{"id":33834,"date":"2004-01-05T00:00:00","date_gmt":"2004-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-k-roy-vs-state-of-chhattisgarh-and-others-on-5-january-2004"},"modified":"2016-07-28T13:25:17","modified_gmt":"2016-07-28T07:55:17","slug":"p-k-roy-vs-state-of-chhattisgarh-and-others-on-5-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-k-roy-vs-state-of-chhattisgarh-and-others-on-5-january-2004","title":{"rendered":"P.K. Roy vs State Of Chhattisgarh And Others on 5 January, 2004"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
P.K. Roy vs State Of Chhattisgarh And Others on 5 January, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n        IN THE COURT OF CHHATTISGARH AT BILASPUR        \n\n       Misc. Criminal Case No.1896 of 2003\n\n       P.K. Roy\n                                            ...Petitioners\n                  Versus\n\n       State of Chhattisgarh and others\n                                            ...Respondents\n\n!       Mr. Upendra Bharat, Advocate: For the applicant\n\n^       Mr.   Praveen  Das,  Panel  Lawyer: For the State\/respondent No.1\n        Mr.  Kishore Bhaduri, Advocate: For respondents 2 & 3\n\n       Hon'ble Shri Justice L.C. Bhadoo\n\n\n       Dated: 05\/01\/2004\n\n\n:       ORDER\n<\/pre>\n
                          O R D E R
\n                (Passed on 5th January, 2004)<\/p>\n
  1.   The applicant has moved this petition under Section 439
\n     (2) of the Cr.P.C. for cancellation of order granting regular
\n     bail to respondents 2 & 3 by the Chief Judicial Magistrate,
\n     Bilaspur, vide order dated 28.07.2003.\n<\/p>\n
  2.    Facts leading to filing of this petition are that the
\n     applicant’s  daughter  namely, Sangeeta’s  marriage  was
\n     solemnized with respondent No.2 Animesh Bhattacharya  on
\n     12.12.2000.  Respondent No.3 is mother of respondent No.2.
\n     On 08.01.2003 Sangeeta died of asphyxia on account of hanging
\n     by neck while she was residing with respondent No.2 at his
\n     residence and it is said that three anti-mortem injuries were
\n     found on the body of deceased Sangeeta.  When the applicant,
\n     who is father of Sangeeta, came to know about this fact, he
\n     immediately rushed to Bajaj Nursing Home, Bilaspur, where
\n     respondent  No.2 had taken Sangeeta for  treatment.   On
\n     reaching the nursing home he found that Sangeeta’s body was
\n     lying in the auto rickshaw and Bajaj Nursing Home refused to
\n     admit  Sangeeta, thereafter, the body was taken  to  the
\n     Government Hospital where, the doctor declared her brought
\n     dead.  The applicant at about 10.30 p.m. on the same day
\n     lodged a report in the Police Station: Tarbahar, Bilaspur,
\n     with the allegations that Sangeeta has committed suicide on
\n     account of harassment and physical torture by accused persons
\n     for bringing dowry and to meet the demand of Rs.1,00,000\/- of
\n     accused persons for the purpose of starting business  of
\n     brother-in-law of respondent No.2.\n<\/p>\n
  3.   Accordingly, a case Crime No.13\/2003 under Sections 498-
\n     A & 306 read with Section 34 of the I.P.C. was registered.
\n     During  the  investigation, respondents 2 & 3  moved  an
\n     application  for anticipatory bail before the  Court  of
\n     Sessions Judge, Bilaspur.  As the Sessions Judge, Bilaspur
\n     was on leave that application was taken up and heard by the
\n     4th Additional Sessions Judge, Bilaspur and after hearing the
\n     parties, he disposed of that bail application vide order
\n     dated  07.06.2003  and allowed the bail  application  of
\n     respondents 2 & 3 and they were directed to be released on
\n     anticipatory bail on their furnishing a personal bond to the
\n     tune of Rs.8,000\/- each and a surety in the likewise amount
\n     to the satisfaction of the Police Officer, against which the
\n     applicant moved an application for cancellation of  bail
\n     granted to respondents 2 & 3, but the same was dismissed by
\n     the  4th  Additional  Sessions Judge  vide  order  dated
\n     23.07.2003.  When after completion of the investigation,
\n     charge sheet was filed by the Police against the accused
\n     persons  in the Court of Chief Judicial Magistrate,  the
\n     learned C.J.M. vide order dated 28.07.2003 granted regular
\n     bail to respondents 2 & 3 mentioning therein that the bail
\n     has already been ordered by the 4th Additional Sessions Judge
\n     on 07.06.2003.  The applicant again moved the learned C.J.M.
