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CASE NO.: Appeal (civil)  2003 of 2008

PETITIONER: Vimalben Ajitbhai Patel

RESPONDENT: Vatslabeen Ashokbhai Patel and others

DATE OF JUDGMENT: 14/03/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: JUDGMENT

CIVIL APPEAL NO 2003 OF 2008 [Arising out of  SLP (Civil) No. 1061 of 2007] WITH CRIMINAL APPEAL NO.  502 OF 2008 [Arising out of  SLP (Crl.) No. 213 of 2007]

Ajitbhai Revandas Patel and another                             \005 Appellant                         Versus State of Gujarat and another                                    \005 Respondents

S.B. SINHA, J :          1.      Leave granted in both the matters.

2.      These two appeals being inter related were taken up together for  hearing and are being disposed of by the common judgment.

3.      Vimlaben Ajitbhai Patel (Appellant in Civil Appeal is the mother in  law of Sonalben Rameshchandra Desai - respondent No.3 in Civil Appeal  and respondent No.2 in Criminal Appeal) while she alongwith her husband  are the appellants in the Criminal Appeal.  For the purpose of disposal of  these appeals, Vimalben Ajitbhai Patel is being described as Appellant No.1  while her husband Ajitbhai Revandas Patel is being described as Appellant  No.2.  

4.      Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel  (son of the appellants) on 4th May, 1992.  The couple fell apart.  In 1993 a  complaint petition was filed by the 3rd respondent against her husband and  the appellants alleging commission of an offence under Sections 406 and  114 of the Indian Penal Code.  In the said complaint the 3rd respondent  accepted that her husband had incurred huge losses in the business in United  States.  Appellants were granted bail subject to the condition that they would  not leave India without prior permission of the Court.  Allegedly on the  premise that Appellant No.2 requires medical treatment, an application for  permission was filed in October 1997 but they left India without obtaining  the same from the Court.   

5.      An application was filed for cancellation of the bail which was  rejected by the Metropolitan Magistrate as also by the Sessions Judge.  The  3rd respondent filed an application before the High Court being Special  Criminal Application NO.1360 of 1997.  The said application was allowed  by the High Court by its order dated 18th November, 1997 cancelling the bail  of the appellants.   The learned Metropolitan Magistrate was directed to

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issue Standing Warrant of arrest against the appellants as and when they  returned to India.   

6.      On an application filed by the 3rd respondent on 24th April, 1998 the  husband of the appellant was declared an absconder and a public  proclamation was issued in terms of Section 82(2) of the Code of Criminal  Procedure attaching her properties if she did not present before the Learned  Magistrate within 30 days from the issuance of the said publication. There is  nothing on record to show that the said order was served on the appellants.   It, however, is not disputed that on their failure to remain present within a  period of 30 days their properties were subjected to order of attachment  under Section 85 of the Code of Criminal Procedure.  By an order dated 5th  January, 2004 the District Magistrate was asked by the Leaned Metropolitan  Magistrate to take further action in terms of Section 85 of the Code of  Criminal Procedure by holding a public auction of the said properties.  In the  said order it was wrongly sated that the properties belonged to the appellants  and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was  the owner thereof.   

7.      The 1st Respondent (tenant) and the subsequent auction purchaser  filed an application before the High Court of Gujarat which was marked as  Special Civil Application No.15377 of 2004 against the Mamlatder.  A  learned Judge of the High Court by an order dated 5th April, 2005 directed :-         "8. In  view  of the above, I am inclined to pass the   following order:        8.1)    Rule.   By  interim order it is directed that the  Mamlatdar - Respondent No.1  shall  proceed  with the   auction  of  the  premises  in  question  on   condition that the  auction  which  may  be held                shall be subject to the further condition that -         

i)      the possession of the premises  shall  be  handed   over  by  the  Mamlatdar  to  the auction purchaser,  after  the  conclusion of the proceedings as ordered  hereinafter  by   the   ULC   Authority   against  the                       petitioner as well as respondent No.3;

ii)      after the auction, it would  be  open  to  the   Mamlatdar  to notify the said aspect regarding  the  transfer effected by  auction in the conspicuous  part of the premises and such an intimation may   also be   given   to   the   concerned   local                      authority;

iii)    it is further directed that the Mamlatdar -   Respondent  No.1  herein  shall   make reference   to  competent  Authority under  ULC Act to   examine  the  aspects  as  to whether   the    transaction  between  the absconder and  Respondent No.3 can be said in breach  of  the   condition  of  Scheme under  Section  21  of the  ULC Act and he shall also make reference on the   aspects  to  the competent authority under ULC  Act as to whether the action of the absconder  and    subsequently    rectification by respondent No.3 to  give the possession of  the  petitioner  as tenant can  be said in breach of the conditions  of  the  Scheme  under  Section  21  on the basis of which the  premises came to be allotted  to  the                       absconder \026 original allottee.  Such reference shall  be made within  a  period  of two weeks from  today and the Mamlatdar shall  request the  concerned authority to decide the reference within

