Smt. Jamna Devi vs State and Lalaram and Laxmi Devi

Ajay Rastogi, J.—Instant applications arising out of selfsame first information report were finally heard together and are being disposed of by this order.

Instant applications have been filed by complainant u/s 439(2), CrPC seeking cancellation of bail granted vide order dt.03/09/07 of this Court in favour of accused respondent No. 2 (Lalaram) (Cr.Msc. Bail Appl.-6099/2007) u/s 438, CrPC and vide order dt.23/08/07 of the Sessions Judge, Jaipur (District) in favour of respondent No. 2 (Smt. Laxmi Devi) (Bail Appl.-1149/07) u/s 439, CrPC.

Complainant (petitioner) lodged FIR- 266/07 at Police Station Shivdaspura (Jaipur district) for offences under Sections 420, 467, 468, 471, 120-B, IPC against respondents No. 2 herein. However, respondent No. 2 (Lalaram) was granted pre-arrest bail u/s 438, CrPC by this Court while other accused respondent No. 2 (Smt. Laxmi Devi) was granted post-arrest bail u/s 439, CrPC by Sessions Judge, Jaipur (district).

Upon completion of investigation, challan has been filed by investigating officer and as informed, matter is pending before trial Court for framing of the charges against accused respondents.

Petitioner has alleged that after the accused respondents were granted bail, they came to her house on 08/09/07 and gave threats that if criminal case instituted by her is not withdrawn they will face dire consequences - a complaint (Ann.3) whereof was also made to SHO, Police Station Sadar Sanganer (Jaipur district) on 09/09/07 and in support whereof, affidavits of Babulal Sharma (who happens to be brother of her husband) & Jagdish Narain Raigar have also been placed on record as Ann.4 & Ann.5) to show that alleged incident of 08/09/07 took place in their presence and who were eye witnesses of the occurrence. Later on, upon complaint of petitioner (Ann.3), notices were issued by Sub- Divisional Magistrate (II) Jaipur vide order dt. 31/10/07 under Sections 107/116(3) CrPC - certified copy whereof has been placed on record.

Respondents in their reply inter-alia averred that notices issued vide order dt.31/10/07 of the SDM have never been served upon them and for the first time, it came to their notice about proceedings, if any, initiated under Sections 107/116(3), CrPC. Per contra, respondents have also averred that husband of petitioner is a property dealer and even complainant alongwith two persons whose affidavits (Ann.4 & 5) have been filed alongwith instant applications, in fact wanted to grab their property and on 18/09/07, her husband attacked upon respondent No. 2 (Lalaram)''s wife, for which FIR-773/07 (Ann.R.4) was also lodged at police station Malviya Nagar, Jaipur and after investigation, challan has been filed against Babulal Sharma, Jagdish Narain, and against complainant (petitioner) and Ors., investigation is pending u/s 173(8) CrPC.

I have considered contentions of Counsel for the parties and with their assistance, examined material on record. While examining applications filed u/s 439(2), CrPC, seeking cancellation of bail, this Court is not supposed to scrutinize merits of the orders granting bail to the accused. What are relevant factors to be kept in mind while considering application for cancellation of bail, have been examined by Apex Court in State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and Others,

...The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in The State Vs. Captain Jagjit Singh, and Gurcharan Singh v. State (Delhi. Admn.) AIR 1978 SC 179 and basically they are - the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. While hearing an application for cancellation of bail under Subsection (2) of Section 439 of the Code, the Courts generally do not examine the merits of the order granting bail. What is normally relevant to be examined in such a proceeding is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail is trying to adopt dilatory tactics resulting in delay of trial or has absconded or that the offence committed by him has created serious law and order problem. The Court has to see as to whether the accused has misused the privilege of bail granted to him.

After filing of instant applications for cancellation of bail, this Court vide order dt.08/01/08 directed the Public prosecutor to inform as to whether respondents who have been enlarged on bail have misused the liberty at any stage thereafter. Despite opportunity granted to Public prosecutor, nothing has been placed on record by which it can be inferred that either of respondents No. 2 have misused the liberty of bail or that they are trying to tamper with the evidence subsequent to their release on bail or created serious law &order problem.

As regards complaint (Ann.3) of petitioner on which notices have been issued by SDM Jaipur u/s 107/116(3) CrPC vide order dt.31/10/07, as per reply filed by respondents (accused), even such notices have never been served upon them and that apart, in FIR-773/07 lodged by respondent No. 2 about incident of 18/09/07 at PS Malviya Nagar Jaipur, challan has been filed, as informed to this Court, against Babulal Sharma & Jagdish Narain whose affidavits (Ann.4 & 5 ) have been filed alongwith complaint (Ann.3); while against petitioner & other accused, investigation is pending u/s 173(8), CrPC. In this view whereof, no inference can be drawn on the affidavits filed on their behalf, warranting interference in orders granting bail to respondents No. 2.

Consequently, these applications seeking cancellation of bail are hereby dismissed.