Shekhar & Anr Vs. Rambilas & Anr, State of Maharashtra & Anr 
Insc 269 (3 May 2001)
Shah & S.N. Variava S. N. Variava, J.
Appeal (crl.) 600 of 2001
two Appeals are against an Order dated 24th January 2001, by which the High Court has
cancelled bail, which had been granted to the Petitioner by the Additional
Sessions Judge, Nagpur, by his Order dated 13th November, 2000. Briefly stated the facts are as follows
Petitioner got married to one Puja Agrawal on 24th November, 1999. On 2nd of September, 2000 i.e. within a year of the
marriage the said Puja Agrawal met with her death on 2nd of September, 2000.
The Petitioner has been charged with offences under Sections 498-A and 304-B of
the Indian Penal Code. Along with the Petitioner three other ladies had also
been charged. Those ladies were granted bail by an Order dated 11th September, 2000. A Petition challenging that Order
has been rejected on 20th
evidence prima facie suggests the following:- at the time of the marriage there
was a demand of dowry for Rs. 5 lacs including Rs. 2 lacs in cash; that the
father of the deceased has spent Rs. 7 lacs on marriage; that about a month
prior to the death of the said Puja a demand of Rs. 1 lac was made; that the
father of the said Puja had offered Kisan Vikas Patra worth Rs.30,000/- to the
Petitioner, which had been refused; that whenever the deceased came to the
parents' home she was not wearing any ornaments; that even at the time of her
death she was not wearing any ornaments not even her "Mangalsutra".
The deceased was eight months pregnant at the time of her death. From the scene
of offence, two handkerchiefs, two small cotton balls and one bigger cotton
ball were found. Pieces of broken bangles were found. The wire of telephone was
found broken. The telephone was found on the bed. There were electric burn
injuries over the left index finger, middle finger, thumb, palms and back of
palms upto base. Bone of left index finger was exposed and charred. Base of
left index finger was swollen, distal part of left index finger was bluish in colour,
surrounded by reddish area. There were electric burn injuries over right supramammary
region oval shaped 7 cm x 4 1/2 cm. Centre of the burnt area was blackened and
hard measuring 5 cm. x 3 1/2 cm. Blisters were found present over lateral
aspect of left thigh, upper 1/3rd , 5 cm. x 1 1/2 cm. and 2 cm. Anterior to
this injury, as also over lateral aspect of right thigh, upper 1/3rd.
this, abrasions were found on the right side of back, over infra scapulas
have heard the parties. Mr. Lalit has argued this Appeal at great length. We
have given anxious consideration to his submissions but for reasons set out
hereafter are unable to accept them.
submitted that one of the reasons why the High Court set aside bail was that
the Additional Sessions Judge had not referred to any material circumstance on
record and had not given any reasons. He submitted that the High Court was
wrong in so observing. He submitted that the same Additional Sessions Judge had
earlier granted bail to the ladies by his Order dated 11th September, 2000. He pointed out that, whilst so
granting bail, the Additional Sessions Judge had given very cogent reasons. He
submitted that against that Order a Petition had been filed in the High Court.
He submitted that even though the High Court rejected the Petition, the High
Court observed as follows :
agree with the learned Counsel appearing on behalf of the complainant that
while granting bail the learned Judge ought not to have ventured to discuss the
merits or demerits of the evidence collected against the accused persons.
he was not aware or he was not remined of the advice given by the Apex Court in
the case of Niranjan Singh & another vs. Prabhakar Rajaram Kharote and
Others reported in AIR 1980 S.C. 785 wherein detailed examination of the
evidence and elaborate documentation of the merits of the case while passing
orders on bail application was deprecated." He submitted that in view of
these observations the learned Additional Sessions Judge did not given reasons
whilst granting bail. He submitted that in these circumstances the Additional
Sessions Judge cannot be faulted. He submitted that the High Court could not
cancel bail on this ground. We see no substance in this contention. Giving
reasons is different from discussing merits or demerits. At the stage of
granting bail a detailed examination of evidence and elaborate documentation of
the merits of the case has not to be undertaken. What the Additional Sessions
Judge had done, in the Order dated 11th September, 2000 was to discuss the merits and
de-merits of the evidence. That was what was deprecated. That did not mean that
whilst granting bail some reasons for prima facie concluding why bail was being
granted did not have to be indicated. Mr. Lalit next submitted that the High
Court has itself not given reasons but has mechanically set aside the order of
the bail. We see no substance in this submission. The High Court has correctly
not gone into merits or demerits of the matter. The High Court has noted that evidance
prima-facie indicated demand of dowry. The High Court has briefly indicated the
evidence on record and what was found at the scene of the offence. The High
Court has indicated that evidance prima facie indicated that a demand for Rs. 1
lac was made just a month prior to the incident in question. The High Court has
stated that the material on record suggested that the offences under Sections
498-A and 304-A were prima facie disclosed. The High Court has concluded that
the material on record, the nature of injuries, demand for Rs. 1 lac and the
other circumstances were such that this was not a fit case for granting bail.
