Krittika Choudhary vs State Of Karnataka
2022 Latest Caselaw 4169 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 11TH DAY OF MARCH, 2022

                          BEFORE

             THE HON'BLE MR. JUSTICE P.N.DESAI

            CRIMINAL PETITION NO.101827 OF 2021

BETWEEN:
KRITTIKA CHOUDHARY
AGE ABOUT 25 YEARS,
D/O. SRI.RAJ KUMAR,
OCC: RECRUITER IN GOOGLE,
R/O.#4, MARLA COLONY,
MALL ROAD, NEAR MANGALDEEP
RESTAURANT, FATEHABAD
HARYANA-125050.
                                                 ...PETITIONER

(BY SRI BHANU PRADEEP, ADVOCATE)


AND:

1.     STATE OF KARNATAKA
       BY GOKARNA P.S.
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       DHARWAD-580011.

2.     TUSHAR SATYAJIT MARATE
       AGE ABOUT 29 YEARS,
       OCC: PHYSICAL TRAINER,
       RESIDING AT 984, SADASHIV PETH
       NEAR DNYAN PRABODHINI SCHOOL
       NEAR S.P. COLLEGE, PUNE
       MAHARASHTRA-411030.

                                            ...RESPONDENTS

(BY SMT.GIRIJA HIREMATH, HCGP FOR R1;
SRI.GIRISH A.YADWAD., ADVOCATE FOR R2)
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      THIS CRIMINAL PETITION IS FILED U/S 439(2) R/W 482 OF
CR.P.C., 1973 SEEKING TO SET ASIDE THE IMPUGNED ORDER
DATED 05.08.2021 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS     JUDGE,   UTTARA     KANNADA,     KARWAR,    IN
CRL.MISC.NO.251/2021      CONSEQUENTLY       DIRECT     THE
RESPONDENT NO.1 TO ARREST THE RESPONDENT NO.2 HEREIN.

     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 2.3.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is filed under Section 439(2) read with

Section 482 of the Criminal Procedure Code, 1973, with a

prayer to set-aside the order dated 05.08.2021 passed by the

learned Prl.District and District and Sessions Judge, Uttara

Kannada, Karwar in Crl.Misc.No.251/2021 and directed the

respondent No.1 to arrest respondent No.2.

2. The brief contention of the petitioner is that

petitioner is a permanent resident of Fatehabad of Haryana

State and she is currently working in Bengaluru, as a

recruiter for Google. The respondent No.2 is a fitness trainer

from Pune. It is further contended that petitioner and

respondent No.2 were in relationship for a brief period during

July to September-2017, when she was interning in Pune.

Respondent No.2 used to physically abuse the petitioner. As a

result of which, she ended her relationship with him. It is

further contended that respondent No.2 used to constantly

stalk the petitioner on the phone and internet and the same

was continued even though she moved to Bengaluru for her

job. It is further contended that on 26.11.2019, respondent

No.2 trespassed the paying guest accommodation where the

petitioner was staying and started abusing her and damaged

property of the PG. Therefore, he was put in the lock up over

night by the police and was then let out with a warning.

3. It is further contended that thereafter, he started

harassing her over calls, text messages and Whats App and

in spite of repeated requests made by the petitioner to stop

the same had been in vain. It is further contended that the

petitioner along with her friends Tharun Reddy and Saurav

Agarwal had visited Gokarna on 06.07.2021 and booked two

rooms at room Nos.305 and 306 at Kudle Beach View Resort.

On 07.07.2021 at around 03:00 P.M, the petitioner entered

her room No.306 to collect her laptop for an official meeting,

she was shocked to find the respondent No.2 waiting at the

balcony. Respondent No.2 had entered the said room from

the balcony, locked the door and pushed her on the bed. He

then started strangulating her with his hands and with wire.

