JUDGMENT [ENTITY], J.
(1) This is an application by the petitioner-complainant under [SECTION] of the [ACT] for cancellation of bail of the respondents.
(2) The petitioner is the father of the deceased Smt.[ENTITY]. On July 4, 1991 marriage of [ENTITY] was solemnised with [ENTITY]. On April 5, 1992 [ENTITY] died of burn injuries. At the time of death, she was six month's pregnant. The incident took place in the matrimonial home of the deceased.
(3) On April 6, 1992 the petitioner [ENTITY], father of the deceased lodged a report about the incident. In the report it was, inter-alia, stated that after four months of marriage, when [ENTITY] came to the paternal house,she told him that her sisterin-law, [ENTITY] & mother-in-law, [ENTITY] were harassing her for bringing insufficient dowry. After five and a half months of her departure to the in-law's house, [ENTITY] husband of the deceased came to the house of the complainant and demanded a sum of Rs. 15,000.00 but was given only Rs.5,000.00 by the complainant, as the financial position of the latter was not good. Thereafter [ENTITY] accompanied by deceased again visited the complainant and demanded the remaining amount of Rs.10,000.00 . Shri [ENTITY] not being in a position to pay, expressed his inability to fulfill the demand at that juncture. He however, assured [ENTITY] that he would be paid Rs.10,000.00 in due course of time. Then on April5,1992 at about9.30 p.m. [ENTITY] heard from his nephew, [ENTITY], that [ENTITY] had suffered burn injuries. According to the complainant the deceased was either burnt to death by her in laws on account of non-fulfilment of the demand of dowry or she committed suicide on being harassed and tortured by them. On the report of the petitioner, the Fir was registered against the accused persons including the respondents under [SECTION] [SECTION] of the [ACT].
(4) During investigation, statement of Smt.[ENTITY], mother of the deceased was recorded. She also by and large repeated the same story as narrated by her husband [ENTITY]. She stated that [ENTITY] was a widower and his first wife also died of bum injuries. It is also specifically alleged by her that mother-in-law and sister-in-law used to harass the deceased for bringing insufficient dowry.
(5) Besides the statements of the parents of the deceased, statements of [ENTITY], [ENTITY] and [ENTITY] were also recorded by the police under [SECTION] of the [ACT]. According to [ENTITY], who is the sister of the deceased, [ENTITY] was harassed and used to be given beatings by her in laws on account of dowry. [ENTITY], the husband of [ENTITY], reiterated the statement given by his wife. [ENTITY], a relation of the complainant, stated that he was responsible for getting the deceased married to [ENTITY]. According to him, [ENTITY] told him about her plight by classifying the situation in which she was placed as "hell". He also stated that the deceased told him that her in-laws used to beat her day and night. During investigation [ENTITY], the first respondent, [ENTITY], the second respondent, [ENTITY] and [ENTITY] were arrested. First respondent and second respondent were granted bail by the learned Additional Sessions Judge on May 2, 1992. This application is for cancellation of their bail.
(6) [ENTITY], learned counsel appearing for the complainant submitted that the deceased died of bum injuries within one year of her marriage. He invited my attention to the fact that the deceased had 80% burns on her body and according to him she was found lying in or near the bath room of the house of her in laws. Mr.[ENTITY] further submitted that the first wife of [ENTITY] also died of burn injuries. According to the learned counsel same method was used to finish off [ENTITY]. Learned counsel contended that in view of the nature and gravity of the offence and the manner in which the crime was perpetrated, the learned Additional Sessions Judge mis-directed himself in granting bail to the respondents. On the other hand, Mr.[ENTITY], learned counsel for the respondents submitted that bail was rightly granted to the said respondents and there is no illegality attached to the order of the learned Additional Sessions Judge. He contended that no specific allegations have been made in the Fir against the respondents. According to him, the allegations are vague and do not warrant the incarceration of the respondents. Learned counsel canvassed that in view of the fact that there is no allegation against the respondents of having misused their liberty the application should be rejected.
(7) I have given my earnest consideration to the respective contentions of the learned counsel for the parties. It is well settled that the Courts are not to explore the merits of the case in detail or to weigh the evidence in golden scales while considering the question of grant or refusal of bail. Court has to decide the question taking into consideration the nature and seriousness of the -affence, the character of the evidence, circumstances which may be peculiar to the accused, a reasonable apprehension of witnesses being tampered with, reasonable likelihood of the accused fleeing from justice and larger interests of the State. In a grave matter pertaining to the alleged dowry death, the Court has to proceed with caution and prudence while considering the question of grant of bail. In the instant case, the deceased died within less than one year of her marriage and the death took place in the house of her in-laws. The hapless girl had burn injuries all over her body and was found in that condition in her matrimonial home. When death takes place of a bride in these circumstances, the Court should be mindful of the magnitude and seriousness of the offence and must give due weight to the provisions of [SECTION] and [SECTION] of the [ACT] in the exercise of its jurisdiction.
