IN THE COURT OF CHHATTISGARH AT BILASPUR
Misc. Criminal Case No.1896 of 2003
P.K. Roy
...Petitioners
Versus
State of Chhattisgarh and others
...Respondents
! Mr. Upendra Bharat, Advocate: For the applicant
^ Mr. Praveen Das, Panel Lawyer: For the State/respondent No.1
Mr. Kishore Bhaduri, Advocate: For respondents 2 & 3
Hon'ble Shri Justice L.C. Bhadoo
Dated: 05/01/2004
: ORDER
O R D E R
(Passed on 5th January, 2004)
1. The applicant has moved this petition under Section 439
(2) of the Cr.P.C. for cancellation of order granting regular
bail to respondents 2 & 3 by the Chief Judicial Magistrate,
Bilaspur, vide order dated 28.07.2003.
2. Facts leading to filing of this petition are that the
applicant’s daughter namely, Sangeeta’s marriage was
solemnized with respondent No.2 Animesh Bhattacharya on
12.12.2000. Respondent No.3 is mother of respondent No.2.
On 08.01.2003 Sangeeta died of asphyxia on account of hanging
by neck while she was residing with respondent No.2 at his
residence and it is said that three anti-mortem injuries were
found on the body of deceased Sangeeta. When the applicant,
who is father of Sangeeta, came to know about this fact, he
immediately rushed to Bajaj Nursing Home, Bilaspur, where
respondent No.2 had taken Sangeeta for treatment. On
reaching the nursing home he found that Sangeeta’s body was
lying in the auto rickshaw and Bajaj Nursing Home refused to
admit Sangeeta, thereafter, the body was taken to the
Government Hospital where, the doctor declared her brought
dead. The applicant at about 10.30 p.m. on the same day
lodged a report in the Police Station: Tarbahar, Bilaspur,
with the allegations that Sangeeta has committed suicide on
account of harassment and physical torture by accused persons
for bringing dowry and to meet the demand of Rs.1,00,000/- of
accused persons for the purpose of starting business of
brother-in-law of respondent No.2.
3. Accordingly, a case Crime No.13/2003 under Sections 498-
A & 306 read with Section 34 of the I.P.C. was registered.
During the investigation, respondents 2 & 3 moved an
application for anticipatory bail before the Court of
Sessions Judge, Bilaspur. As the Sessions Judge, Bilaspur
was on leave that application was taken up and heard by the
4th Additional Sessions Judge, Bilaspur and after hearing the
parties, he disposed of that bail application vide order
dated 07.06.2003 and allowed the bail application of
respondents 2 & 3 and they were directed to be released on
anticipatory bail on their furnishing a personal bond to the
tune of Rs.8,000/- each and a surety in the likewise amount
to the satisfaction of the Police Officer, against which the
applicant moved an application for cancellation of bail
granted to respondents 2 & 3, but the same was dismissed by
the 4th Additional Sessions Judge vide order dated
23.07.2003. When after completion of the investigation,
charge sheet was filed by the Police against the accused
persons in the Court of Chief Judicial Magistrate, the
learned C.J.M. vide order dated 28.07.2003 granted regular
bail to respondents 2 & 3 mentioning therein that the bail
has already been ordered by the 4th Additional Sessions Judge
on 07.06.2003. The applicant again moved the learned C.J.M.
under Section 437 (5) of the Cr.P.C. for cancellation of
bail, but vide order dated 02.08.2003, the learned C.J.M.
rejected that application also.
4. Notices of this application were issued to the State and
respondents 2 & 3 and they are represented by their
respective counsel. I have heard the learned counsel for the
parties.
5. Learned counsel for the applicant argued that as per the
facts of the case, as applicant’s daughter Sangeeta died
within two years from the date of marriage in unnatural
circumstances by committing suicide on account of harassment
and physical torture and cruelty, therefore, prima facie
offence under Section 304-B of the I.P.C. was made out
instead of offences under Sections 498-A & 306 of the I.P.C.
Therefore, order of the learned C.J.M. is perverse, as such
the bail should be cancelled. He further argued that the
ground taken by the C.J.M. that bail has already been granted
by the learned 4th Additional Sessions Judge is not legal and
on the contrary, the learned C.J.M. after filing the charge
sheet ought to have considered the material on record and he
should have decided the bail application on the merits of the
case based on the material available on record as
anticipatory bail could have been granted only till the
filing of the charge sheet.