He punched her face and also tried to suffocate her with the

pillow. It is further contended that the petitioner almost lost

her consciousness. Respondent No.2 started hitting the

petitioner's face and neck with a sharp object and the

petitioner then regained her consciousness as her friends

were calling over mobile phone and the intercom. By that

time, respondent No.2 had fled the petitioner's room and the

petitioner somehow mustered all her energy and picked up

the call and started screaming for help. The petitioner's

friends arrived at room No.306 and found the petitioner in a

pool of blood and her face covered with injuries and blood.

Then she was taken to hospital. Earlier she was taken to the

Government hospital, Gokarna and thereafter she was shifted

to the hospital at Kumata. Then from there she was admitted

to the KMC hospital, Mangaluru where she underwent medical

treatment. Then the petitioner lodged the complaint through

email on 07.07.2021. In this regard, FIR was registered for

the offences punishable under Sections 323, 324, 307 and

506 of Indian Penal Code. Then respondent no.2 was arrested

on 10.07.2021 at 11:30 p.m in Pune and he was remanded

to judicial custody. Thereafter, he filed bail application under

Section 439 of Cr.P.C. Learned Prl. District and Sessions

Judge, Uttara Kannada, Karwar without considering the

contents passed an order granting bail only on the ground

that the petitioner is not required for custodial interrogation.

Aggrieved by the same, this petition is filed by the victim

petitioner.

4. Respondent No.2 filed his objection. He has

denied the contentions of the petitioner as all false. It is

contended that there are no circumstances made out to

cancel the bail granted and no cogent or overwhelming

circumstances are brought on record. Further, respondent

No.2 contended that the petition is filed only with an

intention to wreck vengeance against respondent No.2.

Learned Sessions Judge after considering the merits of the

case has granted bail. There is nothing on record to attract

under Section 439(2) of Cr.P.C. Hence, he prays to dismiss

the petition.

5. I have heard Sri Bhanu Pradeep, learned counsel

for the petitioner through video conference and Smt. Girija

Hiremath, learned HCGP for respondent No.1 and Sri Girish

A.Yadwad, learned counsel for respondent No.2.

6. Learned counsel for the petitioner Sri Bhanu

Pradeep Sing argued that the learned Sessions Judge has not

properly appreciated the contentions of the petitioner while

granting the bail. Therefore, the said order is perverse, bad in

law and liable to be set-aside. Learned counsel further argued

that though learned Sessions judge held at para No.11 of the

impugned order that the complaint and documents discloses

the commission of the offence by respondent No.2 without

assigning any cogent reasons. Learned Sessions judge

observed that there was no injury to the vital parts of the

complainant's body, in complete ignorance of the discharge

summary given by KMC hospital, Mangalore which clearly

reveals the fact that petitioner had suffered grave injuries on

her face and other fractures, which are grievous in nature.

Learned Sessions Judge had granted bail to the respondent

by completely ignoring the photographs of the petitioner

taken immediately after the incident. Learned Sessions

Judge has not taken into consideration that the respondent

No.2 had physically abused her in the past and had been

stalking and threatening her even after their break-up in

2017. Respondent No.2 had carefully pre-meditated and

planned the attack finding the whereabouts of the petitioner,

checking into the same hotel, and breaking into her room

through the balcony and brutally attacked by punching and

cutting her face and strangulating her with a wire in order to

kill the petitioner. Learned Sessions Judge passed the

impugned order, despite the admission made by respondent

No.2 has observed in para No.9 of the judgment and has

granted bail. Learned counsel further argued that the learned

Sessions Judge should not have granted bail at a premature

stage and the investigation is not completed. There is every

possibility that respondent No.2 would threaten the witnesses

and tamper with the evidence. The Court has failed to

considered the decisions of Hon'ble Supreme Court regarding

the parameters to be considered while considering the bail.

