IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42258 of 2010 ====================================================== Kumari Juhi Rai wife of Sri Rajiv Singh, H.I.G. 23A, Subhas Nagar, Maharajpur, P.S.- Adhartal, District-Jabalpur (M.P.) at present D/O Sri Bhola Rai, Resident of village- Patkhauli, P.O.- Bagahin Bajar, P.S.- Kateya, District- Gopalganj, Bihar. .... .... Petitioner/s Versus 1. The State of Bihar 2. Rajiv Kumar Singh, son of Anirudh Singh, resident of village- Maridar, P.S. Gathani, District- Siwan at present H.I.G. 23A Subhas Nagar, Maharajpur, P.S. Adhartal, District- Jabalpur, M.P. 3. Anirudh Singh, son of late Biswanath Singh 4. Fulshankar Devi, wife of Anirudh Singh Both resident of village- Maridar, P.S. Gathani, District- Siwan at present H.I.G. 23A Subhas Nagar Maharajpur, P.S. Adhartal, District- Jabalpur. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner/s : Mr. Manan Kumar Mishra, Sr. Advocate with Mr. Sanjay Kumar Pandey, Advocate. For the State : Mr. R. N. Jha, A. P. P. For Opp. Party Nos. 2 to 4: Mr. Ajay Thakur with Mr. Ajatshatru, Advocates. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA C.A.V. ORDER (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) 6 16-9-2011 Heard learned counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the State of Bihar and the learned counsel appearing on behalf of Opposite Party nos. 2 to 4. Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 2 2. The petitioner, who is the victim and the complainant of Complaint Case No. 2143 of 2008 corresponding to Trial No. 2171 of 2010 pending in the court of learned S.D.J.M., Gopalganj, has filed the present petition under Section 439(2) of the Code of Criminal Procedure, 1973 seeking cancellation of bail of Opposite Party nos. 2 to 4 granted by virtue of a common order dated 15.04.2010 passed in Cr. Misc. No. 11835 of 2010 ( Rajiv Kumar Singh vs. The State of Bihar & Anr.) with Cr. Misc. No. 7574 of 2010 (Anirudh Singh & Anr. Vs. The State of Bihar & Anr.). 3. In response to the show cause notice issued by this Court, Opposite Party nos. 2 to 4 have entered appearance and have filed a common show cause duly sworn by Opposite Party No.2 and have contested the matter, and a prayer has been made on their behalf that the petition filed on behalf of the petitioner for cancellation of their bail be rejected. 4. In order to appreciate the points involved in the present case, it would be necessary to give entire factual background under which Opposite Party Nos. 2 to 4 were granted bail by this Court, as also the factual background under which the petitioner is seeking cancellation of their bail, which are portrayed hereunder. 5. The petitioner filed a petition of complaint on 10.09.2008 in the court of learned Chief Judicial Magistrate, Gopalganj, giving rise to Complaint Case No. 2143 of 2008. Opposite Party nos. 2 to 4 were arraigned as accused for committing a crime under Section 498A of the Indian Penal Code, besides others. According to the prosecution case the petitioner was married with Opposite Party no. 2 on 27.06.2007 as per Hindu rituals. Before solemnization of marriage, it was settled after due negotiation by the members of the family of the petitioner as also that of Opposite Party no.2. Father of petitioner is said to have Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 3 given various gifts at the time of marriage which all have been detailed in the petition of complaint. However, after solemnization of marriage, on 28.06.2007 the accused persons are said to have made a further demand of a Maruti Alto Car by way of dowry and due to non-fulfillment of aforesaid demand of dowry, the accused persons were not prepared to take the petitioner (complainant) to her matrimonial home. However, on persuasion and assurance given by the family members of the petitioner, she was taken to her matrimonial home, where the petitioner was allegedly tortured and even assaulted by the accused persons due to non-fulfillment of aforesaid demand of dowry, which all have been detailed in the aforesaid petition of complaint. Subsequently, on 01.07.2008 Opposite Party no.2 is said to have left the petitioner at her paternal house and refused to take her back to her matrimonial home till fulfillment of demand of dowry of Maruti Alto Car. 6. The aforesaid petition of complaint filed by the petitioner was enquired into by the learned Magistrate in terms of Section 202 Cr. P.C. and cognizance under Section 498A of the Indian Penal Code was taken against the accused Opposite Party nos. 2 to 4. On apprehension of their arrest, opposite party no. 3 and 4 firstly filed Cr. Misc. No. 7574 of 2010 before this Court under Section 438 Cr. P. C., seeking anticipatory bail in the aforesaid complaint case filed by the petitioner. Subsequently, Opposite Party no.2 also filed a separate application under Section 438 Cr. P. C. seeking anticipatory bail in the aforesaid complaint case filed by the petitioner, which gave rise to Cr. Misc. No. 11835 of 2010. In both the applications, the petitioner, being the complainant, was impleaded as opposite party no.2 and she had entered appearance through her lawyer for opposing the prayer for anticipatory bail made on behalf of Opposite Party nos. 2 to 4. Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 4 When both the applications filed on behalf of Opposite Party nos. 2 to 4 were being heard together by this Court on 09.04.2010, then in response to a query made by this Court, a common stand was taken by the learned counsels appearing on behalf of the parties that there were possibilities of compromise and restoration of matrimonial relationship between the petitioner and opposite party no. 2, and accordingly their submissions were recorded by this Court in the order dated 09.04.2010. Relevant portion of order dated 09.04.2010 is reproduced herein below:- “It is a common ground, as urged by the parties, that there are still possibilities of compromise between the husband and wife. In that view of the matter, put up this case on 15th April, 2010, under the same heading retaining its position. On that day the petitioners and the complainant shall remain physically present in the Court. Before coming to the Court, the petitioners, complainant and their respective counsels should sit together and should find out the modalities of the compromise either for restoration of matrimonial relationship or for one time settlement of the entire disputes between the parties. If terms and conditions of compromise are arrived at, then the same may be brought on record by way of filing an affidavit duly sworn by both sides. Till 15th April, 2010, no coercive step shall be taken against the petitioners in connection with Complaint Case No. 2143/2008, Tr. No. 2588/2009, pending in the court of Judicial Magistrate, Gopalganj.” 7. In compliance of the aforesaid order dated 09.04.2010, Opposite Party nos. 2 to 4, who were petitioners in aforesaid two Criminal Miscellaneous applications, as also the present petitioner being the complainant, were physically present in the court on Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 5 15.04.2010. Both the Criminal Miscellaneous applications filed on behalf of the present opposite party nos. 2 to 4 were heard together. An affidavit was filed on behalf of opposite party no. 2 stating therein that he was prepared to restore his matrimonial relationship with the complainant, but the complainant was having her own apprehensions. A separate affidavit was filed on behalf of the complainant (the present petitioner) stating therein that she was also prepared to restore her matrimonial relationship with opposite party no.2, but she expressed her apprehension about her safety, security and dignity in her matrimonial home. Though no affidavit was filed on behalf of opposite party nos. 3 and 4, but they were physically present in the court and assurance was given on their behalf also about restoration of good marital relationship between the petitioner and opposite party no.2. In the aforesaid background, by order dated 15.04.2010 this Court allowed the prayer made on behalf of the present opposite party nos. 2 to 4 for grant of anticipatory bail. The petitions filed on behalf of opposite party nos. 2 to 4 were finally disposed of with certain observations and directions. The relevant portion of the order dated 15.04.2010 is reproduced herein below :- “Petitioners in Cr.Misc.No.7574 of 2010 are parents-in-law of the complainant, Kumari Juhi Rai, and petitioner in Cr.Misc.No.11835 of 2010 is the husband of the complainant. In compliance of the previous order dated 09-04- 2010 all the three petitioners as also the complainant are physically present in the Court and they have been duly identified by their respective counsels. In compliance of the aforesaid order dated 09-04-2010, a supplementary affidavit on behalf of the petitioner, Rajiv Kumar Singh, and a separate affidavit on behalf of the complainant have been filed today in Court. Let both the affidavits be kept on record, which will form Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 6 part of this order. According to affidavits filed by the parties, petitioner, Rajiv Kumar Singh, and opposite party no.2 have decided to restore their matrimonial relationship. Petitioner, Rajiv Kumar Singh, has undertaken to keep the complainant, Kumari Juhi Rai, as his legally wedded wife with all dignity, comfort and honour. The complainant has also undertaken to live with the petitioner, Rajiv Kumar Singh, as his legally wedded wife and would fully co- operate in having happy conjugal relationship with him. Apparently, the parents-in-law have provided all helps to the petitioner, Rajiv Kumar Singh and opposite party no.2 to arrive at the compromise. In the aforesaid background, in the event of arrest/surrender within a period of four weeks from today in the above noted case, the above named petitioners in both the cases shall be released on bail on furnishing bail bond of Rs.10,000/- (rupees ten thousand)each with two sureties of the like amount each to the satisfaction of the Judicial Magistrate, Gopalganj, subject to the conditions as laid down under sub-section (2) of Section 438 of the Code of Criminal Procedure. However, petitioner, Rajiv Kumar Singh, will take his wife along with him to Jabalpur, where he is working and it is hoped that he would not violate any of the terms and conditions, which have been put in the compromise petition and which have been recorded above in this order. Violation of any of the terms and conditions by petitioner, Rajiv Kumar Singh, would be construed as a misuse of the privilege of bail and consequence shall follow. It is further hoped that if good matrimonial relationship between the petitioner, Rajiv Kumar Singh, and his wife continues for some longer period, then they shall be at liberty to file a petition in the court below for deciding the case in terms of the compromise.” (Emphasis added). Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 7 8. Indisputably in the light of the aforesaid order dated 15.04.2010, the present petitioner was taken to her matrimonial home at Subhash Nagar, Maharajpur, District- Jabalpur (Madhya Pradesh), where opposite party nos. 2 to 4 are presently residing. Admittedly opposite party nos. 2 to 4 are enjoying the privilege of bail till date in the light of the aforesaid order dated 15.04.2010. 9. The present petition has been filed on behalf of the petitioner on 25.11.2010 with allegations that though she was taken to Jabalpur (Madhya Pradesh) on 28.04.2010 in compliance of the order dated 15.04.2010 passed by this Court, but opposite party no. 2 has not restored conjugal relationship with the petitioner, rather she was assaulted by opposite party no.2 on 25.09.2010 and even on earlier occasion. According to the petitioner, opposite party nos. 2 to 4 were torturing her at her matrimonial home and finally on 30.09.2010, when the petitioner and opposite party no. 2 had come to Gopalganj to attend the Court on the date fixed in the complaint case, then he (O.P. No. 2) informed to the father of the petitioner that he will not take her along with him to her matrimonial home and subsequently Opposite Party No. 2 disappeared from there, leaving the petitioner in lurch at Gopalganj (Bihar). 10. Mr. Manan Kumar Mishra, learned Senior Counsel appearing on behalf of the petitioner has strenuously argued that opposite party nos. 2 to 4 have deliberately flouted the terms and conditions of the orders and directions of this Court and they have been repeating the crime of torture and assault upon the petitioner. Hence, as per submissions, their bail bonds are liable to be cancelled by this Court. According to him, opposite party nos. 2 to 4 were granted anticipatory bail because of the compromise arrived at, but they are not prepared to respect the terms and Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 8 conditions of the compromise. He further contended that the brother of opposite party no. 2 is posted as Additional Superintendent of Police at Madhya Pradesh and by using his influence, even a false criminal case has been lodged against the petitioner. It is next contended that opposite party nos. 2 to 4 are not only violating the orders and directions issued by this Court, rather they are acting in a manner so that either the petitioner returns to her parents’ house permanently or take an extreme step of committing suicide because of torture committed by them. On these grounds, besides others, he prays for cancellation of bail of the Opposite Party Nos. 2 to 4. In support of his contention, Mr. Mishra has placed reliance on the cases of Rekha Sharma vs. State of Bihar & Anr. [2011(2) PLJR 1101] and Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [(2011)1 SCC 694]. 11. Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of Opposite Party nos. 2 to 4 has strongly opposed the prayer made on behalf of the petitioner and has denied the allegations. He submits that even if certain terms and conditions of the compromise and order passed by this Court have been violated by Opposite Party nos. 2 to 4, still their bail cannot be cancelled by this Court. In support of his contention he has placed reliance on a judgment of the Apex Court in the case of Biman Chatterjee vs. Sanchita Chatterjee and anr.[A.I.R. 2004 SC 1699]. 12. Before considering the rival submissions made on behalf of the parties as also before considering the relevant case laws, it would not be out of place to mention here that after appearance of opposite party nos. 2 to 4 in the present proceeding through their lawyers, the matter was earlier heard and was adjourned on 09.02.2011, 06.04.2011 and again on 20.04.2011, Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 9 enabling opposite party nos. 2 to 4 to purge themselves by carrying out the orders and directions issued by this Court at the time of grant of the anticipatory bail to them by order dated 15.04.2010, referred to above, or in alternatively to get the matter amicably resolved. However, despite indulgence granted by this Court, the accused Opposite parties are neither prepared to purge themselves nor they are prepared to get the entire matrimonial dispute amicably resolved. Hence, in the aforesaid compelling circumstances this Court is left with no option, but to decide the matter on merit. 13. A three Judge Bench of the Apex Court in the matter of The State through The Delhi Administration Vs. Sanjay Gandhi [A.I.R. 1978 SC 961] had occasion to consider the scheme, scope and mandate of Section 439(2) of the Code of Criminal Procedure. The Apex Court has held that the power to cancel bail of an accused and to get him back into custody, already enlarged on bail, has to be exercised with care and circumspection. However, refusal to exercise such power in appropriate cases would reduce it to a dead letter and in that circumstance, the Court will turn into a silent spectator and that may lead to subversion of judicial process. I cannot do better than to reproduce paragraph-24 of the aforesaid judgment succinctly laying down the law on this issue:- “Section 439(2) of the Criminal P.C. confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chap. XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 10 exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done.” 14. In Raghubir Singh & ors. v. State of Bihar [ A.I.R. 1987 SC 149] it was held by the Apex Court that the order for release on bail of an accused in terms of Section 167(2) Cr. P.C. is not defeated by lapse of time or subsequent filing of the charge sheet. However, a person having been released on bail even under Section 167(2) Cr. P. C. his bail may be cancelled under Section 437(5) or under Section 439(2) Cr. P. C. in appropriate cases and for valid reasons indicated in that judgment by the Apex Court. 