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CASE NO.: Appeal (crl.)  193 of 2004

PETITIONER: Biman Chatterjee

RESPONDENT: Sanchita Chatterjee & Anr.                               

DATE OF JUDGMENT: 10/02/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: JUDGMENT

        (Arising out of SLP(Crl.)No.4348 of 2003)

SANTOSH HEGDE,J.

       Heard learned counsel for the parties.

       Leave granted.

Pursuant to a criminal complaint filed by the respondent- wife herein alleging offence punishable under Section 498A IPC  against the appellant-husband herein being registered and  cognizance taken, the said appellant on 6th October, 1999  surrendered before the Judicial Magistrate, Ranchi in Complaint  Case No.78 of 1999 and sought for grant of bail. On hearing both  the sides and noticing the fact that there was a possibility of  compromise between the parties, the appellant herein was released  on bail by the said Magistrate on his furnishing a bail bond for a  sum of Rs.5,000/- with two sureties of the like amount each. On  13.1.2000, on an application made by the respondent herein  alleging that the appellant is not cooperating in the compromise  talk, the learned Magistrate cancelled the bail. On a revision filed  against the said cancellation of bail by the appellant herein, the  High Court of Judicature at Patna, Ranchi Bench on 18.4.2000  allowed the revision. While doing so it held that the court below  was not justified in rejecting in cancelling the bail on the ground  that the revision petitioner has adopted an indifferent attitude and  was not taking any steps for normalising the relationship as  contended by the respondent herein. In the said process, the High  Court remanded the matter to the trial court to re-hear the matter  on merit. After remand, on 30th July, 2001, the said Judicial  Magistrate, Ranchi rejected the petition filed by the respondent for  cancellation of bail holding that "therefore, it does not appear  legally just to cancel the bail of the accused on the ground that the  accused is not compromising". Being aggrieved by the said order  the respondent preferred a Criminal Misc. Petition before the High  Court of Jharkhand at Ranchi contending that the very basis of  granting of bail to the appellant was the compromise petition filed  by him to keep the respondent herein as his legally wedded wife at  her matrimonial home and since the appellant has failed to adhere  to this term of the compromise, the appellant has lost his right to  continue on bail. Thus, the High Court by the impugned order has  allowed the said petition of the respondent-wife holding, inter alia,  that the appellant herein had also not appeared before the High  Court inspite of the service of notice which showed that he is not  willing to keep his wife in violation of the terms and conditions of

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the compromise petition which, according to the High Court, was  the basis for the grant of bail by the trial court. In the said process,  it set aside the order of the Judicial Magistrate Ranchi made on 30th  of July, 2001 rejecting the prayer of the respondent for cancellation  of bail. Learned counsel appearing for the appellant herein  contended that the impugned order is based on factual inaccuracies  as also contrary to law. He submitted that the observation of the  High Court that there was a compromise between the parties which  was reduced to writing and under the terms and conditions of the  said compromise the appellant had agreed to keep his wife is  wholly incorrect. He pointed out from the records to the contrary  and that there was no such compromise arrived at between the  parties. He pointed out that what was submitted to the court was  only that there were negotiations going on for finalisation of the  compromise. Therefore, the question of the appellant contravening  the terms of the compromise did not arise at all. He also contended  that assuming that there was any such violation of the terms of the  compromise that cannot be a ground for cancelling the bail. He  also submitted that the appellant was never served any court notice  of the petition filed by the respondent in the High Court and the  impugned order has wrongly noted that the appellant had been  served and he remained absent. The learned counsel appearing for the respondent, however,  contended that the very basis of the grant of bail originally was on  an assurance given by the appellant that he would compromise and  would keep his wife with him and he having failed to fulfil the said  promise made to the court, the High Court was justified in  cancelling the bail because the foundation for the grant of bail was  the promise made by the appellant. Having heard the learned counsel for the parties, we are of  the opinion that the High Court was not justified in cancelling the  bail on the ground that the appellant had violated the terms of the  compromise. Though in the original order granting bail there is a  reference to an agreement of the parties to have a talk of  compromise through the media of well wishers, there is no  submission made to the court that there will be a compromise or  that the appellant would take back his wife. Be that as it may, in  our opinion, the courts below could not have cancelled the bail  solely on the ground that the appellant had failed to keep up his  promise made to the court. Here we hasten to observe first of all  from the material on record, we do not find that there was any  compromise arrived at between the parties at all, hence, question of  fulfilling the terms of such compromise does not arise. That apart  non-fulfilment of the terms of the compromise cannot be the basis  of granting or cancelling a bail. The grant of bail under the  Criminal Procedure Code is governed by the provision of Chapter  XXXIII of the Code and the provision therein does not  contemplate either granting of a bail on the basis of an assurance of  a compromise or cancellation of a bail for violation of the terms of  such compromise. What the court has to bear in mind while  granting bail is what is provided for in Section 437 of the said  Code. In our opinion, having granted the bail under the said  provision of law, it is not open to the trial court or the High Court  to cancel the same on a ground alien to the grounds mentioned for  cancellation of bail in the said provision of law. Therefore, in our opinion, the High Court has erred in  passing the impugned order.

For the reasons stated above, this appeal succeeds. The  impugned order of the High Court is set aside. The appeal is allowed.