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CASE NO.: Appeal (crl.)  554 of 2004

PETITIONER: Raj Kumar Jain & Anr.

RESPONDENT: Kundan Jain & Anr.

DATE OF JUDGMENT: 29/04/2004

BENCH: N Santosh Hegde & B P Singh.

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl.) No. 5035/2003)

SANTOSH HEGDE, J.  

       Heard learned counsel for the parties.

       Leave granted.

       This appeal arises out of an order made by the High Court of  Judicature at Madras whereby the High Court allowed the criminal  miscellaneous petition filed by the first respondent herein and  cancelled the anticipatory bail granted to the appellants herein. Brief  facts necessary for disposal of this appeal are as follows :         The first appellant herein was married to the daughter of the  first respondent on 17.4.2000. Second appellant is the father of the  first appellant. Both are residents of Bombay. The said marriage lasted  hardly for 14 days and the estranged wife Dimple Jain started living  separately. While the first appellant  being a doctor was stationed in  Bombay, after separation his wife, came to Chennai to her parents’  house and started living there.         The relationship between the two parties deteriorated with the  first appellant filing a case against the first respondent alleging an  offence under section 307 IPC on 22.8.2001 at Tirunelveli.  Immediately thereafter on 11.9.2001 Dimple Jain left for London for  further studies and started residing there.         On 13.11.2002 the first appellant filed a divorce petition which  is now pending. A month later i.e. on 13.12.2002 the first respondent  herein filed a complaint in Chennai alleging offences under section  498A IPC and section 4 of the Dowry Prohibition Act even though at  that point of time his daughter Dimple Jain was in London. On  coming to know of the said complaint the appellants moved an  application for grant of anticipatory bail before the High Court of  Judicature at Madras, which came to be allowed by an order made by  the said court on 3.2.2003. One of the terms and conditions of the  grant of said anticipatory bail was that the first appellant Raj Kumar  Jain should stay at Chennai and report to the Police at C-5, All  Woman Police Station, Kothawalchawady, Chennai, everyday at 10  a.m. barring Sundays for a week, and other petitioners including the  second appellant herein should report to the said Police as and when  required.         It is stated pursuant to the said order, the appellants herein and  other persons who sought the anticipatory bail surrendered before the  concerned court and obtained bail as directed by the High Court. It is  also contended by the appellants that as required in the said order  granting bail by the High Court, the appellants herein reported to the  Police everyday between 12.2.2002 and 18.2.2002.

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       Since it was the direction of the High Court that the first  appellant should remain in Chennai for a week, per force, he had to be  at Chennai during this period, therefore, his father, the 2nd appellant  also stayed in Chennai. It is further alleged that on 17.2.2003 an  application for cancellation of bail was filed under section 439(2) of  the Criminal Procedure Code before the High Court, alleging that the  appellants herein had gone to the house of one Harish Bhuva on  15.2.2003 and abused and threatened the said person not to give  evidence in the case in which he happened to be a witness. On this  application for cancellation of bail, the High Court, accepting the  allegations made by the first respondent, by the impugned order,  cancelled the anticipatory bail granted in favour of the two appellants.  As stated above, it is against the said order the appellants have  preferred this appeal. The High Court in the impugned order while  cancelling the anticipatory bail observed thus :           "After careful consideration of the  rival submissions, this Court is of the  considered view that it is a fit case, where  the anticipatory bail granted in favour of  respondents 1 and 2 has to be cancelled. It is  contended by the learned counsel for State  that a complaint was lodged by one of the  witnesses stating that these respondents 1  and 2 threatened him on 17.02.2003 not to  depose against them and it is also further  pertinent to note that they have not  cooperated with the respondent No.3/police  to investigate the case properly and file a  charge sheet. I am of the considered view it  would be suffice to cancel the anticipatory  bail granted in favour of respondents 1 and  2. Accordingly, the anticipatory bail granted  in favour of respondents 1 and 2 in Crl.O.P.  No.3066 of 2003 on 3.2.2003 is hereby  cancelled. This petition is ordered  accordingly."

