Daljit Kaur vs Jasbir Singh

V.S. Aggarwal, J.

This is a petition filed by Daljit Kaur under Section 439(2) of the Code of Criminal Procedure for cancellation of bail of respondents 1 and 2 granted by the learned Additional Sessions Judge, Jalandhar on 19.1.1995.

Petitioner Daljit Kaur had filed a complaint against the respondents and others with respect to the offences punishable under Sections 363/366/376/302/201 read with Section 34 Indian Penal Code. She asserted that Smt. Gurmito belonged to her village and is married in village Bule. The mother of the petitioner also belonged to the same village and is married at village Bule. The petitioner, therefore, knew Gurmito and call her as aunt. In the first week of October, 1993 at about 6.00 a.m. when the petitioner was carrying fodder for the cattles and was near the house of Gurmito, she was called by Gin mito on the pretext of serving tea. The petitioner entered the house, Gurmito bolted the door and called respondents 1 and 2 besides one Guli. She was raped. Thereupon Gurmito asked the other accused persons (respondents) to take the petitioner to an unknown place so that the matter could be hushed up. At night she was taken in a Maruti car. She was threatened that if she raised an alarm, she would be done to death. At that time Jasbir Singh was armed with Kirpan while Jaspal Singh with a pistol. She was confined in a house stated to be belonging to the brotherinlaw of Jasbir Singh and Jaspal Singh. She was kept there and was raped more than once. In the last week of April, 1994 she was brought to the house of Gurmito where she gave birth to a child. Accused Gurmito in connivance with her coaccused killed the said child who was disposed of somewhere. She was threatened of dire consequences. Her signatures were obtained on blank papers. When petitioner reached the house of her father, at that time Gurmito had made an extrajudicial confession and begged pardon in presence of others.

After recording preliminary evidence the learned Judicial Magistrate summoned respondents No. 1 and 2 and others with respect to the offences punishable under Sections 323/366/376/302/201 Indian Penal Code.

Apprehending arrest the respondents prayed for anticipatory bail.

The learned Additional Sessions Judge, Jalandhar considered that petitioner is an accused in the case State v. Girdawar Singh and a charge under Section 318 Indian Penal Code was framed against her and others on 2.8.1994. In order to make out the defence, the petitioner has filed the present complaint. The said argument prevailed and respondents No. 1 and 2 were admitted to anticipatory bail subject to conditions (i) that respondents shall make themselves available for interrogation as and when required; (ii) that they shall not directly or indirectly make any inducement, threat or promise to any person so as to dissuade him from disclosing such facts to the Court; (iii) they shall not leave India without the previous permission of the Court.

The petitioner seeks cancellation of the bail asserting that assertions against respondents 1 and 2 were serious. If they remain on bail, the witnesses may not come forward to support the case and that they have been threatening the petitioners.

The petition has been opposed and it was highlighted in the reply that on 29.4.1994 a statement was made by one Sohan that one dead body of one recently born child was concealed under the heap. Petitioner DaIjit Kaur had made an extrajudicial confession before the members of the Panchayat that she had become pregnant and the still born child was concealed under the heap.

The resume of the facts indicate clearly that though the assertions made by the petitioner are serious and the gravity of the offence cannot be ignored, still the law as such must prevail. Subsection (2) to Section 439 of the Code of Criminal Procedure permits the High Court or the Court of Sessions to cancel the bail that has once been granted but the bail can be cancelled on well settled principles. The same have been summarised in the case of Aslam Babalal Desai v. State of Maharashtra, 1993(1) Recent Criminal Reports 600 : AIR 1993 SC 1. In paragraph 11 the Supreme Court mentioned some of the grounds on which bail once granted can be cancelled :

"(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 individual and hence it must not be lightly resorted to."

When anticipatory bail is granted, the grounds for cancellation could not be different.

Reference to the decision in the case of Pokar Ram v. State of Rajasthan and others, 1985(2) Recent Criminal Reports 122 : AIR 1985 Supreme Court 969 will not come to the rescue of the petitioner. In the cited case, of course, the Supreme Court held that when a person is accused of murder the Court has to be careful in entertaining an application for anticipatory bail. It was further observed that anticipatory bail to some extent intrudes in the sphere of investigation or crime. The court has to be cautious. But the facts of the cited case were totally different. In the case of Pokar Ram, fatal injuries were caused. Information had been lodged with the police. At that time the deceased was alive and the offence was registered under Sections 307/447 read with Section 149 and under Sections 148, 379 and 327 Indian Penal Code. By the time the message was sent the deceased had succumbed to his injuries. It had been alleged that there was a dispute with regard to the right to cultivate certain fields. The accused had fired at the deceased. The facts of the present case are different and have been taken note down above. The petitioner herself is an accused pertaining to an offence punishable under Section 318 Indian Penal Code, and thereafter she had filed the complaint. The very close to the facts of the present case is the decision of Dolat Ram and others v. State of Haryana, 1995(1) Supreme Court Cases 349. In the cited case, FIR was recorded with respect to the offence punishable under Section 304B Indian Penal Code, anticipatory bail had been granted to certain persons by the learned Additional Sessions Judge, Rohtak. The State of Haryana filed the petition. The High Court cancelled the bail. The Supreme Court restored the order of learned Additional Sessions Judge and in paragraph 4 held as under :

"Rejection of bail in a nonbailable 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, 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."

In the present case as noticed above, the anticipatory bail was granted to the respondents 1 and 2 by the learned Additional Sessions Judge taking note of the fact that petitioner herself was an accused and she had filed the complaint after she herself was alleged to have made extrajudicial confession with respect to the offence punishable under Section 318 Indian Penal Code. After about 11/2 months of the registration of the earlier case the complaint was filed by the present petitioner. These facts of course have to be gone into at the time of trial but for purposes of the present order, it cannot be held that the order passed by the learned Additional Sessions Judge is based on unsound reasoning. Gravity of the offence is an important factor but it cannot be taken as a principle of law that in no event anticipatory bail can be granted. It is urged that the petitioner had been threatened but in the absence of any other material the propensity of probabilities do not indicate much in this regard in favour of the petitioner pertaining to the alleged threat. It is difficult to prove such facts but in the absence of any specific instance as to when the threat was given as to present, the said contention cannot be accepted.

For these reasons, the petition being without any merit must fail and is dismissed.