15. In the case of Aslam Babalal Desai v. State of Maharashtra [A.I.R. 1993 SC 1] the scheme, scope and mandate of Sections 167(2), 437(5) and 439(2) Cr. P. C. came up for consideration before a three Judge Bench of the Apex Court. Though all the three Hon’ble Judges wrote their judgment separately, but Justice A.M. Ahmadi and Justice K. Ramaswamy wrote concurring judgment. Justice M. M. Punchhi wrote a conflicting judgment. Justice A. M. Ahmadi representing the majority view held that once the accused has been released on bail even in terms of section 167(2) Cr. P.C., his liberty cannot be interfered with lightly and he cannot be remanded to custody merely on filing of the charge sheet. However, once there is an Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 11 order of release of an accused under Section 167(2) Cr. P. C. by fiction of law, it will be deemed to be an order to have passed under Sections 437 or 439 Cr. P. C. Natural consequences would be that such an order granting bail can be cancelled only in exercise of powers under Section 437(5) or under Section 439 (2) Cr. P. C. by the competent court on consideration of relevant materials for cancellation of bail order. The Apex Court further held that grounds for cancellation of bail either under Section 437(5) or under Section 439(2) Cr. P.C. are identical and similar. Once again it was held that cancellation of bail involves the liberty of an individual and, therefore, power must be exercised with care and circumspection. Apex Court also cited certain illustration under which the bail of an accused can be cancelled. It would be appropriate to reproduce the relevant portion of paragraph- 11 of the aforesaid judgment:- “ ………………….The grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437((1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 12 individual and hence it must not be lightly resorted to.” (underlining is of mine) 16. In the case of Rekha Sharma (Supra) this Court exactly in similar circumstances had cancelled the bail of an accused. Accused was granted anticipatory bail in view of compromise arrived at between the parties. Accused had given undertaking to keep the informant- petitioner of that case as his legally wedded wife with all dignity and honour, but once accused was granted anticipatory bail he backed out from his undertaking and flouted the orders and directions of this Court. Under that circumstance, his bail was cancelled. 17. In the case of Biman Chatterjee (Supra) the facts were entirely different. In that case neither a compromise was arrived at between the parties nor was any undertaking given by the accused before grant of bail. In that background it was held that the bail of an accused cannot be cancelled on violation of assurance of entering into a compromise between the parties. In the considered opinion of this Court, the reliance placed by the learned counsel appearing on behalf of opposite Party nos. 2 to 4 on the case of Biman Chatterjee (Supra) is completely misconceived and that will not salvage the opposite party nos. 2 to 4 in the present case. 18. The reliance placed by the learned counsel appearing on behalf of the petitioner on the case of Siddharam Satlingappa Mhetre (Supra) also seems to be misconceived. In that case, scheme, scope and mandate of Section 438 Cr. P.C. were under consideration before the Apex Court, wherein it was observed that the Court, which grants the bail to an accused, has the power to cancel it. In the considered opinion of this Court there is no dispute in the present case raised on behalf of opposite party nos. 2 Patna High Court Cr.Misc. No.42258 of 2010 (6) dt.16-09-2011 13 to 4 also questioning the jurisdiction or the power of this Court in entertaining the petition for cancellation of bail of Opposite Party nos. 2 to 4. 19. In the light of case laws discussed above, now it is well settled that the rejection of bail and cancellation of bail already granted to an accused, cannot be put on the same pedestal. It is easier to reject a prayer for bail made on behalf of an accused in a non-bailable offence than to cancel a bail already granted in such case. However, cancellation of bail is permissible if there are reasonable supervening circumstances and if the accused is allowed to remain on bail, then that may adversely affect the fair trial. 20. In the legal backdrop discussed above, this Court is further conscious of the fact that individual’s liberty is very precious and that should not be interfered with lightly and casually by exercising powers under Section 439(2) Cr. P. C. However, if the circumstances so warrant the Court cannot and should not remain as a mute spectator and justice delivery system should not be permitted to be subverted. A balance is required to be maintained between the individual’s liberty and social order. A rule of law has to prevail in the country. No accused, howsoever big and mighty, he or she may be, can be permitted to subvert justice delivery system of our democratic country. The judicial order is required to be respected by one and all until it is reversed or set aside by any higher and competent Court. 21.