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a  period  of  three  months from the date of receipt  of  the reference.  In the event it is  found by  the  competent authority under ULC Act                       that the action of absconder of  entering into  transaction with respondent No.3 and for  handing   over  the possession  to the petitioner  as  unlawful,   the  Mamlatdar shall be at liberty to take  possession of  the   premises   in   question  from   the petitioner  and   thereafter   he   shall further   be  at   liberty to hand over the vacant possession  of the premises to the auction purchaser.  

iv)     It is further  directed  that  until  the                        aforesaid   reference   is  made  and  is                        decided by the Mamlatdar, the  petitioner                        shall  deposit  the amount at the rate of                        Rs.1,500/= per month with  the  Mamlatdar                       without  prejudice  to the proceedings of                        the reference and the said  amount  shall                        remain  as  deposited with the Mamlatdar.   In the  event it is found by the competent authority under  ULC Act as an outcome  of the  reference  and  the  inquiry that the possession is unlawful of the   petitioner and  the transaction  is unlawful of the  absconder  with   respondent   No.2,   the   Mamlatdar  shall  be at liberty to refund the  amount.  However, in the event it  is                        found  that  the possession is lawful and                        there is no breach of  the  condition  of                        allotment as per the scheme under Section                        21 of the ULC Act, the Mamlatdar shall be                        at  liberty  to appropriate the amount in                        accordance with  law."       v)      The aforesaid exercise of holding auction                        shall be completed  within  a  period  of                        five weeks from today.             9.     The report of the proceedings and the outcome  of        the reference shall also be made by the Mamlatdar to this        Court."  

8.      However, the appellant and her husband were not made parties  therein.  Against the said order, an LPA, which was marked as LPA NO.  1792 of 2005, was filed by the 1st respondent and a Division Bench of the  High Court directed that the amount of rent deposited by him with the  Mamlatder be deposited in the High Court and the 3rd respondent will be  permitted to withdraw the same without prejudice to the rights and  contentions of the parties.  The said order was passed, purported to be on the  premise, that the 3rd respondent had placed reliance on an order dated 13th  May, 2005 passed by another Bench of the High Court in First Appeal No.  2626 of 2004 whereby her husband was directed to deposit a sum of  Rs.10,000/- per month towards arrears of maintenance and to continue to  deposit the same.

9.      By an order dated 25th January, 2006 the 1st respondent was asked to  deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the  said property) apart from a sum of Rs.10,000/- per month which was to be  deposited with the Registrar by him from 10th February, 2006.  It was  furthermore directed :- "6.2    The withdrawal of Rs.10,000/- by respondent No.  2-Sonalben Rameshchandra Desai shall be adjusted  against any amount which may be payable to her by

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Jitendra Ajitbhai Patel under any orders in First Appeal  No. 2626 of 2004, in any other matrimonial proceedings  or in any civil or criminal case between her, her husband  and her mother in law."

10.     Appellant No.1 made an application to get herself impleaded as a  party  but her application was dismissed by the High Court on 11.9.2006.   On or about 21st November, 2006 the High Court directed the first  respondent to pay a sum of Rs.17 lakhs to respondent No.3 in regard to the  auction sale of the property in question.  Respondent No.2, Mamlatdar, was  also directed to execute the deed of conveyance and register the same in the  name of the 1st respondent upon full payment.   

11.     Appellant and her husband returned to India.  They filed an  application for cancellation of the said Standing Warrants.  By an order  dated 27th June, 2006 the said application was allowed directing :-

"Application is granted and warrant against both the  applicant accused are ordered to be cancelled with a fine  of Rs.3,000/- (Rupees three thousand only) each and with  condition to submit one new surety of Rs.10,000/- (Ten  thousand) and on executing the bond of such like  amount.                                         CONDITIONS

1.      Accused shall not leave India, without prior permission of  the court.

2.      Accused shall surrender his passport before the court." 12.     Indisputably pursuant to the said order the Passports were deposited  on 28th June, 2006 by them.   