(8) According to the statements of the father and mother of the deceased, recorded by the police under [SECTION] of the [ACT], it appears that the first wife of [ENTITY] also died of bum injuries, that both the respondents used to harass the deceased in connection with dowry and that [ENTITY] was not allowed to go to her parental home, when [ENTITY] came to fetch her. According to learned counsel for the complainant, [ENTITY] was the second victim of the respondents as her father was not able to quench their instable thirst for dowry and before setting her on fire she was kept hostage by them as the demand for dowry was not met by [ENTITY].
(9) It is shocking that somebody so young as her should die of burn injuries, specially when she was six month's pregnant. According to the statements of the relatives of the deceased, recorded under [SECTION] of the [ACT], [ENTITY] was either burnt to death in connection with the demand of dowry or she committed suicide on being harassed and tortured by her in laws on the said account. Having regard to the seriousness of the allegations levelled against the respondents, the nature & the character of the evidence and the fact that unnatural death, with third degree burns, had taken place in the house of the respondents, it is to be seen whether the learned Additional Sessions Judge exercised his discretion properly in releasing the respondents on bail.
(10) Learnd counsel for the respondent submitted that the bail once granted can be cancelled only on two grounds, namely; i) that the accused tampered with or is likely to tamper with evidence or ii) that there is reasonable apprehension that the accused will flee from justice and not remain available for trial.
(11) He further contended that rejection of bail, when bail is applied for is one thing and cancellation of bail already granted is quite another matter and stands on a different footing. Learned counsel also cited the decision of the Supreme Court in [ENTITY] vs. State of Gujrat, in support of his submission that a High Court should not interfere with the order of a Court of Sessions granting bail to an accused when there is no reasonable apprehension of his fleeing from justice or tampering with evidence. These submissions of the learned counsel require consideration.
(12) [SECTION] of the [ACT] confers concurrent powers on the High Court and the Court of Session for granting bail. The power however, has to be exercised in the light of the provisions of [SECTION] of the [ACT]. Besides, both the High Court and the Court of Session under [SECTION] have been conferred with power to direct any person, who has been released on bail, to be arrested and committed to custody. This power to commit a person to custody after being enlarged on bail has to be exercised with care and circumspection as it involves the liberty of a person. But this does not mean that even in appropriate cases the power cannot be exercised. Rather the power must be exercised if the ends of justice demand exercise of the same. In a case where a Court of Session has granted bail, the State can straightaway move the High Court for cancellation of the bail without approaching the the Court of Session in this regard. This follows from the superior position of the High Court vis-a-vis the Court of Session. The exercise of power by the High Court under [SECTION] of the [ACT], however, will depend upon the facts and circumstances of each case and there cannot be a strait jacket formula in regard to the considerations, which prevail with the High Court for cancellation of bail granted by a Court of Session.
(13) In The [PRECEDENT], ,the order of the High Court granting bail was set aside by the Supreme Court having regard to the gravity of the offence with which the accused was charged. While cancelling the bail of the accused granted by the High Court, the Supreme Court observed as follows:- "ON a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations. On going through the order passed by the High Court, I feel that its decision that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be premature one in the circumstances of this case. Since the trial is yet to begin, I do not propose to say anything more at this stage lest it should prejudice either the accused or the prosecution than observing that on a perusal of the complaint and the other material available in the case, it cannot reasonably be stated that the prosecution case against the respondent is such that it can be thrown out at the threshold. It appears that a prima facie case is made out against the respondent. The gravity of the offences is quite obvious."
(14) In [PRECEDENT], this Court while dealing with a similar proposition held as follows:- "THE contention canvassed by Mr.[ENTITY] that unless there are such considerations as apprehension about accused not remaining available for trial, or his tampering with evidence or intimidating the witnesses: the Court should not entertain petition for cancellation of bail, particularly when moved by the complainant apparently out of vendetta, than as a matter of genuine grievance, cannot be wholly accepted for it has been held in the case of [ENTITY] (supra) that nature and seriousness of the offence is also one of the relevant considerations. There are other cases, namely, ( 1 ) State vs. [ENTITY], . and (2) [PRECEDENT], , where orders of the High Court granting bail to the accused were set aside, considering the gravity of the offence with which the accused therein were charged. The decision relied upon by Mr.[ENTITY], reported as [PRECEDENT] with all respects. does not lay down any general principles as it is manifest that their Lordships of the Supreme Court did not approve the order passed by the High Court in cancelling bail, in view of the observations made in that order taking into consideration status of the victim of the incident. and such extraneous factors as place of incident being inside premises of a hospital and other allied circumstances. This judgment does not take note of the judgment in the case of [ENTITY] (supra) to the effect that in suitable cases, the superior Court can examine the propriety of an order of granting bail and interfere accordingly and that the nature and seriousness of the offence, as also other facts and circumstances of the case are relevant factors for consideration, nor that of the earlier decision in the case of [ENTITY] (supra)."
(15) Again in [ENTITY] and others vs. State (Delhi Administration). [PRECEDENT] the Supreme Court held as follows:- "THE only question which the Sessions Judge was required to consider at that stage was whether there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials. There appeared at least nothing at that stage against the statement of [ENTITY] who had made no earlier contradictory statement. "The taint of unreliability could not be attached to his statement even for the reason given by the learned Sessions Judge. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. In considering the question of bail of an accused in a non-bailable-offence punishable with death or imprisonment for life, it is necessary for the court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors referred to above."