6. On the other hand, the learned counsel for respondents 2
& 3 submitted that the learned 4th Additional Sessions Judge
granted bail after perusal of the material available on
record and based on the evidence of the prosecution. The
applicant himself and the mother, sister and uncle of
deceased Sangeeta in their second statements under Section
161 of the Cr.P.C. specifically mentioned that no demand of
dowry was made by respondents 2 & 3 and Sangeeta was happy at
her matrimonial house and she was never subjected to
harassment and cruelty. Therefore, the witnesses changed
their statements, which were made by them at the time of
registration of the case. However, statements of these
witnesses were again recorded in which they reverted back to
their original statements. Moreover, the applicant himself
filed an affidavit showing that no demand of dowry was made
by the accused persons and he said that he has taken all the
ornaments of her daughter, therefore, the learned Additional
Sessions Judge had rightly allowed the bail application of
respondents 2 & 3. Learned counsel for respondents 2 & 3
further argued that since the order passed by the 4th
Additional Sessions Judge was not for a particular period,
therefore, order of the C.J.M. is valid. He further argued
that order of the C.J.M. is based on the order passed by the
learned 4th Additional Sessions Judge and the applicant has
not challenged the order of cancellation of bail order passed
by the 4th Additional Sessions Judge. Therefore, on this
ground only this application deserves to be dismissed.
7. In the case of Delhi Admn. vs. Sanjay Gandhi reported in
AIR 1978 SC 961, the Hon’ble Apex Court held that “rejection
of bail when bail is applied for is one thing, cancellation
of bail already granted is quite another. It is easier to
reject a bail application in a non-bailable case than to
cancel a bail granted in such a case. Cancellation of bail
necessarily involves the review of a decision already made
and can by and large be permitted only if, by reason of
supervening circumstances. It would no longer conducive to a
fair trial to allow the accused to retain his freedom during
the trial.” As per the settled law, bail granted to accused
person can be cancelled either on the breach of conditions of
bail order or misuse of liberty by the accused persons. As
has been held by the Hon’ble Apex Court in the case of Puran
vs. Rambilas and another reported in (2001) 6 S.C.C. 338,
even the bail can be cancelled if the order granting bail is
perverse and contrary to the principles of law.
8. Looking to the above law laid down by the Hon’ble Apex
Court, if we look into the facts of the present case, the
applicant reported the matter on 07.01.2003 to the Police
Station: Tarbahar on the ground that his daughter committed
suicide because respondents 2 & 3 were demanding clothes and
cash and for that purpose they were subjecting her to
cruelty. This version was supported by the applicant and
uncle of the deceased namely, Sameer Kumar in their
statements dated 08.01.2003. But the applicant gave second
statement on 17.01.2003 in which he resiled from the previous
statement dated 08.01.2003 and stated that he gave the
statement dated 08.01.2003 because his mental condition was
not perfect, in fact his son-in-law, his mother and sister
had never demanded any dowry and they never subjected his
daughter to cruelty, but again he changed his statement on
11.06.2003 and supported his earlier statement. Similarly,
Sameer Kumar Rai gave three statements and in the second
statement he resiled from his previous statement. On
17.01.2003, mother of deceased Sangeeta stated that her
daughter and son-in-law were leading peaceful life and there
were cordial relations between them, why her daughter
committed suicide she does not know, but she used to get
angry on small matters. Therefore, the learned Additional
Sessions Judge mentioned that the witnesses are changing
their versions, hence, it is a fit case in which respondents
2 & 3 should be extended the benefit of bail. Even an
affidavit was sworn by the applicant on a stamp paper of
Rs.50/- and an agreement was also executed by him in which he
stated that he has taken back all the ornaments of his
daughter. Therefore, the learned Additional Sessions Judge
refused to cancel the bail also. The third statement
reverting back to original version was given by these
witnesses after grant of bail to the accused persons on
07.06.2003.
9. Therefore, in the given situation, I am of the opinion
that when the parents and relatives of deceased Sangeeta
themselves had changed their statements and they had stated
that Sangeeta and accused persons were maintaining cordial
relations between themselves and the accused persons had
never demanded dowry, relying upon these statements the 4th
Additional Sessions Judge passed the order, therefore, it
cannot be inferred that the order is perverse or contrary to
law.
10. At the time of granting of bail by the 4th Additional
Sessions Judge on 07.06.2003, the third statement of the
witnesses were not on record. Only the first statement in
which they have supported the prosecution case and the second
statement dated 17th to 20th of January, 2003 were on record
in which they resiled from the previous statement and said
that the accused persons had not demanded dowry and they had
not tortured deceased Sangeeta. Based on that the learned
Additional Sessions Judge granted bail. However, after
granting of bail on 07.06.2003, these witnesses again took
summersault on 11.06.2003 and reverted back to the original
position and gave their statements supporting the earlier
statements recorded on 8th January, 2003. On the date of
granting of bail these statements were not before the learned
Additional Sessions Judge and after granting of bail on a
changed version of the witnesses, in my opinion it was not
safe to cancel the bail because these witnesses changed their
version twice. As has been held by the Hon’ble Apex Court,
rejection of bail when bail is applied for is one thing,
cancellation of bail already granted is quite another, and it
is easier to reject a bail than to cancel a bail granted in
such a case. As has been held by the Hon’ble Apex Court in
the case of Aslam Babalal Desai vs. State of Maharashtra
reported in AIR 1993 S.C. 1,
“the grounds for cancellation of bail under
Sections 437 (5) & 439 (2) are identical,
namely, bail granted under Section 437 (1) or
(2) or 439 (1) 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 of
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.”