13.     The 3rd respondent filed an application for setting aside the said order  by filing a Criminal Miscellaneous Application before the Sessions Judge,  Ahmedabad inter alia contending that the Passports had not been deposited  by the accused pursuant to the said order of 27th June, 2006.  The learned  Additional Sessions Judge set aside the said order dated 27th June, 2006 and  non-bailable warrants were directed to be issued against the appellants  herein.   Aggrieved thereby she filed Criminal Misc. Application No. 14340  of 2006 before the High Court on 13th December, 2006 which by reason by  of the impugned judgment and order dated 27th December, 2006 has been  dismissed.            14.     The questions which arise for consideration are :-  

(i)     Whether in the facts and circumstances of the case, the  property of Appellant No.1 could have been sold in auction?  and  (ii)    Whether in a case of this nature, the bail granted to the  appellants should have been directed to be cancelled?       15.     Submissions of learned counsel appearing on behalf of the appellants  are :

i)      Having regard to the provisions of the Hindu Adoptions and  Maintenance Act, 1956 duty to maintain a wife being on the  husband and not on her mother-in-law, the impugned judgments  are wholly unsustainable; ii)     The property of a person who is no longer absconding, cannot  be subjected to continuous attachment or sale thereof.   iii)    Appellants having surrendered their Passports and having been  attending the Court subsequently, the High Court committed a  manifest error in directing cancellation of their bail without  appreciating that the factors relevant for interfering with the  order granting bail and directing cancellation of bail are distinct

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and different.   

16.     Submissions of Mr. Mayur Shah, learned counsel appearing on behalf  of the 3rd respondent, are  :-

i)      That her husband being the only son of his parents and the  properties having been acquired through ancestral funds and there  being no assertion that the properties are self acquired properties,  she has a right of maintenance out of the Joint Family Property in  terms of Section 18 of the Hindu Adoption and Maintenance Act.  ii)     In terms of Section 84 of the Code of Criminal Procedure, keeping  in view the fact that her husband had been directed to pay  maintenance @ Rs.10,000/- per month and which having not been  paid, respondent No.3 could have prayed for realization of the said  amount of maintenance from the sale proceeds of the auction sale.   iii)    Even an offer was made that one residential property would be  transferred in her name, apparently goes to show that the properties  are Joint Family Properties.  She, having been denied her right of  maintenance, could initiate the proceeding before the Metropolitan  Magistrate as also before the High Court.   iv)     The Metropolitan Magistrate committed a serious error in granting  bail upon cancellation of Standing Warrants as appellants have  breached the conditions for grant of bail.  They had, although  placed a large number of documents and in particular medical  certificates to show that they were ill, there is nothing on record to  show that they were bed ridden and not permitted to move out.   v)      Their near relatives in India would be deemed to have knowledge  of the pendency of the said proceeding and in that view of he  matter neither under the guise of the medical certificates nor on the  ground of age, they deserve any sympathy of the Court.   

17.     Mr. Nikhil Goel, learned counsel appearing on behalf of the 1st  respondent (Auction Purchaser) would submit :

i)      The tenant has a right to reside in the property irrespective of the  order of attachment and the same could not have been interfered  with by Mamlatdar under the orders of the Learned Metropolitan  Magistrate of the District Magistrate.  ii)     The 1st respondent had deposited a sum of Rs.10,000/- (Rupees ten  thousand only) each month for a period of ten months which have  been withdrawn by the 3rd respondent.  Out of the total auction  amount of Rs.17 lakhs, the 1st respondent had deposited Rs. 4 lakhs  which has been invested in a short term deposit, besides a sum of  Rs.1 lakhs.  He has also deposited a further sum of Rs.12 lakhs  which sum have, however, since been refunded.  The learned  counsel would contend that in this view of the matter the amount  deposited by him should be directed to be refunded with interest.   

18.     Sonalben Rameshchandra Desai is an Advocate.  She filed a large  number of cases against her husband and in-laws.  She initially filed a  Complaint Petition before the Metropolitan Magistrate, Ahmedabad, under  Section 498A of the Indian Penal Code which was registered as Case  No.1662 of 1996.  It was transferred to the Court of Chief Judicial  Magistrate, Baroda.  It has since been dismissed for default.  She initiated  another criminal proceeding against the appellants and their family members  under Sections 323, 452, 427, 504, 506 and 114 of the Indian Penal Code,  the same proceeding has also been dismissed as withdrawn.  Another  criminal case was initiated by her against appellant No.2, his son and  another, being Case No.47 of 1996 under Section 406, 420, 468 and 114 of  the Indian Penal Code, which is still pending.  Another case, being No.2338  of 2006 was filed by her under Section 500 of the Indian Penal Code.   Another case under Section 406 of the Indian Penal Code being Case  No.2145 of 1993 was filed against the appellants.    

