Madhya Pradesh High Court
Sunny Wadhwani vs Mayank on 19 December, 2023
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
MISC. CRIMINAL CASE No. 35605 of 2023
BETWEEN:-
SUNNY WADHWANI S/O SHRI MURLIDHAR
WADHWANI,
AGED ABOUT 40 YEARS,
OCCUPATION: BUSINESS
R/O. 9-A RADHA NAGAR, INDORE
(MADHYA PRADESH)
.....APPLICANT
(SHRI HARSHWARDHAN SHARMA - ADVOCATE)
AND
1. MAYANK S/O JAWAHAR CHANDWANI
AGED ABOUT 34 YEARS,
OCCUPATION: BUSINESS
R/O. D-601, SAHAJ RESIDENCY, SCHEME NO.103,
RAJENDRA NAGAR, INDORE
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH
THROUGH STATION HOUSE OFFICER
P.S. RAJENDRA NAGAR,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(MS. ANITA SINGH - PANEL LAWYER FOR RES./STATE)
(SHRI LUCKY BIJOLIA - ADVOCATE /RESPONDENT [R-1].)
Reserved on: 13.12.2023
Delivered on: 19.12.2023
T h is application having been heard and reserved for orders,
coming on for pronouncement this day, the court passed the following:
ORDER
Heard and perused the record.
This order shall govern the disposal of the applicant's application filed
under Section 439(2) of Cr.P.C for cancellation of bail.
2 . The present application has been filed under Section 439(2) of
Cr.P.C. being aggrieved by the order dated 03.08.2023 passed by Eighth
Additional Sessions & Special Judge (OAW), Indore in ST No.436/2023 in
connection with FIR Number/Crime No.272/2023 of Police Station Rajendra
Nagar, District Indore for the offence punishable under section 304-B of IPC,
1860 and Section 3&4 of Dowry Prohibition Act, 1961, whereby respondent
No.1 has been granted bail.
3. In brief, the contentions of the application are that the respondent no.1
is the husband of the deceased, and due to his cruelty and harassment the
deceased committed suicide. Hence, the police has registered the FIR against
the respondent and co-accused. Learned counsel for the applicant has
submitted that the learned trial Court by its impugned order, ignoring the legal
pronouncements and other facts & circumstances of the case, granted bail to
respondent no.1 on the basis of parity with co-accused Jawahar S/o Goraldas
Chandawni, whereas the bail of co-accused Jawahar was granted on the very
specific ground that there are only general and omnibus allegations against him.
It is also submitted that the main allegations are against respondent no.1, the
husband of the deceased, and this Court has also assumed him as the main
accused.
4. Counsel further contended that in the order dated 24.0.2023 passed in
M.Cr.C. No.30234/2023, the primary allegations are directly against respondent
no.1, hence there is no ground of parity. It is also submitted that after being
released from the jail the respondent would try to influence the trial by
threatening the present applicant and would misuse his liberty. In view of the
aforesaid, it is a fit case for cancellation of bail, therefore, counsel requested to
set aside the bail order in the interest of justice.
5. Learned counsel appearing on behalf of respondent no.2 opposing the
contentions of the counsel for the petitioner submitted that the bail order cannot
be cancelled only on superficial and mechanical reasons and there should be
some specific grounds to cancell the bail application. Respondent No.2 has
neither misused the liberty nor tried to influence the prosecution witnesses. He
has been granted bail by the trial Court not only on the basis of parity but also
on other grounds. Therefore, counsel prayed for rejection of the present
application.
6. In the backdrop of the aforesaid pleadings and rival contentions the
question for determination is as to whether order passed by the learned trial
Court regarding grant of bail is liable to be cancelled.
7. Before dwelling upon the contentions, here it is pertinent to mention
that after filing of this application, this Court has called for explanations from
the learned Sessions Judge with regard to parity in granting bail. In reply,
learned Sessions Judge, explaining her bail order, submitted that in this case
after completing investigation, chargesheet was filed, the respondent no.1 has
already completed sufficient period in custody and he was not required for any
other proceedings after filing of charge sheet, therefore in view of the aforesaid
facts and circumstances, bail has been granted in favour of respondent no.1 and
as such the bail has not been granted on account of parity.
