviso and held thus:

The command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, the complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be “paradise for the criminals” but surely it would not be so, as sometimes it is supposed to be, because of the courts, it would be so under the command of the Legislature.

40. The same view was reiterated in a recent judgment of this Court by another Bench consisting of one of us (Ahmadi, J.) and K.J. Reddy, J. in Central Bureau of Investigation v. Anupam J. Kulkarni and it was stated in the context of construing

whether the accused would be kept in the police or judicial custody after the expiry of 15 days under Sub-section (2) of Section 167 thus : “Now coming to the object and scope of Section 167, it is well settled that it is supplementary to Section 57, It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours, if not the arrested person should be brought by the police before a Magistrate as provided under Sub-section 167. The law does not authorise the police officer to detain and arrest person for more than 24 hours exclusive of time necessary for the journey from the place of area to the Magistrate court.

41. In Bashir and Ors. v. State of Haryana , a case

directly on the point had arisen. Therein also 8 accused were prosecuted for the offence under Section 302 read with Section 149 I.P.C. for causing the death of one Sangroo. Investigation was not completed within 90 days. As a result the accused (though bail was refused on merit earlier) released on bail by operation of the proviso to Section 167(2) of the Code. On filing the charge-sheet (challan), the Magistrate cancelled the bail and committed the accused to the Sessions Court. Cancellation of bail was questioned. Ultimately in the appeal this Court held that:

A person accused of a non-bailable offence may be released by a court but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The two provisos to Sub-section (1) are not material and need not be considered. Sub-section (2) to Section 437 provides that if the investigating officer or the court at any stage of the investigation, inquiry or trial, as the case may be, is of opinion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, pending such inquiry, the accused shall be released on bail. Sub-section (5) to Section 437 is important. It provides that any court which has released a person on bail under Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

xxx xxx xxx

The fact that before an order was passed under Section 167(2), the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused any committing them to custody should consider it necessary to do so under Section 437(5).

(emphasis supplied)

42. In Raghubir Singh and Ors. v. State of Bihar , in similar circumstances, this Court held at p.826 thus:

The result of our discussion and the case-law in this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing to the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally 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 course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in not completing the investigation in 60 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. In the last mentioned case, one would expect very strong grounds indeed.

43. In Rajnikant Jivanlal and Anr. v. Intelligence Officer, Narcotic Control Bureau , the Vacation Judge, K.J. Shetty, J. upheld cancellation of the bail on filing the charge-sheet for an offence under Narcotic Drugs Psychotropic Substances Act, 1985. Following this judgment the impugned order was passed by the High Court of Bombay cancelling the bail.

44. Undoubtedly, by operation of the proviso to Section 167(2) of the Code, the accused is entitled to bail due to default by the investigating officer in completing the investigation and laying the charge-sheet within the prescribed period of 90/60 days and not on merits. The fiction of law under the proviso applying the provisions in Chapter XXXIII is to serve the purpose of law, namely not only the release of the accused on taking the requisite bond and conditions to be incorporated therein as envisaged in the said Chapter, but also the power of the court to cancel the bail and to take the accused into detention for the grounds mentioned under the relevant provisions in Sections 437(5) and 439(2) of the Code. The Legislature is aware of the pre-existing practice of not filing the charge-sheet within 15 days as envisaged under Sub-section (2) of Section 167 of the old code and the consequences as well. The doubtful procedure of seeking further detention on securing order of remand under Section 344 of the Old Code and Section 309 of the present Code was to be put to an end to, while preserving the power to the court to cancel the bail, if circumstances warrant to take the accused into custody. At the earliest this Court in Natabar Parida’s case also took note of the fact that even under Section 167(2) proviso, it might not be possible to complete the investigation into grave crimes within the outer limit of the time set out in the proviso. In the light of the statutory animation to have the accused released from detention on expiry of 90/60 days if the accused shall be prepared to and does furnish bail, the consequences are inevitable and the release is a statutory paradise to the criminals not by judicial fiat but legislative mandate.

45. The purpose of interpretation is to sustain the law. The court must interpret the words or the language in the statute to promote public good and misuse of power is interdicted. Criminal law primarily concerns with social protection and prescribes rules of behaviour to be observed by all. Law punishes for deviance, transgression, violation or omission. Liberty of the individual and security and order in the society or public order are delicate and yet paramount considerations. Undue emphasis on either would impede harmony and hampers public good as well as distrub social weal and peace. To keep the weal balanced, must be the prime duty of the Judiciary. The purpose of the proviso to Section 167(2) read with Chapter XXXIII of the Code is to impress upon the need for expeditious completion of the investigation by the police officer within the prescribed limitation and to prevent Taxity in that behalf. Orr its default the Magistrate shall release the accused on bail if the accused is ready and does furnish the bail. At the same time during investigation or trial the power of the court to have the bail cancelled and have the accused taken into custody are preserved. But as interpreted by this Court on the happening of the catalyst act i.e. expiry of 90/60 days the hammer of release on default would fall. Later filing of the charge-sheet (challan) is not by itself relevant to have the bail cancelled on committing the accused for trial or taking cognizance of the offence. As emphasised by this Court in Bashir’s and Raghubir’s cases, on curing the defect by filing the charge-sheet (challan) if the prosecution seeks 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 and commit him into the custody, prima facie at that stage, strong grounds indeed are necessary. For cancellation of the bail after filing of the charge-sheet the factum of dismissal of the bail on the earlier occasion is not relevant. But during investigation some strong prima facie evidence and gravity and magnitude of the crime or the manner in which the crime was committed and other attending circumstances may be relevant as prima facie grounds to have a fresh look to cancel the bail. The grounds for cancellation of the bail in Chapter XXXIII are, de hors the merits in the matter, namely, necessity due to the conduct of the accused and abuse of liberty i.e. obstruction of the smooth investigation or suborning witnesses or attempting to tamper the evidence, threatening the witnesses with dire consequences or making or attempting to remove himself beyond the reach of the court to hamper the smooth trial, etc. are independent of the merits in the matter. Cancellation of the bail would be necessitated by the conduct of the accused himself after the release. I agree with brother Punchhi, J. that it might be possible to abuse the proviso by deliberate delay in completing the investigation to facilitate the release of the accused on bail. I also agree that merits brought out in the charge-sheet and attending circumstances are relevant, as the bail, was granted due to default of the investigating officer without court’s adverting to the merits but strong grounds are necessary to cancel the bail. To that extent brother Ahmadi, J. also laid emphasis, namely, strong grounds are to be made out in the charge-sheet. With respect I agree with brother Ahmadi’s emphasis that filing the charge-sheet (challan) itself is not sufficient. However, I lay emphasis that the High Court or the Court of Sessions should consider the merits of the case. With respect, K.J. Shetty, J., laid emphasis on the subsequent filing of the charge-sheet and the power for cancellation under Sections 437 and 439 of the Code. Unfortunately, the ratio in Parida’s and Bashir’s cases was not brought to the notice of the learned Judge, which was directly on the point and for the reasons stated I find it difficult to agree with the learned Judge in that respect. I am in full agreement with the view expressed by brother Ahmadi, J. and the order proposed by him.