19.     Before embarking on the questions of law which arise our

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consideration, we may notice some statutory provisions.   

20.     The matter relating to grant of maintenance are now governed by the  provisions of Hindu Adoptions and Maintenance Act, 1956.  Sections 3 (b),  18 and 19 of the said Act read as under :- "3. (b) "Maintenance" includes-  (i)in all cases, provision for food, clothing, residence,  education and medical attendance and treatment;

Section 18 - Maintenance of wife  

(1) Subject to the provisions of this section, a Hindu  wife, whether married before or after the commencement  of this Act, shall be entitled to be maintained by her  husband during her life time.

       Sub-section (2) of Section 18 thereof, however, lays down certain  exceptions therefor.            Sub-section  (3) of Section 18 reads :-

"(3) A Hindu wife shall not be entitled to separate  residence and maintenance from her husband if she is  unchaste or ceases to be a Hindu by conversion to  another religion."

Section 19 - Maintenance of widowed daughter-in-law  (1) A Hindu wife, whether married before or after the  commencement of this Act, shall be entitled to be  maintained after the death of her husband by her father- in-law: Provided and to the extent that she is unable to maintain  herself out of her own earnings or other property or,  where she has no property of her own, is unable to obtain  maintenance- (a) from the estate of her husband or her father or  mother, or (b) from her son or daughter, if any, or his or her  estate. (2) Any obligation under sub-section (1) shall not be  enforceable if the father-in law has not the means to do  so from any coparcenary property in his possession out of  which the daughter-in-law has not obtained any share,  and any such obligation shall cease on the re-marriage of  the daughter-in-law."

21.     Maintenance of a married wife, during subsistence of marriage, is on  the husband.  It is a personal obligation.  The obligation to maintain a  daughter-in-law arises only when the husband has died.  Such an obligation  can also be met from the properties of which the husband is a co-sharer and  not otherwise.  For invoking the said provision, the husband must have a  share in the property.  The property in the name of the mother-in-law can  neither be a subject matter of attachment nor during the life time of the  husband, his personal liability to maintain his wife can be directed to be  enforced against such property.  

22.     Wholly un-contentious issues have been raised before us on behalf of  Sonalben (wife).  It is well settled that apparent state of affairs of state shall  be taken a real state of affairs. It is not for an owner of the property to  establish that it is his self-acquired property and the onus would be on the  one, who pleads contra.  Sonalben might be entitled to maintenance from her  husband.  An order of maintenance might have been passed but in view of  the settled legal position, the decree, if any, must be executed against her  husband and only his properties could be attached therefor but not of her  mother-in-law.

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23.     Sections 4 and 28 of the Hindu Adoptions and Maintenance Act read  as under :- "4. Overriding effect of Act Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any  custom or usage as part of that law in force immediately  before the commencement of this Act shall cease to have  effect with respect to any matter for which provision is  made in this Act; (b) any other law in force immediately before the  commencement of this Act shall cease to apply to Hindus  insofar as it is inconsistent with any of the provisions  contained in this Act.

28. Effect of transfer of property on right to maintenance Where a dependant has a right to receive maintenance out  of an estate, and such estate or any part thereof is  transferred, the right to receive maintenance may be  enforced against the transferee if the transferee has notice  of the right or if the transfer is gratuitous; but not against  the transferee for consideration and without notice of the  right."

