1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CRIMINAL MISC. BAIL CANC. APPLICATION NO. 1320/2009 Manish Pahadia vs. Smt. Sanju Bai & Anr. Date of order : 20th November, 2009. REPORTABLE HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Suresh Sahni with Mr. R.M. Sharma, for the petitioner. Mr. Amit Punia, P.P. for the State. Mr. Satish Pachori, for the respondent no.1. BY THE COURT:- This order governs the disposal of an application filed under Section 439(2) of Cr.P.C. by the petitioner Manish Pahadia seeking cancellation of bail of the respondent No. 1 who has been granted bail vide order dated 13th February, 2009 rendered by the learned District & Session Judge, Baran. 2. Contextual facts depict that on 7th December, 2008 at about 4:00 pm, the respondent – accused Smt. Sanju Bai poured kerosene oil on her mother-in-law Kanchan Bai and ignited fire with match-stick in her in-law's house situated at Krishna Colony, Baran. It is further alleged that Nakul and Rituraj came forward and endeavoured to save their mother from fire but in that process they also sustained burn injuries. Ultimately, all the three Kanchan Bai, Rinku @ Rituraj and Nakul succumbed to burn injuries during their treatment. 3. Learned counsel for the petitioner has craved the cancellation of bail on the following grounds:- (i) That the most horrendous act of the accused Sanju Bai by way of pouring 2 kerosene oil on Kanchan Bai gulped down three precious lives of Kanchan Bai, Rituraj and Nakul. The offence despite being of such a grave nature, the learned Sessions Judge, Baran, granted anticipatory bail to the accused, which is a matter of serious concern. The Sessions Judge granted anticipatory bail vide order dated 13th February, 2009 arbitrarily, which warrants to be cancelled. (ii)That the learned trial court has exercised the discretion vested in him vis-a-vis grant of bail in a most arbitrary and illegal manner, as there was no legal and justified occasion to pass the impugned order granting the bail, specially when the bail was declined by the Hon'ble Court vide order dated 13.1.2009 and the Special Leave Petition was also dismissed by the Hon'ble Apex Court vide order dated 21.1.2009. (iii)That the learned trial court also ignored the observation of this Hon'ble Court dated 27.1.2009 recorded in the petition preferred by the respondent for the quashing of the FIR and other relief which is as under:- “Suffice it to observe that a perusal of the case diary reveals that it was only the petitioner who is prima facie responsible for the death of three persons.” (iv)That the learned trial court has passed the impugned order in violation of the various judicial pronouncements, therefore, the impugned order is hit by Article 141 of the Constitution of 3 India. (v)That the learned counsel for the petitioner has contended that the learned trial court has passed the impugned order on irrelevant considerations and the considerations which were not legal and legitimate. 4. Respondent no. 1 assailed the maintainability of the petition and submitted that neither the complainant Manish Pahadia was the complainant nor have any grievance directly or indirectly, hence, he had no locus standi to file the application for cancellation of bail. Rebutting all the grounds of seeking cancellation of bail and the story of burn accident as put forth by the petitioner, respondent no. 1 submitted that she was married to Late Shri Rituraj Pahadia, the brother of the petitioner and after marriage, she was subjected to cruelty by her husband, her brother-in-law and asked to bring dowry from her father. Albeit, the members of their family used to talk her with sweet tounge but they hatched a conspiracy to kill her by way of pouring in petrol over her. It has been alleged by the accused Sanju Bai that on the fateful day, petrol was poured on her at about 4:00 pm and the fire was ignited as a result of which she sustained 35% to 70% dry burn over her body. Her mother-in-law, brother-in-law Nakul and husband Rituraj endeavoured to save her but they also caught fire flames and sustained burn injuries. All the four, her mother-in-law, husband and brother-in-law including respondent no. 1 were taken to Government Hospital, Baran, where they were referred to be taken to M.B.S. Hospital, Kota but the petitioner Manish Pahadia took his mother, and both the brothers to Kota for 4 treatment and left her in Government Hospital, Baran only, so that she could die. She has been falsely implicated in this criminal case. After getting anticipatory bail, she always cooperated the police and never abused the bail rights. The petition with regard to cancellation of bail is devoid of force, hence, deserves to be dismissed. 5. Heard the learned counsel for the petitioner, learned counsel for the respondent No.1 as also learned Public Prosecutor appearing for the State and perused the relevant provisions of law as also relevant material available on record. 6. Having reflected over the submissions made at the bar and carefully scanned the relevant material available on record including the impugned bail order dated 13th February, 2009, it is noticed that initially on application filed under Section 438 of Cr.P.C., she was granted interim anticipatory bail for a period of 25 days on 16th December, 2008 by the vacation Sessions Judge, Baran during winter vacations. Thereafter, she moved an application before the High Court seeking anticipatory bail and the High Court vide order dated 13th January, 2009 dismissed the bail application. However, the accused Sanju Bai was given liberty to seek interim bail from the court below, if so required. The respondent no. 1 filed Special Leave Petition against this order in the Supreme Court where the Supreme Court declined to interfere with the impugned order dated 13th January, 2009 rendered by this Court and dismissed the Special Leave Petition accordingly. However, the period of interim bail was extended by the Session Court on 20.01.2009, 22.01.2009, 30.01.2009 and finally the 5 anticipatory bail was granted to her by Sessions Judge, Baran vide impugned order dated 13th February, 2009. 