Kumar Yadav Vs. State of Bihar & ANR.  INSC 1221 (15 July 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1234 OF 2009 (Arising out of S.L.P.
(Criminal) No. 4689 of 2007) Subodh Kumar Yadav ... Appellant Versus State of
Bihar and Anr. ... Respondents 2
This appeal is directed against judgment dated May 2, 2007,
rendered by learned Single Judge of High Court of Judicature at Patna in
Criminal Miscellaneous No. 2790 of 2004 by which order dated January 8, 2004,
passed by learned Sessions Judge, Purnia in Criminal Miscellaneous No. 13 of
2003 cancelling the bail granted to the appellant by the learned S.D.J.M.,
Purnia vide order dated October 19, 2002, passed in C.A. No. 1098 of 2001 with
reference to the complaint filed by the respondent No. 2 for alleged commission
of offence punishable under Section 498A IPC, is confirmed.
The marriage of the appellant was solemnized with the respondent
No. 2 on June 22, 1989. After 3 the marriage, the respondent No. 2 started
living with the appellant at her matrimonial home.
the subsistence of the marriage, the respondent No. 2 gave birth to two
daughters. It is the case of the respondent No. 2 that the appellant and his
family members started subjecting her to mental and physical cruelty for
bringing insufficient dowry and also because she objected to illicit relations
of the appellant with his sister-in-law Asha Devi. The case of the respondent
No. 2 is that not only she was subjected to physical and mental cruelty, but
money was extorted from her in order to get more dowry and an attempt to kill
her was made as well as her streedhan was not returned to her in spite of
several demands. Under the circumstances, she filed complaint case No. 1098 of
2001 in the Court of learned Chief Metropolitan Magistrate, Purnia and prayed
to convict the appellant and others for commission of offences 4 punishable
under Sections 498A, 384, 307 and 406 IPC.
The learned Magistrate examined the respondent No. 2 on oath. The
learned Magistrate thereafter called upon the respondent No. 2 to offer other
witnesses for examination. Therefore, Bhageshwar Prasad Yadav, who is father of
the respondent No. 2, was examined as witness No. 1, Birendra Kumar, an
independent person, was examined as witness No.2 and Ramanuj Kumar, who is
cousin of the respondent No. 2, was examined as witness No. 3.
learned Magistrate perused the statements made by the witnesses and was of the
opinion that prima facie commission of offence punishable under Section 498A
IPC was made out against the accused. He, therefore, took cognizance of the
said offence and issued summons against the accused including the appellant. On
receipt of summons, 5 the appellant and others filed Criminal Revision No. 233
of 2002 in the Court of taught Sessions Judge, Purnia for quashing the same.
Therefore, the record of the case was called for by the Sessions Court from the
Court of learned Magistrate.
On October 19, 2002, the appellant surrendered before the Court of
learned Judicial Magistrate First Class, Purnia and moved an application for
original record was not available as the same was summoned by the Sessions
Court, the learned Judicial Magistrate passed an order calling for the original
record from the Court of learned District and Sessions Judge, Purnia. Though
the copy of the application for bail was served on the learned Advocate for the
original complainant, the learned Magistrate had not indicated in the order summoning
record of the case from the Sessions Court that the bail application moved by
the 6 appellant would be heard on the same day. The original case record of
Complaint Case No. 1098 of 2001 was received in the Court of learned Judicial
Magistrate First Class on the same day, i.e., on October 19, 2002. The learned
Magistrate took up the bail application for hearing on the same day.
learned Magistrate took into consideration the petition for divorce filed by
the appellant against the respondent No. 2 in the year 2002 as well as other
documents and without hearing either the respondent No. 2 or her learned
counsel, enlarged the appellant on bail.
Thereupon, the respondent No. 2 moved Criminal Miscellaneous No.
13 of 2003 in the Court of learned District and Sessions Judge, Purnia for
cancellation of bail. The learned Session Judge heard both the parties. It was
noticed by him that the bail application was submitted by the appellant 7 on
the same day on which he had surrendered before the Court of learned Judicial
Magistrate First Class. It was further observed that after learning that the
original record was lying in Sessions Court, Purnia in connection with Criminal
Revision No. 233 of 2002, filed by the appellant and others for quashing
issuance of summons, the learned Magistrate had passed an order calling for the
record of the case from the Sessions Court. It was also noticed that the
learned Magistrate did not hear the learned counsel of the complainant and no
order was passed by him fixing hearing of the bail application, but bail was
granted on the same day.
noted by the learned Sessions Judge that though the complaint was filed by the
respondent No. 2 on October 9, 2002, the learned Magistrate had taken into
consideration divorce proceedings initiated by the appellant in the year 2000,
i.e., after taking cognizance of the offence and had also relied 8 upon other
documents. Having taken into consideration relevant circumstances emerging from
the record of the case, the learned Sessions Judge concluded that the learned
Magistrate had enlarged the appellant on bail on considerations other than
judicial. Therefore, the learned Sessions Judge, by order dated January 8,
2004, allowed the application filed by the respondent No. 2 and cancelled the
bail granted to the appellant.
Feeling aggrieved, the appellant moved High Court of Judicature at
Patna by way of filing Criminal Miscellaneous Application No. 2790 of 2004. The
learned Single Judge of the High Court has rejected the application filed by
the appellant vide judgment dated May 2, 2007, giving rise to the instant
This Court has heard the learned counsel for the parties and taken
into consideration the documents forming part of the appeal.
Learned counsel for the appellant contended that cancellation of
bail can be only with reference to conduct subsequent to release on bail and
the supervening circumstances. According to him an application for cancellation
will not be maintainable with reference to what transpired prior to the grant
of bail. He relied upon the following observations in State of U.P. vs.
