ORDER
K.N. Basha, J.
1. Mr. A. Ragunathan, learned Senior counsel for the petitioner, who is the father of the deceased in this case, submitted that the petitioner has come forward with this petition for cancellation of bail granted to the second respondent/first accused herein, who has been arrayed as A-1, out of the three accused in this case, by the Principal Sessions Judge, Pondicherry.
2. The learned Senior counsel before proceeding to make his submissions, challenging the order of bail, brought to the notice of this Court in respect of the facts of the case, pointed out that this is a case of husband killing his wife and further the case is based on circumstantial evidence and there are clinching circumstances, as per the materials collected by the Investigating Agencies. The learned Senior Counsel submitted that there are seven circumstances implicating the first accused/the second respondent herein, viz.
(i) Both the first accused and his wife / deceased were the residents of Hyderabad. The accused left Hyderabad with his wife under the guise of visiting temple at Vijayawada and ultimately he had taken her to Pondicherry and stayed there in a hotel on 25-3-2006, where she was found dead and the first accused, her husband, was absconding.
(ii) The first accused had given a bogus name and address to the lodge.
(iii) The first accused was last seen with the deceased by the lodge boy.
(iv) The deceased was found dead in the. hotel room.
(v) The body was found with 31 cut injuries.
(vi) The first accused, being the husband of the deceased, has not given any complaint immediately.
(vii) The last but not least circumstance relied by the learned Senior counsel is that the first accused alone present with the deceased throughout as both the first accused and the deceased were lastly seen by the room boy of the hotel.
3. By placing reliance on the above said circumstances, the learned Senior counsel submitted that this is a case involving a very heinous crime of the first accused causing murder of his wife in a brutal manner. Learned Senior counsel thereafter advanced his submissions challenging the order of bail granted by the learned principal Sessions Judge, Pondicherry on the only ground that the order is perverse and the learned Judge has overlooked the seriousness and gravity of the offence and granted bail to the petitioner merely on the ground that the petitioner underwent incarceration for a period of more than two months ignored the other aspects.
4. In support of his contentions, the learned Senior counsel placed reliance on the decisions of the Hon’ble Supreme Court of India, viz.,
(1) Gurcharan Singh v. State (Delhi Adnin.) reported in AIR 1978 SC 179
(2) State of U. P. v. Amarmani Tripathi reported in 2005 SCC (Cri) 1960 : 2005 Cri LJ 4149 (2).
5. The learned Senior Counsel by placing reliance on the decisions, pointed out that the Apex Court has held in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179 that,
29. We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.
6. In the second decision in which reliance placed by the learned Senior counsel, the apex Court, while referring the case in Kalyan Chandra Sarkar v. Rajesh Ranjan reported in 2004 SCC (Cri) 1977 : 2004 Cri LJ 1796, has held that,
19. This Court also in specific terms held that: (SCC pp. 536-37, para 14)
(The condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during theperiod he was on bail.
Therefore on the basis of the above said decision, the learned Senior counsel submitted that the order of the learned principal Sessions Judge, granting bail, is perverse. Learned Principal Sessions Judge has not considered the nature and gravity of the offence and also has not considered the clinching circumstances implicating the first accused in this case and merely placing reliance on the period of incarceration and the stage of investigation, granted bail.
7. Per contra, Mr. S. Ashok Kumar, learned Senior counsel for the second respondent/first accused herein contended that there is absolutely no illegality or infirmity in the order of bail passed by the learned Principal Sessions Judge, Pondicherry. Learned Senior Counsel further submitted that the learned Principal Sessions Judge has considered the whole matter and also after considering the nature and other circumstances of the case coupled with the fact that the petitioner had undergone incarceration for a period of more than two months and also considering that the investigation is almost over except awaiting for the chemical examination report, granted bail to the second respondent/first accused. It is also pointed out by the learned Senior Counsel for the first accused that the order passed by the learned Principal Sessions Judge cannot be stated as a perverse order and on the other hand learned Principal Sessions Judge has given valid reasons for exercising his discretion to grant bail to the first accused and has exercised his discretion judiciously. It is further pointed out by the learned Senior Counsel that in the catena of decisions the Apex Court has repeatedly held that the order of granting bail is different from the order of cancellation of bail and order of cancellation of bail is a harsh order and for passing such order there should be some compelling reasons.
8. Learned Senior counsel for the first accused also placed reliance on the decision of the Apex Court in Dolat Ram v. State of Haryana , wherein the Hon’ble Supreme Court of India has held that,
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 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.
9. The learned Senior counsel for the first accused also placed reliance on the decision of the Apex Court in Bhagirathsinh Judeja v. State of Gujarat the Apex Court has held as follows:
Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
10. The learned Public Prosecutor (Pondicherry) also contended that this is a fit case for cancellation of bail and also reiterated the contentions of the learned senior counsel appearing for the petitioner herein.
