Vimalben Ajitbhai Patel
Vs. Vatslabeen Ashokbhai Patel and Others  INSC 486 (14 March 2008)
S.B. Sinha & V.S.
CIVIL APPEAL NO 2003 OF 2008 [Arising out of SLP (Civil) No. 1061 of 2007]
CRIMINAL APPEAL NO. 502 OF 2008 [Arising out of SLP (Crl.) No. 213 of 2007]
Ajitbhai Revandas Patel and another Appellant Versus State of Gujarat and
another Respondents S.B. SINHA, J :
1. Leave granted in both the matters.
2. These two appeals being inter related were taken up together for hearing
and are being disposed of by the common judgment.
3. Vimlaben Ajitbhai Patel (Appellant in Civil Appeal is the mother in law
of Sonalben Rameshchandra Desai - respondent No.3 in Civil Appeal and
respondent No.2 in Criminal Appeal) while she alongwith her husband are the
appellants in the Criminal Appeal. For the purpose of disposal of these
appeals, Vimalben Ajitbhai Patel is being described as Appellant No.1 while her
husband Ajitbhai Revandas Patel is being described as Appellant No.2.
4. Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel (son
of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a complaint
petition was filed by the 3rd respondent against her husband and the appellants
alleging commission of an offence under Sections 406 and 114 of the Indian
Penal Code. In the said complaint the 3rd respondent accepted that her husband
had incurred huge losses in the business in United States. Appellants were
granted bail subject to the condition that they would not leave India without
prior permission of the Court. Allegedly on the premise that Appellant No.2
requires medical treatment, an application for permission was filed in October
1997 but they left India without obtaining the same from the Court.
5. An application was filed for cancellation of the bail which was rejected
by the Metropolitan Magistrate as also by the Sessions Judge. The 3rd
respondent filed an application before the High Court being Special Criminal
Application NO.1360 of 1997. The said application was allowed by the High Court
by its order dated 18th November, 1997 cancelling the bail of the appellants.
The learned Metropolitan Magistrate was directed to issue Standing Warrant of
arrest against the appellants as and when they returned to India.
6. On an application filed by the 3rd respondent on 24th April, 1998 the
husband of the appellant was declared an absconder and a public proclamation
was issued in terms of Section 82(2) of the Code of Criminal Procedure
attaching her properties if she did not present before the Learned Magistrate
within 30 days from the issuance of the said publication. There is nothing on
record to show that the said order was served on the appellants.
It, however, is not disputed that on their failure to remain present within
a period of 30 days their properties were subjected to order of attachment
under Section 85 of the Code of Criminal Procedure. By an order dated 5th
January, 2004 the District Magistrate was asked by the Leaned Metropolitan
Magistrate to take further action in terms of Section 85 of the Code of
Criminal Procedure by holding a public auction of the said properties. In the
said order it was wrongly sated that the properties belonged to the appellants
and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was the
7. The 1st Respondent (tenant) and the subsequent auction purchaser filed an
application before the High Court of Gujarat which was marked as Special Civil
Application No.15377 of 2004 against the Mamlatder. A learned Judge of the High
Court by an order dated 5th April, 2005 directed :- "8. In view of the
above, I am inclined to pass the following order:
8.1) Rule. By interim order it is directed that the Mamlatdar - Respondent
No.1 shall proceed with the auction of the premises in question on condition
that the auction which may be held shall be subject to the further condition
that - i) the possession of the premises shall be handed over by the Mamlatdar
to the auction purchaser, after the conclusion of the proceedings as ordered
hereinafter by the ULC Authority against the petitioner as well as respondent
ii) after the auction, it would be open to the Mamlatdar to notify the said
aspect regarding the transfer effected by auction in the conspicuous part of
the premises and such an intimation may also be given to the concerned local
iii) it is further directed that the Mamlatdar - Respondent No.1 herein
shall make reference to competent Authority under ULC Act to examine the
aspects as to whether the transaction between the absconder and Respondent No.3
can be said in breach of the condition of Scheme under Section 21 of the ULC
Act and he shall also make reference on the aspects to the competent authority
under ULC Act as to whether the action of the absconder and subsequently
rectification by respondent No.3 to give the possession of the petitioner as
tenant can be said in breach of the conditions of the Scheme under Section 21
on the basis of which the premises came to be allotted to the absconder original
allottee. Such reference shall be made within a period of two weeks from today
and the Mamlatdar shall request the concerned authority to decide the reference
within a period of three months from the date of receipt of the reference. In
the event it is found by the competent authority under ULC Act that the action
of absconder of entering into transaction with respondent No.3 and for handing
over the possession to the petitioner as unlawful, the Mamlatdar shall be at
liberty to take possession of the premises in question from the petitioner and
thereafter he shall further be at liberty to hand over the vacant possession of
the premises to the auction purchaser.