24.     Section 4 provides for a non obstante clause.  In terms of the said  provision itself any obligation on the part of in-laws in terms of any text,  rule or interpretation of Hindu Law or any custom or usage as part of law  before the commencement of the Act, are no longer valid.  In view of the  non obstante clause contained in Section 4, the provisions of the Act alone  are applicable.  Sections 18 and 19 prescribe the statutory liabilities in regard  to maintenance of wife by her husband and only on his death upon the  father-in-law,   Mother-in-law, thus, cannot be fastened with any legal  liability to maintain her daughter-in-law from her own property or otherwise.   25.     In Unnamalai Ammal  vs.  F.W. Wilson : AIR 1921 Madras 1187 the  obligation to maintain wife by a husband has been held to be a personal  obligation.  This Court in Kirtikant D. Vadodaria  vs. State of Gujarat :  (1996) 4 SCC 479 has held as under :- "8. We have given serious thought and consideration to  the submissions made above by the learned counsel for  the appellant and notice that Dhayalal Hirachand, the  husband of Respondent 2 Smt Manjulaben, has been  found to be a person of sufficient means and income. It is  also true that there are 5 natural born sons of Respondent  2 besides 2 daughters, who are all major. It is also a fact  that Dalip one of the sons had contested the Municipal  Election and two other sons are carrying on various  businesses. According to the Law of the Land with  regard to maintenance, there is an obligation of the  husband to maintain his wife which does not arise by  reason of any contract \027 express or implied \027 but out of  jural relationship of husband and wife consequent to the  performance of marriage. Such an obligation of the  husband to maintain his wife arises irrespective of the  fact whether he has or has no property, as it is considered  an imperative duty and a solemn obligation of the  husband to maintain his wife."  

       It was, furthermore, observed :-

"Further, according to Section 20 of the Hindu Adoptions  and Maintenance Act, 1956, a Hindu is under a legal  obligation to maintain his wife, minor sons, unmarried  daughters and aged or infirm parents. The obligation to  maintain them is personal, legal and absolute in character  and arises from the very existence of the relationship  between the parties. But the question before us is whether

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a stepmother can claim maintenance from the stepson  under Section 125 of the Code. In other words, whether  Section 125 of the Code includes within its fold the  stepmother also as one of the persons to claim  maintenance from her stepson."

26.     We may notice that in Balwant Kaur vs. Chanan Singh : (2000) 6 SCC  310, this Court reiterated the said principle in the following words :-  "21. This provision clearly indicates that if the widowed  daughter-in-law is a destitute and has no earnings of her  own or other property and if she has nothing to fall back  upon for maintenance on the estate of her husband or  father or mother or from the estate of her son or daughter,  if any, then she can fall back upon the estate of her  father-in-law. This provision also indicates that in case of  a widowed daughter-in-law of the family if she has no  income of her own or no estate of her husband to fall  back upon for maintenance, then she can legitimately  claim maintenance from her father or mother. On the  facts of the present case, therefore, it has to be held that  Appellant 1, who was a destitute widowed daughter of  the testator and who was staying with him and was being  maintained by him in his lifetime, had nothing to fall  back upon so far as her deceased husband’s estate was  concerned and she had no estate of her own.  Consequently, as per Section 19(1)( a ) she could claim  maintenance from the estate of her father even during her  father’s lifetime. This was a pre-existing right of the  widowed daughter qua testator’s estate in his own  lifetime and this right which was tried to be crystallised  in the Will in her favour after his demise fell squarely  within the provisions of Section 22(2) of the  Maintenance Act."  

27.     The Domestic Violence Act provides for a higher right in favour of a  wife.  She not only acquires a right to be maintained but also thereunder  acquires a right of residence.  The right of residence is a higher right.  The  said right as per the legislation extends to joint properties in which the  husband has a share.   

28.     Interpreting the provisions of the Domestic Violence Act this Court in   S.R. Batra  vs.  Taruna Batra : (2007) 3 SCC 169  held that even a wife could  not claim a right of residence in the property belonging to her mother-in-law,  stating :   "17. There is no such law in India like the British  Matrimonial Homes Act, 1967, and in any case, the  rights which may be available under any law can only  be as against the husband and not against the father-in- law or mother-in-law.  18. Here, the house in question belongs to the mother- in-law of Smt Taruna Batra and it does not belong to  her husband Amit Batra. Hence, Smt Taruna Batra  cannot claim any right to live in the said house.  19. Appellant 2, the mother-in-law of Smt Taruna Batra  has stated that she had taken a loan for acquiring the  house and it is not a joint family property. We see no  reason to disbelieve this statement."  

