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CASE NO.: Appeal (crl.) 599  of  2001 Appeal (crl.)   600      of  2001

PETITIONER: PURAN, SHEKHAR AND ANR.

       Vs.

RESPONDENT: RAMBILAS & ANR.,  STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT:       03/05/2001

BENCH: M.B. Shah & S.N. Variava

JUDGMENT:

S. N. VARIAVA, J.

       Leave granted.

       Heard parties. L...I...T.......T.......T.......T.......T.......T.......T..J

   These  two  Appeals  are  against an  Order  dated  24th January  2001,  by which the High Court has cancelled  bail, which  had been granted to the Petitioner by the  Additional Sessions  Judge,  Nagpur, by his Order dated 13th  November, 2000.  Briefly stated the facts are as follows :

   The  Petitioner got married to one Puja Agrawal on  24th November,  1999.   On 2nd of September, 2000 i.e.  within  a year  of  the  marriage the said Puja Agrawal met  with  her death  on  2nd of September, 2000.  The Petitioner has  been charged  with offences under Sections 498-A and 304-B of the Indian  Penal  Code.  Along with the Petitioner three  other ladies  had  also been charged.  Those ladies  were  granted bail  by  an Order dated 11th September, 2000.   A  Petition challenging  that  Order has been rejected on 20th  October, 2000.

   The evidence prima facie suggests the following:- at the time  of the marriage there was a demand of dowry for Rs.  5 lacs  including Rs.  2 lacs in cash;  that the father of the deceased  has  spent Rs.  7 lacs on marriage;  that about  a month prior to the death of the said Puja a demand of Rs.  1 lac  was made;  that the father of the said Puja had offered Kisan Vikas Patra worth Rs.30,000/- to the Petitioner, which had  been  refused;  that whenever the deceased came to  the parents’  home she was not wearing any ornaments;  that even at  the time of her death she was not wearing any  ornaments not  even her "Mangalsutra".  The deceased was eight  months pregnant  at  the  time  of her death.  From  the  scene  of offence,  two handkerchiefs, two small cotton balls and  one bigger  cotton  ball were found.  Pieces of  broken  bangles were  found.   The wire of telephone was found broken.   The telephone  was  found on the bed.  There were electric  burn

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injuries  over the left index finger, middle finger,  thumb, palms  and  back  of palms upto base.  Bone  of  left  index finger  was exposed and charred.  Base of left index  finger was  swollen, distal part of left index finger was bluish in colour,  surrounded  by reddish area.  There  were  electric burn  injuries over right supramammary region oval shaped  7 cm  x 4 1/2 cm.  Centre of the burnt area was blackened  and hard  measuring  5  cm.  x 3 1/2 cm.   Blisters  were  found present  over lateral aspect of left thigh, upper 1/3rd ,  5 cm.   x  1 1/2 cm.  and 2 cm.  Anterior to this  injury,  as also  over  lateral  aspect  of right  thigh,  upper  1/3rd. Besides  this,  abrasions  were found on the right  side  of back, over infra scapulas region.

   We  have heard the parties.  Mr.  Lalit has argued  this Appeal at great length.  We have given anxious consideration@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to  his  submissions but for reasons set out  hereafter  are@@ JJ unable to accept them.

   Mr.   Lalit  submitted that one of the reasons  why  the High  Court set aside bail was that the Additional  Sessions Judge  had  not  referred to any  material  circumstance  on record and had not given any reasons.  He submitted that the High Court was wrong in so observing.  He submitted that the same  Additional Sessions Judge had earlier granted bail  to the  ladies  by  his Order dated 11th September,  2000.   He pointed  out  that, whilst so granting bail, the  Additional Sessions  Judge had given very cogent reasons.  He submitted that  against  that Order a Petition had been filed  in  the High  Court.   He submitted that even though the High  Court rejected the Petition, the High Court observed as follows :

   "I agree with the learned Counsel appearing on behalf of the  complainant that while granting bail the learned  Judge ought not to have ventured to discuss the merits or demerits of  the  evidence  collected against  the  accused  persons. Probably  he  was  not aware or he was not  remined  of  the advice given by the Apex Court in the case of Niranjan Singh & another vs.  Prabhakar Rajaram Kharote and Others reported in  AIR  1980 S.C.  785 wherein detailed examination of  the evidence  and  elaborate documentation of the merits of  the case   while   passing  orders  on  bail   application   was deprecated."

