Juhi Modi vs Suresh Kumar Gupta & Ors.
1999 Latest Caselaw 936 Del

ORDER

K.S. Gupta, J.

1. This petition filed under Sections 439(2) and 482 Cr.P.C. read with Article 227 of the Constitution of India seeks the cancellation of bail granted to respondents 1 to 4 by the order dated 16th October, 1998 by an Additional Sessions Judge.

2. Facts giving rise to this petition, in brief, are that the petitioner was married to Neeraj Gupta, respondent No. 3 and 3rd July 1998 at Delhi. On a complaint made by the petitioner, FIR No. 997/98 under Sections 406/498-A/34 IPC was registered at PS Sriniwas Puri on 14th October, 1998. Thereafter, on 15th October, 1998 search was conducted at the respondents residence No. A-57, New Friends Colony, New Delhi and respondents 1 to 4 were also arrested. Application filed by these respondents seeking anticipatory bail before the Additional Sessions Judge, after their arrest, was allowed to be treated as application for regular bail and they were admitted to bail by the order dated 16th October, 1998, the cancellation whereof is now sought by the petitioner. Application seeking cancellation of bail filed by the petitioner later on came to be dismissed by the Additional Sessions Judge by the order dated 14th January, 1999.

3. Before adverting to the submission advanced on behalf of the petitioner I would like to refer to two decisions of the Supreme Court in Delhi Administration Vs. Sanjay Gandhi, and Raghubir Singh & Others Vs. State of Bihar, which deal with the grounds on which ball can be cancelled under Section 439(2) Cr.P.C.

4. In Sanjay Gandhi's case (supra) on Page 965 of the report it was held that the 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 granted in such as case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be 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.

5. In Raghubir Singh's case (supra) it was held that the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where: (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (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 and (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.

6. Submission advanced by Ms. Mukta Gupta appearing for the petitioner was that the view taken by this court in the decisions in Jagdish Thakker Vs. State of Delhi, 1993 JCC 117 and Ravi Pranja Vs. State, 1997 JCC 123 that the recovery of dowry articles cannot be made the subject matter of criminal proceedings, is contrary to the law laid down by the Supreme Court in the decision in Pratibha Rani Vs. Suraj Kumar and another, , Further submission made by her was that jewellery worth more than Rs. 34 lakhs belonging to the petitioner, is yet to be recovered and at the time order dated 16th October, 1998 was passed, it was misrepresented that only two more articles remained to be recovered from the respondents and therefore, the bail deserves to be cancelled.

7. It may be noticed that reference to the two decisions referred to above of this court is made in the order dated 14th January, 1999 and not the order dated 16th October, 1998 with which we are concerned in this petition. Therefore, it is not necessary to go into the question whether the view expressed in the said two decisions runs contrary to the law enunciated in Pratibha Rani's case or not.

8. Coming to the second limb of argument, reading of the aforesaid order dated 16th October 1998 goes to show that the prosecution had not sought the police remand of respondents 1 to 4 to effect further recoveries and it was submitted by the APP that only two articles remained to be recovered from the respondents and taking note of that fact above bail order was passed. Thus, no mispresentation can be attributed to the respondents as regards the number of articles to be recovered or the value thereof. That apart, taking note, of the ration in Sanjay Gandhi and Raghubir Singh's cases (supra), in my opinion, the recovery of dowry articles cannot be made a ground for cancellation of bail already granted to the respondents by the aforementioned order dated 16th October, 1998. Petition thus deserves to be dismissed being without merit.

9. Consequently, the petition is dismissed.