Delhi High Court
Smt Jyoti vs State & Anr. on 4 February, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: February 04, 2015
+ CRL.M.C. 4073/2013
SMT JYOTI ..... Petitioner
Through: Ms. Anupriya Yadav, Advocate
versus
STATE & ANR ..... Respondent
Through: Mr. Navin Sharma, Additional
Public Prosecutor for State with SI
Raj Kumar
Ms. Priya Hingorani and Mr. S.
Choudhary, Advocates for
Respondent no. 2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In this petition, cancellation of pre-arrest bail granted to
respondent-accused in FIR No. 159/2013 under Section 406/498A/34 IPC
registered at Police Station Krishna Nagar is sought on the ground that
petitioner was subjected to cruelty and merely because respondent-
accused had agreed to pay a sum of `2 lakhs to petitioner-complainant,
pre-arrest bail has been granted which is unjustified in the facts and
circumstances of this case.
At the hearing, learned counsel for the petitioner has drawn the
attention of this court to the various SMS messages sent by respondent-
Crl.M.C.No.4073/2013 Page 1
accused to submit that the conduct of respondent-accused was cruel and
he had subjected the petitioner to immense cruelty. It is pointed out that
petitioner's family had spent huge amount of money on the marriage in
question and the concession of pre-arrest bail has been extended to
respondent-accused while ignoring that he had illicit relations with
another girl and respondent-accused used to come home under the
influence of liquor and often used to beat petitioner. It was pointed out
that the custody of the children has been deceitfully taken away by
respondent-accused and so impugned order granting bail to respondent-
accused deserves to be set aside.
Learned counsel for respondent no. 2/accused had refuted the
submission made on behalf of petitioner and submitted that the marriage
in question was 12 years old and the children of the parties are residing
with petitioner out of their own sweet will and he is keeping them happy.
It was submitted that the allegations of cruelty, etc. leveled against the
respondent/accused are false and frivolous. It was pointed out that
respondent/accused's divorce petition is pending before the family court
and petitioner has already joined investigation of this case and so no case
of cancellation of bail is made out.
The considerations which ought to weigh with the court while
dealing with application seeking cancellation of bail have been succinctly
spelt out by Apex Court in the case of Kanwar Singh Meena v. State of
Rajasthan, (2012) 12 SCC 180 in these words:-
"Thus, Section 439 of the Code confers very wide powers on
the High Court and the Court of Session regarding bail. But,
while granting bail, the High Court and the Sessions Court
Crl.M.C.No.4073/2013 Page 2
are guided by the same considerations as other courts. That
is to say, the gravity of the crime, the character of the
evidence, position and status of the accused with reference to
the victim and witnesses, the likelihood of the accused fleeing
from justice and repeating the offence, the possibility of his
tampering with the witnesses and obstructing the course of
justice and such other grounds are required to be taken into
consideration. Each criminal case presents its own peculiar
factual scenario and, therefore, certain grounds peculiar to a
particular case may have to be taken into account by the
court. The court has to only opine as to whether there is
prima facie case against the accused. The court must not
undertake meticulous examination of the evidence collected
by the police and comment on the same. Such assessment of
evidence and premature comments are likely to deprive the
accused of a fair trial. While cancelling the bail under
Section 439(2) of the Code, the primary considerations which
weigh with the court are whether the accused is likely to
tamper with the evidence or interfere or attempt to interfere
with the due course of justice or evade the due course of
justice. But, that is not all. The High Court or the Sessions
Court can cancel the bail even in cases where the order
granting bail suffers from serious infirmities resulting in
miscarriage of justice. If the court granting bail ignores
relevant materials indicating prima facie involvement of the
accused or takes into account irrelevant material, which has
no relevance to the question of grant of bail to the accused,
the High Court or the Sessions Court would be justified in
cancelling the bail. Such orders are against the well-
recognised principles underlying the power to grant bail.
Such orders are legally infirm and vulnerable leading to
miscarriage of justice and absence of supervening
circumstances such as the propensity of the accused to
tamper with the evidence, to flee from justice, etc. would not
deter the court from cancelling the bail. The High Court or
the Sessions Court is bound to cancel such bail orders
particularly when they are passed releasing the accused
involved in heinous crimes because they ultimately result in
Crl.M.C.No.4073/2013 Page 3
weakening the prosecution case and have adverse impact on
the society. Needless to say that though the powers of this
Court are much wider, this Court is equally guided by the
above principles in the matter of grant or cancellation of
bail."
The parameters governing the cancellation of bail as reiterated by
Apex Court in Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10
SCC 754 are as under: -
"14. Under Chapter XXXIII, Section 439(1) empowers the
High Court as well as the Court of Session to direct any
accused person to be released on bail. Section 439(2)
empowers the High Court to direct any person who has
been released on bail under Chapter XXXIII of the Code
be arrested and committed to custody i.e. the power to
cancel the bail granted to an accused person. Generally
the grounds for cancellation of bail, broadly, are, (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, (vii)
attempts to place himself beyond the reach of his surety,
etc. These grounds are illustrative and not exhaustive.
Where bail has been granted under the proviso to Section
167(2) for the default of the prosecution in not completing
the investigation in sixty days after the defect is cured by
the filing of a charge-sheet, the prosecution may seek to
have the bail cancelled on the ground that there are
reasonable grounds to believe that the accused has
committed a non-bailable offence and that it is necessary
to arrest him and commit him to custody. However, in the
last mentioned case, one would expect very strong grounds
Crl.M.C.No.4073/2013 Page 4
indeed. (Raghubir Singh v. State of Bihar [(1986) 4 SCC
481]"
Applying the afore-noted dictum of the Apex Court to the facts of
the present case, I find that bail has been granted to respondent/accused
by a well reasoned order. To strike a balance, respondent/accused has
been asked to pay a sum of `2 lakhs to petitioner/complainant in lieu of
the dowry articles allegedly not returned. So far as the allegations of
cruelty etc. are concerned, the same are required to be tested at trial and
judicial notice can be taken of the fact that in such like cases the
exaggerated versions as put forward by the parties.
Finding no palpable error in the impugned order, this petition is
disposed of while refraining to comment on merits of this case lest it may
prejudice either side before the trial court.
(SUNIL GAUR)
JUDGE
FEBRUARY 04, 2015
rs
Crl.M.C.No.4073/2013 Page 5