   He  submitted  that  in view of these  observations  the learned  Additional  Sessions  Judge did not  given  reasons whilst   granting   bail.   He   submitted  that  in   these circumstances  the  Additional  Sessions   Judge  cannot  be faulted.   He submitted that the High Court could not cancel bail   on  this  ground.   We   see  no  substance  in  this contention.   Giving  reasons is different  from  discussing merits  or  demerits.   At  the stage  of  granting  bail  a detailed examination of evidence and elaborate documentation of  the  merits of the case has not to be undertaken.   What the  Additional Sessions Judge had done, in the Order  dated 11th September, 2000 was to discuss the merits and de-merits of  the  evidence.  That was what was deprecated.  That  did not  mean  that whilst granting bail some reasons for  prima facie  concluding why bail was being granted did not have to be indicated.  Mr.  Lalit next submitted that the High Court has  itself not given reasons but has mechanically set aside the  order  of  the  bail.   We see  no  substance  in  this submission.   The  High  Court has correctly not  gone  into

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merits  or demerits of the matter.  The High Court has noted that  evidance  prima-facie indicated demand of dowry.   The High  Court has briefly indicated the evidence on record and what  was found at the scene of the offence.  The High Court has  indicated  that evidance prima facie indicated  that  a demand  for  Rs.  1 lac was made just a month prior  to  the incident  in  question.  The High Court has stated that  the material  on  record  suggested   that  the  offences  under Sections  498-A  and 304-A were prima facie disclosed.   The High  Court  has concluded that the material on record,  the nature  of  injuries,  demand for Rs.  1 lac and  the  other circumstances  were  such that this was not a fit  case  for granting  bail.   Thus the High Court has given very  cogent reasons  why bail should not have been granted and why  this unjustified   erroneous  Order  granting   bail  should   be cancelled.

   Mr.   Lalit  next  submitted  that once  bail  has  been granted  it should not be cancelled unless there is evidence that the conditions of bail are being infringed.  In support of  this submission he relies upon the authority in the case of  Dolat Ram & Ors.  vs.  State of Haryana reported in 1995 (1)  S.C.C.   349.   In  this case it  has  been  held  that rejection  of  bail  in a non-bailable case at  the  initial stage  and the cancellation of bail already granted have  to be  considered  and dealt with on different basis.   It  has been  held  that very cogent and overwhelming  circumstances are necessary for an order directing the cancellation of the bail  already  granted.   It has been  held  that  generally speaking  the  grounds for cancellation of bail broadly  are interference  or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due  course of justice or abuse of the concession granted to the accused in any manner.  It is, however, to be noted that this  Court  has clarified that these instances  are  merely illustrative  and  not  exhaustive.   One  such  ground  for cancellation  of  bail would be where ignoring material  and evidence  on record a perverse order granting bail is passed in  a  heinous  crime of this nature and  that  too  without giving  any  reasons.   Such  an   order  would  be  against principles  of law.  Interest of justice would also  require that  such  a  perverse  order  be set  aside  and  bail  be cancelled.   It must be remembered that such offences are on the  rise  and  have a very serious impact on  the  Society. Therefore,  an arbitrary and wrong exercise of discretion by the trial court has to be corrected.

   Further,  it  is to be kept in mind that the concept  of setting  aside the unjustified illegal or perverse order  is totally different from the concept of cancelling the bail on the  ground that accused has misconducted himself or because of  some  new  facts   requiring  such  cancellation.   This position  is made clear by this Court in Gurcharan Singh  v. State  (Delhi  Admn.) reported in AIR 1978 SC 179.  In  that case the Court observed as under:-

   "If, however, a Court of Session had admitted an accused person  to bail, the State has two options.  It may move the Sessions  Judge  if  certain new circumstances  have  arisen which  were not earlier known to the State and  necessarily, therefore,  to  that Court.  The State may as well  approach the High Court being the superior Court under S.  439 (2) to commit  the accused to custody.  When, however, the State is aggrieved  by the order of the Sessions Judge granting  bail and  there  are  no new circumstances that have  cropped  up

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except  those already existed, it is futile for the State to move  the Sessions Judge again and it is competent in law to move  the  High  Court for cancellation of the  bail.   This position  follows from the subordinate position of the Court of Session vis-a-vis the High Court.

   It  must  be  mentioned  that in support  of  the  above submission  Mr.  Lalit had also relied upon the  authorities in the cases of Subhendu Mishra vs.  Subrat Kumar Mishra and another  reported  in  1999  Crl.L.J.   4063,  State  (Delhi Administration)  vs.   Sanjay  Gandhi reported in  (1978)  2 S.C.C.   411 and Bhagirathsinh s/o Mahipat Singh Judeja  vs. State  of  Gujarat reported in 1984 (1) S.C.C.  284.   These need  not  be  dealt  with  separately as  they  are  of  no assistance  in  a  case of this nature where bail  has  been cancelled for very cogent and correct reasons.

