IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Dr. Jitendra Pal Kaur Vs. Dr. Rajendra Singh & Others (S. B. Criminal Misc. Application (Cancellation of Bail) No.1686/2010) S. B. Criminal Misc. Application for Cancellation of Bail under Section 439 (2) Cr.P.C. against the order dated 4-2-2010 passed by Sessions Judge, Ajmer in Bail Application No.01/2010. Date of Judgment: April 26th, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. S.K. Gupta, for the petitioner. Mr. G.S. Rathore, Public Prosecutor for the State. Mr. Vinay Mathur, for accused respondents. BY THE COURT: Aggrieved by the grant of bail, vide order dated 4-2-2010, by the learned Sessions Judge, Ajmer to the accused respondents, the petitioner has filed this application for cancellation of bail. 2. According to the petitioner, the brief facts of the case are that on 27-4-2009, the petitioner, Dr. Jitendra Pal Kaur had married the respondent No.1, Dr. Rajendra Singh. The petitioner claims that from the very beginning, the marriage was on the rocks as she was abused, both mentally and physically, by the respondent No.1, her husband, and respondents No.2, 3 & 4, his family members. According to the petitioner, the respondent No.1 left for Kuwait on 27- 9-2009, and has not returned ever since then. Since 27-9-2009, the parties have parted their ways. Subsequently on 4-12-2009, the respondent No.1 filed a petition under Section 9 of the Hindu Marriage Act (for short `the Act') against the petitioner in a Court at Batala. Subsequently, on 11-1-2010, the petitioner filed a report at Mahila Thana, Ajmer against the respondents No.1 to 4, for offences under sections 498-A and 406 IPC, and Section 4/6 Dowry Prohibition Act. Since the petitioner had to face the case at Batala, as well as the criminal case pending at Ajmer, she moved a transfer petition before the Hon'ble Supreme Court. According to the petitioner, the Hon'ble Supreme Court has not only stayed the proceedings of the case pending at Batala, but has also issued notice to the respondent No.1. Meanwhile, the respondents moved an application for anticipatory bail before the learned Sessions Judge, Ajmer, who vide order dated 4-2-2010 has granted the bail to the accused respondents. Since the petitioner is aggrieved by the grant of anticipatory bail to the accused respondents, she has moved the present application for cancellation of bail before this Court. 3. Mr. S. K. Gupta, the learned counsel for the petitioner, has vehemently contended that despite the fact that the respondent No.1 was working at Kuwait, while filing the application under Section 9 of the Act at Batala, he has claimed that he was in India. But it is not true that he was in India. Moreover, the learned Sessions Judge has granted the anticipatory bail ostensibly on the ground that respondent No.1 has filed a case under section 9 of the Act and the same is pending at Batala. According to learned counsel, a fraud is being played by the respondents on the Court. Since the respondent No.1 was not in India, he could not have filed the case at Batala. Meanwhile, the learned Sessions Judge is influenced by the fact an application for restitution of conjugal rights is pending. Since the learned Sessions Judge has been swayed by a fraud, being committed by respondents, the anticipatory bail deserves to be cancelled. Moreover, since respondent No.1 is already stationed at Kuwait, learned Sessions Judge was unjustified in imposing the condition that the respondent No.1 cannot leave India without prior permission of the Court. Therefore, the imposition of the said condition clearly reveals the non-application of mind. Hence, the bail granted to the accused respondents deserves to be cancelled. 4. On the other hand, Mr. Vinay Mathur, the learned counsel for accused respondents, has straneously contended that the cancellation of bail leads to compromising the liberty of a citizen. Therefore, once a bail is granted, it should not be interfered with lightly by this Court. Secondly, since the petitioner was represented by her counsel, before the learned Sessions Judge, she was free to expose any alleged fraud being played by the accused respondents. Thirdly, the bail has not been granted solely on the ground that a petition is pending in the court at Batala. In fact, it has been granted also on the ground that the FIR has been filed as a counter-blast to the application under section 9 of the Act. Furthermore, the respondents have not violated any condition imposed by the learned Sessions Judge. They are cooperating with the Investigating Agency to the best of their abilities. Since, the respondent No.1 is staying outside the country, he has been honest enough to inform the Investigating Officer that presently he is unable to come back in India, but as soon as he does so, he will certainly get in touch with the Investigating Officer. Lastly, that the State has not filed any application for cancellation of bail on the ground of non-cooperation by the accused respondents in the investigation process. Therefore, the petitioner, who happens to be a wife of respondent No.1, is not justified in demanding that anticipatory bail be cancelled. 