Kanta Kashyap vs State of Rajasthan and Others

Prashant Kumar Agarwal, J.—Heard learned counsel for the parties.

As both the aforesaid applications for cancellation of bail pertain to the same FIR i.e. FIR No. 49/2013 registered at Police Station Mahila Thana (North), Jaipur for the offences under Sections 498-A, 406, 323 & 315 IPC, therefore, with the consent of learned counsel for the parties they were heard together and are being disposed of by this common order.

By way of first application i.e. SB Criminal Misc. Bail (Cancellation) Application No. 6476/2013, the complainant-applicant seeks cancellation of bail granted to the accused-respondent-Shri Aashish Tak by the Additional Sessions Judge No. 4, Jaipur Metropolitan, Jaipur in Bail Application No. 31/2013 vide order dated 29.5.2013 while exercising its power under Section 439 Cr.P.C. whereas in other application i.e. SB Criminal Misc. Bail (Cancellation) Application No. 6417/2013 benefit of anticipatory bail under Section 438 Cr.P.C. was granted by the learned Single Bench of this Court (Hon''ble Mr. Justice J.K. Ranka) vide order dated 26.6.2013 in SB Criminal Misc. Bail Application No. 6051/2013.

Brief relevant facts for the disposal of these applications are that the aforesaid FIR was registered at Police Station, Mahila Thana on 8.4.2013 on the complaint of the complainant-applicant for the aforesaid offences against the respondents and other family members and investigation commenced. The accused-respondent-Shri Aashish Kumar was arrested during investigation and ultimately benefit of bail under Section 439 Cr.P.C. was granted to him whereas accused-respondent Shri Surendra Kumar Tailor apprehending his arrest initially moved for grant of anticipatory bail before the Additional Sessions Judge, but the same was refused and later on when he approached the High Court, benefit was granted vide order dated 26.6.2013.

In support of the applications, learned counsel for the applicant-complainant has raised the following grounds:

"(i) Benefit of anticipatory bail was granted to Shri Surendra Kumar, father-in-law of the complainant, mainly on the ground that bail has already been granted to the husband and mother-in-law of the complainant, but learned Single Bench failed to take into consideration that benefit of regular bail was granted to them whereas the respondent-Shri Surendra Kumar was seeking benefit of anticipatory bail and thus, an irrelevant fact was made the ground of anticipatory bail.

(ii) Although, at the relevant time accused-respondent-Shri Surendra Kumar was not legally declared an absconder, but he was avoiding his arrest by all means and all efforts of the Investigating Agency to arrest him failed and, therefore, application under Section 438 Cr.P.C. for grant of anticipatory bail was not maintainable, but this aspect of the matter was not considered.

(iii) On the date when order granting anticipatory bail was passed, two applications filed by the applicant-complainant were pending consideration, but without passing any order on those applications the impugned order dated 26.6.2013 was passed. This also shows non-application of mind while passing the order granting anticipatory bail. It is to be noted that in one of the applications prayer was made on behalf of the complainant to hear her counsel also before any order is passed. The order dated 26.6.2013 shows that the counsel for the complainant was also present when the matter was heard and order was passed. By way of another application, a preliminary objection was raised on behalf of the complainant regarding maintainability of the application for grant of anticipatory bail mainly on the ground that the application for same relief has already been refused by the learned Sessions Judge under Section 438 Cr.P.C.

(iv) The order dated 26.6.2013 was passed in a hot-haste manner even without calling the case diary from the concerned police station and this also shows non-application of mind to the facts and the evidence which were available in the case diary.

(v) Although, initially police remand for three days was granted by the concerned Magistrate to effect the recovery of ''Stridhan'' and other articles given at the time of marriage, but no recovery could be made and, therefore, further police custody of accused-respondent-Shri Aashish Tak was sought so that recovery can be made, but the learned Magistrate ignoring the fact of non-recovery of ''Stridhan'' refused police remand and the respondent was sent to judicial custody. Alongwith the complaint list of articles was also filed and the same was available in the case diary.

(vi) The learned Additional Sessions Judge granted bail under Section 439 Cr.P.C. to the respondent-Shri Aashish Tak without taking into consideration the fact that till then no recovery of ''Stridhan'' and other articles could be made whereas the well settled legal position is that in matrimonial disputes where the allegation is for the offences under Section 498-A and 406 IPC, the bail cannot be granted to the accused unless recovery of ''Stridhan'' and articles given at the time of marriage has been made.

(vii) Taking advantage of bail, accused-respondent-Shri Aashish Tak, husband of the complainant, and his family members started threatening the complainant-applicant and her family members of dire consequences if the complaint is not withdrawn and ultimately the complainant-applicant compelled to file a written complaint on 17.6.2013 before the SHO, Police Station Sadar, Jaipur about the threat given by the accused-persons.

(viii) Although, the accused-respondent-Shri Surendra Kumar has also been granted regular bail and charge-sheet has also been filed in the competent Court, but only by that reason it cannot be said that the order dated 26.6.2013 cannot be cancelled as the same has been passed without considering the facts and circumstances of the case in a proper manner and irrelevant facts were taken into consideration to grant the same."

On the other hand, learned counsel for the accused-respondents submitted as below:

"(i) After investigation charge-sheet has already been filed in the competent Court and accused-respondent-Shri Surendra Kumar has also been released on bail and, therefore, the benefit of anticipatory bail granted to him cannot be taken back and cancelled.

(ii) It is not essential in each and every case that before passing an order on application for grant of bail, case diary is called, if otherwise the relevant facts are available before the Court. In the present case, counsel for the complainant was also heard and copy of the FIR and other material and copy of order dated 17.6.2013 passed by the Additional Sessions Judge was available on record.

(iii) While granting benefit of bail under Section 439 Cr.P.C. to the accused-respondent-Shri Aashish Tak all the relevant facts were considered and reasons in detailed were recorded.

(iv) Merely because complaint was lodged on 17.6.2013 regarding threat allegedly given by the respondent and his family members to the complainant after getting benefit of bail, it cannot be said that infact such threat was given as no material has been placed on record regarding the action taken by the concerned police authorities before which the aforesaid complaint was registered."

In support of his submissions, learned counsel for the accused-respondents relied upon the cases in Aslam Babalal Desai Vs. State of Maharashtra, ; Anjna (Smt.) Vs. State of Rajasthan and Others, ; Prahlad and Another Vs. State of Rajasthan and Another, .

On consideration of submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions and the case law relied upon on behalf of the respondents, I do not find present are fit cases in which discretion under Section 439(2) Cr.P.C. is to be exercised by this Court. I do not find any reason to cancel any of the impugned orders.

Consequently, both the applications for cancellation of bail are dismissed.