7. In support of his contentions, learned counsel

relied upon the following decisions of the Hon'ble Supreme

Court;

1) Puran Vs Rambilas & Another1, wherein it is held in para Nos.10, 11, 13, which reads as under;

10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are

(2 00 1 ) 6 SC C 3 38

being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram & Ors. vs. State of Haryana reported in 1995 (1) S.C.C. 349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society.

Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.

11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179. In that case the Court observed as under:-

"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."

13. Our view is supported by the principles laid down in the case of Gurcharan Singh & Others, etc. vs. State (Delhi Administration) reported in 1978 (1) S.C.C. 118. In this case it has been held, by this Court, that under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere.

2) Ram Govind Upadhyay Vs Sudarshan Sing & Others2, wherein at para No.3 and 4 reads as under;

3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts

(2 00 2 ) 3 SC C 5 98

however do always vary from case to case.

While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being:

(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of

the prosecution, in the normal course of events, the accused is entitled to an order of bail.

3) Prasanta Kumar Sarkar Vs AshisChatterjee & Another3, wherein it is held in para Nos.5, 9, 10 and 11, which reads under;

5. Having failed to secure bail from the Sessions Court, the accused preferred a bail application, being C.R.M. No. 272 of 2010 before the High Court under Section 439 of the Code. As stated above, by the impugned order, the High Court allowed the application, and granted bail to the accused by a short order, observing thus: "Having regard to the nature of the alleged crime, we do not think that interest of investigation requires or (sic) justifies further detention of the present petitioner at this stage."

9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point.

It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(2 01 0 ) 1 4 SC C 49 6

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behavior, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

(See: State of U.P. through CBI Vs. Amarmani Tripathi (SCC p.31, para 18); Prahlad Singh Bhati Vs. NCT, Delhi & Anr & Ram Govind Upadhyay Vs. Sudarshan Singh & Ors)

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal. In Masroor (supra), a Division Bench of this Court, of which one of us (D.K. Jain, J.) was a member, observed as follows:

"13......Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence."

(See also State of Maharashtra Vs. Ritesh; Panchanan Mishra Vs. Digambar Mishra & Ors.;

Vijay Kumar Vs. Narendra & Ors.; Anwari Begum Vs. Sher Mohammad & Anr)

Hon'ble Supreme Court has stated that factors to be borne in mind while considering the bail application.

4) Neeru Yadav Vs State of Uttar Pradesh and Another4, wherein it is held in para Nos.10, 11, 13, 18, which reads under;

10. In Ram Govind Upadhyay v. Sudarshan Singh, it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter. In the said case, reference was made to Prahlad Singh Bhati v. NCT of Delhi, and thereafter the court proceeded to state the following principles:-

"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of

(2 01 6 ) 1 5 SC C 42 2

the prosecution, in the normal course of events, the accused is entitled to an order of bail."

11. It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge. [See Chaman Lal v. State of U.P)

13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:-

"Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and

presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.

18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order.

4) Anil Kumar Yadav Vs State (NCT of Delhi) and Another5, wherein it is held in para Nos.14, 15 and 32, which reads under;

14. We have given our thoughtful consideration to the rival submissions made by the counsel appearing on either side. The point falling for consideration is whether the Sessions Court ignored relevant materials while granting bail to the appellants accused and whether the order of the Sessions Court suffered from serious infirmities, justifying interference by the High Court in exercise of judicial discretion.

15. As held in Puran's case, while considering the question of grant of bail, Court should avoid consideration of details of the evidence as it is not a relevant consideration. While it is

(2 01 8 ) 1 2 SC C 12 9

necessary to consider the prima facie case, an exhaustive exploration of the merits of the case should be avoided. We, therefore, consciously refrain from considering the merits of the materials/evidence collected by the prosecution.