http://indiankanoon.org/doc/862701/

Categories: Bail Judgement

HC: Divorce proceedings (adultry) after 498A, Bail rejected

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33460 of 2010

VINOD SHARMA

Versus

STATE OF BIHAR

———–

2 19.1.2011 Heard learned counsel for the parties. Torture for demand of dowry is the allegation. Petitioner is husband. submission is about being allegation false as there is no probability of making any demand after more than seven years of marriage that also after coming from Gulf country, may be some reality in the defence but that is followed by a divorce case, as submitted leveling allegation of adultery and not joining the attempt of Sessions Judge to reconcile the differences.

Hence, prayer for anticipatory bail on behalf of petitioner is rejected. AI ( Mandhata Singh, J.)

Categories: Bail Judgement

HC: 498A filed after Divorce on adultry ground, Bail granted

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.381 of 2011

AWADHESH KUMAR RAI @ Awadhesh Yadav, son of Sudarshan Rai, resident of village- Najarmira, P.S. Sonepur, Distt.-Saran

Versus

THE STATE OF BIHAR

———–

2. 19.01.2011 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State.

This is an application for grant of anticipatory bail in connection with Complaint Case no. 774 of 2010 for the offences punishable under Sections 498 (A), 379 of the Indian Penal Code. There is an allegation of the cruelty for non-fulfillment of demand of a motorcycle and Rs.50,000/- in cash. Learned counsel for the petitioner submits that prior to the institution of the case he has filed a petition for divorce on the ground of adultery. Having regard to the submissions made on behalf of the party and in the fact and circumstance of the case, the petitioner, above named, in the event of arrest/surrender in the court below within four weeks from the date of receipt/ production of a copy of this order, shall be enlarged on bail on furnishing bail bond of Rs. 10,000 (ten thousand) with two sureties of the like amount each to the satisfaction of the S.D.J.M., Chapra, Saran in connection with Complaint Case no. 774 of 2010 corresponding to Tr. No. 2794 of 2010, subject to the conditions that he will appear in case on each and every date any absence for the date fixed will be subject to the satisfaction of magistrate on reasonable ground and the lower court shall expedite the trial to be concluded at earliest on the day to day basis for early disposal.

( Gopal Prasad, J.)

Amit

Categories: Bail Judgement

HC: Additional sections added by trial court requires fresh bail

HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION

Dated Nainital the 29th April, 2011 1st Bail Application No. 284 of 2011 Order on the bail application of the accused.

Ram Singh Rana S/o Devendra Singh . Applicant Versus

State of Uttarakhand .. Opposite Party

In Case Crime No. 21 of 2010

U/S 302 I.P.C.

Police Station Dwarahat

Tehsil Dwarahat

District Almora

Hon’ble Tarun Agarwala, J.

Heard Mr. Rajendra Kotiyal, the learned counsel for the applicant and Shri S.S. Adhikari, the learned A.G.A. for the State. Counter affidavit filed is taken on record. The court had granted bail to the applicant by an order dated 29 March, 2011 in 1st th

Bail Application No. 68 of 2011 u/S 498-A and 304-B I.P.C. Before the applicant could be released, the trial court framed additional charge u/S 302 I.P.C. in addition to the Sections 498-A and 304-B I.P.C. due to which the bail could not be executed. Consequently, a fresh bail application has been filed. Counter affidavit has been filed. The bail granted earlier by the Court is admitted by the learned A.G.A. A perusal of the chargesheet indicates general allegations for demand of dowry not only against the applicant who is the husband of the deceased but also against the entire members of the family. The evidence which has come on record so far indicates that there was no demand of dowry. In the light of the aforesaid, without commenting anything further on the merit of the case, this Court is of the opinion that the applicant is entitled to be enlarged on bail. Let the applicant be enlarged on bail in Case Crime No. 21 of 2010, U/S 302 I.P.C., on his executing a personal bond and furnishing two sureties each of the like amount to the satisfaction of Magistrate concerned.

(Tarun Agarwala, J.)

Dated 29.04.2011

Shiv

Categories: Bail Judgement

Heavy misuse of 498A..Love marriage…Left house on own and then filed Rape, 498A, 324 etc

HC: Bail to father/mother-in-law in dowry death case can be refused in case of direct allegation & evidence of cruelty.

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

Criminal Misc. Bail Application No.12457 of 2006

Vijai Pal Singh and another . . . . . Vs. . . . . . . . . . . . . .State of U.P.
—-

Hon’ble R.K.Rastogi,J.

The applicants, Vijai Pal Singh and Smt. Vimala Devi have applied for bail in this case crime no. 404 of 2006 under sections 498-A, 304-B I.P. and ¾, Dowry Prohibition Act. of police station Katghar district Moradabad.