29.     Reliance placed by Mr. Goel on V. Tulasamma and others vs.  Sehsa  Reddy (Dead) by L.Rrs. : [1977] 3 SCR 261 is wholly misplaced.  The  question which arose for consideration therein was the nature or the right, a  widow acquires in the property in which she had been in possession in lieu  of maintenance.  Interpreting sub-section (1) of Section 14 of the Hindu  Succession Act this Court held that the term "possessed" should receive a  wide meaning.  It is in this context this Court noticed the authorities from

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Sastric Hindu Law whereupon our attention has been drawn :-  

"Similar observations have been made by the learned  author at p. 528 of the book which may be extracted thus: ’According to both the schools, the lawfully  wedded wife acquires from the moment of her  marriage a right to the property belonging to the  husband at the time and also to any popery that  may subsequently be acquired by him. so that she  becomes a co-owner of the husband, though her  right is not co-equal to that of the husband, but a  subordinate one. owing to her disability founded  on her status of perpetual or life long tutelage or  dependence. ... This right of the wife to maintenance from  her husband is not lost even if the husband  renounce Hinduism. This right subsists even after the husband’s  death although her husband’s right as distinguished  from hers may pass by survivorship or by  succession to sons or even to collaterals; these  simply step into the position of her husband, and  she is required by Hindu law to live under their  guardianship after her husband’s death.’   "

30.     The orders passed by the High Court which are impugned before us  are, thus, wholly unsustainable.  They suffer from total non-application of  mind. 31.     The said orders might have been passed only on consideration that  Sonalben is a harassed lady, but the fact that the appellant is also a much  harassed lady was lost sight of.  She has more sinned than sinning.    Appellant and her husband are old.  They suffer from various diseases.  They  have been able to show before the Court that they had to go to the United  States of America for obtaining medical treatment.  They, we would assume,   have violated the conditions of grant of bail but the consequence therefore  must be kept confined to the four corners of the statutes.  32.     The provisions contained in Section 82 of the Code of Criminal  Procedure were put on the statute book for certain purpose.  It was enacted  to secure the presence of the accused.  Once the said purpose is achieved, the  attachment shall be withdrawn.  Even the property which was attached,  should be restored.  The provisions of the Code of Criminal Procedure do  not warrant sale of the property despite the fact that the absconding accused  had surrendered and obtained bail.  Once he surrenders before the Court and  the Standing Warrants cancelled, he is no longer an absconder.  The purpose  of attaching the property comes to an end.  It is to be released subject to the  provisions of the Code.  Securing the attendance of an absconding accused,  is a matter between the State and the accused.  Complainant should not  ordinarily derive any benefit therefrom.  If the property is to be sold, it vests  with the State subject to any order passed under Section 85 of the Code.  It  cannot be a subject matter of execution of a decree, far less for executing the  decree of a third party, who had no right, title or interest thereon.   33.     The learned Metropolitan Magistrate had, in his order dated 5th  January, 2004 wrongly asked the District Magistrate to put the said  properties on auction sale stating that to be belonging to the appellants and  their son.  The Mamlatdar appears to have exceeded his jurisdiction in trying  to evict the 1st respondent.  His right as a tenant could not have been affected  by reason of any order of attachment.  An order of attachment of a property  has nothing to do with the right of tenancy.  The terms and conditions of  tenancy, being governed by statute, the tenant cannot be evicted except in  accordance with law.  It is a matter of grave concern that an independent  right was also sought to be interfered with at the instance of Sonalben   34.     Right to object in terms of Section 84 of the Code to which reliance  has been placed by Mr. Mayur Shah, could not have been invoked by the  wife as she has no independent claim over the property.  The said provisions

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also could not have been invoked for the purpose of execution of a decree. 35.     It is in the aforementioned context  that we may now consider the  impugned judgment of the High Court directing cancellation of bail of the  appellants.   36.     The fact that they have surrendered is not in dispute.  They are of old  age as also the fact that they have been suffering from various diseases has  also not been disputed.   37.     The contention of Sonalben that the passports had not been deposited,  appears to be wholly incorrect.  Ajitbhai Revandas Patel was the holder of  U.S. Passport.  The same having expired another Passport bearing No.  217921248 was issued.  It is that passport which was deposited.  This is the  current Passport.  Allegations that they are having other passports and may  leave the country appears to be wholly without any basis.  They have been  attending the courts.  The observation made by the Metropolitan Magistrate  that they had not come of their own is unfortunate.  Nobody wants to come  to court of law and that too as an accused, of his own.    38.     The High Court committed a manifest illegality in directing  cancellation of bail in so far as it failed to take into consideration that the  factors relevant for setting aside an order granting bail and directing  cancellation of bail are wholly distinct and different.  An application for  cancellation of bail must be premised on the factors envisaged under sub- section (2) of Section 439 of the Code of Criminal procedure.  The learned  Metropolitan Magistrate in passing the order dated 27th June, 2006 while  granting bail took into consideration all the relevant factors.  He imposed a  fine on them.  Even the passports had been surrendered.  Application for  cancellation of bail was filed on a mis-statement that the passports had not  been surrendered.  Various contentions, as noticed hereinbefore, in regard to  purported suffering of the wife appears to have been taken into consideration  which were wholly irrelevant.  We have noticed hereinbefore that such  contentions have also been raised before us not on the basis that there exists  and legal principle behind the same but as an argument of desperation.   

