Rajesh Depuriya vs The State Of Madhya Pradesh
2021 Latest Caselaw 4403 MP

   1     THE HIGH COURT OF MADHYA PRADESH
                     M.Cr.C. No.4311/2021
         Rajesh Depuriya Vs. The State of M.P. and another

Gwalior, Dated:17/08/2021

       Shri Anand Purohit, Advocate for applicant.

       Shri Nitin Goyal, Panel Lawyer for respondent no.1/State.

Shri Rajiv Sharma, Advocate for respondent no.2 through

video conferencing.

This application under Section 439 (2) of Cr.P.C. has been filed

for cancellation of bail granted by order dated 30/9/2020 passed by

12th Additional Sessions Judge, Gwalior in Bail Application

No.2290/2020 in Crime No.42/2019 registered at Police Station

Maharajpura, District Gwalior for offence under Sections 498-A,

304-B, 34 of IPC.

It is submitted by the counsel for the applicant that the son of

the respondent no.2 was married with the daughter of the applicant

on 16/4/2016 and they used to torture the deceased-Archana for

demand of Rs.2,00,000/- and a four wheeler, as a result, she died in

suspicious circumstance on 23/1/2019. The respondent no.2 had filed

an application for grant of anticipatory bail which was registered as

M.Cr.C. No.21967/2019. In the said bail application, the respondent

no.2 had tried to mislead this Court by filing the photographs of her

mother-in-law to show that respondent no.2 is suffering from diabetic

feet and considering the submissions made by the counsel for the

respondent no.2, she was granted anticipatory bail by order dated 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

30/5/2019 with the following observations:-

"Under these circumstances, purely on the sympathetic and humanitarian ground, it is directed that in case if applicant appears before the Investigation Officer on 06th June, 2019, then he would take her to the District Medical Board and on examination if it is found that applicant is suffering form the ailments which are visible in the photographs, then after obtaining the certificate, the Investigating Officer shall release the applicant on bail on her furnishing personal bond in the sum of Rs.40,000/-(Rupees Forty Thousand Only) with one surety in the like amount to the satisfaction of Investigating Officer (Arresting Authority).

The applicant shall co-operate with the investigating officer in the investigation. This order shall be subject to the conditions enumerated in Section 438 of Cr.P.C.

Needless to verify that in case if it is found that the applicant is not suffering from the ailments which are visible in the photographs, then she would be taken into custody.

With the aforesaid observations, application is disposed of."

As this Court had put a condition that before releasing the

respondent no.2 on bail, the Investigating Officer shall get her

medically examined, therefore, under these compulsive circumstance,

she moved an application which was registered as M.Cr.C.

No.23875/2019 for recalling the order dated 30/5/2019 on the ground 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

that in fact the respondent no.2 is not suffering from any diabetic feet

and the photographs of her mother-in-law were filed by falsely

stating that the said photographs are that of respondent no.2.

Accordingly, by order dated 28/6/2019, this Court recalled the order

dated 30/5/2019 with an observation that since the order dated

30/5/2019 has been obtained by playing fraud on the Court,

therefore, the cost of Rs.25,000/- was also imposed on respondent

no.2. The applicant had also moved an application under Section 482

of Cr.P.C., which was registered as M.Cr.C. No.25548/2019 seeking

recall of order dated 30/5/2019, by which the respondent no.2 was

granted anticipatory bail and in the light of the observations made by

this Court in M.Cr.C. No.23875/2019, the application filed by the

applicant for recall of the order dated 30/5/2019 was disposed of. It is

submitted that the husband of the respondent no.2 was granted bail

by the Supreme Court by order dated 22/9/2020 passed in SLP (Cri.)

No.2957/2020 on the ground that he has already undergone the

imprisonment of one year and five months. It is submitted that not

only the respondent no.2 had played fraud on this Court, but in view

of the specific allegations that she alongwith other members of her

family was harassing and treating the deceased with cruelty on

account of non-fulfillment of demand of Rs.2,00,000/- and four

wheeler coupled with the fact that the respondent no.2 has remained 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

in jail only for a period of less than two months, the Court below

should not have granted bail by holding that the case of the

respondent no.2 is identical to the case of her husband because the

husband of respondent no.2 was granted bail after undergoing the

detention of one year and five months. It is further submitted that in

the light of the judgment passed by the Supreme Court in the case of

Taramani Parakh Vs. State of M.P. reported in (2015) 11 SCC 260

, it is clear that the respondent no.2, who is the mother-in-law of the

deceased-Archana is guilty of dowry death of her daughter-in-law.