The prosecution case starts with a F.I.R. lodged by Satyendra Singh Yadav at police station Katghar district Moradabad at 4.05 P.M. It is stated therein that marriage of his daughter, Girish Kumari had taken place with Rakesh son of Vijai Pal Singh and Smt. Bimla Devi on 20.2.2002. Sufficient dowry was given in the marriage but the accused were demanding a Pulsar motor cycle and Rs.50,000/- cash. Two children were also born out of this wedlock, but the accused were demanding money and committing atrocities upon her. On 2.4.2006 at about 8.30 P.M. Smt.Girish Kumari made a phone call from a P.C.O. on mobile phone of Satyendra Singh that her life was in danger and so he should reach there immediately because her husband, father-in-law and mother-in-law were doing Marpit with her. Upon receipt of this information Satyendra Singh came to Moradabad. Upon inquiries neighbours told him that the accused after burning his daughter had taken her to get her admitted in the district hospital Moradabad, but when he went to the district hospital Moradabad he came to know that she has been referred to Delhi for treatment. He tried to establish contact on phone with the accused persons but no contact could be established and then he lodged this report at the police station Katghar against the accused persons on 3.4.2006 at 4.05 P.M.

Smt. Girish Kumari was admitted in Maulana Azad Medical College ( Lok Nayak Hospital), New Delhi. It is alleged that her dying declaration was recorded on 3.4.2006 at 10.45 A.M. and in that dying declaration she stated that a Chirag was burning in the worship room of the house and at about 9 P.M. her younger son was playing in that room and doing mischief, so she rushed to that place to protect him but her Saree caught fire and then her husband protected her. Her father-in-law and mother-in-law, who resided on upper storey of the house also rescued her. Her husband covered her body with a blanket. She was first taken to private hospital and then to that hospital.

Smt. Girish Kumari died on 8.4.2006 at 11.15 A.M. and then the charge under section 304-B, I.P.C. was added.

The applicants have alleged that they are innocent and have been falsely implicated in this case. Their learned counsel submitted that it is a case of accidental burn injuries as is apparent from dying declaration. It was further submitted that the applicants are father-in-law and mother-in-law of the deceased and so bail should be granted to them on the ground of their old age.

The learned A.G.A. has opposed the bail application. He submitted that it is a case of demand of dowry and of burning in connection with this demand. He has further submitted that the above dying declaration is completely a forged document. He made the following submission in support of this contention:
(1) According to medical examination report of Smt. Girish Kumari when she was brought to the district hospital Moradabad for her treatment, there was smell of kerosene-oil present upon her body. He submitted that if Smt. Girish Kumari caught fire from a small
Deepak in the room of worship, there could not come smell of kerosene oil from her body.

(2) According to the description of burn injuries present at the time of admission of Girish Kumari in Maulana Azad Medical College ( Lok Nayak Hospital ) New Delhi, that she had superficial to deep burn injuries on the face, both upper limbs 90-95%. He contended that a person whose upper limbs had 90 – 95% burn injuries could not be in a position to speak.

The learned counsel for the applicant has referred to the postmortem examination report of the deceased prepared on 9.4.2006, in which it has been stated that approximate area of burn injuries was 70% only and there was no smell of kerosene oil.

It was submitted by the learned counsel for the prosecution in reply that it is immaterial that on 9.4.2006 no smell of kerosene oil was found on the dead body because sufficient time had passed from the time of incident and so smell of kerosene oil would have been disappeared by that time. Moreover, it was contended that in the admission slip 90-95% burn injuries were shown upon upper limbs but it has been stated in the postmortem report that percentage of burn injuries on the entire body was 70%. He submitted that according to postmortem report there were infected superficial to deep ante mortem burning present all over the body except outer front of right thigh, front back of both legs, buttock and back of abdomen. He further submitted that the above description of burn injuries goes to show that almost upper portion of the deceased was totally burnt while lower portion was partly burnt and this fact goes to show that kerosene oil was poured upon the deceased from her head and that is why upper portion was burnt 90 to 95. He further contended that if accidental fire incident had taken place from a Deepak kept in the worship room, the burn injuries would have been on the lower portion of legs and not on the upper portion of the body of the deceased.

As regards the dying declaration the learned A.G.A. contended that a person whose upper limbs have been 90–95% burnt could never be in a position to give statement. But in the present case the deceased was admitted in the hospital at Delhi for treatment on 3.4.2006 at 9.15 A.M. and soon thereafter her dying declaration was recorded at 10.45 A.M. and after recording of this so called statement she never gained senses during the period of entire treatment at the hospital and all these circumstances go to show that this dying declaration was obtained in collusion with the doctor and the Magistrate.

The learned counsel for the applicant has submitted that even a lady having 90-95% burn injuries could give statement. He cited before me following rulings of the Hon’ble Supreme Court in support of his contentions:
(1) P.V.Radhakrishna Vs. State of Karnataka 2003 SCC (Crl.) 1679;
(2) Sree Vijaya Kumar and another Vs. State, by Inspector of Police, Kanya Kumari, 2005 SCC (Crl.)1896;
(3) Gaffar Badshah Pathan Vs. State of Maharashtra, 20043 SCC (Crl.) 2037;
(4) Sohan Lal Vs. State of Punjab, 2004 SCC (Crl.) 226;
(5) Muthu Kutty Vs. State of Tamilnadu, 2005 SCC (Crl.) 1202;
(6) Shanti and others Vs. State of Haryana, 2006 (1) SCC (Crl.) 557;

(7) Luxman Vs. State of Maharashtra, 2002 SCC(Crl.) 1491.

I have carefully gone through all these rulings. In P.V. Radhakrishna Vs. State of Karnataka (supra) it was held in para 16 that physical state or injuries do not by themselves become determinative of mental fitness of the declarant. In Sree Vijaya Kumar Vs. State (Supra) the deceased having 90% burn injuries had named the accused persons and it was believed holding that she had no motive to falsely implicate them and spare the real culprits. In Gaffar Badshah Pathan Vs. State ( Supra ) it has been held that where the dying declaration is in favour of the accused the burden lies on the prosecution to prove that it is concocted and forged. In Sohan Lal Vs. State ( Supra ) it was held that where there is nothing on record to suspect bona fides of the officers recording the dying declaration, there is no reason to discard it. In Muthu Kutti Vs.State ( Supra ) there were 90% burn injuries, but it was held that if the officer recording the statement was satisfied about the declarant’s mental condition, the dying declaration was reliable. In Shanti Vs. State (supra) it was held that where dying declaration is found to be absolutely coherent, cogent and inspiring confidence and there is nothing to discredit or disbelieve it, it is to be relied upon. In Luxman Vs. State ( supra ) it has been held that a dying declaration shall be valid even in the absence of the doctors certificate if the authority recording it was satisfied about mental condition of the declarant.