32. It was repeatedly urged that the High Court misdirected itself in interfering with the discretionary order of Sessions Court granting bail to the accused and there was absolutely nothing to show that the appellants are likely to abuse the bail or tamper with evidence. The court while granting bail should exercise its discretion in a judicious manner. Of course, once discretion is exercised by the Sessions Court to grant bail on consideration of relevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity. While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exercise of discretion. The materials available on record prima facie indicating the involvement of the accused, possibility of accused tampering with witnesses and the gravity of the crime were not kept in view by the Sessions Court. Since the Sessions Court granted bail to the appellants on irrelevant considerations and the same suffered from serious infirmity, the High Court rightly set aside the order of grant of bail to the accused. The impugned orders do not suffer from any infirmity warranting interference.

5) Centrum Financial Services Limited Vs State of NCT of Delhi and Another6, wherein it is held in para No.22, which reads under;

20 22 S CC On L ine S C 1 0 0

22. Now so far as the submission on behalf of the accused that as the accused has been released on bail as far as back on 14.09.2020 and that thereafter there are no allegations of misusing the liberty and therefore the bail may not be cancelled and reliance placed upon the decisions of this Court referred to hereinabove more particularly in the case of X (Supra) are concerned at the outset it is required to be noted that this is a case where it is found that the order passed by the High Court releasing the accused - Respondent No.2 on bail has been passed mechanically and without adverting to the relevant facts and without considering the nature of accusation and allegations and the nature of the gravity of the accusation. Even in the decisions which are relied upon by Shri Rohatgi, learned Senior Advocate appearing on behalf of Respondent No.2, there is no absolute proposition of law laid down by this Court in the aforesaid decisions that once the bail is granted by the High Court, though the High Court could not have granted the bail, in absence of any allegation of misuse of liberty and/or breach of any of the conditions of the bail, the bail cannot be set aside when grant of bail is itself subject matter of challenge in appeal/revision.

8. Learned counsel after drawing attention of the

Court to the relevant paragraphs of the said decisions of the

Hon'ble Supreme Court, argued that the bail granted by the

learned Sessions Judge on 05.08.2021 is to be set-aside and

respondent No.1 be directed to arrest respondent No.2

forthwith.

9. Against this, learned counsel for respondent No.2

Sri Girish A.Yadwad argued that the said application is devoid

of merits. It is further argued that respondent No.2 has not

violated any of the conditions imposed by the learned

Sessions Judge while granting bail. On the other hand, he has

promptly obeyed each of the conditions so imposed and has

been attending the Court proceedings on the dates fixed. It is

further contended that the petitioner has filed present

petition based on mere apprehensions without there being

any cogent grounds. Learned counsel further argued that

there are no circumstances made out or no cogent and

overwhelming circumstances are necessitate consideration of

cancellation of bail. Learned counsel further argued that

threat to life of petitioner are all imaginary and illusory. No

complaint has been lodged against respondent No.2 of either

having followed the petitioner or regarding tampering of

witnesses. He has been falsely implicated in the just to wreck

vengeance. So, this petition on the basis of illusory

apprehensions does not merit consideration.

10. In support of his arguments the learned counsel

relied upon the following decisions of the Hon'ble Supreme

Court;

1) Dolat Ram Vs State of Haryana7, wherein it is held in para No.4, which reads under;

4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted.

(1 99 5 ) 1 Su p r em e Cou rt Cas es 34 9

2) Savita Khande & Ors Vs State of Chhattisgarh & Ors8, wherein it is held in para No.5 & 8, which reads under;

5. It is quite well settled that the parameter for grant of bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the Cr.P.C. can be cancelled where

(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. It is also well settled that even if two views are possible, once the bail has been granted, it should not be cancelled (See Jayendra Saraswathi Swamigal v. State of T.N. ((2005) 2 SCC 13 ) and Nityanand Rai v. State of Bihar ((2005) 4 SCC 178).

