SC: Conduct of Accused before grant of bail can't be cited for seeking Cancellation of Bail under Sec. 439(2) CrPC,

 

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Noting that granting bail is not parrallel to running a disciplinary inquiry, Supreme Court has observed that cancellation of bail cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail.

The Division Bench of Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia in this view allowed appeal against High Court order wherein it suo-moto cancelled the bail granted to the appellant on the ground that the Trial Court had not adverted to a relevant fact that the accused was absconding and was arrested only later. 

The Court remarked that it was upsetting that High Court invoked its vested powers for this

 "It had not been the case of the prosecution that the appellant had misused the liberty or had comported herself in any manner in violation of the conditions imposed on her. We are impelled to observe that power of cancellation of bail should be exercised with extreme care and circumspection; and such cancellation cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail. In other words, the powers of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused and in fact, in a case where bail has already been granted, its upsetting under Section 439(2) CrPC is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case. In the matter of the present nature, in our view, over-expansion of the issue was not required only for one reason that a particular factor was not stated by the Trial Court in its order granting bail."

 The appellant is one of the accused persons in one case under Sections 304B, 498A read with Section 34 IPC and Sections 3/4 of the Dowry Prohibition Act, 1961.

 

The accusations have been that the deceased, who was married to the son of the appellant, was being subjected to physical and mental tortures for demand of dowry after the marriage and ultimately she died by hanging under unusual circumstances; and a suicide note in the handwriting of the deceased was found, implicating her husband and in-laws, including the present appellant–the mother-in-law.

In the impugned order, a submission was made before the High Court on behalf of the appellant that all the members of the family were either on run or were in jail and it was left to the appellant to look after the minor child of the deceased and, therefore, she surrendered only after her husband was released, when she could hand over the child to him. The High Court was not impressed with this submission for the reason that no such fact was mentioned in the application seeking bail, as filed before the Sessions Court.

 The High Court, in the impugned order, also took note of the fact that its directions for ensuring service of notice were not adequately complied with and then, even the requisite explanation was not forthcoming and hence, the Director General of Police was required to file his affidavit of explanation. The High Court reproduced all the contents of the affidavit filed by the Director General of Police as regards the steps taken in the matter and other corrective steps being taken on the administrative side.

 The High Court had also referred to Manoj Kumar Khokhar Vs. State of Rajasthan, 2022 Latest Caselaw 36 SC as regards the parameters in exercise of power for granting bail. Having reproduced a few passages from the said decision, the High Court stated its conclusion that in the light of the said judgment, the bail granted to the present appellant could not be given a stamp of judicial approval.

In challenge to the order so passed by the High Court, learned counsel for the appellant had argued that the High Court has taken a too stern a view of the matter but has not considered that there was no question of the appellant absconding or running away from the process of law, which could be seen from the facts that successively, the applications seeking pre-arrest bail were moved on her behalf.

 

 

It was submitted that the appellant could not surrender earlier under the force of circumstances when the other members of the family were either in custody or were on run and that the appellant was the only responsible person to look after the minor child left by the deceased; and all this was coupled with the adversities created by Covid-19 pandemic.

It was further submit that in the given circumstances, the appellant surrendered before the Court after her husband was granted bail and in the distressed condition of the family, her omission to surrender earlier could not have been regarded as an act of absconsion.

The Counsel also submited that in the circumstances of the case, even the allegations pertaining to the offences under Section 304B IPC are wanting in support by cogent material and in any case, when the Trial Court had granted bail to the appellant, being elderly lady in 55 years of age and when other accused persons, except the husband of the deceased, had also been granted such concession, there was no justification for cancelling the bail already granted.

 

The Court after hearing the parties and taking into note, material on record opined that even if the High Court had its reservations in the order so passed by the Trial Court granting bail to the appellant, particularly when the fact of long absence of the appellant was not adverted to, it was yet required to be taken note of by the High Court that the power being exercised was not that of a regular appeal or revision but, it was that of cancellation of bail under Section 439(2) CrPC.

"It remains trite that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under Section 439(2) CrPC", the Court said.

 CASE TITLE: Bhuri Bai vs State of Madhya Pradesh, 2022 Latest Caselaw 901 SC

 

CASE DETAILS:  C.A. NO.1972 of 2022

CORAM: Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia

CITATION: 2022 Latest Caselaw 901 SC 

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