       It is seen as per the said observations of the High Court in the  impugned order, it accepted the allegation made by Harish Bhuva that  the appellants had approached him on 15.2.2003 and had administered  the threat.         Mr. Sanjay Parikh, learned counsel for the appellants,  contended the relationship between the parties having been strained so  much and the appellants having obtained anticipatory bail on the  condition that they would remain in Chennai for a week and during  that period report to the concerned Police Station everyday, would  never have dared to violate the conditions of bail. He contended that it  was with the sole intention of seeing that the appellants were arrested  and kept in jail at least for a few days, the application for cancellation  of bail was filed within 6 days of the grant of anticipatory bail. He  submitted a careful perusal of the sequence of allegations made  against the appellants would show that the said complaint of  administering threat to said Harish Bhuva is wholly false. He  submitted the court while making the impugned order did not bear in  mind the legal principles applicable for cancellation of bail and  blindly accepted the allegations made by the respondent relying on the  affidavits filed by said Harish Bhuva and the investigating officer  though in the counter affidavit filed by the appellants they had clearly  established that these allegations cannot be true. Mr. Sidharth Dave,  learned counsel appearing for the respondents-complainant, contended  that it is clear from the fact that Mr. Harish Bhuva with the first  respondent had lodged an oral complaint on 16.2.2003 itself which  was followed by a written complaint sent through post on 17.2.2003  that such a threat was administered. He also pointed out from the  affidavit filed by the investigating Police Inspector that a complaint as

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alleged by the first respondent herein was made to her and she had  administered a strong warning to the appellants.         Having heard learned counsel for the parties and perused the  records, we are convinced that the impugned order of the High Court  cancelling the anticipatory bail granted to the appellants cannot be  sustained in law. It is an admitted fact that within 14 days of the  marriage of the first appellant to Dimple Jain daughter of the first  respondent herein, disputes had arisen between them and they had  started living separately. There were complaints and counter- complaints between the parties which had compelled the appellants  herein and 2 others to obtain anticipatory bail from the High Court. It  is also an admitted fact that pursuant to the directions issued by the  High Court in the said bail order, the persons who sought bail from  the High Court including these 2 appellants, had surrendered before  the court and offered bailbonds which was accepted by the court  concerned and in furtherance of the directions issued by the High  Court though appellant No.2 was not required to attend the Police  Station without being summoned, he along with appellant No.1, was  attending the Police Station everyday. In this background, if really a  threat as alleged by Harish Bhuva was administered to him on  15.2.2003 a complaint in this regard would have certainly been lodged  either on that day itself or on the next day. On the contrary, as could  be seen from the records, a complaint was posted only on 17.2.2003 at  about 1956 hours through speed post. Of course, there is an allegation  that on 16th evening, an oral complaint was lodged but there is no  record substantiating the same, except the ipse dixit of Harish Bhuva.  Then again, if we read the affidavit filed by the Inspector of Police,  which was 8 months after the alleged threat, it is seen that this Officer  makes a complaint for the first time that the second appellant has not  complied with the conditions imposed by the High Court while  granting bail of appearing before the Police. This is a fact, in our  opinion, far from truth. As a matter of fact, as per the order granting  anticipatory bail to the appellants and two others, there was a direction  only with regard to the first appellant herein to stay in Chennai for a  week, others were not even required to be in Chennai but they had to  report to the Police as and when required by the Police. If really the  second appellant had disobeyed this direction, we would not have  expected the Police Officer to condone this default and wait for nearly  10 months before making an issue of it in an application filed for  cancellation of bail by the first respondent. It is further seen from the  said affidavit of the Police Inspector that Harish Bhuva lodged the  complaint as to the threat administered to him only on 17.2.2003. She  has not stated anything about the oral complaint that is allegedly  lodged by said Harish Bhuva on 16.2.2003. If we notice the allegation  made in the affidavit filed by Harish Bhuva in this regard, it could be  seen that he informed the first respondent about the visit of the  appellant to his house and the first respondent promised him that his  interest would be protected in a manner known to law but he does not  state in that affidavit that he tried to lodge an oral complaint on  16.2.2003. As notice above, in the background of the facts of this  case, we find it difficult to believe that this witness would have failed  to inform the first respondent of the visit of the appellants on  15.2.2003 itself and first respondent or said Harish Bhuva would have  failed to lodge a complaint with the concerned Police immediately  thereafter either on 15.2.2003 or 16.2.2003. The actual complaint  lodged as stated above, was only on 17.2.2003 and that too was only  posted at 1956 hours. This delay in lodging a complaint itself creates a  doubt in our mind as to the authenticity of this complaint. In this  factual background, we are of the opinion that the High Court was not  justified in cancelling the bail granted.         We make it clear that any expression of opinion made in this  order is for the limited purpose of the disposal of this appeal only and  shall not be considered as an expression of final opinion on the  questions involved in the main petition.         For the reasons stated above, this appeal is allowed. The

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impugned order of the High Court is set aside.