8. Applying the statement of law rendered by their Lordships of the Supreme Court in the aforesaid cases particularly Abdul Basit (supra), it is limpid that the petitioners herein have sought cancellation of order granting bail on the ground that bail order was granted to the respondent No.2 by suppression and misrepresentation of facts as well that the order considering bail reflects consideration of irrelevant material of a substantial nature and additionally new adverse facts have surfaced, thereby claiming that the order of bail is absolutely unjustified, illegal and perverse. It is not the case of the petitioners herein that the respondent No.2 has misconducted himself

CG L J-2 01 5 (4 ) 12 2

after grant of bail by this Court warranting cancellation of bail order, therefore, order granting bail deserves to be cancelled. The facts and grounds pleaded in an application for cancellation of bail under Section 439(2) Cr.P.C. and submissions made therein, in light of the law laid down by their Lordships of the Supreme Court in the above mentioned judgment is not the scope and jurisdiction of this Court, as such alleged illegality, perversity cannot be determined by this Court in this application for cancellation of bail filed under Section 439(2) of Cr.P.C. as it would amount to review/recall of bail order, which impermissible, in the light of express bar contained in Section 362 of the Cr.P.C. which bars the jurisdiction of this Court to alter or review the bail order or judgment except to correct an clerical or arithmetical error.

As a fall out and consequence of the aforesaid discussion, the application filed under Section 439(2) of the Cr.P.C. deserves to and is hereby rejected at the admission stage without notice to other side. No order as to cost(s).

3) Aslam Babalal Desai Vs State of Maharashtra9, wherein it is held in para No.22, which reads under;

22. The Code designedly classifies offences bailable as well as non-bailable.

Whereas bail is the rule in the case of bailable offences, in non-bailable offences it is left to the discretion of the Court. Designedly, serving a purpose, is the power of arrest and detention as an integral part of the investigating process and that of the trail. This is because a civilized society has to preserve on the one hand an individual's personal dignity and on the other the general interests of the society at large and

(1 99 2 ) 4 Su p r em e Cou rt Cas es 27 2

the concept of bail is an inter-position between the two, seeing through both without under- mining one or the other. The Constitution and our laws are so designed so as to safeguard and protect personal liberty from Governmental power and to authorise the collective use of State power permitting arrest and detention of an individual to ensure amongst others, domestic tranquility and security of public and State. Hence the see- saw for and against bail witnessed in courts. The tests to be applied by courts in granting bail is by reference to many considerations, such as the nature of the accusation, the evidence in support thereof, the severity of punishment on conviction which would entail; the character, behavior, means and standing of the accused etc. etc. But alongside is the larger interest of the State to be kept in view in granting or refusing bail. By no means are the afore-mentioned factors exhaustive. There may be ether considerations which may be determinative for taking one view or the other. The Court is obligated, all the same, to strike a balance. The decision of the Court after consideration of the afore factors and other of the like conceivable results in a verdict judicial in character capable of being reviewed or altered again by a judicial exercise within judicially set out parameters. A bail order-on- default is, as goes the coined expression, a specie apart which involves no such deliberation and so cannot, in my understanding, be equated with bail orders passed on merit by a Court, other than a High Court or a Court of Session, under Sub-

sections (1) & (2) of Section 437 or such a bail order passed by the High Court or Court of Session under Sub-section (1) of Section 439 of the Criminal Procedure Code. Such a Compulsive bail by the thrust of Section 167(2) can in no event be termed as a decision on

merit to which the distinctive approach as given in Sanjay Gandhi's case is to play its significant part when effort to cancel bail is attempted.

With these main arguments, he prays for dismissed the

petition.

11. I have perused the records of the case, order

passed by the learned Sessions Judge, contentions taken by

both the parties and the principles stated by Hon'ble

Supreme Court in the decisions referred above.

12. From the above material, the point arises for

consideration is,

"whether the petitioner has made out a case to direct respondent No.1 to arrest respondent no.2, who has been released on bail under Section 439(2) of Cr.P.C and commit him to custody?"