5. Heard the learned counsel for the parties, considered the material available on record, and examined the impugned order. 6. Liberty is the heart of life and the soul of the Constitution of India. While granting bail, the Court has to balance the conflicting interest between the liberty of the accused, who is presumed to be innocent, and the interest of the State which wants to put the accused on trial. But once a bail has been granted by a Court, exceptional circumstances should exist for cancellation of bail. Ordinarily, bail should not be cancelled ipsi dixit. The principles for cancellation of bail, are well settled by now: in case the accused were to tamper with evidence, or influence the witnesses, then the complainant or the prosecution would be justified in requesting for cancellation of bail. Moreover, in case the accused were to violate any of the conditions of the bail, the State would be justified in moving an application for cancellation of the bail. Furthermore, in case the bail order were to suffer from non-application of mind, or were to be contrary to any law, it would be liable to be cancelled by the Superior Court. 7. In the present case the petitioner contends that fraud has been played. However, the issue whether fraud had been played on the court at Batala, is a debatable issue at the moment, as it is merely an allegation made by the petitioner. Since the subject-matter is subjudice, it would not be proper for this Court to express its opinion. The only thing that can be said presently is that a case for restitution of conjugal rights is, indeed, pending in the court at Batala. 8. A bare perusal of the impugned order clearly reveals that the learned Judge has not been swayed only by the pendency of the case in the court at Batala. He seems to be more influenced by the fact that FIR was a counter-blast to the case pending at Batala. Thus, the learned counsel for the petitioner is not justified in claiming that mere pendency of the case at Batala has convinced the learned Judge to grant the anticipatory bail. Further, at this juncture, it cannot even be said that pendency of case at Batala is irrelevant—a fact worthy of being ignored by the learned Judge. Since a court, exercising its bail jurisdiction, is expected to look all the circumstances surrounding the case, the learned Judge was certainly justified in observing that there is a case for restitution of conjugal rights which is pending at Batala. Moreover, since FIR was lodged subsequent to the filing of the case by respondent No.1 at Batala, the learned Judge was equally justified in observing that the FIR was lodged almost as a counter-blast. Therefore, the reasonings given by the learned Judge cannot be doubted. 9. Admittedly, it is not the case of the petitioner that respondents are tampering with the evidence of the case, or are trying to influence the witnesses. The only complaint of the petitioner is that accused respondents are not cooperating with the Investigating Agency. However, if it were so, it is for the Investigating Agency, or the State to raise this grievance before this Court. However, the State has not done so. Admittedly, the respondent No.1 has written letter to Investigating Officer informing him about his inability to appear before him. In case, the Investigating Officer were aggrieved by such an information, they would take recourse to legal remedies available to them. But the fact remains that it is not the State who has filed the present application. The fact also remains that present application has been filed by the wife, who has serious disputes with her husband and his family members. 10. It is, indeed, trite to state that criminal procedure, and the criminal law are meant to be used as a shield, and are not meant to be used as a sword to persecute a person. However, in the present case the petitioner seems to be using the criminal procedure, and the criminal law as a means to wreck vengeance upon accused respondents. Therefore, the subterfuge of filing the present application cannot be permitted. 11. Merely, because the learned Judge has imposed a condition on respondents that they shall not be permitted to leave India without prior permission of the court, does not means that imposition of such a condition amounts to non-application of mind. Obviously, the accused respondents No.2, 3 & 4 are residing in India, the said condition would only apply to them and not to respondent No.1, who admittedly, on the date of order, was residing at Kuwait. Therefore, the learned counsel for the petitioner is not justified in claiming that the impugned order suffers from non-application of mind. 12. For the reasons, stated above, this court is not inclined to cancel the bail order of accused respondents. However, the respondents are directed to cooperate with the Investigating Agency, and to appear before the Investigating Officer as and when they are called upon to do so. 13. The application for cancellation of bail is devoid of merit. It is, hereby, dismissed. ( R.S. CHAUHAN ) J. arn/