Let me now consider the applicability of the above rulings to the facts of the present case. It is true that a final verdict on the dying declaration can be recorded only after examining the doctor who certified the condition of the declarant and the Magistrate who recorded it. But at this stage there are the following circumstances which create doubt regarding its genuineness:

(1) Presence of smell of kerosene oil upon the body of the deceased which would not have been there if she had accidentally caught fire from a Diya in the worship room.
(2) In case of accidental fire from that small diya the deceased would have first received burn injuries on her lower limbs and so burn injuries would have been more dense on lower limbs than on upper limbs. In the present case, burn injuries are more dense on upper limbs than on lower limbs and the presence of kerosene oil on the body leads to conclusion that she was burnt after pouring kerosene oil upon her head.

(3) The deceased had 90 – 95% burn injuries on her upper limbs including her scalp, face, eyes, neck, chest, abdomen and it appears highly improbable that having so much burn injuries on her upper vital part of the body she could give a statement just after her admission in the hospital. It is noteworthy that this dying declaration was recorded before arrival of her parents in the hospital in their absence. She remained alive for six days thereafter in the hospital but she never regained senses to speak.

All these circumstances prima facie cast serious doubts regarding genuineness of the dying declaration. Hence, I am of the view that no benefit can be given to the accused at this stage of bail on the basis of this dying declaration.

It was further submitted that the husband of the deceased had also received burn injuries while rescuing his wife. He was also medically examined. A copy of his medical examination report has been filed as Annexure no. 6 to the affidavit in support of the bail application. It goes to show that he was medically examined on 8.2.2004 and superficial to deep injuries were found on the fingers of his right and left hand. The injuries were about ten days old. It is not clear as to why he had not got himself medically examined earlier.

The learned counsel for the applicants further submitted that the husband of the deceased has deposited money in the name of the deceased in Sahara India Ltd. and in the LIC policies he has made Smt. Girish Kumari as nominee and this goes to show that he had love and affection for her.

It was argued by the learned A.G.A. that after the death of Smt. Girish Kumari her husband was to get the entire amount of the aforesaid deposit and policy in case of death of Girish Kumari in his life time, so these documents do not have any effect upon the merits of the case.
The learned counsel for the applicants further submitted that the present applicants are father-in-law and mother-in-law of the deceased and there are general allegations against them , so taking into consideration their old age, bail should be granted to them.

In reply the learned A.G.A. has submitted that the applicants and were residing in the same house where the deceased was residing with her husband. They committed atrocities upon her. The deceased complained to her parents regarding demand of dowry and atrocities committed upon her The witness Govind Kumar Sharma has stated that about two months ago Girish Kumari had come to the house of her father at Noorpur and she was weeping stating that her in-laws had thrown her out of their house after beating her and atrocities were being committed upon her for not bringing Rs.50,000/- in cash and motor cycle and they had also snatched both the children from her, so the applicants should not be granted bail on the ground of being father-in-law and mother-in-law of the deceased.

Without expressing any opinion on the merits of the case but taking into consideration the facts and circumstances pointed out above, I am of the view that the applicants do not deserve to be bailed out.
The bail application is, therefore, rejected.
However, it is directed that the court below will try to conclude the trial of the case within six months from the date of receipt of certified copy of this order. In case the trial is not concluded within the said period for no fault of the applicants, then the applicants will be entitled to move fresh application for bail.

Dated:4.7.06.
RPP.

Categories: Bail Judgement

Husband asked bail. HC gave bail and also maintenance order

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6524 of 2011

SAJID HUSSAIN SON OF SUBHAN MIAN. —————– PETITIONER

Versus

THE STATE OF BIHAR

———–

2 28.03.2011 Heard learned counsels for the petitioner and the State.

The petitioner being the husband is apprehending his arrest in a complaint case in which cognizance has been taken under Sections 323, 380 and 498A of the Indian Penal Code.

Though, there are accusation of demand of dowry and torture, but, it is submitted that the complainant was divorced on 11.03.2005. Without expressing any opinion on the genuineness of the divorce document, which brought on record, as contained in Annexure-2, the petitioner is ready to pay Rs. 800/- per month to the complainant by second week of every month from May, 2011 by depositing the same in the account of the complainant. Let the petitioner serve the order of this Court to the complainant, when, the complainant will supply the account number. The aforesaid payment will 2

be subject to any order passed in matrimonial or maintenance proceedings.

Considering the aforesaid facts, let the above named petitioner, be released on anticipatory bail, in the event of his arrest or surrender before the learned Court below within a period of 12 weeks from today, on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate 1st Class, Saran at Chapra, in connection with Complaint Case No. 2735/2008, subject to the conditions as laid down under Section 438(2) Cr.P.C.

(Dinesh Kumar Singh, J.)

Amrendra/-

Categories: Bail Judgement

HC: 498A filed after 2 years of filing divorce by Husband: Bail granted

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30697 of 2010

RAM NATH THAKUR, Son of Rajendra Thakur, Resident of Village-Daudpur, P.S.-Paroo, District-Muzaffarpur Petitioner

Versus

1. THE STATE OF BIHAR

2. Sindhu Devi, Wife of Ram Nath Thakur, D/o Bachu Thakur, Resident of Village-Gopinathpur, Dokara, P.O.-Chakua, P.S.-Saraiya, District-Muzaffarpur. .Opp. Parties

———–

3/ 26.03.2011 Heard the parties. The petitioner apprehends his arrest in a criminal prosecution, under Sections 498(A), 406 and 494 of the Indian Penal Code as also 3/4 of Dowry Prohibition Act, based on complaint petition vide Annexure I.