13. It is settled principle of law that the power of

cancellation of bail must be exercised with care and

circumspection and only in proper cases. Unlike in the old

Code even a Sessions Court can cancel a bail. Very cogent

and overwhelming circumstances are necessary for an order

seeking cancellation of bail. Where there is no violation of

terms of order granting bail/anticipatory order, the

cancellation of bail is not justified.

14. The power of cancellation of bail should be

exercised with care and circumspection, as cancellation of

bail jeopardize the personal liberty of the person.

Cancellation of bail should not be done in a routine manner.

Where it appears to the superior Court that the Court

granting bail acted on irrelevant materials or there was non-

application of mind or where Court does not take note of any

statutory bar to grant of bail, order for cancellation of bail

can be made. The Court considering the application for

cancellation of bail has to take note of all relevant aspects.

Where the order of the cancellation of bail did not indicate

reasons, the court seemed to have exception for non-

appearance of the accused at the time of hearing of bail

application, the Supreme Court set aside the High Courts'

order for cancellation of bail, and remanded the matter for

fresh consideration of the application for bail.

15. What emerges from the above discussion is that

once bail is granted to an accused, it should not be cancelled

in a mechanical manner. The grounds for cancellation of bail

can be stated broadly as under:

1) When the accused is found tampering with the evidence either during the investigation or during trial.

2) When the person on bail commits similar offence or any heinous offence during the period of bail.

3) When the accused has absconded and trial of the case gets delayed on that account.

4) When the offence so committed by the accused had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.

5) If the High Court finds that the lower Court granting bail has exercised its judicial power wrongly.

6) If the High Court of Sessions Courts find that the accused has misused the privilege of bail.

16. In the light of these principles let me consider the

order granting bail passed by the learned Sessions Judge.

Learned Sessions Judge has referred to gist of the complaint

and case of prosecution. He has also referred to the

objections filed by the prosecution, decisions relied on by

both sides and raised two points for consideration. He has

referred to the arguments advanced by counsel for the

petitioner as well as public prosecutor, which are similar to

the contentions of the petitioner. Learned Sessions judge

referred to the principles governing bail and has stated that

the Court has to consider that whether the accused is

required for investigation, his presence could be secured at

the time of investigation as well as trial. He has also stated

that the petitioner is permanent resident of Pune and he has

got both movable and immovable property. He has referred

to the medical records and came to a conclusion that the

injuries are not on the vital part of the body. The learned

Sessions Judge observed that whether the petitioner has

committed the offence alleged against him or not has to be

thrashed out during trial. He has also stated that though the

offences are non-bailable in nature, they are not exclusively

punishable with death or imprisonment for life. It is also

stated in the order that the petitioner is in judicial custody

since 12.07.2021 and is not required for any custodial

interrogation. It is also observed by learned Sessions Judge

that the objections of the prosecution can be meted out by

imposing certain conditions. Hence, considering the nature of

the case and the relationship between the complainant and

accused and the material placed before the Sessions Court,

the learned Sessions Judge has exercised his discretion by

imposing certain conditions, which are as under;

i) The petitioner/accused shall be enlarged on bail on execution of bail bond for Rs.50,000/- with two sureties to the satisfaction of jurisdictional Magistrate.

ii) The petitioner shall appeal before the Court on every date of hearing.

iii) The petitioner/accused shall not tamper the prosecution evidence and shall not threaten the witnesses of the prosecution.

iv) The petitioner/accused shall not indulge in similar offences.

If the petitioner/accused violate any of the above conditions, the bail order granted in this case shall stand automatically cancelled.

17. It is stated by learned counsel for respondent

No.2 and learned HCGP that the investigation is already

completed and charge sheet is filed. The respondent no.2

who is accused in that case appeared before the trial Court in

criminal case.

18. The main ground on which this petition is filed is

that, the order of learned Sessions Judge is perverse and no

cogent reasons are assigned. The petitioner has suffered

facial fractures and other fractures. Observation of learned

Sessions Judge that there are no injuries on the vital part of

the body is not correct. The photographs are not considered.