Per contra, the application is vehemently opposed by the

counsel for the respondent no.2. It is submitted by Shri Sharma that

although the cost of Rs.25,000/- imposed by this Court by order

dated 28/6/2019 passed in M.Cr.C. No.23875/2019 was not deposited

by respondent no.2, but now she has deposited the cost on 16/8/2021.

It is further submitted that if the applicant is of the view that the

respondent no.2 is not entitled for bail, then he should have

approached the Court below instead of approaching this Court. It is

further submitted that the respondent no.2 is the mother-in-law and

the allegations are vague and omnibus in nature.

Heard learned counsel for the parties.

So far as the contention of the counsel for the respondent no.2

that the applicant should have approached the Court below for 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

cancellation of bail is concerned, the said submission is

misconceived. This application for cancellation of bail has not been

filed on the ground of misuse of liberty. The cancellation of bail has

been sought on the ground that under the facts and circumstances of

the case, the Court below has wrongly held that the case of the

respondent no.2 is identical to that of her husband, who was granted

bail by the Supreme Court after remaining in jail for a period of one

year and five months. Therefore, when the cancellation of order has

been sought on merits of the case, then the application under Section

439 (2) of Cr.P.C. cannot be filed before the Court below and the

applicant has rightly approached this Court.

The Supreme Court in the case of Puran Vs. Rambilas and

another reported in (2001) 6 SCC 338 has held that an order

granting bail passed by ignoring material and evidence on record and

without giving reasons would be perverse and contrary to principles

of law and such an order would itself provide a ground for moving an

application for cancellation of bail and said ground is different from

the ground that the accused has misconducted himself or some new

facts call for cancellation. Further, it has also been held that either the

State or the aggrieved person can move an application for

cancellation of bail.

According to the prosecution case, the deceased was married to 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

the son of respondent no.2 on 16/4/2016 and she died in suspicious

circumstance on 23/1/2019, i.e. within a period of three years. There

are specific allegations of demand of Rs.2,00,000/- and a four

wheeler and harassment due to non-fulfillment of the said demand.

Further, the anticipatory bail granted by this Court by order dated

30/5/2019 was recalled by order dated 28/6/2019, however, the

respondent no.2 surrendered before the Trial Court only on 7/8/2020,

i.e. more than one year after the recall of her anticipatory bail order.

Thus, it is clear that she was absconding even after the recall of her

order of anticipatory bail. The Supreme Court in the case of

Taramani Parakh (supra) has observed that passing taunts by the

in-laws is sufficient to make out an prima facie case for offence

under Section 304 Part II of IPC. However, in the present case, there

are specific allegations against the applicant of harassment and

cruelty on account of non-fulfillment of demand of Rs.2,00,000/- and

a four wheeler. Further, the Supreme Court in the case of Puran

(supra) has held that the reasons should be assigned while granting

bail. In the said case, it has been held 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 being infringed.

In support of this submission he relies upon the authority in the case of Dolat Ram v. State of Haryana [(1995) 1 SCC 349 : 1995 SCC (Cri) 237] . In this case it has been held that rejection of bail in a non-bailable 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

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 the 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.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] . In that case the Court observed as under: (SCC p. 124, para 16) "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 Section 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 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

cropped up except those already existing, 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-à-vis the High Court."

In the case of Puran (supra) the allegations against the in-

laws were that they were demanding Rs.5,00,000/- including

Rs.2,00,000/- cash and the deceased had died within a period of one

year. In the present case, the Trial Court without assigning any reason

has granted bail to respondent no.2. While granting bail to

respondent no.2, the Court below lost sight of the fact that in view of

the short period of detention, it cannot be said that the case of

respondent no.2 is on parity with the case of her husband who was

granted bail after undergoing the detention of one year and five

months. Furthermore, the merits of the case has not been considered

by the Court below. Under these circumstances, this Court is of the

considered opinion that the order dated 30/9/2020 passed by 12 th

Additional Sessions Judge, Gwalior in BA No.2290/2020 cannot be

given the stamp of approval. Accordingly, the same is set aside. The

respondent no.2 is directed to immediately surrender before the Trial

Court within a period of one week from today, failing which the Trial

Court shall issue non-bailable warrant of arrest against the

respondent no.2.

With aforesaid observations, the application succeeds and is 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4311/2021 Rajesh Depuriya Vs. The State of M.P. and another

hereby allowed.

The Registry is directed to immediately communicate this

order to the Trial Court for necessary information and compliance.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.08.18 17:49:02 +05'30'