It is submitted that as a matter of fact, in the year 2006 itself, the petitioner filed Matrimonial Case No. 146 of 2006 in the court of learned Principal Judge, Family Court, Muzaffarpur seeking divorce with the complainant. In that matrimonial case, opposite party no. 2 has entered appearance, and despite efforts made by the learned Principal Judge, the conciliation could not be arrived at between the parties. Thereafter, 2

the complainant filed the present complaint case in the year 2008 in retaliation making all baseless and false allegations against the petitioner. In view of the fact, the present complaint petition was filed after about two years from the date of filing of the matrimonial case and the conciliation proceeding has failed, in that background, in the event of his arrest or surrender within a period of four weeks from today, the above named petitioner is directed to be released on bail on furnishing bail bond of Rs.10,000/-(ten thousand) with two sureties of like amount each in connection with Complaint Case No. C-638 of 2008 to the satisfaction of learned Sub-Divisional Judicial Magistrate, Muzaffarpur (west), subject to the conditions laid down under section 438 (2) of the Cr.P.C.

( Birendra Prasad Verma, J.)

Anjani/

Categories: Bail Judgement

HC: Bail granted on condition of maintenence

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3864 of 2011

PRASHANT KUMAR

Versus

THE STATE OF BIHAR

———-

02. 04.03.2011 Petitioner being the husband is apprehending his arrest in a complaint case in which cognizance has been taken under Sections 498A of the I.P.C. and Section 3/4 of the Dowry Prohibition Act.

It is submitted by learned counsel for the petitioner that after receiving notices in the divorce case filed by the petitioner, the present complaint has been lodged by the complainant.

Learned counsel for the petitioner, on instructions, submits that petitioner is ready to pay Rs. 800/- per month to the complainant by depositing the said amount in the first week of every month from April, 2011 in the account of the complainant Considering the aforesaid facts, let the petitioner namely Prashant Kumar, in the event of his arrest or surrender before the Court below within a period of 12 weeks from today, be released on anticipatory bail on furnishing bail bond of Rs. 10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of Sub-Divisional Judicial Magistrate, Patna in connection with Complaint Case No. 529(C ) of 2010. -2-

The aforesaid amount will be subject to any order passed in any matrimonial or maintenance proceeding. Shageer (Dinesh Kumar Singh, J)

Categories: Bail Judgement

Hon’ble Dhingra rejects application to cancel Husband’s bail :)

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 27th January, 2011

Date of Order: February, 2011

+ Crl. MC No.3599 /2009

% 11.02.2011 Shabana …Petitioner Versus

Mohd. Irfan & Anr. …Respondents Counsels:

Mr. S.D. Ansari and Mr. G.D. Ahmed for petitioner.

Mr. Rajesh Kumar for respondent.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest? ORDER

1. This application under Section 439(2) read with Section 482 Cr.P.C has been preferred by the petitioner/complainant who is wife of the respondent no.1 for cancellation of bail granted by this Court vide order dated 6th September 2007. The husband/ respondent no.1 herein is involved in a case under Section 498A/406/34 IPC and he was granted anticipatory bail by this Court. The bail order shows that the parties had three children and out of three children, two children were with the husband, one of them was a handicapped child, while one child was with the wife/ complainant/ petitioner. It was also noted by this Court that all the dowry articles had been received by the complainant and she had executed an affidavit to that effect. This Court also directed that the husband who was working as an Assistant to a Homeopathic doctor and earning Rs.3500/- per month, shall continue to pay Rs.500/- to the wife. The Court granted Crl.MC 3599/2009 Page 1 Of 2 anticipatory bail to the respondent no.1 herein.

2. The cancellation of anticipatory bail is sought on the ground that she has learnt that the police has scraped charge under Section 406 IPC qua respondent no.1 and on the ground that respondent no.1 had misled the court that two of the children were with him and it was also wrongly represented that all dowry articles had been returned.

3. This petition for cancellation of bail seems to be a counterblast to the petition filed by the husband and other accused persons before this Court for quashing of FIR. This Court granted anticipatory bail to the husband/ respondent no.1 for cogent and just grounds. I find no ground to cancel the bail granted to respondent no.1. The contention raised by the counsel for the petitioner/wife that the husband misled the trial court has no force. The petition is hereby dismissed.

February 11, 2011 SHIV NARAYAN DHINGRA

Categories: Bail Judgement

Bail granted by Hon’ble Dhingra in 498A/302 case

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 31st January, 2011

Date of Order: 11th February, 2011

+ Bail Application No. 1646/2010

% 11.02.2011 Harinder Singh @ Tinu … Petitioner Through: Ms. Sunita Kapil, Advocate with

Mr. Ankur Sharma, Advocate

Versus

The State (Govt. of NCT of Delhi) … Respondent Through: Mr. Sunil Sharma, APP for the State with

Mr. G.S.Sharma, SI PS Rajinder Singh

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

This application for bail has been made on behalf of Harinder @ Tinu who is brother of husband of deceased and has been booked under Section 302 IPC read with Section 34 and Section 498A IPC on the basis of statement made by the injured, who died later on, to SDM. Relevant portion of statement of injured/deceased is reproduced hereunder: “I was married to Navinder Singh in 1999. I have a son 08 years old, whose name is Harshman Singh. On ground floor my father-in-law, mother-in-law and devar (brother-in-law) lived while we lived on first floor, second floor was lying vacant and on third floor my jeth (brother-in-law) and jethani (sister-in- law) were living. My father-in-law and mother-in-law used to tell me that I Bail Application No.1646/2010 Page 1 of 4 should go away from home. My husband used to beat me. My husband was not harassing me for dowry. Sometimes he used to talk to parents for share in the property. At 11-11.30 pm. my father-in-law Iqbal put me on fire and my devar Harender Singh poured kerosene oil on me. My husband tried to save me by putting a bed-sheet on me. My son Harshman Singh and my husband Navinder Singh brought me to Ganga Ram Hospital.”

2. It is submitted by Counsel for the petitioner that Investigating Agency deliberately did not produce certain vital documents before the trial Court at the time of submitting charge-sheet. These vital documents include the treatment record of injured/deceased at Ganga Ram Hospital and the history given by her to the doctor at Safdarjung Hospital when she was shifted from Ganga Ram Hospital to Safdarjung Hospital. The applicant procured these documents under “Right to Information Act” and produced before the trial Court for Investigating Agency to admit the documents. These documents were not denied by the Investigating Agency. It is submitted by Counsel for the applicant that the real dispute was over division of proceeds of a shop sold by the father and deceased was angry as to why share out of proceeds was not given to her husband also and in fit of anger she burnt herself at first floor of her house where she was living separately with her husband and son. There was no issue of dowry at all. The parties were having separate business. There is no allegation of any quarrel which would have resulted into a kind of act as alleged against the father-in-law and brother-in-law. He submitted that father-in-law and brother-in-law were deliberately involved by the deceased by making the statement as father-in- law had not given share in the proceeds of shop sold by him, to the husband Bail Application No.1646/2010 Page 2 of 4 of the deceased and the share was given to brother-in-law and that is the reason she exonerated her husband.