   Our view is supported by the principles laid down in the case  of  Gurcharan Singh & Others, etc.  vs.  State  (Delhi Administration)  reported in 1978 (1) S.C.C.  118.  In  this case  it  has been held, by this Court, that  under  Section 439(2),  the  approach should be whether the order  granting bail  was vitiated by any serious infirmity for which it was right  and  proper  for the High Court, in the  interest  of justice,  to  interfere.  Mr.  Lalit next submitted  that  a third  party cannot move a Petition for cancellation of  the bail.   He  submitted that in this case the Prosecution  has not moved for cancellation of the bail.  He pointed out that the father of the deceased had moved for cancellation of the bail.   He relied upon the cases of Simranjit Singh Mann vs. Union  of  India and another reported in AIR 1993 S.C.   280 and Janata Dal, etc.  etc.  vs.  H.S.  Chowdhary and others, etc.   etc.   reported in 1991 (3) S.C.C.  356.  Both  these cases  dealt  with  Petitions  under   Article  32  of   the Constitution of India whereunder a total stranger challenged the conviction and sentence of the accused.  This Court held that  neither under the provisions of the Criminal Procedure Code  nor under any other statute is a third party  stranger permitted  to question the correctness of the conviction and sentence imposed by the Court after a regular trial.  It was held  that the Petitioner, who was a total stranger, had  no ’locus  standi’ to challenge the conviction and the sentence awarded to the convicts in a Petition under Article 32.  The principle  laid  down in these cases have no application  to the facts of the present case.  In this case the application for  cancellation of bail is not by a total stranger but  it is  by the father of the deceased.  In this behalf the ratio laid  down  in the case of R.  Rathinam vs.  State  by  DSP, District  Crime  Branch, Madurai District, Madurai and  anr. reported in 2000 (2) S.C.C.  391, needs to be seen.  In this case  Bail had been granted to certain persons.  A group  of practising   advocates  presented   petitions  before  Chief Justice  of  the High Court seeking initiation of  suo  motu proceedings  for  cancellation of bail.  The  Chief  Justice placed  the petitions before a Division Bench.  The Division Bench  refused to exercise the suo motu powers on the ground that  the  petition  submitted  by  the  advocates  was  not maintainable.  This Court held that the frame of sub-section (2) of Section 439 indicates that it is a power conferred on the  Courts  mentioned therein.  It was held that there  was nothing  to  indicate that the said power can  be  exercised only  if  the  State  or investigating agency  or  a  Public Prosecutor  moves by a petition.  It was held that the power so  vested  in the High Court can be invoked either  by  the State  or by any aggrieved party.  It was held that the said

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power  could  also be exercised suo motu by the High  Court. It  was  held  that, therefore, any member  of  the  public, whether he belongs to any particular profession or otherwise could  move  the  High  Court to remind it of  the  need  to exercise  its power suo motu.  It was held that there was no barrier either in Section 439 of the Criminal Procedure Code or  in any other law which inhibits a person from moving the High  Court to have such powers exercised suo motu.  It  was held  that  if the High Court considered that there  was  no need  to cancel the bail then it could dismiss the Petition. It  was  held that it was always open to the High  Court  to cancel the bail if it felt that there were sufficient enough reasons  for  doing  so.  Mr.  Lalit next  relied  upon  the authorities  in the cases of Usmanbhai Dawoodbhai Memon  and Ors.  vs.  State of Gujarat reported in 1988(2) S.C.C.  271, Amar  Nath  and  others  vs.  State of  Haryana  and  others reported in AIR 1977 S.C.  2185 and M/s.  India Pipe Fitting Co.   vs.  Fakruddin M.A.  Baker and another reported in AIR 1978  S.C.  45.  Relying on these he submitted that an order granting bail was an interlocutory order, and the High Court could  not exercise powers under Section 482 of the Criminal Procedure  Code and thus could not cancel Bail.  Mr.   Lalit submitted  that  Section 439 of the Criminal Procedure  Code gives the power of cancellation of bail both to the Sessions Court  and the High Court.  He submitted that thus the  High Court  and Sessions Court were co-ordinate Courts under this Section.   He  submitted that the High Court could not  thus sit  in  Appeal  or Revision over an Order of the  Court  of Sessions.   He  submitted that under Section 439(2),  it  is only  the orders of the Magistrate, which could be set aside by the High Court or the Court of Sessions.

   We  see  no  substance  in   this  submission.   In  the hierarchy  of Courts, the High Court is the Superior  Court. A  restrictive  interpretation  which would have  effect  of nullifying  Section  439(2) cannot be given.   When  Section 439(2) grants to the High Court the power to cancel bail, it necessarily  follows that such powers can be exercised  also in  respect  of Orders passed by the Court of Sessions.   Of course  cancellation of bail has to be on principles set out hereinabove and only in appropriate cases.  Further, even if it  is  an  interlocutory order, the High  Court’s  inherent jurisdiction  under  Section  482  is not  affected  by  the provisions  of  Section  397  (3) of the  Code  of  Criminal Procedure.   That the High Court may refuse to exercise  its jurisdiction  under Section 482 on the basis of self-imposed restriction is a different aspect.  It cannot be denied that for  securing  the  ends  of justice,  the  High  Court  can interfere with the order which causes miscarriage of justice or  is  palpably  illegal or is  unjustified.   [Re.   Madhu Limaye  v.   State  of  Maharasthra (1977)  4  SCC  551  and Krishnan  and  Another v.  Krishnaveni and Another (1997)  4 SCC 241].

   In this case, as indicated above, bail has been cancelled for very valid and cogent reasons

   Accordingly  we see no substance in these Appeals.   The same stand dismissed.  There will be no order as to costs.