Thus the High Court has given very cogent reasons why bail should not have been
granted and why this unjustified erroneous Order granting bail should be
next submitted that once bail has been granted it should not be cancelled
unless there is evidence that the conditions of bail are being infringed. In
support of this submission he relies upon the authority in the case of Dolat
Ram & Ors. vs. State of Haryana
reported in 1995 (1) S.C.C. 349. In this case it has been held that rejection
of bail in a non-bailable case at the initial stage and the cancellation of
bail already granted have to be considered and dealt with on different basis.
It has been held that very cogent and overwhelming circumstances are necessary
for an order directing the cancellation of the bail already granted. It has
been held that generally speaking the grounds for cancellation of bail broadly
are interference or attempt to interfere with the due course of administration
of justice or evasion or attempt to evade the due course of justice or abuse of
the concession granted to the accused in any manner. It is, however, to be
noted that this Court has clarified that these instances are merely
illustrative and not exhaustive. One such ground for cancellation of bail would
be where ignoring material and evidence on record a perverse order granting
bail is passed in a heinous crime of this nature and that too without giving
any reasons. Such an order would be against principles of law. Interest of
justice would also require that such a perverse order be set aside and bail be
cancelled. It must be remembered that such offences are on the rise and have a
very serious impact on the Society.
an arbitrary and wrong exercise of discretion by the trial court has to be
it is to be kept in mind that the concept of setting aside the unjustified
illegal or perverse order is totally different from the concept of cancelling
the bail on the ground that accused has misconducted himself or because of some
new facts requiring such cancellation. This position is made clear by this
Court in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179. In
that case the Court observed as under:- "If, however, a Court of Session
had admitted an accused person to bail, the State has two options. It may move
the Sessions Judge if certain new circumstances have arisen which were not
earlier known to the State and necessarily, therefore, to that Court. The State
may as well approach the High Court being the superior Court under S. 439 (2)
to commit the accused to custody. When, however, the State is aggrieved by the
order of the Sessions Judge granting bail and there are no new circumstances
that have cropped up except those already existed, it is futile for the State
to move the Sessions Judge again and it is competent in law to move the High
Court for cancellation of the bail. This position follows from the subordinate
position of the Court of Session vis-a-vis the High Court.
be mentioned that in support of the above submission Mr. Lalit had also relied
upon the authorities in the cases of Subhendu Mishra vs. Subrat Kumar Mishra
and another reported in 1999 Crl.L.J. 4063, State (Delhi Administration) vs.
Sanjay Gandhi reported in (1978) 2 S.C.C. 411 and Bhagirathsinh s/o Mahipat
Singh Judeja vs. State of Gujarat reported in 1984 (1) S.C.C. 284. These need
not be dealt with separately as they are of no assistance in a case of this
nature where bail has been cancelled for very cogent and correct reasons.
view is supported by the principles laid down in the case of Gurcharan Singh
& Others, etc. vs. State (Delhi Administration) reported in 1978 (1) S.C.C.