3. The statement given by the deceased to SDM looks a little strange. She stated that she was put on fire by her father-in-law and brother- in-law and her husband put bed-sheet to extinguish the fire. Her son was also living in the same house that shows that the fire was put in presence of son and her husband and none of them made an attempt to prevent father-in-law or brother-in-law of the deceased from committing the act. If she was true and fire was put in presence of her son and her husband an attempt would have been made by husband to prevent the incident and some kerosene oil would have fallen on him. Her statement shows dowry was not an issue. The deceased was taken to Ganga Ram Hospital immediately by her husband and son. It is specifically recorded by doctors at Ganga Ram Hospital that she was conscious, oriented, pulse rate was 102/minute. She gave history to doctor at Safdarjung Hospital. The history of the patient recorded on 24th August, 2008 at Safdarjung Hospital shows that she had put herself on fire. In Safdarjung Hospital also it is recorded that patient was conscious and oriented.

4. PW-1 is the son of the deceased and his testimony has already been recorded. He has testified before the trial Court that on the night intervening 23rd/24th August, 2008, he along with his father had gone to the shop of his father’s friend in Metro, at District Center, Janakpuri, where he had a burger from McDonald and other eatables. They came back to their house at 11/11.30 p.m. and the door of the house was opened by his mother. His mother had dinner with dal brought by them. He went to bed at about 12 night Bail Application No.1646/2010 Page 3 of 4 with his father and were watching TV in the bed room. His mother was consuming some liquid while sitting on the bed side. She then went out of the room. After a short while they felt burning smell and they both went out of the room. His mother went inside kitchen and when she came out her shirt was on fire. His father took a bed sheet to put out the fire and asked her to lie down on the floor. Thereafter his mother did lie down and his father put a mattress on her and thereafter the fire was put off. His mother then complained of irritation by burning and she put water on her by a pipe. His father went out immediately to take out car. In the meantime, his mother was taking rounds in the drawing room and was also saying “God save me I have committed a mistake”.

5. The mother of the deceased had also deposed in the Court and her examination and cross examination would show that the temperament of the deceased was quite volatile. There was a dispute going on in the family about distribution of money received from sale of shop.

6. Considering these facts, I consider that it is a fit case for grant of bail. The application is allowed. It is directed that the applicant be released on bail on his executing personal bond to the tune of ` 50,000/- with one surety of the like amount to the satisfaction of the trial Court concerned. Dasti.

February 11, 2011 SHIV NARAYAN DHINGRA, J. vn

Categories: Bail Judgement

Sessions Judge tried to patch up the dispute: Husband refused!!

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.171 of 2011

PRADIP SAH

Versus

THE STATE OF BIHAR

———–

2 02.02.2011 Heard learned counsel for the petitioner as well as learned counsel for the state.

The petitioner seeks his bail in connection with Complaint Case No. 763C of 2007 for the offences punishable under section-498A of the IPC and section-4 of Dowry Prohibition Act.

It would appear from perusal of the record that earlier the petitioner was granted privilege of anticipatory bail for the period of six months vide order dated 01.12.2009 passed in Cr. Misc. No. 25943 of 2009 with a direction to him to surrender before the court below within four weeks from the date of aforesaid order and furthermore, the learned court below was directed to consider the regular bail of the petitioner in the light of subsequent developments and attitude of the parties. It would appear that the petitioner did not appear before the learned court below within the stipulated period and subsequently, he surrendered and remanded in the case. Furthermore, it would appear from the order of learned Sessions Judge that when the learned Sessions Judge tried to patch up the dispute of the petitioner and complainant, the petitioner refused to enter into compromise with the -2-

complainant.

The submission of Learned counsel for the petitioner is that when the petitioner has already been remanded in this case, the question of compromise does not arise. Considering the aforesaid facts and circumstances of the case as well as period of detention in jail custody, the petitioner, namely, Pradip Sah is directed to be released on bail on furnishing bail bond of Rs 10,000/- (ten thousand) with two sureties of the like amount each in connection with Complaint Case No. 763C of 2007 to the satisfaction of Sub Divisional Judicial Magistrate, Khagaria.

AKV/- (Hemant Kumar Srivastava,J.)

Categories: Bail Judgement

Patna HC: Bail granted on condition that husband will keep wife happy as per Domestic Violence Act

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.44295 of 2010

PUSHPLATA DEVI, w/o. Anmol Saw @ Anmol Prasad Gupta @ Karu, D/o. Jai Prakash Sah, resident of village Kaithma, P.S. Sirari, District Sheikhpura, at present resident of Chewra, P.S. Chewra, District Sheikhpura. …………… Petitioner. Versus

1. THE STATE OF BIHAR.

2. Anmol Saw @ Anmol Prasad Gupta @ Karu, S/o. Rameshwar Prasad Saw, Residence of village Kaithma, P.S. Sirari, District Sheikhpura. ………. Opp. Parties.

———–

02/ 16.12.2010 The bail was granted to O.P. No. 2 vide order

dated 14.07.2010 passed in Cr. Misc. No. 29594 of 2009 with

a condition that the petitioner shall keep his wife with due

dignity and preserving her right of residence and right of

maintenance according to the Domestic Violence Act, 2005.

Learned counsel for the petitioner submits that the

said condition has been violated by O.P. No. 2 and hence the

bail granted to him may be cancelled.

Considering the facts and circumstances of the

case, petitioner is directed to file a petition to this effect

before the court below and the court below if finds that the

conditions is violated by O.P. No. 2 then pass appropriate

order.

This application is, accordingly, disposed of.

Kundan (Gopal Prasad, J.)