11. I have given my careful and anxious consideration to the rival contentions put forward by either side.
12. This is a case of husband alleged to have murdered his wife. The fact remains that even prior to the marriage both the second respondent/A-1 and the deceased are closely related to each other as A-1 is sister’s son of the father of the deceased. It is also pertinent to be noted that the marriage between them took place as early as in the year 1999. It is further relevant to note that as per the affidavit filed by the petitioner, who is the father of the deceased, it is stated that
A-1 and his parents demanded dowry and he had informed them that he would initiate criminal action against them if they ill-treat the deceased. Except that allegation, there is absolutely no whisper about any untoward incident or any ill-treatment or giving any complaint to the police. The learned Principal Sessions Judge, while granting the order of bail, pointed out about the alleged confession of the accused given to the police wherein, it is stated that
A-1 said to have murdered his wife due to her illicit intimacy with one Naveen which is contrary to the motive alleged by the prosecution. However, the learned Principal Sessions Judge granted bail to the second respondent/A-1 on two ground viz.,
(i) That A-1 is undergoing incarceration from 14-4-2006 viz., more than two months; and
(ii) As per the statement of the learned Public Prosecutor the investigation is almost over and C.P. S. L. Report alone is awaited for filing the charge sheet.
13. It is well settled by a catena of decisions of the Apex Court that the Court while dealing with the application for granting bail cannot consider the merits and demerits of the materials on record and the Court can consider the materials only for the specific purpose to find out whether the prima facie case is made out for granting bail or not. The reading of the impugned order of bail shows that the learned Principal Sessions Judge also considered the two contradictory versions regarding motive of the accused that the alleged illicit intimacy of the deceased with another person by name Naveen and as per the prosecution the alleged demand of dowry. As already stated, there is absolutely no materials available on record to show that there were earlier incidences of cruel treatment necessitating the deceased or her father to give a complaint to the police. It is also relevant to note that even in the affidavit filed by the father of the deceased before this Court, there is no whisper about any alleged earlier ill treatment or untoward incident except a bald and vague allegation of alleged demand of dowry.
14. The decisions relied by the learned Senior counsel appearing for the petitioner reported in State of U. P. v. Amarmani Tripathi reported in 2005 SCC (Cri) 1960 : 2005 Cri LJ 4149 (2) is not helpful to substantiate his contention. The Apex Court has held in that decision that,
19…In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by Itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.
Therefore, in the above said decision the Apex Court has categorically placed reliance by cancelling the bail already granted on the basis of allegations of tampering with the witnesses by the accused during the period he was on bail. In the instant case, the fact remains that the first accused was granted bail as early as on 19-6-2006 but till today there is no whisper about any alleged tampering with the witnesses by the first accused during this period. It is further relevant to be noted that in the above said decision the Supreme Court of India for cancelling the bail mainly placed reliance on the interference of the accused with the investigation and threatening the witnesses.
15. The yet another decision of the Hon’ble Supreme Court of India relied by the learned Senior counsel for the petitioner in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179 is also not helpful to the contentions raised by the learned Senior Counsel for cancellation of bail. In that decision the Apex Court has held that.
29. We may repeat the two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others.
16. Therefore it is crystal clear that the Supreme Court of India has categorically held that two paramount considerations for cancellation or bail are:
(1) Likelihood of the accused fleeing from justice; and
(2) Tampering with prosecution evidence;
17. It is needless to state that the above two paramount considerations are totally absent in the instant case warranting the interference of this Court to cancel the bail already granted to the first accused.
18. As rightly pointed out by Mr. S. Ashok Kumar, learned Senior Counsel for the second respondent/A-1 herein by placing reliance on the decision of the Hon’ble Supreme Court of India in Bhagirathsinh Judeja v. State of Gujarat wherein the Apex Court has held that,
Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
19. In yet another decision in Raghubir Singh v. State of Bihar reported in 1986 SCC (Cri) 511 : 1987 Cri LJ 157 the Apex Court has held that.
It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.
20. The same view was taken by the Apex Court in Mehboob Dawood Shaikh v. State of Maharashtra reported in 2004 SCC (Cri)) 551 : 2004 Cri LJ 1359.
21. Therefore, in view of the above said settled principles of law laid down by the Apex Court regarding the ground for cancellation of bail, I am of the considered view that the learned Principal Sessions Judge has not committed any error of law and there is no infirmity or illegality in the impugned order of bail granted by the learned Principal Sessions Judge warranting the interference of this Court.
22. Therefore, for the foregoing reasons, the petition stands dismissed.