Mithai Lal vs State and Another

Hima Kohli, J.—The present petition is filed by the petitioner u/s 439(2) Cr.P.C. for setting aside the order dated 8.2.2010, passed by the learned ASJ in S.C. No. 230/2009, by which the bail application of the accused, Ram Niwas, father-in-law of the deceased daughter of the petitioner herein, was allowed.

Challenge is laid to the aforesaid bail order mainly on two counts. It is stated by the Counsel for the petitioner that the respondent No. 2 tried to misguide the learned ASJ by stating that he was aged 65 years, which weighed with the court while passing the impugned order. He submits that in fact, the respondent No. 2 is 60 years of age. Secondly, he submits that the respondent No. 2 intentionally got the date of hearing of his bail application advanced by filing an application before the District Judge, which was allowed, vide order dated 4.2.2010 and as a result, the petitioner was not present before the learned ASJ on 8.2.2010, when arguments were addressed on the bail application.

It is an undisputed position that the incident of the daughter of the petitioner, Ms. Sunita committing suicide at her matrimonial home, occurred on 9.6.2009. On the very next day, the husband of the deceased, Anil and her father-in-law, respondent No. 2 herein, were arrested by the police. Thereafter, respondent No. 2 remained in judicial custody till the passing of the impugned order dated 8.2.2010, i.e., for almost a period of 7 1/2 months.

It is further stated that the charge sheet was filed on 7.9.2009 and the charges were framed by the court on 25.1.2010. Only thereafter, the impugned order dated 8.2.2010 granting bail to the respondent No. 2, came to be passed. Pertinently, the mother-in-law of the deceased, wife of the respondent No. 2, and the husband of the deceased, Anil continue to remain in judicial custody.

Learned APP for the State submits that the State is not aggrieved by the impugned order and has not challenged the same, and further, that the trial is progressing expeditiously inasmuch as the evidence of four of the material witnesses, including the petitioner herein, has already been recorded and the cross-examination of PW-4 is now listed on 3.9.2010.

It is settled law that the yardstick for grant of a bail order in favour of an accused is entirely different from an order to be passed for cancellation of bail. Here, the allegations levelled by the petitioner against the respondent No. 2, is not of tampering of the evidence, influencing the witnesses, or any mis-use of the bail order granted in his favour, which are material considerations and ought to weigh with the court while considering a petition for cancellation of a bail order. Reference may be made in this regard to:

(i) State (Delhi Administration) Vs. Sanjay Gandhi,

(ii) Bhagirathsinh Judeja Vs. State of Gujarat,

(iii) Om Prakash Vs. Karan Singh and Others, and

(iv) Kavita v. GNCT and Anr. 131 (2006) DLT 354.

Counsel for the petitioner states that there is some likelihood of threatening the public witnesses and harassing them. Ever since filing of the present petition in the month of February, 2010, there has been no complaint made by the petitioner either to the State or to the court with regard to the harassment of any public witnesses by respondent No. 2. Nor has any such instance been brought to the notice of this Court even today to demonstrate that the respondent No. 2 has abused the discretion granted in his favour.

Mere incorrect age of the respondent No. 2 itself, cannot be a ground for cancellation of the bail. Even if, it is assumed that the respondent No. 2 was actually 60 years of age on the date of passing of the impugned order, as contended by the Counsel for the petitioner, not much shall turn on it as a perusal of the impugned order shows that the learned ASJ took into consideration other relevant material and circumstance of the case, including the statements of the mother of the deceased and her aunt, before granting bail to respondent No. 2. Mere absence of the petitioner''s Counsel before the court on 8.2.2010, is of no consequence as the State was duly represented before the learned ASJ on the said date and there is no allegation to the effect that the State Counsel had abdicated his duties. It is also not a case where the impugned order is found to be arbitrary or perverse.

Having regard to the facts and circumstances of the present case, where the trial is stated to be at an advance stage of recording evidence of the remaining witnesses of the prosecution, apart from the material witnesses, whose deposition is almost complete, and in view of the fact that the petitioner has not been able to point out any attempt on the part of the respondent No. 2 of threatening the witnesses, mis-using his liberty or tampering with the evidence and further as there is no complaint of the State against the respondent No. 2 of non-adherence to the conditions of bail imposed on him, this Court is not inclined to interfere in the impugned order granting bail to the respondent No. 2. The order of the ASJ is upheld being neither perverse, nor arbitrary. The petition is accordingly dismissed.