State of Haryana vs Kumari Sangita

V.S. Aggarwal, J.

Subsection (5) of Section 437 and subsection (2) of Section 439 of the Code of Criminal Procedure permit the court which released a person to bail, commit him to custody or in other words withdraw the order so passed. The relevant provisions read :

"437 (5). Any Court which has released a person on bail under subsection (1) or subsection (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody."

"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 known grounds as to when the bail once granted can be cancelled are that when the accused is found tampering with the evidence either during investigation or trial; when the person on bail commits similar or any heinous offence; or when the accused is absconding; or when the privilege has been misused. Without being exhaustive the Supreme Court in the case of Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 referred to certain some such grounds when bail once granted can be cancelled :

"Namely, bail granted under Section 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. 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."

It is in this background that the petition filed by the State seeking cancellation of the bail granted to the respondent has to be considered.

The relevant facts are that Shiv Kumar Aggarwal had made a complaint and a case was registered with respect to the offences punishable under Sections 302/498A and 120B Indian Penal Code against the respondent and others. He had asserted that his sister was married to one of the accused. A huge amount was spent. Above Rs. 4 lacs were given before marriage. Similarly huge dowry as such had been given comprising of gold ornaments of 150 grams, silver articles and clothes worth Rs. 60,000/. After marriage when his sister came back, she did not look happy. Despite repeated enquiries, she kept quite. When she again came back for the second occasion, the sister of the complainant deposed that her motherinlaw, the respondent and others had been maltreating her for bringing insufficient dowry. She further disclosed that she told them that complainant had given sufficient dowry. She again came back on 31.7.1994 and told that for the amount of Rs. One lac, accused Dinesh and members of the family had been harassing her and that if the amount was not given, she would have to suffer. On 10.8.1994 Dinesh accused was to come but he did not turn up. The complainant sent his relatives to fetch his sister, they disclosed that behaviour of the accused and others was not proper. On 6.8.1994 the complainant received a message that his sister had received an electric shock. Later he was informed that she had died on account of it while ironing. He complained of his sister having been murdered.

On 3.2.1995 a Bench of this Court had admitted the respondent to bail.

The State seeks cancellation of that order alleging that the said order had been obtained by misrepresentation of facts. It had not been disclosed that earlier bail application of the respondent had been dismissed. It has further been contended that the respondents after having been admitted to bail have been pressurising the witnesses to compromise and even Hukam Chand father of the respondent had been doing the same.

In the reply filed it is denied that any material fact has been concealed or that the respondent had ever tried to pressurise the witnesses.

The fact that it is easy to reject the bail application in a nonbailable case than to cancel the bail had been noticed by the Supreme Court in the decision rendered in the case entitled State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 Supreme Court 961 wherein the Supreme Court concluded :

"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 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."

Though the learned counsel appearing for the State urged that earlier petitions filed by the respondent had been rejected, had been suppressed but the learned counsel for the respondent made the copy of the earlier application available. Therein the respondent had specifically given the number of the petitions mentioning that earlier applications had since been rejected. It must, therefore, be concluded that the facts as such have not been suppressed from the Court.

The only other argument advanced was that respondent after she had been admitted to bail, had tried to tamper with the evidence. There is no controversy with the proposition that Court must look into those allegations when the same are made. The Supreme Court in the case of Shahzad Hasan Khan v. Istiaq Hasan Khan and another, AIR 1987 SC 1613 took note of the same and in paragraph 7 observed :

"One of the salutary principle in granting bail is that the court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence. When allegations of tampering of evidence are made, it is the duty of the court to satisfy itself whether those allegations have basis (they can seldom be proved by concrete evidence) and if the allegations are not found to be connected it would not be a proper exercise of jurisdiction in enlarging the accused on bail. In the instant case there were serious allegations but the learned Judge did not either consider or test the same."

Necessarily one has to look into what is alleged by the State. Though allegations of tampering with the witnesses are being made but they are vague and indefinite. There are no particulars forthcoming as to when such an attempt was made by the respondent. The discretion is not to be exercised in a whimsical manner. It has to be exercised as based on facts and guided by law. In the absence of any such instances mere assertion of tampering with the evidence will not permit the court to accept the allegations. In the absence of any merit, the petition, therefore, must fail.

For the reasons stated above this petition fails and is dismissed.