In the circumstances, the order granting bail is not
perverse and in view of the above principle laid down
by the Hon’ble Apex Court, I do not find that any of
the grounds mentioned above exist in the present case
for cancellation of bail.
11. Now, coming to the second question that in this case the
learned 4th Additional Sessions Judge granted bail to the
respondents in the mode of regular bail and the learned 4th
Additional Sessions Judge has not granted anticipatory bail
for limited duration, as has been held by the Hon’ble Apex
Court in the case of Salauddin Abdulsamad Shaikh vs. State of
Masharashtra reported in (1996) 1 Supreme Court Cases 667
that,
“Anticipatory bail is granted in anticipation
of arrest in non-bailable cases, but that
does not mean that the regular court, which
is to try the offender, is sought to be
bypassed and that is the reason why the High
Court very rightly fixed the outer date for
the continuance of the bail and on date of
its expiry directed the petitioner to move
the regular court for bail. That is the
correct produce to follow because it must be
realised that when the Court of Session or
the High Court is granting anticipatory bail,
it is granted at a stage when the
investigation is incomplete and, therefore,
it is not informed about the nature of
evidence against the alleged offender. It
is, therefore, necessary that such
anticipatory bail orders should be of a
limited duration only and ordinarily on the
expiry of that duration or extended duration
the court granting anticipatory bail should
leave it to the regular court to deal with
the matter on an appreciation of evidence
placed before it after the investigation has
made progress or the charge-sheet is
submitted.”
Therefore, in view of the law laid down by the Hon’ble
Apex Court, the learned Additional Sessions Judge ought
to have granted bail for a limited period and he should
have left the accused persons to approach regular court
for grant of regular bail before expiry of that limited
period. While granting anticipatory bail the correct
approach for the learned 4th Additional Sessions Judge
was as laid down by the Hon’ble Apex Court in the above
matter.
12. In the present case, the learned Additional Sessions
Judge while granting bail under Section 438 (1) of the
Cr.P.C. had not granted bail for limited duration.
Therefore, the learned Chief Judicial Magistrate was right in
granting regular bail based on the order of bail passed by
the Additional Sessions Judge on 07.06.2003 and for this, I
am fortified by the decision of Madhya Pradesh High Court in
the matter of B.L. Verma and others vs. State of M.P.
reported in 1979 JLJ 419, in which it has been held in
paragraphs 18 & 19 of the order that,
“18. In this view of the matter, it can
safely be said that the moment a person is
released on bail after arrest in compliance
with the directions contained in the order
passed u/s 438, it would be deemed as if it
was a bail granted under sub section (1) of
section 437, and therefore, it shall be in
operation until cancelled by the Court in
accordance with the provisions contained in
sub-section (5) of section 437. This
conclusion gets buttressed from the provision
contained in sub-section (2) of section 439
of the Code which reads as under: –
“439. Special powers of High Court
or Court of session regarding bail.
** ** ** **
(2) A High Court or Court of
session may direct that any
person who has been released on
bail under this chapter be
arrested and commit him to
custody.”
(Emphasis supplied by me)
This view, that once when it is held
that the person released on bail under
section 438 would be deemed to have been
released on bail under sub-section (1) of
section 437, his bail cannot be cancelled
except an specific order under sub-section
(5) of section 437, gets support from the
decision of their Lordships of the Supreme
Court in Bashir and others v. State of
Haryana [1].
19. The upshot of the foregoing discussion
is that the bail of a person bailed out under
an order under section 438 would not stand
cancelled or cannot be cancelled by a
Magistrate merely on the ground that a charge
sheet has been filed. It shall remain valid
until the conclusion of the trial unless it
is cancelled by an appropriate Court under
section 437 (5) or 439 (2).”
Therefore, in view of the above since the bail order
passed by the 4th Additional Sessions Judge on
07.06.2003 under Section 438 (1) of the Cr.P.C. was not
for a limited period until the filing of charge sheet,
the impugned order granting bail by the Chief Judicial
Magistrate based on the order of Additional Sessions
Judge dated 07.06.2003 was not illegal or perverse or
contrary to law.
13. A point has been raised by the learned counsel for
respondents 2 & 3 that the applicant has not challenged the
order of the Additional Sessions Judge granting bail and
rejecting the application of the applicant for cancellation
of bail and the order passed by the C.J.M. is based on that
order, therefore, unless the order passed by the A.D.J. is
challenged the impugned order cannot be challenged. I find
substance in this argument. Previously the applicant had
filed a petition before the High Court for challenging the
order of the Additional Sessions Judge, but that has been
withdrawn and the petition is dismissed as withdrawn. In
order to cancel the bail granted to respondents 2 & 3, the
applicant ought to have challenged the order of the A.D.J. as
well as the C.J.M. On this ground also this petition is not
maintainable.
14. In the result, I do not find any substance in this
petition and the same is liable to be dismissed. The
petition is accordingly, dismissed.
J U D G E
05.01.2004