39.     In Gurcharan Singh and others  vs.  State (Delhi Adminsitration) :  1978 (2) SCR 358 this Court held : "24. Section 439(1) Cr. P.C. of the new Code, on the  other hand, confers special powers on the High Court or  the Court of Session in respect of bail. Unlike under  Section 437(1) there is no ban imposed under Section  439(1), Cr. P.C. against granting of bail by the High  Court or the Court of Session to persons accused of an  offence punishable with death or imprisonment for life. It  is, however, legitimate to suppose that the High Court or  the Court of Session will be approached by an accused  only after he has failed before the Magistrate and after  the investigation has progressed throwing light on the  evidence and circumstances implicating the accused.  Even so, the High Court or the Court of Session will have  to exercise its judicial discretion in considering the  question of granting of bail under Section 439(1) Cr. P.C  of the new Code. The overriding considerations in  granting bail to which we adverted to earlier and which  are common both in the case of Section 437(1) and  Section 439(1) Cr. P.C. of the new Code are the nature  and gravity of the circumstances in which the offence is  committed; the position and the status of the accused  with reference to the victim and the witnesses; the  likelihood, of the accused fleeing from justice; of  repeating the offence; of jeopardising his own life being  faced with a grim prospect of possible conviction in the  case; of tampering with witnesses; the history of the case  as well as of its investigation and other relevant grounds  which, in view of so many valuable factors, cannot be  exhaustively set out.    25. The question of cancellation of bail under Section

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439(2) Cr. P.C. of the new Code is certainly different  from admission to bail under Section 439(1) Cr. P.C. The  decisions of the various High Courts cited before us are  mainly with regard to the admission to bail by the High  Court under Section 498 Cr. P.C. (old). Power of the  High Court or of the Sessions Judge to admit persons to  bail under Section 498 Cr. P.C. (old) was always held to  be wide without any express limitations in law. In  considering the question of b ail justice to both sides  governs the judicious exercise of the Court’s judicial  discretion."  

       [See also  Bhagirath Singh s/o. Mahipat Singh Judeja  vs.  State of  Gujarat :  [1984] 1 SCR 839 and Jayendra Saraswathi Swamigal  vs.  State  of Tamilnadu : 2005 (2) SCC 13].          40.     We may notice that recently a Bench of this Court considered the  consequence of issuance of warrant of arrest at some length in Inder Mohan  Goswami and another  vs.  State of Uttaranchal and others : (2007) 12  SCALE 15.  It was held :- "26.    Before parting with this appeal, we would like to  discuss an issue which is of great public importance, i.e.  how and when warrants should be issued by the Court?   It has come to our notice that in many cases that bailable  and non-bailable warrants are issued casually and  mechanically.  In the instant case, the court without  properly comprehending the nature of controversy  involed and without exhausting the available remedies  issued non-bailable warrants.  The trial court disregard  the settled legal position clearly enumerated in the  following two cases."    

It was furthermore observed "51. In complaint cases, at the first instance, the court  should direct serving of the summons along with the  copy of the complaint. If the accused seem to be avoiding  the summons, the court, in the second instance should  issue bailable- warrant. In the third instance, when the  court is fully satisfied that the accused is avoiding the  court’s proceeding intentionally, the process of issuance  of the non-bailable warrant should be resorted to.  Personal liberty is paramount, therefore, we caution  courts at the first and second instance to refrain from  issuing non-bailable warrants."

41.     Keeping in view the entirety of the facts and circumstances of the case  we are of the opinion that gross injustice has been caused to the appellant.   She did not deserve such harsh treatments at the hands of the High Court.   Respondent No.3 speaks of her own human rights,  forgetting the human  rights of the appellant, far less the funadamental right of life and liberty  conferred on an accused in terms of Article 21 of the Constitution of India.   

