24 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. 346/2008 AKANKSHA GUPTA ..... Petitioner Through Mr. Kumar Sushobhan, Adv. versus N.C.T. OF DELHI & ORS. ..... Respondent Through Mr. Arvind Kr. Gupta, APP. Ms. Geeta Luthra, Sr. Adv. with Mr. Attin Shankar Rastogi, Adv. for R-2. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 18.05.2010 1. The present revision petition has been filed against the order dated 17th May, 2008 passed by the learned Metropolitan Magistrate dismissing her application for cancellation of bail granted to Harish Kapoor and Girish Kapoor in FIR No.259/2007 under Sections 406/498-A/34 of the Indian Penal Code, police station Punjabi Bagh. 2. The petitioner has submitted that the said respondents Harish Kapoor and Girish Kapoor had failed to comply with their undertakings on the basis of which they were granted bail and have failed to make payment of Rs. 1.25 crores. 3. A similar contention was raised before the High Court while opposing the anticipatory bail application Nos. 2334 and 2351/2007 filed by Shashi Kapoor and Uma Kapoor mother-in-law and aunt of the complainant. By a detailed order dated 31st October, 2007, the anticipatory bail applications filed by Shashi Kapoor and Uma Kapoor were allowed inter alia holding as under:- “10. It is not in dispute that the settlement dated 4.5.2007 arrived at was when Harish Gupta, father-in- law of the complainant and husband of Uma Kapur, was in police custody. Thus prima facie, said settlement has to be taken with a pinch of salt. 11. However, the petitioners still have a hurdle to overcome. 12. As noted above, on 11.5.2007 the petitioners filed an application seeking anticipatory bail before the learned ASJ. They could have pleaded for anticipatory bail by projecting a case on merits and not basing their claim on the settlement between the parties. Further, having obtained interim anticipatory bail they consented to the matter being considered on the ground that the settlement required payments to be made in three installments and that money would be paid. Not only that, first installment of the agreed settlement in sum of Rs.5 lacs was also paid. 13. The subsequent conduct, to some extent, mitigates against the presumption that the settlement was the result of police coercion and since Shashank's father was arrested and was in police custody, the police personnel brokered a settlement between the parties. 14. But, issue of personal liberty has not to be decided on a bargain between the parties. Right to life and property is too precious to be bartered. 15. Even statutory rights have been placed at a high pedestal and have been held not subject to the rule of estoppel where a plea is raised that a party concerned has consented to a particular course of action, which action is in derogation of the statutory right of the party concerned. 16. In the decision reported as (1998) 6 SCC 507 P.R.Deshpande Vs. Maruti Balaram Bibatti it was observed as under :- “9. It is now trite that the principle of estoppel has no application when statutory rights and liabilities are involved. It cannot impede right of appeal and particularly the constitutional remedy. The House of Lords has considered the same question in Evans V. Bartlam, (1937) 2 All ER 646. The House was dealing with an order of the court of appeal where Scott, L.J. approved contention of a party to put the matter on the rule of election on the premise that the defendant knew or must be presumed to know that he had the right to apply to set the judgment aside and by asking for and obtaining time he irrevocably elected to abide by the judgment. Lord Atkin, reversing the above view, has observed thus : “My Lords, I do not find myself convinced by these judgments. I find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. I cannot bring myself to think that a judgment-debtor, who asks for and receives a stay of execution, approbates the judgment, so as to preclude otherwise. Nor do I find it possible to apply the doctrine of election.” 10. Lord Russell of Killowen while concurring with the aforesaid observations has stated thus : “My Lords, I confess to a feeling of some bewilderment at the theory that a man (who, so long as it stands, must perforce acknowledge and bow to a judgment of the court regularly obtained), by seeking and obtaining a temporary suspension of its execution, thereby binds himself never to dispute its validity or its correctness, and never to seek to have it set aside or reversed. If this were right, no defeated litigant could safely ask his adversary for a stay of execution pending an appeal, for the grant of the request would end the right of appeal. The doctrine of election applies only to a man who elects with full knowledge of the facts.” 17. In the decision reported as Upalaniappan and Anr. Vs. Sub Inspector of Police 2005 SCC (Crl.) 1586, a condition requiring the accused to pay Rs.10 lacs for securing the benefit of bail was held to be onerous. 18. No doubt, while granting bail or anticipatory bail, conditions can be imposed but the conditions cannot be such which amount to compelling a person to buy his or her freedom. 19. In my considered opinion, petitioners are entitled to have their case considered for grant of anticipatory bail on merits, ignoring the settlement which Shashank's father executed with the complainant.” 4. In this order dated 31st October, 2007, the petitioners therein were directed to deposit a fixed deposit receipt in sum of Rs. 50 lacs from a nationalized bank in the trial court. It is stated that the said deposit has been made. The petitioner herein had challenged the said order dated 31st October, 2007 before the Supreme Court but without success. 3. In view of the aforesaid factual position, I do not find any merit in the present revision petition filed for cancellation of the bail granted to Harish Kapoor and Girish Kapoor and the same is dismissed. SANJIV KHANNA, J. MAY 18, 2010 NA