Delhi High Court
Kadhak Singh vs State Of Nct Of Delhi & Ors. on 15 January, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 15, 2015
+ CRL.M.C. No.3293/2014
KADHAK SINGH ..... Petitioner
Through: Mr. C.S.S.Tomar, Advocate
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Pravin Bhati, Additional
Public Prosecutor for State with SI
Rohit Kumar PS Jafrabad
Mr. Manish Kumar, Advocate
alongwith Respondents No.2 & 3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
This is a petition filed under Section 482 read with Section 439(2)
of Code of Criminal Procedure, 1973 seeking cancellation of bail granted
to respondents No.2 & 3 in case FIR No.186/2012 under Sections
498A/304B/34/302 IPC and Section 3/4 of Dowry Prohibition Act, 1961
registered at Police Station Zafrabad, Delhi.
Trial court vide order of 5th May, 2014 has granted bail to
respondents-accused observing that deposition of public witnesses has
already been recorded. It is also noted in the impugned order that
evidence recorded is contradictory in nature. Respondents No.2 & 3, who
Crl.M.C.No.3293/2014 Page 1
have been granted bail vide impugned order, are the husband and father-
in-law of the deceased and the allegations against them are of subjecting
the deceased to cruelty and to pressurize her to bring more dowry. The
prosecution case is that the deceased was murdered on account of
inability to bring `10 lakhs in cash and one BMW car. The marriage of
respondent No.2-husband and deceased was just 1 ½ year old. Trial court
vide impugned order has granted bail to the accused persons primarily on
the ground that deposition of public witnesses has been recorded and that
there is no chance of respondent-husband tampering with evidence.
At the hearing, learned counsel for petitioner-complainant had
submitted that in view of gravity of offence committed, grant of bail to
respondents-accused merely on the ground that deposition of public
witnesses is recorded results in miscarriage of justice. It is pointed out by
learned counsel for petitioner that it has come in evidence of father of
deceased that early in the morning on the day of incident deceased had
made a telephone call to him and his wife and had disclosed that
respondents-accused and their co-accused had not allowed her to take tea
and had been beating her for the last two days. It was submitted by
learned counsel for petitioner that due to merciless beating of deceased-
Sunny, she was driven to death and was hanged and as per MLC there are
injuries on the face of the deceased. Thus, it is submitted that a clear cut
case of murder is made out and motive of murder is dowry demands and
heinousness of crime committed by respondents calls for cancellation of
bail granted to respondents-accused.
Learned counsel for respondents-accused supports the impugned
order and submits that the evidence already recorded is unreliable due to
Crl.M.C.No.3293/2014 Page 2
the contradictions. It was asserted that the witnesses contradicted each
other on material aspects. It was pointed out that the phone call
purportedly made by deceased to her parents does not stand proved. In
this regard, attention of this Court was drawn to deposition of Nodal
Officer of Idea Cellular Ltd. (PW-6). It was pointed out by learned
counsel for respondents-accused that deceased was under depression and
under treatment at IHBAS because she was unable to conceive and the
allegations of cruelty leveled against respondents-accused are not
substantiated from the evidence on record and so, no case of cancellation
of bail granted to respondents-accused is made out.
The parameters governing cancellation of bail as reiterated by
Apex Court in Kanwar Singh Meena v. State of Rajasthan (2012) 12 SCC
180 are as under:-
"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
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
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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 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."
Upon hearing both the sides and on perusal of the impugned order,
material on record and a brief look on the certified copy of the evidence
Crl.M.C.No.3293/2014 Page 4
already recorded, it prima facie appears that prosecution case of deceased
making phone call to her parents in the early morning on the day of
incident is not corroborated from the deposition of the Nodal Officer
(PW-6) of Idea Cellular Ltd.. This Court is conscious of the fact that the
evidence already recorded cannot be appreciated in piecemeal amidst trial
but just to gauge the gravity of the offence, I had a brief look at the
deposition of father of the deceased and Nodal Officer from Ideal
Cellular and thereupon I find that necessary ingredient of deceased being
subjected to cruelty soon before her death is a moot point, which is
required to be considered with sensitivity by the trial court while adopting
a practical approach.
Without commenting upon evidentiary value of the deposition of
father of the deceased and Nodal Officer, I find that grant of bail to
respondents-accused does not result in miscarriage of justice. Though,
this court is not inclined to cancel bail granted to respondents-accused but
does not appreciate the approach of trial court in dealing with the bail
application of respondent-accused.
This application is dismissed while refraining to comment upon
merits of this case lest it may prejudice either side at trial.
(SUNIL GAUR)
JUDGE
JANUARY 15, 2015
vn
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