42.     The right of property is no longer a fundamental right.  But still it is a  constitutional right. Apart from constitutional right it is also a human right.   The procedures laid down for deprivation thereof must be scrupulously  complied with [See-Devinder Singh and Ors. vs. State of Punjab and Ors. :  JT 2007 (12) SC 256].

43.     Last but not the least, a plea of equity has been raised by Mr. Shah  stating that this Court should issue some directions keeping in view the  equitable principles.  Reliance has been placed on Chandra Bansi Singh  vs.   State of Bihar : (1984) 4 SCC 316, wherein it was observed :-  "16. On an analysis of the various steps taken by the  parties and others in the taking of possession, there is  undoubtedly a delay of about 1 years and for the purpose

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of calculation and convenience when rounded off, the  delay may be taken to be of two years. So far as this  delay is concerned, the appellants have undoubtedly a  case for payment of some additional compensation in  equity though not under law and as this Court is not only  a Court of law but a Court of equity as well, it will be  impossible for us to deny this relief to the appellants.  After taking into consideration the various shades and  aspects of the case we are clearly of the opinion that apart  from compensation which may be awarded by the  Collector or enhanced by the Judge or a higher Court, the  appellants should get an equitable compensation in the  form of interest calculated at the rate of 7 per cent per  annum for two years on the value of land owned by each  land-owner. This equitable compensation has been  awarded in the special facts of this case and will not be  the subject-matter of appeal, if any, under the Act on the  amount of compensation. "

44.     The said case arose out of a proceeding under the Land Acquisition  Act which has no relevance to the issues involved in these appeals.

45.     On cancellation of bail Mr. Shah has relied upon a decision of this  Court in Raghubir Singh  vs. State of Biahr: (1986) 4 SCC 481 wherein this  Court observed :- "22. The result of our discussion and the case-law is this:  An order for release on bail made under the proviso to  Section 167(2) is not defeated by lapse of time, the filing  of 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 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. "

46.     A bare perusal of the decision of this Court demonstrates that the ratio  laid therein runs counter to the submissions of the learned counsel.

47.     Reliance has also been placed on I.J. Divakar and others  vs. Govt. of  Andhra Pradesh and another :   (1982) 3 SCC 341.    The said decision was  rendered under the Industrial Law.  

       Regularization was directed to be provided to the workmen.  A  Constitution Bench of this Court in Secretary, State of Karnataka and others   vs. Umadevi and others : (2006) 4 SCC 1 opined that all such decisions shall  stand overruled.  

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       Sympathy or sentiment, as is well known, should not allow the Court  to have any effect in its decision making process.   Sympathy or sentiment  can be invoked only in favour a person who is entitled thereto.  It should  never be taken into consideration as a result whereof the other side would  suffer civil or evil consequences.  

48.     We are at a loss to understand as to on what premise such a contention  has been raised.  If we accept the contention of the learned counsel the same  would mean that we send the old couple to jail or deprive them of their  lawful right of a valuable property and/or ask them to meet obligations  which statutorily are not theirs.  Such a direction, in our opinion, should also  not be passed, keeping in view the conduct of the 3rd respondent.  She not  only filed a large number of cases against her in-laws, some of which have  been dismissed for default or withdrawn but also have been filing  applications for cancellation of their bail on wholly wrong premise.  

49.     We may also notice that after the arguments were over, a strange  submission was made before us.  Learned counsel for respondent No.3  submitted that he may be permitted to withdraw from the case and the 3rd  respondent be allowed to argue in person.  Such a submission was not  expected from a counsel practicing in this Court or form a party, who herself  is an Advocate.  We deprecate such practice.   

50.     Having regard to the facts and circumstances of this case we are of  the opinion that the interest of justice shall be subserved if the impugned  judgments are set aside with the following directions :- i)      The property in question shall be released from attachment. ii)     The 3rd respondent shall refund the sum of Rs. 1 lakh to the  respondent with interest @ 6% per annum. iii)    The amount of Rs. 4 lakhs deposited by the 1st respondent shall  be refunded to him immediately with interest accrued thereon. iv)     The 3rd respondent should be entitled to pursue her remedies  against her husband in accordance with law. v)      The Learned Magistrate before whom the cases filed by the 3rd  respondent are pending should bestow serious consideration of  disposing of the same, as expeditiously as possible.  vi)     The 3rd respondent shall bear the costs of the appellant which is  quantified at Rs.50,000/- (Rupees fifty thousand) consolidated.

51.     The appeals are allowed with the aforesaid directions.  

I.A. for direction

       Dismissed.