8 . In this regard learned counsel for the applicant has placed reliance
upon some of the verdicts of Hon'ble Supreme Court and Co-ordinate Bench
of this Court. He has relied upon the case of Deepak Yadav vs. State of U.P.
reported as (2022) 8 SCC 559 wherein it has been held that the issue of bail is
one of liberty, justice, public safety and burden of the public treasury, all of
which insist that a developed jurisprudence of bail is integral to a socially
sensitised judicial process. Section 439 Cr.P.C is the guiding principle for
adjudicating a regular bail application wherein the Court takes into consideration
several aspects. The jurisdiction to grant bail has to be exercised cautiously on
the basis of well-settled principles having regard to the facts and circumstances
of each case.
9. Learned counsel in the course of arguments submitted that there are
specific allegations against respondent no.2 for harassing and causing cruelty.
Despite that learned trial Court misinterpreted the order of this Court and
released the applicant on the basis of parity. Criticizing the impugned order,
learned counsel based his arguments on para 33 of the judgment passed in the
case of Deepak Yadav (Supra), wherein the Hon'ble Supreme Court has held
as under:-
31. It is no doubt true that cancellation of bail cannot be
limited to the occurrence of supervening circumstances. This
Court certainly has the inherent powers and discretion to
cancel the bail of an accused even in the absence of
supervening circumstances. Following are the illustrative
circumstances where the bail can be cancelled :-
a) Where the court granting bail takes into account irrelevant
material of substantial nature and not trivial nature while
ignoring relevant material on record.
b ) Where the court granting bail overlooks the influential
position of the accused in comparison to the victim of abuse
or the witnesses especially when there is prima facie misuse
of position and power over the victim.
c) Where the past criminal record and conduct of the
accused is completely ignored while granting bail.
d) Where bail has been granted on untenable grounds.
e) Where serious discrepancies are found in the order
granting bail thereby causing prejudice to justice.
f) Where the grant of bail was not appropriate in the first
place given the very serious nature of the charges against the
accused which disentitles him for bail and thus cannot be
justified.
g) When the order granting bail is apparently whimsical,
capricious and perverse in the facts of the given case.
10. So also paragraphs 39 to 42 of the aforesaid judgment, are relevant to
quote here under:-
"37. There is certainly no straight jacket formula which
exists for courts to assess an application for grant or
rejection of bail but the determination of whether a case is fit
for the grant of bail involves balancing of numerous factors,
among which the nature of the offence, the severity of the
punishment and a prima facie view of the involvement of the
accused are important. 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 basic principles laid
down in a catena of judgments by this Court.
38. However having said that, in the case at hand, it is
manifestly incorrect on the part of the High Court to have
granted bail to the Respondent No.2/Accused without taking
into consideration the relevant facts and circumstances and
appropriate evidence which proves that the Respondent
No.2/Accused has been charged with a serious offence.
39. Grant of bail to the Respondent No.2/Accused only on
the basis of parity shows that the impugned order passed by
the High Court suffers from the vice of non-application of
mind rendering it unsustainable. The High Court has not
taken into consideration the criminal history of the
Respondent No.2/Accused, nature of crime, material
evidences available, involvement of Respondent
No.2/Accused in the said crime and recovery of weapon
from his possession.
40. Having considered the aforesaid facts of the present
case in juxtaposition with the judgments referred to above,
we are of the opinion that the impugned order passed by the
High Court is not liable to be sustained and is hereby set
aside."
11. In view of the aforesaid principles laid down by Hon'ble Apex Court
the matter has been examined, in the case of Deepak Yadav (Supra), the crime
was registered under Section 302 of IPC and Hon'ble Supreme Court has taken
into consideration the nature of crime/ criminal history of the concerning
respondent/accused of that case. Whereas in the case at hand no criminal
history has been shown against respondent no.2 and the gravity of offence
committed by the respondent no.2 is also comparatively lesser than that
respondent of Deepak Yadav (Supra) case.
12. Further considering the reliance placed by learned counsel for the
applicant in the case of Suresh Kumar vs. Rajendra Kukshwah & Anr.
(M.Cr.C. No.26249/2022) passed by co-ordinate Bench of this Court, wherein
the crime is related to demand of Rs.3.00 lakhs and the deceased has died
under suspicious circumstances, by hanging herself within a period of one year
and four months of her marriage. The case is related to the grant of
anticipatory bail whereas this case is related to regular bail, hence the factual
matrix of the aforesaid case is distinguishable and the applicant cannot be
benefitted from that case.
