Shalini Malik vs Mrs. Jayshree And Anr. And State ...
2003 Latest Caselaw 354 Del

JUDGMENT

R.C. Chopra, J.

1. These two petitions under Sections 439(2) and 482 of the Code of Criminal Procedure ( hereinafter referred to as 'the Code' only) are for cancellation of bail granted to the accused/respondents by learned ASJ, Delhi in case FIR No. 399/02 registered at Police Station Prashant Vihar under Sections 406/498-A/506/376/120-B/34 IPC, vide orders dated 28.8.2002 and 31.8.2002. The respondent No. 1 in Crl.M(M) No. 3519/02 is the mother-in-law of the petitioner and respondent No. 2 in Petition No. 3520/02 is the husband of the complainant.

2. The aforesaid FIR was registered against the accused-respondents on the basis of a complaint made by the petitioner alleging that on 9.5.2002 she was married to respondent-accused Sandeep Solanki according to Hindu rites and customs. Soon after the marriage the respondents started raising dowry demands and on 16.5.2002 she was asked to bring Rs.5 lakhs from her father so that her husband could start business. When she told her father-in-law that her father had already given Maruti Zen Car and other valuable articles in the dowry and he was not in a position to pay Rs.5 lakhs more her husband started beating her and her mother-in-law-respondent threatened that she would see as to how she did not bring Rs. 5 lakhs. The petitioner-complainant alleged that on 17.5.2002 when her husband and Father-in-law had gone to the factory, her mother-in-law gave her beating and after tying her hands and legs with a double bed with a chunnee she herself went out of the room locking the door from outside. Thereafter her brother-in-law after removing his clothes and the clothes of the complainant made forcible physical relations with her. After he left his mother-in-law came inside the room and she also, after removing her all clothes, laid over her and started licking her from all sides. When her husband came back home she narrated the entire incident to her but he said that they were simply playing with her and will stop harassing her in case she brought Rs.5 lakhs. According to the complainant she was not allowed to telephone her parents or move out of the house but on 30.6.2002 when her in-laws had gone some where and she was alone in the house she picked up courage and left her home. The FIR was, however, lodged on 5.8.2002 i.e after a delay of about 35 days of leaving her matrimonial home. The respondents in both the petitions were arrested on the same day and were released on bail vide orders dated 28.8.2003 and 31.8.2002. Both of them, therefore, remained in custody for over three weeks.

3. I have heard learned counsel for the petitioner -complainant , learned counsel for the State and learned counsel for the respondents/accused.

4. There is no dispute about the legal preposition that the High Court in exercise of powers under Section 482 of the Code read with Section 439 thereof has ample powers to cancel a bail at the instance of the State or an aggrieved party. The Apex Court in the case of Puran Vs. Rambilas and Another has laid down the parameters and principles governing the cancellation of bail and has held that arbitrary and wrong exercise of discretion by a Trial Court in the matter of grant of bail can be brought to the notice of the High Court and an order granting bail based on no material and without giving reasons can be held to be perverse and contrary to law. It is held that such a ground for cancellation is different from the ground that the accused has misconducted himself or some new facts calling for cancellation of bail have emerged. It is also clarified that discussing evidence is different from giving reasons for a decision and in bail orders also reasons must be recorded without discussing the merits or demerits of evidence. The case before the Apex Court was a case under Section 498-A/304B IPC and the High Court had cancelled the bail as the orders granting bail were found unjustified and erroneous.

5. In view of the submissions made by learned counsel for the parties and after considering the material on record, this Court finds that the allegations of rape were not against any of the two respondents. The allegations of rape were against brother-in-law who is stated to be a juvenile offender. The delay in the lodging of the FIR after the petitioner-complainant managed to come out of her matrimonial home was a material fact for deciding the question of grant or refusal of bail and the learned ASJ while passing the impugned orders appears to have been influenced by the fact that there was delay in the lodging of the FIR. The respondents had remained in custody for quite some time and as such it cannot be held that the orders passed by the learned ASJ granting bail to the respondents were perverse, illegal or erroneous exercise of jurisdiction vested in him.

6. It has to be kept in mind that cancellation of bail granted by a Court of competent jurisdiction should not be resorted to lightly. Only in cases of patent perversity where a bail order is shown to have been passed in a heinous offence ignoring the allegations and evidence on record the High Court should invoke its powers under Section 482/439(2) of the Code for cancelling the bail. Liberty of a citizen and presumption of innocence cannot be jeopardized without there being compelling reasons to do so. This Court, therefore, is of the considered view that there are no good grounds for interfering with the impugned orders granting bail to the respondents.

7. Both the petitions, therefore, stand dismissed.