It is also alleged that respondent No.2 has physically abused

and stalking earlier and complaint was also lodged. So

important aspect of threat to life is not considered. But as

evident from bail order of Sessions Court, these matters in

fact consider by the learned Sessions Judge, which is evident

from the order itself. The other ground is learned Sessions

Judge erroneously held that respondent No.2 is not required

for custodial interrogation. This again is not a ground to

cancel bail. As the remand application before the Court would

show that respondent No.2 was no more required for

custodial interrogation. Be that as it may. The investigation is

already completed and charge sheet is filed. The

accused/respondent appeared before the trial Court. It is

argued by petitioner's counsel that the learned Sessions

Judge at para No.9 has noted the submission of respondent

No.2, which shows respondent No.2 admitted his presence

but, granted bail. But in my considered view, such a

submission of counsel for petitioner cannot be construed to

hold that accused is prima-facie guilty of the offence. As

evident, the petitioner was already discharged from the

hospital. The other ground for cancellation of bail is

investigation is not completed also does not hold good. It is

argued that petitioner was under constant threat to her life.

The proper conditions are imposed on respondent to take

care of such apprehension. No records or evidence is

produced to show that after granting bail, respondent No.2

has threatened the petitioner. Even in respect of alleged

earlier incident also no records are produced before the

Court. The petitioner has produced some of the photographs

showing that there was bleeding injury on her face. It is

again matter of proof by prosecution at trial. On that basis at

this stage, the Court cannot hold that respondent No.2 is

guilty of the offence. Admittedly, none of the alleged offences

are punishable with death. The offences under Section 323,

324, 506 of IPC are not the grave offences. It appears that

Section 307 of IPC is included contending that the accused

attempted to commit the murder. These all are all the

matters to be thrashed out at the time of trial.

19. On perusing the principles stated in the decisions

relied by petitioner, it is evident that they are of no

assistance to the petitioner. In Puran's case (supra), the

Hon'ble Supreme Court was dealing with the offences under

Sections 498(A), 304B of IPC and in that cases there were

number of electric burn injuries and so many incriminating

articles were seized. There was a evidence about the demand

of money. Therefore, based on the facts of that cases and

material, the bail was cancelled. In the case of Ram Govind

Upadhyay (supra), it was a case for the offence punishable

under Section 302 of IPC. There was a political rivalry during

election. Incident had taken place during poling process.

There is no dispute about the principles stated by Hon'ble

Supreme Court at para No.3 and 4 of the said decision. On

the other hand, the Hon'ble Supreme Court has clearly held

at para No.3 that the nature of the offence is one of the basic

considerations for grant of bail and it all depends on the

factual matrix of the case. Hon'ble Supreme Court has also

referred to some of the consideration as an illustrative.

Therefore, the said principles are not applicable to the case

on hand. Further, in the Prasanta Kumar Sarkar's case

(supra), wherein the offence was under Section 302 of IPC

i.e., murder. In that case, a lady was founds strangulated at

her residence and there were eye witnesses. The test

identification parade was conducted. Again Hon'ble Supreme

Court referred at para No.9, 10 and reiterated the principles

regarding bail and stated that elaborate examination of

evidence and detail, reasons touching the merits of the case

should be avoided. Therefore, the said principle nowhere help

the present petitioner. Further, in Neeru Yadav's case

(supra), wherein the Hon'ble Supreme Court elaborated the

factors to be borne in mind while considering the bail

application and also discussed article 21 of the Constitution of

India to protect personal liberty. In that case, a charge sheet

filed for the offences punishable under Sections 147, 148,

149, 302, 307, 394, 411, 454, 506, 120B r/w Section 34 of

IPC. There was a firing incident. Learned counsel referred to

para No.5 of the said judgment, wherein it is stated the

difference between cancellation of order of bail, sustainability

of order granting bail. Learned counsel referred to the

decision in the case of Ram Govind Upadhyay (supra),

wherein it is held at para Nos.10, 13 and 18 that the criminal

antecedents of the accused were not taken into account. But

in this case absolutely no records are placed to show any

such criminal antecedents of respondent No.2. Therefore,

that decision is no way help the petitioner. Learned counsel

referred to the decision in the case of Anil Kumar Yadav

(supra), wherein again Hon'ble Supreme Court principles as

to when the High Court can interfere with the trial Court

orders for granting bail. Again facts of this case and the

materials placed before the Court are completely different.