\n     under Section 437 (5) of the Cr.P.C. for cancellation of
\n     bail, but vide order dated 02.08.2003, the learned C.J.M.
\n     rejected that application also.\n<\/p>\n
  4.   Notices of this application were issued to the State and
\n     respondents  2  &  3 and they are represented  by  their
\n     respective counsel.  I have heard the learned counsel for the
\n     parties.\n<\/p>\n
  5.   Learned counsel for the applicant argued that as per the
\n     facts of the case, as applicant’s daughter Sangeeta died
\n     within  two years from the date of marriage in unnatural
\n     circumstances by committing suicide on account of harassment
\n     and physical torture and cruelty, therefore, prima facie
\n     offence  under Section 304-B of the I.P.C. was made  out
\n     instead of offences under Sections 498-A & 306 of the I.P.C.
\n     Therefore, order of the learned C.J.M. is perverse, as such
\n     the bail should be cancelled.  He further argued that the
\n     ground taken by the C.J.M. that bail has already been granted
\n     by the learned 4th Additional Sessions Judge is not legal and
\n     on the contrary, the learned C.J.M. after filing the charge
\n     sheet ought to have considered the material on record and he
\n     should have decided the bail application on the merits of the
\n     case  based  on  the  material available  on  record  as
\n     anticipatory bail could have been granted only till  the
\n     filing of the charge sheet.\n<\/p>\n
  6.   On the other hand, the learned counsel for respondents 2
\n     & 3 submitted that the learned 4th Additional Sessions Judge
\n     granted bail after perusal of the material available  on
\n     record and based on the evidence of the prosecution.  The
\n     applicant  himself and the mother, sister and  uncle  of
\n     deceased Sangeeta in their second statements under Section
\n     161 of the Cr.P.C. specifically mentioned that no demand of
\n     dowry was made by respondents 2 & 3 and Sangeeta was happy at
\n     her  matrimonial  house and she was never  subjected  to
\n     harassment and cruelty.  Therefore, the witnesses changed
\n     their statements, which were made by them at the time of
\n     registration of the case.  However, statements of  these
\n     witnesses were again recorded in which they reverted back to
\n     their original statements.  Moreover, the applicant himself
\n     filed an affidavit showing that no demand of dowry was made
\n     by the accused persons and he said that he has taken all the
\n     ornaments of her daughter, therefore, the learned Additional
\n     Sessions Judge had rightly allowed the bail application of
\n     respondents 2 & 3.  Learned counsel for respondents 2 & 3
\n     further  argued that since the order passed by  the  4th
\n     Additional Sessions Judge was not for a particular period,
\n     therefore, order of the C.J.M. is valid.  He further argued
\n     that order of the C.J.M. is based on the order passed by the
\n     learned 4th Additional Sessions Judge and the applicant has
\n     not challenged the order of cancellation of bail order passed
\n     by the 4th Additional Sessions Judge.  Therefore, on this
\n     ground only this application deserves to be dismissed.\n<\/p>\n
  7.   In the case of Delhi Admn. vs. Sanjay Gandhi<\/a> reported in
\n     AIR 1978 SC 961, the Hon’ble Apex Court held that “rejection
\n     of bail when bail is applied for is one thing, cancellation
\n     of bail already granted is quite another.  It is easier to
\n     reject a bail application in a non-bailable case than to
\n     cancel a bail granted in such a case.  Cancellation of bail
\n     necessarily involves the review of a decision already made
\n     and can by and large be permitted only if, by reason  of
\n     supervening circumstances.  It would no longer conducive to a
\n     fair trial to allow the accused to retain his freedom during
\n     the trial.”  As per the settled law, bail granted to accused
\n     person can be cancelled either on the breach of conditions of
\n     bail order or misuse of liberty by the accused persons.  As
\n     has been held by the Hon’ble Apex Court in the case of Puran
\n     vs. Rambilas and another reported in (2001) 6 S.C.C. 338,
