Delhi High Court
Mithai Lal vs State & Anr on 20 August, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.722/2010
Decided on 20.08.2010
IN THE MATTER OF :
MITHAI LAL ..... Petitioner
Through : Mr. A.C. David, Advocate
versus
STATE & ANR ..... Respondents
Through : Mr. M.N. Dudeja, APP for State.
Mr. S. Shani, Adv. for R-2 with
R-2 in person.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J. (Oral)
1. The present petition is filed by the petitioner under Section
439(2) Cr.P.C. for setting aside the order dated 8.2.2010, passed by the
learned ASJ in S.C. No.230/2009, by which the bail application of the
accused, Ram Niwas, father-in-law of the deceased daughter of the
petitioner herein, was allowed.
2. Challenge is laid to the aforesaid bail order mainly on two
counts. It is stated by the counsel for the petitioner that the respondent
No.2 tried to misguide the learned ASJ by stating that he was aged 65 years,
which weighed with the court while passing the impugned order. He submits
that in fact, the respondent No.2 is 60 years of age. Secondly, he
submits that the respondent No.2 intentionally got the date of hearing of
his bail application advanced by filing an application before the District
Judge, which was allowed, vide order dated 4.2.2010 and as a result, the
petitioner was not present before the learned ASJ on 8.2.2010, when
arguments were addressed on the bail application.
3. It is an undisputed position that the incident of the daughter of
the petitioner, Ms. Sunita committing suicide at her matrimonial home,
occurred on 9.6.2009. On the very next day, the husband of the deceased,
Anil and her father-in-law, respondent No.2 herein, were arrested by the
police. Thereafter, respondent No.2 remained in judicial custody till the
passing of the impugned order dated 8.2.2010, i.e., for almost a period of
7½ months.
4. It is further stated that the charge sheet was filed on 7.9.2009
and the charges were framed by the court on 25.1.2010. Only thereafter,
the impugned order dated 8.2.2010 granting bail to the respondent No.2,
came to be passed. Pertinently, the mother-in-law of the deceased, wife of
the respondent No.2, and the husband of the deceased, Anil continue to
remain in judicial custody.
5. Learned APP for the State submits that the State is not
aggrieved by the impugned order and has not challenged the same, and
further, that the trial is progressing expeditiously inasmuch as the evidence
of four of the material witnesses, including the petitioner herein, has already
been recorded and the cross-examination of PW-4 is now listed on 3.9.2010.
6. It is settled law that the yardstick for grant of a bail order in
favour of an accused is entirely different from an order to be passed for
cancellation of bail. Here, the allegations levelled by the petitioner against
the respondent No.2, is not of tampering of the evidence, influencing the
witnesses, or any mis-use of the bail order granted in his favour, which are
material considerations and ought to weigh with the court while considering
a petition for cancellation of a bail order. Reference may be made in this
regard to :
(i) The State through the Delhi Administration vs. Sanjay Gandhi,
AIR 1978 SC 961,
(ii) Bhagirath Singh Judeja vs. State of Gujarat, AIR 1984 SC 372,
(iii) Om Prakash vs. Karan Singh & Ors., 1993 (26) DRJ 459, and
(iv) Kavita vs. GNCT & Anr., 131 (2006) DLT 354.
7. Counsel for the petitioner states that there is some likelihood of
threatening the public witnesses and harassing them. Ever since filing
of the present petition in the month of February, 2010, there has been no
complaint made by the petitioner either to the State or to the court with
regard to the harassment of any public witnesses by respondent No.2. Nor
has any such instance been brought to the notice of this Court even today to
demonstrate that the respondent No.2 has abused the discretion granted in
his favour.
8. Mere incorrect age of the respondent No.2 itself, cannot be a
ground for cancellation of the bail. Even if, it is assumed that the
respondent No.2 was actually 60 years of age on the date of passing of the
impugned order, as contended by the counsel for the petitioner, not much
shall turn on it as a perusal of the impugned order shows that the learned
ASJ took into consideration other relevant material and circumstance of the
case, including the statements of the mother of the deceased and her aunt,
before granting bail to respondent No.2. Mere absence of the petitioner's
counsel before the court on 8.2.2010, is of no consequence as the State was
duly represented before the learned ASJ on the said date and there is no
allegation to the effect that the State counsel had abdicated his duties. It is
also not a case where the impugned order is found to be arbitrary or
perverse.
9. Having regard to the facts and circumstances of the present
case, where the trial is stated to be at an advance stage of recording
evidence of the remaining witnesses of the prosecution, apart from the
material witnesses, whose deposition is almost complete, and in view of the
fact that the petitioner has not been able to point out any attempt on the
part of the respondent No.2 of threatening the witnesses, mis-using his
liberty or tampering with the evidence and further as there is no complaint
of the State against the respondent No.2 of non-adherence to the conditions
of bail imposed on him, this Court is not inclined to interfere in the impugned
order granting bail to the respondent No.2. The order of the ASJ is upheld
being neither perverse, nor arbitrary. The petition is accordingly dismissed.
(HIMA KOHLI)
AUGUST 20, 2010 JUDGE
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