iv) It is further directed that until the aforesaid reference is made and is
decided by the Mamlatdar, the petitioner shall deposit the amount at the rate
of Rs.1,500/= per month with the Mamlatdar without prejudice to the proceedings
of the reference and the said amount shall remain as deposited with the
Mamlatdar. In the event it is found by the competent authority under ULC Act as
an outcome of the reference and the inquiry that the possession is unlawful of
the petitioner and the transaction is unlawful of the absconder with respondent
No.2, the Mamlatdar shall be at liberty to refund the amount. However, in the
event it is found that the possession is lawful and there is no breach of the
condition of allotment as per the scheme under Section 21 of the ULC Act, the
Mamlatdar shall be at liberty to appropriate the amount in accordance with law."
v) The aforesaid exercise of holding auction shall be completed within a
period of five weeks from today.
9. The report of the proceedings and the outcome of the reference shall also
be made by the Mamlatdar to this Court."
8. However, the appellant and her husband were not made parties therein.
Against the said order, an LPA, which was marked as LPA NO.
1792 of 2005, was filed by the 1st respondent and a Division Bench of the
High Court directed that the amount of rent deposited by him with the Mamlatder
be deposited in the High Court and the 3rd respondent will be permitted to
withdraw the same without prejudice to the rights and contentions of the
parties. The said order was passed, purported to be on the premise, that the
3rd respondent had placed reliance on an order dated 13th May, 2005 passed by
another Bench of the High Court in First Appeal No.
2626 of 2004 whereby her husband was directed to deposit a sum of
Rs.10,000/- per month towards arrears of maintenance and to continue to deposit
9. By an order dated 25th January, 2006 the 1st respondent was asked to
deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the
said property) apart from a sum of Rs.10,000/- per month which was to be
deposited with the Registrar by him from 10th February, 2006. It was
furthermore directed :- "6.2 The withdrawal of Rs.10,000/- by respondent
2-Sonalben Rameshchandra Desai shall be adjusted against any amount which
may be payable to her by Jitendra Ajitbhai Patel under any orders in First Appeal
No. 2626 of 2004, in any other matrimonial proceedings or in any civil or
criminal case between her, her husband and her mother in law."
10. Appellant No.1 made an application to get herself impleaded as a party
but her application was dismissed by the High Court on 11.9.2006.
On or about 21st November, 2006 the High Court directed the first respondent
to pay a sum of Rs.17 lakhs to respondent No.3 in regard to the auction sale of
the property in question. Respondent No.2, Mamlatdar, was also directed to
execute the deed of conveyance and register the same in the name of the 1st
respondent upon full payment.
11. Appellant and her husband returned to India. They filed an application
for cancellation of the said Standing Warrants. By an order dated 27th June,
2006 the said application was allowed directing :- "Application is granted
and warrant against both the applicant accused are ordered to be cancelled with
a fine of Rs.3,000/- (Rupees three thousand only) each and with condition to
submit one new surety of Rs.10,000/- (Ten thousand) and on executing the bond
of such like amount.