\n     even the bail can be cancelled if the order granting bail is
\n     perverse and contrary to the principles of law.\n<\/p>\n
  8.   Looking to the above law laid down by the Hon’ble Apex
\n     Court, if we look into the facts of the present case, the
\n     applicant reported the matter on 07.01.2003 to the Police
\n     Station: Tarbahar on the ground that his daughter committed
\n     suicide because respondents 2 & 3 were demanding clothes and
\n     cash  and for that purpose they were subjecting  her  to
\n     cruelty.  This version was supported by the applicant and
\n     uncle  of  the  deceased namely, Sameer Kumar  in  their
\n     statements dated 08.01.2003.  But the applicant gave second
\n     statement on 17.01.2003 in which he resiled from the previous
\n     statement dated 08.01.2003 and stated that he  gave  the
\n     statement dated 08.01.2003 because his mental condition was
\n     not perfect, in fact his son-in-law, his mother and sister
\n     had never demanded any dowry and they never subjected his
\n     daughter to cruelty, but again he changed his statement on
\n     11.06.2003 and supported his earlier statement.  Similarly,
\n     Sameer Kumar Rai gave three statements and in the second
\n     statement  he  resiled from his previous statement.   On
\n     17.01.2003, mother of deceased Sangeeta stated that  her
\n     daughter and son-in-law were leading peaceful life and there
\n     were  cordial  relations between them, why her  daughter
\n     committed suicide she does not know, but she used to get
\n     angry on small matters.  Therefore, the learned Additional
\n     Sessions Judge mentioned that the witnesses are changing
\n     their versions, hence, it is a fit case in which respondents
\n     2  & 3 should be extended the benefit of bail.  Even  an
\n     affidavit was sworn by the applicant on a stamp paper of
\n     Rs.50\/- and an agreement was also executed by him in which he
\n     stated  that he has taken back all the ornaments of  his
\n     daughter.  Therefore, the learned Additional Sessions Judge
\n     refused  to  cancel the bail also.  The third  statement
\n     reverting  back to original version was given  by  these
\n     witnesses after grant of bail to the accused persons  on
\n     07.06.2003.\n<\/p>\n
  9.   Therefore, in the given situation, I am of the opinion
\n     that when the parents and relatives of deceased Sangeeta
\n     themselves had changed their statements and they had stated
\n     that Sangeeta and accused persons were maintaining cordial
\n     relations between themselves and the accused persons had
\n     never demanded dowry, relying upon these statements the 4th
\n     Additional Sessions Judge passed the order, therefore, it
\n     cannot be inferred that the order is perverse or contrary to
\n     law.\n<\/p>\n
10.  At the time of granting of bail by the 4th Additional
\nSessions Judge on 07.06.2003, the third statement of the
\nwitnesses were not on record.  Only the first statement in
\nwhich they have supported the prosecution case and the second
\nstatement dated 17th to 20th of January, 2003 were on record
\nin which they resiled from the previous statement and said
\nthat the accused persons had not demanded dowry and they had
\nnot tortured deceased Sangeeta.  Based on that the learned
\nAdditional Sessions Judge granted bail.  However, after
\ngranting of bail on 07.06.2003, these witnesses again took
\nsummersault on 11.06.2003 and reverted back to the original
\nposition and gave their statements supporting the earlier
\nstatements recorded on 8th January, 2003.  On the date of
\ngranting of bail these statements were not before the learned
\nAdditional Sessions Judge and after granting of bail on a
\nchanged version of the witnesses, in my opinion it was not
\nsafe to cancel the bail because these witnesses changed their
\nversion twice.  As has been held by the Hon’ble Apex Court,
\nrejection of bail when bail is applied for is one thing,
\ncancellation of bail already granted is quite another, and it
\nis easier to reject a bail than to cancel a bail granted in
\nsuch a case.  As has been held by the Hon’ble Apex Court in
\nthe case of Aslam Babalal Desai vs. State of Maharashtra<\/a>
