Prem Parkash vs State of Haryana

V.S. Aggarwal, J.

On 26.11.1992 Neelam aged about 22 yeas was married to Sushil Kumar. She died on 19.9.1996. It is alleged that the marriage was solemnised with great pomp and show and many dowry articles were given. After the marriage Neelam was harassed. She was tortured by respondents Nos. 2 to 4 and others. She had come to her parental house and told that there was a demand of Pearl Yamaha Motor cycle. Rs. 20,000/ were given to Sushil Kumar husband of the deceased. For some time the things were settled but thereafter Neelam was again being harassed and tortured. Burning cigarettes were rubbed on her body. At times she was forced to take wine. Respondents Nos. 2 to 4 and others started making demands for dowry. The said demands were met from time to time as per the capacity of the parents of Neelam. For a period of for about one year before her death, a new demand of Maruti car was being raised. Parents of Neelam were showing their helplessness to provide a Maruti car. Three months before her death, the brother of the deceased had brought her to Delhi but Tej Bhan respondent came to Delhi and promised that she will not be maltreated. She went back to live with her husband. The brother of the deceased talked to her on the telephone. This conversation took place about two days earlier before her death. The deceased started crying on the telephone and told her brother that she should be taken back to Delhi otherwise she would be killed. He brother told her that her fatherinlaw had assured that she would be looked after properly but the deceased replied that even he had been torturing her. She informed him that they all were saying "bring car otherwise you would be killed". It was complained that she had been murdered.

Respondent No. 2 Tej Bhan and respondent No. 3 Smt. Sanno Devi are fatherinlaw and motherinlaw while respondent No. 4 Ajay Kumar is the brother of the husband of the deceased.

All the respondents 2 to 4 were seeking bail. The learned Additional Sessions Judge, Narnaul admitted them to bail basically on the grounds that deceased was living separately from the respondents and further that in the postmortem report no cause of death has been given. It has also been mentioned that deceased had left a threeyears old child and there is no body to look after him. On these broad facts, the order admitting respondents 2 to 4 to bail was passed.

The petitioner who is the brother of the deceased had submitted an application in this Court for cancellation of the order admitting respondents 2 to 4 on bail. The said petition was dismissed with a direction that the petitioner may approach the Court of Sessions in the first instance. Accordingly, an application was filed with the Additional Sessions Judge, Narnaul seeking cancellation of the order admitting respondents 2 to 4 on bail. The learned Additional Sessions Judge on 20.11.1996 dismissed the said application and rejected the contention that any fraud had been played on the Court. Even the plea that petitioner had been threatened while they were travelling from Narnaul to Delhi did not find favour with the learned Additional Sessions Judge.

Hence, the present petition.

Subsection (2) of Section 439 of the Code of Criminal Procedure permits the Court of Sessions or the High Court to cancel the bail of a person. The said provision reads :

"439(2). A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

The above quoted provision in its stark brevity leaves it to the Court of Sessions or the High Court to cancel or not to cancel the concession of bail that had been once granted. Though there can never be precise guidelines in this regard but bail order that had been passed once in favour of a person can only be cancelled on well recognised grounds. The Supreme Court in the case of State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961 took note of the fact that bail once granted is not to be cancelled easily. It should be cancelled only when it is not conducive to a fair trial. In paragraph 13 it was held :

"Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a nonbailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."

Even the question was gone into as to whether there has been interference in the course of justice by the accused or not. The Supreme Court held that it can only be looked into on broad preponderance of probabilities. The findings were recorded in paragraph 14 and the same read :

"Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail."

The ground on which the bail once granted could be cancelled had been considered by the majority decision in the case of Aslam Babalal Desai v. State of Maharashtra, 1993(1) R.C.R. (Crl.) 600 : AIR 1993 SC 1. Without being exhaustive the Supreme Court held :

"As stated in Rabhubir Singh''s case (AIR 1987 SC 149) the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Sections 437(1) or (2) or 439(1) can be cancelled where (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."

Reference to some of the decisions from this Court in the same direction would be also in the fitness of things. In the case of Sardool Singh v. Bisa Singh and others, 1984(1) RCR 576 , in a similar application seeking cancellation of bail, it was noted that where Sessions Judge had admitted the accused to bail and the order was not perverse, the High Court will not cancel the said order. Same question was considered in the case of Ashok Kumar Banga v. Yadav Rai and others, 1991(3) RCR 71. It was noted that when there was nothing to show that the accused had tried to tamper with the prosecution evidence, the bail once granted need not be cancelled. More recently in the case of Ajaib Singh v. Bimla Devi and another, 1996(3) RCR 180 a Single Judge of this Court held that grant or refusal of bail is in the discretion of the Court. There have to be overwhelming circumstances whereby the bail once granted can be cancelled. Same was the viewpoint in the case of Mohan Singh v. State of Haryana, 1996(3) RCR 513.

