IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28982 of 2008 SAWITA DEVI, WIFE OF KAUSHAL KUMAR DUBEY, D/O RAMAKANT OJHA, PRESENT RESIDENT OF VILLAGE DOGHARA P.O.BEHIA CHAURASTA P.S. BEHIA, BHOJPUR, ARA. …PETITIONER Versus 1. THE STATE OF BIHAR 2. KAUSHAL KUMAR DUBEY, SON OF KAPILMUNI DUBEY, RESIDENT OF VILLAGE BARKA RAJPUR. P.S. SIMARI, DISTRCIT BUXAR, AT PRESENT RESIDING AT BEHIA(KATEYA ROAD DUBEY LAKRAI SAW MILL) P..S BEHIA, DISTRICT BHOJPUR, ARA. …OPPOSITE PARTIES. For the Petitioner : Mr. Rajiv Ranjan For O.P. : Mr.Akhileshwar Pd. Singh & : Mr. Viveka Nand Pathak For the State : Mr. Jharkhandi Upadhyay,APP ----------- 05. 16.08.2010 Heard both sides. Present is an application filed under section 439(2) Cr.P.C. seeking cancellation of bail granted to o.p.no.2 by this Court under order dated 08.05.2008 relevant portion of which reads as under: “In these circumstances, the ad interim bail granted to the petitioner is hereby confirmed.” Learned counsel for the petitioner with reference to the documents brought on record in the present case, submits that o.p.no.2 violated the undertaking given to this Court on the basis whereof he was granted the privilege of bail. It is contended that after the order was passed, o.p.no.2 refused to take the petitioner back to the matrimonial home. Learned counsel appearing on behalf of o.p.no.2, on the other hand, submits that an attempt was made to take her 2 back to the matrimonial home, but the same could not be fructified due to several intervening circumstances. It was revealed to o.p.no.2 that the wife had married to some other person. Accordingly he filed a divorce case. The petitioner(wife) has already appeared and filed a rejoinder to the affidavit. Learned counsel referring to and relying upon a judgment of the Supreme Court made in the case of Biman Chatterjee vs. Sanchta Chaterjee & Anr. reported in [(2004)3 SCC 388], submits that if an accused in a case under section 498A is subsequently found guilty of having not lived up to the promise/undertaking made before the Court, the same cannot constitute a ground for cancellation of bail. He relies on paragraph 7 of the said judgment which reads thus: “Having heard the learned counsel for the parties, we are of the opinion, that the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise. Though in the original order granting bail there is a reference to an agreement of the parties to have a talk of compromise through the media of well-wishers, there is no submission made to the court that there will be a compromise or that the appellant would take back his wife. Be that as it may, in our opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfilling the terms of such compromise does not arise. That apart, non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a 3 compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law.” Learned counsel further submits that the trial based on the complaint lodged by the petitioner(wife) is at an advance stage inasmuch as almost all the prosecution witnesses except 03 have been examined. There is no allegation that the o.p.no.2 ever misused the privilege of bail by not appearing on the date fixed at the trial and/or making any attempt to tamper with the prosecution evidence in any manner. This case reflects a very sorry state of affair. The Court has to go by the rule of law. The question falls for consideration is whether the bail which has been granted in favour of an accused can be cancelled on the sole ground that person in whose favour the bail orders was made failed to live up to the promise/undertaking. Fortunately, there is a law which has been placed before me dealing squarely with the similar/identical issue. In the circumstances, I am not inclined to interfere with the order granting bail to o.p.no.2. The application is dismissed. hr ( Kishore K. Mandal )