\nreported in AIR 1993 S.C. 1,<\/p>\n
          “the  grounds for cancellation of bail  under
\n          Sections  437  (5) & 439 (2)  are  identical,
\n          namely, bail granted under Section 437 (1) or
\n          (2) or 439 (1) can be cancelled where (i) the
\n          accused  misuses his liberty by indulging  in
\n          similar  criminal activity,  (ii)  interferes
\n          with   the  course  of  investigation,  (iii)
\n          attempts   to   tamper   with   evidence   of
\n          witnesses,   (iv)  threatens   witnesses   or
\n          indulges  in  similar activities which  would
\n          hamper  smooth investigation,  (v)  there  is
\n          likelihood of his fleeing to another country,\n<\/p>\n
          (vi) attempts to make himself scarce by going
\n          underground  or becoming unavailable  to  the
\n          investigating agency, (vii) attempts to place
\n          himself beyond the reach of his surety, etc.”\n<\/p>\n
     In  the  circumstances, the order granting bail is  not
\n     perverse  and in view of the above principle laid  down
\n     by  the  Hon’ble Apex Court, I do not find that any  of
\n     the  grounds mentioned above exist in the present  case
\n     for cancellation of bail.\n<\/p>\n
  11.  Now, coming to the second question that in this case the
\n     learned 4th Additional Sessions Judge granted bail to the
\n     respondents in the mode of regular bail and the learned 4th
\n     Additional Sessions Judge has not granted anticipatory bail
\n     for limited duration, as has been held by the Hon’ble Apex
\n     Court in the case of Salauddin Abdulsamad Shaikh vs. State of
\n     Masharashtra reported in (1996) 1 Supreme Court Cases 667
\n     that,<\/p>\n
          “Anticipatory bail is granted in anticipation
\n          of  arrest  in non-bailable cases,  but  that
\n          does  not mean that the regular court,  which
\n          is  to  try  the offender, is  sought  to  be
\n          bypassed and that is the reason why the  High
\n          Court  very rightly fixed the outer date  for
\n          the  continuance of the bail and on  date  of
\n          its  expiry directed the petitioner  to  move
\n          the  regular  court for bail.   That  is  the
\n          correct produce to follow because it must  be
\n          realised  that when the Court of  Session  or
\n          the High Court is granting anticipatory bail,
\n          it   is   granted   at  a  stage   when   the
\n          investigation  is incomplete and,  therefore,
\n          it  is  not  informed  about  the  nature  of
\n          evidence  against the alleged  offender.   It
\n          is,    therefore,   necessary    that    such
\n          anticipatory  bail  orders  should  be  of  a
\n          limited duration only and ordinarily  on  the
\n          expiry  of that duration or extended duration
\n          the  court granting anticipatory bail  should
\n          leave  it  to the regular court to deal  with
\n          the  matter  on an appreciation  of  evidence
\n          placed before it after the investigation  has
\n          made   progress   or  the   charge-sheet   is
\n          submitted.”\n<\/p>\n
     Therefore, in view of the law laid down by the  Hon’ble
\n     Apex Court, the learned Additional Sessions Judge ought
\n     to have granted bail for a limited period and he should
\n     have left the accused persons to approach regular court
\n     for grant of regular bail before expiry of that limited
\n     period.   While granting anticipatory bail the  correct
\n     approach for the learned 4th Additional Sessions  Judge
\n     was as laid down by the Hon’ble Apex Court in the above
\n     matter.\n<\/p>\n
  12.   In the present case, the learned Additional Sessions
\n     Judge while granting bail under Section 438 (1) of  the
\n     Cr.P.C.  had  not  granted bail for  limited  duration.
\n     Therefore, the learned Chief Judicial Magistrate was right in
\n     granting regular bail based on the order of bail passed by
\n     the Additional Sessions Judge on 07.06.2003 and for this, I
\n     am fortified by the decision of Madhya Pradesh High Court in
\n     the  matter of B.L. Verma and others vs. State of  M.P.