1. Accused shall not leave India, without prior permission of the court.
2. Accused shall surrender his passport before the court."
12. Indisputably pursuant to the said order the Passports were deposited on
28th June, 2006 by them.
13. The 3rd respondent filed an application for setting aside the said order
by filing a Criminal Miscellaneous Application before the Sessions Judge,
Ahmedabad inter alia contending that the Passports had not been deposited by
the accused pursuant to the said order of 27th June, 2006. The learned
Additional Sessions Judge set aside the said order dated 27th June, 2006 and
non-bailable warrants were directed to be issued against the appellants herein.
Aggrieved thereby she filed Criminal Misc. Application No. 14340 of 2006 before
the High Court on 13th December, 2006 which by reason by of the impugned
judgment and order dated 27th December, 2006 has been dismissed.
14. The questions which arise for consideration are :- (i) Whether in the
facts and circumstances of the case, the property of Appellant No.1 could have
been sold in auction? and (ii) Whether in a case of this nature, the bail
granted to the appellants should have been directed to be cancelled?
15. Submissions of learned counsel appearing on behalf of the appellants are
i) Having regard to the provisions of the Hindu Adoptions
Act, 1956 duty to maintain a wife being on the husband and not on her
mother-in-law, the impugned judgments are wholly unsustainable;
ii) The property of a person who is no longer absconding, cannot be
subjected to continuous attachment or sale thereof.
iii) Appellants having surrendered their Passports and having been attending
the Court subsequently, the High Court committed a manifest error in directing
cancellation of their bail without appreciating that the factors relevant for
interfering with the order granting bail and directing cancellation of bail are
distinct and different.
16. Submissions of Mr. Mayur Shah, learned counsel appearing on behalf of
the 3rd respondent, are :- i) That her husband being the only son of his
parents and the properties having been acquired through ancestral funds and
there being no assertion that the properties are self acquired properties, she
has a right of maintenance out of the Joint Family Property in terms of Section
18 of the Hindu Adoption and Maintenance Act.
ii) In terms of Section 84 of the Code of Criminal Procedure, keeping in
view the fact that her husband had been directed to pay maintenance @
Rs.10,000/- per month and which having not been paid, respondent No.3 could
have prayed for realization of the said amount of maintenance from the sale
proceeds of the auction sale.
iii) Even an offer was made that one residential property would be
transferred in her name, apparently goes to show that the properties are Joint
Family Properties. She, having been denied her right of maintenance, could
initiate the proceeding before the Metropolitan Magistrate as also before the
iv) The Metropolitan Magistrate committed a serious error in granting bail
upon cancellation of Standing Warrants as appellants have breached the
conditions for grant of bail. They had, although placed a large number of
documents and in particular medical certificates to show that they were ill,
there is nothing on record to show that they were bed ridden and not permitted
to move out.
v) Their near relatives in India would be deemed to have knowledge of the
pendency of the said proceeding and in that view of he matter neither under the
guise of the medical certificates nor on the ground of age, they deserve any
sympathy of the Court.
17. Mr. Nikhil Goel, learned counsel appearing on behalf of the 1st
respondent (Auction Purchaser) would submit :
i) The tenant has a right to reside in the property irrespective of the
order of attachment and the same could not have been interfered with by
Mamlatdar under the orders of the Learned Metropolitan Magistrate of the
ii) The 1st respondent had deposited a sum of Rs.10,000/- (Rupees ten
thousand only) each month for a period of ten months which have been withdrawn
by the 3rd respondent. Out of the total auction amount of Rs.17 lakhs, the 1st
respondent had deposited Rs. 4 lakhs which has been invested in a short term
deposit, besides a sum of Rs.1 lakhs. He has also deposited a further sum of
Rs.12 lakhs which sum have, however, since been refunded. The learned counsel
would contend that in this view of the matter the amount deposited by him
should be directed to be refunded with interest.