It is obvious from aforesaid that bail once granted should not be cancelled. There has to be overwhelming evidence to cancel the discretion of bail having been granted like some of the cases enumerated in the case of Aslam Babalal Desai (supra).

In the present case in hand, the learned Additional Sessions Judge had taken note of the fact that cause of death is not known. Presently with the report of the Public Analyst having been received, it is clear that the cause of death was poisoning. There is no dispute that the death occurred within 7 years of the marriage. With the presumption under Section 113A of the Indian Evidence Act and the cause of death being known, the reasoning of the learned Additional Sessions Judge loses much of its force. Reliance further was being placed on the copies of the voters'' list to urge that respondents 2 to 4 were living with the deceased and her husband.

Not only the aforesaid facts take much of the colour from the order of the trial Court but the letter purported to have been written by the deceased could be a very moving and different picture. Copy of the same is Annexure P2. It reads :

"Namastey,

Papa, I am writing this letter to you for the first time. This letter is such as it would give you trouble. Papa, in the house of uncle, I had mentioned everything to Shiv Bhaya and Prem Bhaya. They both were not staying even for two days. They were saying that they would come back to take me, but today 18 days have passed. None has come to take me. Papa, I know that they must have thought that in case they come to take me after 18 days or after one month, this whole burden will lie upon them. Papa, kindly take me from here. I shall do every work in the house and will not say anything to anybody and whatever you will give me for eating, I will accept the same. Papa, I know that I have given you enough trouble and would continue giving whole life, but Papa there is none except you for me in this world.

Pinki Bharjai you had said that you will keep me with love and affection, but I do not think the same is written in my luck. Kindly keep me confined in one corner of the house. I will clean your utensils, I will clean the floor and I will do every work in the house, but please ask them to take or unlike sisterinlaw to the parent house. I know that I cannot become Nihan, but taking me equal to her, please tell my brother to take me from here. You have always loved me very much and I shall not forget your obligation.

Mummy, I remember you all very much like that of God. I remember you to like them. Mummy, if after reading my letter, you feel caring of me, somebody may be sent to take me from this house. The person coming to take me should not talk anything with the inlaws and he should take me to the parents house silently. If somebody in the inlaws house says something to the person, come to take me to the parents'' house, he should listen whatever the inlaws say, but should not speak anything, because now I am coming to you and there is no need to speaking with them. Prem brother, I know that all of you i.e. Shiv, Romesh and Harish all love me very much. I know that I am not alone and I have my son with me, whose expenses for whole life for studies etc. shall have to be borne and the matter would have to be thought over. But brother, there is none in this house who may keep me. My brother, I would only say that kindly take me to the parents'' house and take me for ever and not to be returned to the inlaws house.

Brother, I have written this letter for the first time and I had given you much trouble, but I beg for forgiveness with folded hands. If you do not come to take me, kindly give me a ring so that I would think that I am not alone in this house. Kindly forgive me."

This letter is purported to have been written by the deceased to her father, mother, brother and sisterinlaw. It shows the mental agony that she was suffering. The same has to be read with the statements of the petitioner and other witnesses recorded by the police. It indicates that there was persistent demand of dowry that was increasing the agony of the deceased. The conjoint reading certainly for purposes of the present order shows the gravity of the offence.

In addition to that the petitioner contends that while he alongwith others was travelling from Narnaul to Delhi, they were attacked on the way. A threat was given that they should settle the dispute. It is true that there is a counter version to such type of allegations. As noticed above it cannot be proved and one has to act on preponderance of probabilities. Later on the police has found that such an incident had taken place. Keeping in view the seriousness of the offence and the facts that have now been established, it is clear that it was not a fit case to grant the concession of bail to respondents 2 to 4. But the case of respondent No. 3 Smt. Sanno Devi can easily be separated from respondents 2 to 4. This is for the reason that the deceased had left behind a 3 years old child. He is with respondents 2 to 4. At this tender age, he would certainly require motherly care and respondent No. 3 under the circumstances besides being the grandmother is the best person to provide the same. Therefore, the concession of bail qua her is not to be withdrawn.

For these reasons given above, the concession of bail to Tej Bhan (respondent No. 2) and Ajay Kumar (respondent No. 4) is cancelled. They should surrender to their bail bonds. It is further directed that the learned trial court will try and expedite the trial and preferably shall complete the same within the period of six months from the date of receipt of copy of this order.

Subject to aforesaid, the petition stands disposed of.