\n     reported in 1979 JLJ 419, in which it has been held  in
\n     paragraphs 18 & 19 of the order that,<\/p>\n
          “18.  In  this  view of the  matter,  it  can
\n          safely  be  said that the moment a person  is
\n          released  on bail after arrest in  compliance
\n          with  the  directions contained in the  order
\n          passed u\/s 438, it would be deemed as  if  it
\n          was  a bail granted under sub section (1)  of
\n          section  437, and therefore, it shall  be  in
\n          operation  until cancelled by  the  Court  in
\n          accordance  with the provisions contained  in
\n          sub-section   (5)  of  section   437.    This
\n          conclusion gets buttressed from the provision
\n          contained  in sub-section (2) of section  439
\n          of the Code which reads as under: –\n<\/p>\n
               “439.  Special powers of High Court
\n               or Court of session regarding bail.\n<\/p><\/blockquote>\n
               **          **        **        **<\/p>\n
               (2)     A  High  Court or Court  of
\n                 session   may  direct  that   any
\n                 person  who has been released  on
\n                 bail   under   this  chapter   be
\n                 arrested   and  commit   him   to
\n                 custody.”<\/p><\/blockquote>\n
                         (Emphasis supplied by me)<\/p>\n
               This  view,  that once when it  is  held
\n          that   the  person  released  on  bail  under
\n          section  438  would be deemed  to  have  been
\n          released  on  bail under sub-section  (1)  of
\n          section  437,  his bail cannot  be  cancelled
\n          except  an  specific order under  sub-section
\n          (5)  of  section 437, gets support  from  the
\n          decision  of  their Lordships of the  Supreme
\n          Court  in  Bashir  and  others  v.  State  of
\n          Haryana<\/a> [1].\n<\/p>\n
          19.   The  upshot of the foregoing discussion
\n          is that the bail of a person bailed out under
\n          an  order  under section 438 would not  stand
\n          cancelled  or  cannot  be  cancelled   by   a
\n          Magistrate merely on the ground that a charge
\n          sheet  has been filed.  It shall remain valid
\n          until  the conclusion of the trial unless  it
\n          is  cancelled by an appropriate  Court  under
\n          section 437 (5) or 439 (2).”\n<\/p>\n
     Therefore,  in view of the above since the  bail  order
\n     passed   by  the  4th  Additional  Sessions  Judge   on
\n     07.06.2003 under Section 438 (1) of the Cr.P.C. was not
\n     for  a limited period until the filing of charge sheet,
\n     the  impugned order granting bail by the Chief Judicial
\n     Magistrate  based  on the order of Additional  Sessions
\n     Judge  dated 07.06.2003 was not illegal or perverse  or
\n     contrary to law.\n<\/p>\n
  13.   A  point  has been raised by the learned counsel  for
\n     respondents 2 & 3 that the applicant has not challenged the
\n     order of the Additional Sessions Judge granting bail and
\n     rejecting the application of the applicant for cancellation
\n     of bail and the order passed by the C.J.M. is based on that
\n     order, therefore, unless the order passed by the A.D.J. is
\n     challenged the impugned order cannot be challenged.  I find
\n     substance in this argument.  Previously the applicant had
\n     filed a petition before the High Court for challenging the
\n     order of the Additional Sessions Judge, but that has been
\n     withdrawn and the petition is dismissed as withdrawn.  In
\n     order to cancel the bail granted to respondents 2 & 3, the
\n     applicant ought to have challenged the order of the A.D.J. as
\n     well as the C.J.M.  On this ground also this petition is not
\n     maintainable.\n<\/p>\n
  14.   In  the  result, I do not find any substance in  this
\n     petition  and  the same is liable to be dismissed.   The
\n     petition is accordingly, dismissed.\n<\/p>\n
                                                    J U D G E
\n                                                   05.01.2004<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court P.K. Roy vs State Of Chhattisgarh And Others on 5 January, 2004 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-33834","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nP.K. 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