Justice Dhingra: Good judgement : Cancelled bail of a fraud Builder

Crl.M.C.No. 3022/2009 Page 1 of 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: July 12, 2010 Date of Order: 13th August, 2010 + Crl.M.C.No. 3022/2009 & Crl.M.A.No. 5184-5185/2010 % 13.08.2010 Dr. Raman Kumar Juneja … Petitioner Through: Mr. S.S.Gandhi, Sr. Advocate with Mr. Prag Chawla, Advocate Versus State (NCT of Delhi) … Respondent Through: Mr. V.K.Aggarwal, Advocate & Mr. Chand Zafar, Advocate for the Complainant JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporter or not? Yes. 3. Whether judgment should be reported in Digest? Yes. JUDGMENT By present petition under Section 482 Cr.P.C. the petitioner has assailed order dated 26th August, 2009 passed by the learned Additional Sessions Judge whereby he allowed an application of the respondent for cancellation of bail of the petitioner and set aside the bail order dated 18th February, 2009 passed by the learned Metropolitan Magistrate.
2. It is submitted that the cancellation of bail of an accused can be done by a Court only if there were supervening circumstances which render grant of bail no longer conducive to a fair trial. The law cited by the petitioner regarding cancellation of bail was ignored by the learned Session Judge. It was not a case where petitioner had attempted to interfere with the course of administration of justice or had abused the concession of bail granted by the learned Metropolitan
Crl.M.C.No. 3022/2009 Page 2 of 8
Magistrate. There was no cogent and valid reason available for cancellation of bail and the learned ASJ did not pass the order for just and cogent reasons.
3. Brief facts relevant for the purpose of deciding this petition are that the petitioner claimed to be owner of property No. 20/2 Rajpur Road, Civil Lines along with ownership rights of passage. Petitioner entered into an Agreement dated 18th January, 2008 to sell this property for a sum of Rs.6.75 crore and received around Rs.80 lac at the time of signing agreement; Rs.20 lac was received in cash Rs.60 lac was received through cheque. However, a dispute arose soon after signing of agreement between petitioner and respondent about the extent of property sold, and the respondent stopped payment of the cheque. Thereafter a fresh agreement was signed between the parties on 7th July, 2008. The only difference between agreement between 18th January, 2008 and 7th July, 2008 was that while in 18th January, 2008 agreement the petitioner had given to the respondent only easementary rights over passage from Rajpur Road to the property and no right of ownership over the land underneath passage was given however, in the agreement dated 7th July, 2008, it was specifically mentioned that the respondent will have ownership rights over the passage starting from main Rajpur Road to Kailash Building. The copies of the two agreements are on record showing this difference. After signing of the second agreement dated 7th July, 2008, the petitioner received a sum of Rs.1.5 crore from the complainant and balance consideration was to be received at the time of execution of the documents. The complainant later on found that the petitioner had misrepresented about his title over the passage in order to induce the respondent to part with huge amount of Rs.1.5 crore with a mala fide intention. The contention of the complainant was that the petitioner first kept on postponing the execution of sale deed. He did not show title documents in respect of title over
Crl.M.C.No. 3022/2009 Page 3 of 8
the passage from main road to Kailash Building and represented that he shall hand over the title documents at the time of receiving balance payment and execution of the sale deed. According to complainant, though the complainant was ready with the balance payment, the petitioner showed inability to execute the sale deed and to hand over the possession by due date of 18th August, 2008 and thereafter date was extended to 15th September, 2008 then to 16th October, 2008. The petitioner also failed to provide sanctioned building plan, “C” and “D” forms, completion certificate and complete set of documents. It was alleged that petitioner did not provide documents nor came forward to execute the sale deed in terms of the agreement dated 7th July, 2008. It came to the knowledge of the complainant that petitioner was not the owner of the entire property as stated in agreement dated 7th July, 2008 and the passage was not under ownership of the petitioner. Further, it also transpired that there was unauthorized construction and dispute between petitioner and municipal authorities was going on and with the result that the property was sealed. It is stated that despite petitioner not having marketable title over the property, the petitioner induced respondent to part with huge amount of money. However, after the petitioner failed to execute sale deed, the complainant met Mr. Anish Gupta, property dealer along with one Mr. Bipin Jain and requested for refund of money paid by him to petitioner. It was assured that the money shall be got refunded from the petitioner within 15 days but petitioner refused to return the money paid to him and told that the entire amount of Rs.1.5 crore had been forfeited.
4. The petitioner had applied for anticipatory bail which was rejected by the Sessions Court and also by this Court. Thereafter, the petitioner surrendered before the Court of MM and the learned MM granted bail to the petitioner observing that both the agreements were for the same consideration
Crl.M.C.No. 3022/2009 Page 4 of 8
and no extra payment was stipulated for the additional stipulation made in the agreement dated 7th July, 2008 for selling extra common passage. No cheating was alleged in respect of agreement dated 18th January, 2008. The accused was not a prior convict and looking at his age the learned MM directed the accused to be released on bail of Rs.50,000/- subject to condition that accused shall not leave the territory of India without permission and will surrender his passport and shall not commit a similar offence nor shall threaten or induce the witnesses. This order of the learned MM was assailed by the respondent on the ground that the learned MM had not taken into consideration the substantial facts while granting bail and it was not a fit case for grant of bail. Looking into the fact that the accused/petitioner was involved in cheating of a huge amount and had refused to refund Rs.1.5 crore even on his failure to show title, learned Sessions Judge came to the conclusion that prima facie it was a serious case of deliberately inducing the complainant to part with this amount by making false representation about ownership of the passage from main Rajpur Road to Kailash Building. The learned ASJ observed that the petitioner had admittedly received Rs.1.5 crore from the complainant and in case the agreement did not materialize, the petitioner was entitled to forfeit only the earnest money of Rs.20 lac and he was required to return sum of Rs.1.30 crore, which he deliberately did not return. So the Court of learned ASJ observed that in this case from the facts it can be gathered that the intention of the petitioner was mala fide from the very beginning and he had no intention to honour the agreement. The learned ASJ also found that in this cheating the petitioner had main role. He (petitioner herein) was the beneficiary of Rs.1.5 crore. The co-accused who was granted bail was not the beneficiary of any amount therefore, grant of bail to co-accused could not have been a reason to allow bail to petitioner on the ground of parity. The Court of Sessions found that the learned MM had not considered the matter