18. Sonalben Rameshchandra Desai is an Advocate. She filed a large number of
cases against her husband and in-laws. She initially filed a Complaint Petition
before the Metropolitan Magistrate, Ahmedabad, under Section 498A of the Indian
Penal Code which was registered as Case No.1662 of 1996. It was transferred to
the Court of Chief Judicial Magistrate, Baroda. It has since been dismissed for
default. She initiated another criminal proceeding against the appellants and
their family members under Sections 323, 452, 427, 504, 506 and 114 of the Indian
Penal Code, the same proceeding has also been dismissed as withdrawn. Another
criminal case was initiated by her against appellant No.2, his son and another,
being Case No.47 of 1996 under Section 406, 420, 468 and 114 of the Indian
Penal Code, which is still pending. Another case, being No.2338 of 2006 was
filed by her under Section 500 of the Indian Penal Code.
Another case under Section 406 of the Indian Penal Code being Case No.2145
of 1993 was filed against the appellants.
19. Before embarking on the questions of law which arise our consideration,
we may notice some statutory provisions.
20. The matter relating to grant of maintenance are now governed by the
provisions of Hindu
Adoptions and Maintenance Act, 1956. Sections 3 (b), 18 and 19 of the said
Act read as under :- "3. (b) "Maintenance" includes- (i)in all
cases, provision for food, clothing, residence, education and medical
attendance and treatment;
Section 18 - Maintenance of wife (1) Subject to the provisions of this
section, a Hindu wife, whether married before or after the commencement of this
Act, shall be entitled to be maintained by her husband during her life time.
Sub-section (2) of Section 18 thereof, however, lays down certain exceptions
Sub-section (3) of Section 18 reads :- "(3) A Hindu wife shall not be
entitled to separate residence and maintenance from her husband if she is
unchaste or ceases to be a Hindu by conversion to another religion."
Section 19 - Maintenance of widowed daughter-in-law (1) A Hindu wife,
whether married before or after the commencement of this Act, shall be entitled
to be maintained after the death of her husband by her father- in-law:
Provided and to the extent that she is unable to maintain herself out of her
own earnings or other property or, where she has no property of her own, is
unable to obtain maintenance- (a) from the estate of her husband or her father
or mother, or (b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the
father-in law has not the means to do so from any coparcenary property in his
possession out of which the daughter-in-law has not obtained any share, and any
such obligation shall cease on the re-marriage of the daughter-in-law."
21. Maintenance of a married wife, during subsistence of marriage, is on the
husband. It is a personal obligation. The obligation to maintain a
daughter-in-law arises only when the husband has died. Such an obligation can
also be met from the properties of which the husband is a co-sharer and not
otherwise. For invoking the said provision, the husband must have a share in
the property. The property in the name of the mother-in-law can neither be a subject
matter of attachment nor during the life time of the husband, his personal
liability to maintain his wife can be directed to be enforced against such
22. Wholly un-contentious issues have been raised before us on behalf of
Sonalben (wife). It is well settled that apparent state of affairs of state
shall be taken a real state of affairs. It is not for an owner of the property
to establish that it is his self-acquired property and the onus would be on the
one, who pleads contra. Sonalben might be entitled to maintenance from her
husband. An order of maintenance might have been passed but in view of the
settled legal position, the decree, if any, must be executed against her
husband and only his properties could be attached therefor but not of her
23. Sections 4 and 28 of the Hindu Adoptions
and Maintenance Act read as under :- "4. Overriding effect of Act Save
as otherwise expressly provided in this Act,- (a) any text, rule or
interpretation of Hindu law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act
shall cease to apply to Hindus insofar as it is inconsistent with any of the
provisions contained in this Act.
28. Effect of transfer of property on right to maintenance Where a dependant
has a right to receive maintenance out of an estate, and such estate or any
part thereof is transferred, the right to receive maintenance may be enforced
against the transferee if the transferee has notice of the right or if the
transfer is gratuitous; but not against the transferee for consideration and
without notice of the right."