118. In this case it has been held, by this Court, that under Section 439(2),
the approach should be whether the order granting bail was vitiated by any
serious infirmity for which it was right and proper for the High Court, in the
interest of justice, to interfere. Mr. Lalit next submitted that a third party
cannot move a Petition for cancellation of the bail. He submitted that in this
case the Prosecution has not moved for cancellation of the bail. He pointed out
that the father of the deceased had moved for cancellation of the bail. He
relied upon the cases of Simranjit Singh Mann vs. Union of India and another
reported in AIR 1993 S.C. 280 and Janata Dal, etc. etc. vs. H.S. Chowdhary and
others, etc. etc. reported in 1991 (3) S.C.C. 356. Both these cases dealt with
Petitions under Article 32 of the Constitution of India whereunder a total
stranger challenged the conviction and sentence of the accused. This Court held
that neither under the provisions of the Criminal Procedure Code nor under any
other statute is a third party stranger permitted to question the correctness
of the conviction and sentence imposed by the Court after a regular trial. It
was held that the Petitioner, who was a total stranger, had no 'locus standi'
to challenge the conviction and the sentence awarded to the convicts in a
Petition under Article 32. The principle laid down in these cases have no
application to the facts of the present case. In this case the application for
cancellation of bail is not by a total stranger but it is by the father of the
deceased. In this behalf the ratio laid down in the case of R. Rathinam vs.
State by DSP, District Crime Branch, Madurai District, Madurai and anr. reported in 2000 (2)
S.C.C. 391, needs to be seen. In this case Bail had been granted to certain
persons. A group of practising advocates presented petitions before Chief
Justice of the High Court seeking initiation of suo motu proceedings for
cancellation of bail. The Chief Justice placed the petitions before a Division
Bench. The Division Bench refused to exercise the suo motu powers on the ground
that the petition submitted by the advocates was not maintainable. This Court
held that the frame of sub-section (2) of Section 439 indicates that it is a
power conferred on the Courts mentioned therein. It was held that there was
nothing to indicate that the said power can be exercised only if the State or
investigating agency or a Public Prosecutor moves by a petition. It was held
that the power so vested in the High Court can be invoked either by the State
or by any aggrieved party. It was held that the said power could also be
exercised suo motu by the High Court.
held that, therefore, any member of the public, whether he belongs to any
particular profession or otherwise could move the High Court to remind it of
the need to exercise its power suo motu. It was held that there was no barrier
either in Section 439 of the Criminal Procedure Code or in any other law which
inhibits a person from moving the High Court to have such powers exercised suo motu.
It was held that if the High Court considered that there was no need to cancel
the bail then it could dismiss the Petition.
held that it was always open to the High Court to cancel the bail if it felt
that there were sufficient enough reasons for doing so. Mr. Lalit next relied
upon the authorities in the cases of Usmanbhai Dawoodbhai Memon and Ors. vs.
State of Gujarat reported in 1988(2) S.C.C. 271, Amar Nath and others vs. State
of Haryana and others reported in AIR 1977 S.C. 2185 and M/s. India Pipe
Fitting Co. vs. Fakruddin M.A. Baker and another reported in AIR 1978 S.C. 45.
Relying on these he submitted that an order granting bail was an interlocutory
order, and the High Court could not exercise powers under Section 482 of the
Criminal Procedure Code and thus could not cancel Bail. Mr. Lalit submitted that
Section 439 of the Criminal Procedure Code gives the power of cancellation of
bail both to the Sessions Court and the High Court. He submitted that thus the
High Court and Sessions Court were co-ordinate Courts under this Section. He
submitted that the High Court could not thus sit in Appeal or Revision over an
Order of the Court of Sessions. He submitted that under Section 439(2), it is
only the orders of the Magistrate, which could be set aside by the High Court
or the Court of Sessions.
no substance in this submission. In the hierarchy of Courts, the High Court is
the Superior Court.
restrictive interpretation which would have effect of nullifying Section 439(2)
cannot be given. When Section 439(2) grants to the High Court the power to
cancel bail, it necessarily follows that such powers can be exercised also in
respect of Orders passed by the Court of Sessions. Of course cancellation of
bail has to be on principles set out hereinabove and only in appropriate cases.
Further, even if it is an interlocutory order, the High Court's inherent
jurisdiction under Section 482 is not affected by the provisions of Section 397
(3) of the Code of Criminal Procedure. That the High Court may refuse to
exercise its jurisdiction under Section 482 on the basis of self-imposed
restriction is a different aspect. It cannot be denied that for securing the
ends of justice, the High Court can interfere with the order which causes
miscarriage of justice or is palpably illegal or is unjustified. [Re. Madhu Limaye
v. State of Maharasthra (1977) 4 SCC 551 and Krishnan and
Another v. Krishnaveni and Another (1997) 4 SCC 241].
this case, as indicated above, bail has been cancelled for very valid and
cogent reasons Accordingly we see no substance in these Appeals. The same stand
dismissed. There will be no order as to costs.