Crl.M.C.No. 3022/2009 Page 5 of 8
in proper prospects, did not pay heed to the difference between the two agreements, executed by the petitioner and inducement given, by making specific averment of ownership over the passage and agreeing to sell the passage on which he had no right. It further observed that a person who had duped complainant of Rs.1.5 crore cannot be treated alike to the person who had not received any benefit. The learned ASJ by a speaking order of 33 pages cancelled the bail of the accused. 5. It is contended by the Counsel for the petitioner that the learned ASJ had not taken into account the fact that cancellation of bail already granted must be considered and dealt with on different fottings and the bail could be cancelled only if there were supervening circumstances showing that it was not conducive to a fair trial to allow an accused to remain on bail or the freedom granted to the accused by way of bail was being misused. Reliance was placed on Dolat Ram & Ors. v. State of Haryana (1995) 1 SCC 349 & Ramcharan v State of M.P. (2004) 13 SCC 617. It was submitted that even if two views were possible, once the bail was granted it should not be cancelled. The respondent on the other hand relied on Dinesh M.N. (SP) v. State of Gujarat (2008) 5 SCC 66 wherein Supreme Court had observed that while cancelling the bail, the Court can consider whether the irrelevant material was taken into consideration by the Court granting bail. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal & Anr. (2009) 1 SCC 678 Supreme Court observed as under:
12. It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While
Crl.M.C.No. 3022/2009 Page 6 of 8
granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary. 6. In Satish Jaggi v. State of Chhattisgarh & Ors. (2007) 11 SCC 195, Supreme Court had observed that while granting or non-granting of bail in non-bailable offences, the primary consideration should be nature and gravity of offence and question of credibility and reliability of the witnesses cannot be gone into. In Subodh Kr. Yadav v. State of Bihar & Anr. Criminal Appeal No. 1234/09 (MANU/SC/1207/2009) decided by the Apex Court on 15th July, 2009, Supreme Court again reiterated that where a Magistrate goes wrong and grants bail and acts in an arbitrary manner/oblique motive the Sessions Court was justified in setting aside the bail. The Apex Court observed that the powers of the Superior Court were not restricted in cancellation of bail in appropriate cases where the bail has not been granted on merits.
7. I consider that in the present case, the argument of the petitioner that the learned ASJ did not consider the law as laid down by Supreme Court was baseless. Even on facts, I find that the petitioner‟s conduct from the very beginning had been to swallow the money. Initially, when the dispute arose between petitioner and respondent about extent of property, the petitioner could have told the complainant that he was not the owner of the passage and he could not sell the passage and respondent was free to back out from the agreement. By that time, the respondent had paid only a small amount of Rs.20 lac cash to the petitioner and the complainant would have decided whether to go by deal or not. However, the petitioner fully knowing that he was not the owner of the passage, (as is seen from the gift deed and Will; copies of which have been placed on record by the petitioner), deliberately induced the complainant to enter into second agreement wherein he mentioned that he would transfer the
Crl.M.C.No. 3022/2009 Page 7 of 8
ownership rights over the passage and after entering into this agreement the petitioner received substantial amount of Rs.1.3 crore more from the complainant. Since he was not owner of the passage, he could not have transferred the passage. He had only easementary right over the passage as was written in the first agreement dated 18th January, 2008. The sole purpose of the petitioner making false statement in second agreement was to lure complainant to part with Rs.1.5 crore and then show volte face. However, the learned MM granted bail to the petitioner on the basis of first agreement between the parties without taking into account the fact that it was the second agreement after execution of which, the petitioner had received huge amount from the complainant wherein a false representation that petitioner being owner of the passage, was made. The petitioner had not shown his title 7th July, 2008 to the complainant. Had the petitioner shown title deeds, the complainant would not have entered into the second agreement and would not have parted with the money. It is obvious that prima facie the intention of the petitioner was to play fraud and to cheat the respondent of huge amount. This fact is further fortified when petitioner refused to return the amount. The learned MM did not take these facts into consideration while granting bail. The learned Sessions Judge was therefore within its jurisdiction to cancel the bail as Learned MM had failed to consider merits while passing bail order and gave casual treatment to the matter and considered irrelevant material.
8. I consider that where a person who has admittedly received huge amounts from the complainant on misrepresentation and who refused to return this amount despite his misrepresentation having come to light, such a person is not entitled for bail. His bona fides and intentions are to be doubted and the Court must remain alive to the situation that these days „cheating‟ has become a
Crl.M.C.No. 3022/2009 Page 8 of 8
profession. Builders often make false promises about the land and about the buildings and induce people to invest money in colonies, which exist only on papers when in fact they do not have land or permission to set up colonies. This menace of cheating is increasing day by day and Courts cannot take a casual approach towards those, who admittedly had received huge amount but are not prepared to refund. I, therefore find no infirmity in the order passed by the learned ASJ cancelling the bail of the petitioner. The petition is hereby dismissed. August 13, 2010 SHIV NARAYAN DHINGRA, J. vn

Categories: Bail Judgement

Self inflicted injuries

      IN THE HIGH COURT OF DELHI AT NEW DELHI
  
   21.06.2010
  
  
  
  Present: Mr. Yogesh Swroop, Advocate for the petitioner.
  Mr. Jaideep Malik, APP for the State.
  
   Bail Application No.1107/2010
  This application has been moved on behalf of the petitioner for
  grant of anticipatory bail.
  On the last date of hearing, the applicant had told the court
  that he can show that the injuries on the person of his wife were self-inflicted
  injuries by inflicting the same kind of injuries on his own person. Now, he
  states that the applicant was afraid that he may incur some infection and the
  applicant can otherwise convince the court that these injuries were self-
  inflicted.
  The injuries as shown in MLC of the wife do not seem to be self-
  inflicted injuries. I do not think it is a case for grant of anticipatory bail.
  The application is dismissed.
  Dasti.
  
  
  
 
 SHIV NARAYAN DHINGRA
  
  [VACATION JUDGE]
  JUNE 21, 2010
 
Categories: Bail Judgement