Amarmani Tripathi [(2005) 8 SCC 21], in support of the said contention: -
"The decisions in Dolat Ram v. State of Haryana [1995 (1) SCC 349] and
Samarendranath Bhattacharjee v. State of West Bengal [2004 (11) SCC 165] relate
to applications for cancellation of bail and not appeals against orders
granting bail. In an application for cancellation, conduct subsequent to
release on bail and the supervening circumstances alone are relevant. But in an
appeal against grant of bail, all aspects that were relevant under Section 439
read with Section 437, continue to 10 be relevant. We, however, agree that
while considering and deciding the appeals against grant of bail, where the accused
has been at large for a considerable time, the post-bail conduct and
supervening circumstances will also have to be taken note of. But they are not
the only factors to be considered as in the case of applications for
cancellation of bail."
supplied] A careful reading of the said observations shows that while
considering the factors relevant for consideration of bail already granted
vis-`-vis the factors relevant for rejection of bail, this Court pointed out
that for cancellation of bail, conduct subsequent to release on bail and
supervening circumstances will be relevant. The said observations were not
intended to restrict the power of a superior court to cancel bail in
appropriate cases on other grounds. In fact it is now well settled that if a
superior court finds that the court granting bail had acted on irrelevant
material or if there was non- application of mind or failure to take note of
any statutory bar to grant bail, or if there was manifest 11 impropriety as for
example failure to hear the public prosecutor/complainant where required, an
order for cancellation of bail can in fact be made. (See Gajanand Agarwal v.
State of Orissa [2006 (9) SCALE 378] and Rizwan Akbar Hussain Syyed v. Mehmood
Hussain [2007 (10) SCC 368).
Further, while cancelling bail, the superior Court would be justified in
considering the question whether irrelevant material were taken into
consideration by the court granting bail.
facts of the present case indicate that the appellant himself and others had
moved the Sessions Court by way of filing revision for quashing summons issued
by the learned Magistrate and, therefore, the learned Sessions Judge had called
for the record from the court of learned Judicial Magistrate First Class. On
October 19, 2002, the appellant had, all of a sudden decided to surrender
before the learned Judicial 12 Magistrate First Class, Purnia and presented a
bail application. The learned Magistrate found that the record of the case was
lying in Sessions Court with reference to the revision, which was filed by the
appellant and others. The learned Magistrate did not think it proper to wait at
all and by passing a judicial order called for the record pending in a superior
court. In view of the judicial order passed by the learned Magistrate, the
Registry of the Sessions Court forthwith sent the record of the case to the
court of learned Judicial Magistrate First Class. Thereafter, the learned
Magistrate proceeded to hear the bail application submitted by the appellant.
In the order summoning the record, it was nowhere indicated by the learned
Magistrate that the application submitted by the appellant would be heard on
the same day, i.e., on October 19, 2002. The learned advocate for the
complainant was not put on notice at all and, therefore, could not remain
present at the time when the bail 13 application was taken up for hearing. The
learned Magistrate considered the documents produced by the learned counsel for
the appellant. Admittedly those documents were subsequent in point of time to
taking of cognizance. After considering those documents, the learned Magistrate
enlarged the appellant on bail. The undue haste exhibited by the learned
Magistrate as well as his decision to hear the bail application on the same day
without hearing the learned counsel for the complainant, compelled the learned
Sessions Judge to draw adverse inferences against the learned Magistrate.
facts and in the circumstances of the case, this Court is of the opinion that
the learned Sessions Judge was justified in drawing adverse inferences against
the learned Magistrate and holding that the order granting bail was passed by
the learned Judicial Magistrate for considerations other than judicial. This
finding of fact has been confirmed by the High Court in the following terms: -
14 "Heard the learned counsel for both the parties. Perused the complaint
petition as well as the order of both the courts. There is no doubt that the
bail of the petitioner was granted in a very mysterious circumstances.
entire office as well as the Presiding Officer was so in haste that all
formalities including calling of the record from the Sessions Court were done
on the same day and the order of granting bail was also passed on the same day
behind the back of complainant's lawyer. The order of the learned lower court
which runs in so many pages is sufficient to show how much the Presiding
Officer was interested to grant bail to the petitioner who is husband of the
opposite part no. 2."
findings recorded by the learned Sessions Judge and the High Court make it
clear that the learned Magistrate had exercised discretion vested in him under
Section 437 with oblique motive. The learned Magistrate was apparently bent
upon granting bail to the appellant and, therefore, not only decided to hear
the bail application presented by the appellant on the same day, but had also
called for record from the superior court and 15 granted bail to the appellant
without hearing the learned counsel for the complainant. As the judicial
discretion was exercised by the learned Judicial Magistrate First Class in an
arbitrary manner and with oblique motives, the learned Sessions Court was
justified in setting aside the order granting bail to the appellant. To say the
least, the order passed by the learned Magistrate was the result of arbitrary
exercise of discretion vested in him. Further the learned Magistrate had taken
into consideration totally irrelevant documents which were never referred to in
the complaint at all. By taking into consideration those documents the learned
Magistrate exhibited his anxiety to release the appellant anyhow on bail. On
the facts and in the circumstances of the case, this Court is of the opinion
that the High Court did not commit any error in confirming the order of the
Sessions Judge cancelling the bail which was 16 arbitrarily granted to the
appellant by the learned Judicial Magistrate First Class and, therefore, the
instant appeal is liable to be dismissed.
the foregoing reasons the appeal fails and is dismissed.
..............................J. [R.V. Raveendran]
..............................J. [J.M. Panchal]
July 15, 2009.