The offences alleged against the accused in that case under

Section 302, 308 R/w Section 34 of IPC and Section 201 R/w

Section 34 of IPC. There was also CCTV footages and other

materials in that case. Therefore, principles stated in that

decision will not help the petitioner in view of material placed

before this Court. The next decision relied on by the learned

counsel is in the case of Centrum Financial Services

Limited(supra), wherein also the Hon'ble Supreme Court

referred to the decision of Anil Kumar Yadav Vs State

(NCT of Delhi) and Another (Supra). In that case, the

misappropriation/siphoned of money was to the tune of Rs.25

crores. There is allegation committing offences under Section

120B, 409, 420, 467, 468 and 471 of the IPC. A Financial

Company had lodged the complaint against Logistic Limited

Company, Managing Directors and Others. Though the

principles stated at para No.22 cannot be disputed at all and

it is well settled and reiterated earlier by the Hon'ble

Supreme Court. But, it will not help the petitioner in any way

in this case.

20. On the other hand, learned counsel for

respondent No.2 has relied on the decisions of Dolat Ram

(supra), wherein at para No.4 the Hon'ble Supreme Court

has referred principles which are as under;

4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without

considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted.

21. In the case of Savita Khande (supra), the

Chhattisgarh High Court referred to earlier decision and the

decision of constitution bench of the supreme Court in the

case of Gurcharan Singh (supra) and stated the principles

when the bail can be cancelled. Respondent No.2's counsel

relied on judgment of co-ordinate bench of this Court in the

case of State of Karnataka Vs Mangaluru police. Wherein

the learned judge of co-ordinate bench of this Court referred

to the factors to be kept in mind, while canceling the bail and

referred to principles stated by Hon'ble Supreme Court in the

case of Dolat Ram (supra). Counsel for respondent No.2

relied on the decision of Hon'ble Supreme Court in the case of

Aslam Babalal Desai (supra), wherein again the Hon'ble

Supreme Court referred to the factors to be considered for

cancellation of bail. Therefore, in the light of principles stated

in the above referred decision, the present petition is

considered, it is evident that learned Sessions Judge has

considered all the aspect and the materials placed before him

and has kept in mind principles for grant of bail. Then bail

was granted by imposing reasonable conditions.

22. Admittedly, the petitioner was already discharged

from the hospital long back. She is working. There is no

record to show that earlier she was threatened. On the other

hand, the Court has imposed stringent conditions on the

accused. There are no cogent and overwhelming

circumstance brought on record so as to cancel the bail. The

Court has to keep in mind personal liberty granted under

article 21 of the Constitution of India and at the same time

the Court has to keep in mind the interest of the victim and

complainant. Taking into consideration the overall

circumstances, facts of the case and the materials placed

before the Court, the order passed by the learned Sessions

judge granting bail is based on settled principles regarding

grant of bail. Therefore, in view of the discussion made above

and also in view of the principles stated by the Hon'ble

Supreme Court in the decisions referred supra and the

material on record, the petitioner has not made out any

grounds to cancel the bail granted by the learned Sessions

Judge. Accordingly, the petition being devoid of merit is liable

to be dismissed.

ORDER

The petition filed by petitioner under Section 439(2)

read with Section 482 of Criminal Procedure Code, 1973 is

dismissed.

Pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

SD/-

JUDGE

am/-