24. Section 4 provides for a non obstante clause. In terms of the said
provision itself any obligation on the part of in-laws in terms of any text,
rule or interpretation of Hindu Law or any custom or usage as part of law
before the commencement of the Act, are no longer valid. In view of the non
obstante clause contained in Section 4, the provisions of the Act alone are
applicable. Sections 18 and 19 prescribe the statutory liabilities in regard to
maintenance of wife by her husband and only on his death upon the
father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability
to maintain her daughter-in-law from her own property or otherwise.
25. In Unnamalai Ammal vs. F.W. Wilson : AIR 1921 Madras 1187 the obligation
to maintain wife by a husband has been held to be a personal obligation. This
Court in Kirtikant D. Vadodaria vs. State of Gujarat :
(1996) 4 SCC 479 has held as under :- "8. We have given serious thought
and consideration to the submissions made above by the learned counsel for the
appellant and notice that Dhayalal Hirachand, the husband of Respondent 2 Smt
Manjulaben, has been found to be a person of sufficient means and income. It is
also true that there are 5 natural born sons of Respondent 2 besides 2
daughters, who are all major. It is also a fact that Dalip one of the sons had
contested the Municipal Election and two other sons are carrying on various
businesses. According to the Law of the Land with regard to maintenance, there
is an obligation of the husband to maintain his wife which does not arise by
reason of any contract express or implied but out of jural relationship of
husband and wife consequent to the performance of marriage. Such an obligation
of the husband to maintain his wife arises irrespective of the fact whether he
has or has no property, as it is considered an imperative duty and a solemn
obligation of the husband to maintain his wife."
It was, furthermore, observed :- "Further, according to Section 20 of
Maintenance Act, 1956, a Hindu is under a legal obligation to maintain his
wife, minor sons, unmarried daughters and aged or infirm parents. The
obligation to maintain them is personal, legal and absolute in character and
arises from the very existence of the relationship between the parties. But the
question before us is whether a stepmother can claim maintenance from the
stepson under Section 125 of the Code. In other words, whether Section 125 of
the Code includes within its fold the stepmother also as one of the persons to
claim maintenance from her stepson."
26. We may notice that in Balwant Kaur vs. Chanan Singh : (2000) 6 SCC 310,
this Court reiterated the said principle in the following words :- "21.
This provision clearly indicates that if the widowed daughter-in-law is a
destitute and has no earnings of her own or other property and if she has
nothing to fall back upon for maintenance on the estate of her husband or
father or mother or from the estate of her son or daughter, if any, then she
can fall back upon the estate of her father-in-law. This provision also
indicates that in case of a widowed daughter-in-law of the family if she has no
income of her own or no estate of her husband to fall back upon for
maintenance, then she can legitimately claim maintenance from her father or
mother. On the facts of the present case, therefore, it has to be held that
Appellant 1, who was a destitute widowed daughter of the testator and who was
staying with him and was being maintained by him in his lifetime, had nothing
to fall back upon so far as her deceased husband's estate was concerned and she
had no estate of her own.
Consequently, as per Section 19(1)( a ) she could claim maintenance from the
estate of her father even during her father's lifetime. This was a pre-existing
right of the widowed daughter qua testator's estate in his own lifetime and
this right which was tried to be crystallised in the Will in her favour after
his demise fell squarely within the provisions of Section 22(2) of the
27. The Domestic Violence Act provides for a higher right in favour of a
wife. She not only acquires a right to be maintained but also thereunder
acquires a right of residence. The right of residence is a higher right. The
said right as per the legislation extends to joint properties in which the
husband has a share.
28. Interpreting the provisions of the Domestic Violence Act this Court in
S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169 held that even a wife could not
claim a right of residence in the property belonging to her mother-in-law,
"17. There is no such law in India like the British Matrimonial Homes
Act, 1967, and in any case, the rights which may be available under any law can
only be as against the husband and not against the father-in- law or
18. Here, the house in question belongs to the mother- in-law of Smt Taruna
Batra and it does not belong to her husband Amit Batra. Hence, Smt Taruna Batra
cannot claim any right to live in the said house.
