Delhi High Court
Akanksha Gupta vs N.C.T. Of Delhi & Others on 18 May, 2010
Author: Sanjiv Khanna
24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 346/2008
AKANKSHA GUPTA ..... Petitioner
Through Mr. Kumar Sushobhan, Adv.
versus
N.C.T. OF DELHI & ORS. ..... Respondent
Through Mr. Arvind Kr. Gupta, APP.
Ms. Geeta Luthra, Sr. Adv. with Mr. Attin
Shankar Rastogi, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 18.05.2010
1. The present revision petition has been filed against the order dated 17th
May, 2008 passed by the learned Metropolitan Magistrate dismissing her
application for cancellation of bail granted to Harish Kapoor and Girish Kapoor in
FIR No.259/2007 under Sections 406/498-A/34 of the Indian Penal Code, police
station Punjabi Bagh.
2. The petitioner has submitted that the said respondents Harish Kapoor and
Girish Kapoor had failed to comply with their undertakings on the basis of which
they were granted bail and have failed to make payment of Rs. 1.25 crores.
3. A similar contention was raised before the High Court while opposing the
anticipatory bail application Nos. 2334 and 2351/2007 filed by Shashi Kapoor and
Uma Kapoor mother-in-law and aunt of the complainant. By a detailed order
dated 31st October, 2007, the anticipatory bail applications filed by Shashi Kapoor
and Uma Kapoor were allowed inter alia holding as under:-
"10. It is not in dispute that the settlement dated
4.5.2007 arrived at was when Harish Gupta, father-in-
law of the complainant and husband of Uma Kapur,
was in police custody. Thus prima facie, said
settlement has to be taken with a pinch of salt.
11. However, the petitioners still have a hurdle to
overcome.
12. As noted above, on 11.5.2007 the petitioners filed
an application seeking anticipatory bail before the
learned ASJ. They could have pleaded for anticipatory
bail by projecting a case on merits and not basing
their claim on the settlement between the parties.
Further, having obtained interim anticipatory bail they
consented to the matter being considered on the
ground that the settlement required payments to be
made in three installments and that money would be
paid. Not only that, first installment of the agreed
settlement in sum of Rs.5 lacs was also paid.
13. The subsequent conduct, to some extent,
mitigates against the presumption that the settlement
was the result of police coercion and since Shashank's
father was arrested and was in police custody, the
police personnel brokered a settlement between the
parties.
14. But, issue of personal liberty has not to be decided
on a bargain between the parties. Right to life and
property is too precious to be bartered.
15. Even statutory rights have been placed at a high
pedestal and have been held not subject to the rule of
estoppel where a plea is raised that a party concerned
has consented to a particular course of action, which
action is in derogation of the statutory right of the
party concerned.
16. In the decision reported as (1998) 6 SCC 507
P.R.Deshpande Vs. Maruti Balaram Bibatti it was
observed as under :-
"9. It is now trite that the principle of estoppel has no
application when statutory rights and liabilities are
involved. It cannot impede right of appeal and
particularly the constitutional remedy. The House of
Lords has considered the same question in Evans V.
Bartlam, (1937) 2 All ER 646. The House was dealing
with an order of the court of appeal where Scott, L.J.
approved contention of a party to put the matter on
the rule of election on the premise that the defendant
knew or must be presumed to know that he had the
right to apply to set the judgment aside and by asking
for and obtaining time he irrevocably elected to abide
by the judgment. Lord Atkin, reversing the above
view, has observed thus :
"My Lords, I do not find myself convinced by these
judgments. I find nothing in the facts analogous to
cases where a party, having obtained and enjoyed
material benefit from a judgment, has been held
precluded from attacking it while he still is in
enjoyment of the benefit. I cannot bring myself to
think that a judgment-debtor, who asks for and
receives a stay of execution, approbates the
judgment, so as to preclude otherwise. Nor do I find it
possible to apply the doctrine of election."
10. Lord Russell of Killowen while concurring with the
aforesaid observations has stated thus :
"My Lords, I confess to a feeling of some
bewilderment at the theory that a man (who, so long
as it stands, must perforce acknowledge and bow to a
judgment of the court regularly obtained), by seeking
and obtaining a temporary suspension of its
execution, thereby binds himself never to dispute its
validity or its correctness, and never to seek to have it
set aside or reversed. If this were right, no defeated
litigant could safely ask his adversary for a stay of
execution pending an appeal, for the grant of the
request would end the right of appeal. The doctrine of
election applies only to a man who elects with
full knowledge of the facts."
17. In the decision reported as Upalaniappan and
Anr. Vs. Sub Inspector of Police 2005 SCC (Crl.) 1586, a
condition requiring the accused to pay Rs.10 lacs for
securing the benefit of bail was held to be onerous.
18. No doubt, while granting bail or anticipatory bail,
conditions can be imposed but the conditions cannot
be such which amount to compelling a person to buy
his or her freedom.
19. In my considered opinion, petitioners are entitled
to have their case considered for grant of anticipatory
bail on merits, ignoring the settlement which
Shashank's father executed with the complainant."
4. In this order dated 31st October, 2007, the petitioners therein were
directed to deposit a fixed deposit receipt in sum of Rs. 50 lacs from a
nationalized bank in the trial court. It is stated that the said deposit has been
made. The petitioner herein had challenged the said order dated 31 st October,
2007 before the Supreme Court but without success.
3. In view of the aforesaid factual position, I do not find any merit in the
present revision petition filed for cancellation of the bail granted to Harish
Kapoor and Girish Kapoor and the same is dismissed.
SANJIV KHANNA, J.
MAY 18, 2010
NA