13. Learned counsel has also relied upon another case of cancellation of
bail order dated 05.09.2023, passed by co-ordinate Bench of this Court in
Anand Kumar Mishra vs. The State of M.P. and Anr. (M.Cr.C.
No.27252/2023). This case is in relation with offence under Section 408, 409,
420, 46, 468, 471, 120-B, 34 of IPC, and in this case the embezzlement was
made regarding the larger amount i.e. to the tune of Rs.2,75,12,450/- which
was overlooked by the trial court, hence the co-ordinate Bench of this Court,
after considering the principles settled in the case of Deepak Yadav (Supra)
allowed the application for cancellation of bail. While the case at hand is not
related to offence regarding embezzlement therefore this case is distinguishable
from the case of Anand Kumar Mishra (Supra)
1 4 . Further taking into consideration, the judgment relied upon by
counsel for the applicant passed by Hon'ble Apex Court in the case of Vipin
Kumar Dhir vs. State of Punjab and Ors. reported as (2021) 15 SCC 518,
wherein Hon'ble Apex Court cancelled the bail order passed by High Court of
Punjab as the principle of parity was not applied in accordance with law. In that
case, the allegation made against the accused was materially different and the
respondent whose bail was cancelled has remained absconding for more than
two years without any justifiable reasons, while in the case at hand no such
allegation of absconsion has been levelled against the applicant. Hence, the
applicant cannot be benefitted by the aforesaid verdict on account of
distinguishable facts.
15. Now coming to facts of the present case certainly the bail of co-
accused Jawahar, who happens to be father of respondent no.1, was allowed
by this Court vide order dated 24.07.2023 passed in M.Cr.C. No.30234/2023
and on that basis learned trial Court has passed the order of the husband, there
are some whatsapp messages available on record against the main accused. But
now the question is as to whether only on the basis of these WhatsApp
messages the order passed by learned trial Court can be cancelled.
16. In the present case, this Court may have a different view regarding
grant of bail passed by the trial Court. However, since the trial Court is a Court
of fact, the bail order passed by the trial Court cannot be cancelled only on the
basis of the different view of this Court. In criminal jurisprudence, it is time
honoured principle that when two views are possible, in which one is in favour
of the accused and the second one is against the accused, then the view which
is in favour of the accused will be taken into consideration. In the land mark
judgment passed by Hon'ble Supreme Court in the case of State through Delhi
vs. Sanjay Gandhi, [AIR 1978 SC 961] it has been held as under:
" Rejection of bail when bail is applied for is one thing;
cancellation o f bail already granted i s quite another. It
i s easier to reject a bail application i n a non-bailable
case than to cancel a bail granted in such a case"
17. In the case at hand, a chargesheet has been filed and the accused has
completed near about four months in custody. Further, there are no other
allegations available against the respondent that he has misused the liberty
granted to him or tried to influence the prosecution witnesses, therefore, the bail
order passed by the learned trial Court after considering the factual matrix as
well as the circumstances of the case, cannot be cancelled.
18. On this aspect it would be relevant to quote the following extract
from the case of Deepak Yadav (Supra), which reads as under:-
C. Cancellation of bail:-
31. This Court has reiterated in several instances that 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. Having said that, in case of cancellation of
bail, very cogent and overwhelming circumstances are
necessary for an order directing cancellation of bail (which
was already granted).
19. In this case where the trial Court, after hearing both the parties,
considering the facts and circumstances of the case i.e. the custody period, the
bail order of this Court passed in the case of co-accused Jawahar, granted
regular bail to the respondent no.1. The applicant is unable to bring forth any
supervening circumstances or extraordinary and overwhelming situations against
the respondent no.1/accused. In addition to that, taking the risk of repetition,
it is worth mentioning that after passing the impugned bail order on 03.08.2023,
nothing can be produced against the applicant with regard to misuse of liberty
during the bail period.
20. In view of these facts and circumstances and the law laid down by
Hon'ble Apex Court, I do not deem it fit to cancell the bail order dated
03.08.2023 passed by Eighth Additional Sessions and Special Judge, Indore in
S.T. No.436/2023.
21. Accordingly, the application under Section 439(2) of CrPC for
cancellation of bail is liable to be and is hereby dismissed.
22. A copy of this order be sent to the concerned trial Court for
necessary information.
Certified copy, as per Rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