(16) At another place the Court observed that there cannot be an inexorable formula in the matter of granting bail and the facts & circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. In [ENTITY] (supra) the Supreme Court, with respect, cannot be said to have departed from the principle laid down in [PRECEDENT] (supra). As pointed out in the case of [ENTITY] (supra), the facts and circumstances of each case will govern the exercise of judicial discretion in matters of granting or cancelling bail, therefore no inflexible rule was intended to be laid down by the Supreme Court in of [ENTITY] (supra).
(17) Again in [PRECEDENT], , the Supreme Court observed that the power to take back in custody one who has been enlarged on bail has to be exercised with care and circumspection. But at the same time it held that in an appropriate case such a power can be exercised.
(18) While so holding the Supreme Court noticed the case of [ENTITY] (supra) and observed as under:- "IN [ENTITY] v. State (Delhi Administration), while confirming the order of the High Court cancelling the bail of the accused, this Court observed that the only question which the court had to consider at that stage was whether "there was prima facie case made out, as alleged, on the statements of the witnesses and on other materials", that "there was a likelihood of the appellants tampering with the prosecution witnesses". It is by the application of this test that we have come to the conclusion that the respondent's bail ought to be cancelled."
(19) In Shahzad Hasan Khan vs. [ENTITY] and another, , the Supreme Court cancelled the bail of the accused, which was granted by the High Court, having regard to the gravity of the offence, the nature of the evidence available and the likelihood of the accused tampering with evidence. The Supreme Court in this regard observed as follows:- "HAVING regard to the facts and circumstances of this case we are of the opinion that the learned Judge committed serious error in recalling his order dated June 3, 1986 and enlarging the respondent on bail The occurrence took place, in the broad day light, in a busy market place and there are a number of eye witnesses to support the case against the respondent who was named as an assailant in the First Information Report. Immediately after the occurrence he could not be traced (it was alleged that he had absconded) for more than a month, attempts were made on his behalf to tamper with evidence. In view of these facts and circumstances the respondent No. 1 was not entitled to bail if the seriousness of the matter was realised and a judicious approach was made. We had accordingly set aside the order of the High Court and directed that respondent No. 1 [ENTITY] shall be taken into custody forthwith and the trial shall proceed in accordance with law expeditiously."
(20) There is no doubt that the liberty of the accused has to be safeguarded in accordance with law but while keeping in mind the interests of the accused,the collective interest of the community cannot be lost sight of so that the parties do not lose faith in the administration of justice and take law into their own hands to wreak vengeance by private retribution.
(21) The High Court while considering the question of cancellation of bail can also examine the propriety and legality of the order passed by the Court of Session.
(22) In [PRECEDENT], Orissa High Court, held inter-alia, that if it is found that bail to the accused has been granted improperly and arbitrarily, the same can be cancelled by the High Court.
(23) Learned Additional Sessions Judge completely misdirected himself in thinking that there were no specific allegations against the respondents in regard to the role played by them. As already observed, there were specific allegations of harassment of the deceased at the hands of the respondents in connection with demand of dowry. These allegations are found in the statements of the father and mother of the deceased. It is strange that learned Additional Sessions Judge at one stage thought that the crime has been committed by the accused persons including the respondents and yet exercised discretion in the favor of the respondents in granting bail to them. Following are the observations of the learned Additional Session Judge:- "IT appears that the present petitioner being ladies are in judicial custody since 7.4.92 i.e. about a month, is true that there is a loss of life qua a woman and further it is a fact that crime has been committed by the accused persons including the present."
(24) These out-ladish remarks are out of tune with his ultimate order granting bail to the respondents. To say the least, it was not proper on his part to state that the accused including the respondents had committed the crime. These are observations on merits which can only be recorded at the conclusion of the trial, if evidence placed in the matter warrants such observations to be made.
(25) Considering the nature and seriousness of the accusation appearing against the first respondent,the mother-in-law of the deceased, the gravity of the offence,the circumstances in which deceased was found with third degree burns at the house of her in-laws, the weight of [SECTION] and [SECTION] of [ACT] and the propriety of the matter, I am of the opinion that it was not a fit case for grant of bail to her.
(26) Accordingly the bail granted to the first respondent by the order of Additional Sessions Judge dated May 2, 1992 is cancelled. The fact that the first respondent is a lady does not entitle her to demand bail under proviso to [SECTION] of the [ACT] as a matter of right.In a henious crime of the nature with which she is accused of, does not warrant extending the benefit of the said provision to her at this stage.
(27) As regards the second respondent, she being a young girl may not be treated at par with first respondent and deserves leniency. Therefore, order of the learned Addl. Sessions Judge granting bail to her is not interfered with.
(28) Accordingly, the bail granted to the first respondent by order of the learned Additional Sessions Judge dated May 2, 1992 is hereby cancelled.