7. The most crucial question, springing for consideration, in the instant case is as to whether, the Sessions Judge, Baran should have granted anticipatory bail under Section 438 of Cr.P.C. when the prayer to seek such bail was denied by the High Court? 8. It is true that the principles of judicial discipline and propriety demand that the judges, whatever, their own views, must follow the decision of the superior Courts to which they are judicially sub-ordinate. In the case of Samunder Singh vs. State of Rajasthan, reported in AIR 1987 Supreme Court 737, their Lordships of the Apex Court, propounded that when the matter regarding unnatural death of daughter-in-law, in her father-in-law's house, was not investigated, it was not prudent to grant anticipatory bail. In the instant case, albeit, the interim anticipatory bail was granted by the vacation Sessions Judge, Baran for a period of 25 days and hiding this fact, the respondent no. 1 endeavoured to seek anticipatory bail from the High Court, which was denied vide order dated 13th January, 2009. Aggrieved with this, the respondent no. 1 filed Special Leave Petition before the Apex Court and the Hon'ble Apex Court also declined to interfere with the order dated 13th January, 2009 passed by the High Court. But, meantime, the period of interim anticipatory bail was extended by the Sessions Court, Baran. It appears that the fact of rejection of anticipatory bail by the High Court and by the Supreme Court was suppressed from the Sessions Judge, Baran and Sessions Judge, Baran finally on 13th February, 6 2009, granted regular anticipatory bail to her. Learned Sessions Judge, Baran ought to have followed the ratio indicated by the High Court in its rejection order dated 13th January, 2009 and of course, he should have dismissed the bail petition but he did not do so. Such a practice adopted by the sub-ordinate court, which amounts to judicial indiscipline and impropriety has been deprecated by the Hon'ble Apex Court in the case of Bimla Devi vs. State of Bihar & ors. reported in (1994)2 Supreme Court Cases 8. It has been held by the Lordships that though two successive applications of the accused for grant of bail were rejected by the High Court yet learned Magistrate granted provisional bail. The course adopted by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions. 9. It is true that the learned Sessions Judge, Baran should not have granted anticipatory bail to the respondents when her bail application filed under Section 438 of Cr.P.C. had been rejected by the High Court and Special Leave Petition against that was dismissed by the Hon'ble Apex Court. However, that Session Judge is no more in service now. 10. In view of the above background, the crucial question springing for consideration is that whether the anticipatory bail granted to the respondent no. 1 should be cancelled at this stage when the police, after completion of investigation, has filed the police report under Section 173(2) of Cr.P.C. in the court of Chief Judicial Magistrate, Baran, who has committed the case to the court of Sessions Judge, Baran for trial, the Session Court has framed the charges on 20th July, 2009 and the case is at the 7 stage of recording the statements of prosecution witnesses? 11. Now, it is very settled that the parameters of accepting the bail are altogether distinct from the parameters of cancelling the bail already granted. The respondent has not abused the liberty of his bail. The petitioner has not quoted any instance to prove that the respondent tampered with or endeavoured to tamper with any witness, posed any threat to the petitioner, tried to hide himself or hampered the investigation or the trial of the case, as such, the petition deserves to be dismissed. 12. Hon'ble Supreme Court in the case of State Vs. Sanjay Gandhi (AIR 1978 Supreme Court 961) has 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 be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.” (Emphasis supplied) 13. Hon'ble Supreme Court has also held in the case of Dolatram and others Vs. State of Haryana (1995) (1) Supreme Court cases 349) that: “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, 8 broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade 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.” (Emphasis supplied) 14. Hon'ble Rajasthan High Court has held in the case of Smt. Rajbala vs. State of Rajasthan (2005 (1) R.C.C. 289) as under:- “It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so.” (Emphasis supplied) 15. The issue emerging in the petition is as to whether there are grounds available on record to cancel the bail already granted to the respondent? Merely arguing that the bail has been granted on untenable grounds is not sufficient to cancel the bail. No such apprehension has been shown by the petitioner that the interference or attempt to interfere with the due course of administration of justice has been made or the concession of bail granted to the respondent has been abused in any manner 9 or the respondent is likely to abscond or she shall tamper with the witnesses. No such cogent or overwhelming circumstances have been put forth which are necessary for order directing the cancellation of bail, already granted. Hence, the observations made by the Hon'ble Apex Court in these cases keeping in view the facts of those cases are not found to be applicable in the instant case. 16. Nowt has been brought to our notice either from which any inference may possibly be drawn that the respondent has in any manner, whatsoever, abused the concession of bail during intervening period. Since, the accused- respondent no. 1 Sanju Bai is on bail for a considerable length of time and she is a lady, who also sustained 35% to 70% burn injuries over her body, I do not think it apt and just to cancel the bail, though there appears to be some substance in the plea that the impugned order granting anticipatory bail suffers from judicial indiscipline and impropriety. Let the trial be completed as early as possible. 17. For these reasons, the petition filed under Section 439(2) of Cr.P.C. seeking cancellation of bail being bereft of merits stands dismissed. (MAHESH BHAGWATI), J. Mak/-