19. Appellant 2, the mother-in-law of Smt Taruna Batra has stated that she
had taken a loan for acquiring the house and it is not a joint family property.
We see no reason to disbelieve this statement."
29. Reliance placed by Mr. Goel on V. Tulasamma and others vs. Sehsa Reddy
(Dead) by L.Rrs. :  3 SCR 261 is wholly misplaced. The question which
arose for consideration therein was the nature or the right, a widow acquires
in the property in which she had been in possession in lieu of maintenance.
Interpreting sub-section (1) of Section 14 of the Hindu Succession Act this
Court held that the term "possessed" should receive a wide meaning.
It is in this context this Court noticed the authorities from Sastric Hindu Law
whereupon our attention has been drawn :- "Similar observations have been
made by the learned author at p. 528 of the book which may be extracted thus:
'According to both the schools, the lawfully wedded wife acquires from the
moment of her marriage a right to the property belonging to the husband at the
time and also to any popery that may subsequently be acquired by him. so that
she becomes a co-owner of the husband, though her right is not co-equal to that
of the husband, but a subordinate one. owing to her disability founded on her
status of perpetual or life long tutelage or dependence.
This right of the wife to maintenance from her husband is not lost even if
the husband renounce Hinduism.
This right subsists even after the husband's death although her husband's
right as distinguished from hers may pass by survivorship or by succession to
sons or even to collaterals; these simply step into the position of her
husband, and she is required by Hindu law to live under their guardianship
after her husband's death.' "
30. The orders passed by the High Court which are impugned before us are,
thus, wholly unsustainable. They suffer from total non-application of mind.
31. The said orders might have been passed only on consideration that
Sonalben is a harassed lady, but the fact that the appellant is also a much
harassed lady was lost sight of. She has more sinned than sinning.
Appellant and her husband are old. They suffer from various diseases. They
have been able to show before the Court that they had to go to the United
States of America for obtaining medical treatment. They, we would assume, have
violated the conditions of grant of bail but the consequence therefore must be
kept confined to the four corners of the statutes.
32. The provisions contained in Section 82 of the Code of Criminal Procedure
were put on the statute book for certain purpose. It was enacted to secure the
presence of the accused. Once the said purpose is achieved, the attachment
shall be withdrawn. Even the property which was attached, should be restored.
The provisions of the Code of Criminal Procedure do not warrant sale of the
property despite the fact that the absconding accused had surrendered and
obtained bail. Once he surrenders before the Court and the Standing Warrants
cancelled, he is no longer an absconder. The purpose of attaching the property
comes to an end. It is to be released subject to the provisions of the Code.
Securing the attendance of an absconding accused, is a matter between the State
and the accused. Complainant should not ordinarily derive any benefit
therefrom. If the property is to be sold, it vests with the State subject to any
order passed under Section 85 of the Code. It cannot be a subject matter of
execution of a decree, far less for executing the decree of a third party, who
had no right, title or interest thereon.
33. The learned Metropolitan Magistrate had, in his order dated 5th January,
2004 wrongly asked the District Magistrate to put the said properties on
auction sale stating that to be belonging to the appellants and their son. The
Mamlatdar appears to have exceeded his jurisdiction in trying to evict the 1st
respondent. His right as a tenant could not have been affected by reason of any
order of attachment. An order of attachment of a property has nothing to do
with the right of tenancy. The terms and conditions of tenancy, being governed
by statute, the tenant cannot be evicted except in accordance with law. It is a
matter of grave concern that an independent right was also sought to be
interfered with at the instance of Sonalben
34. Right to object in terms of Section 84 of the Code to which reliance has
been placed by Mr. Mayur Shah, could not have been invoked by the wife as she
has no independent claim over the property. The said provisions also could not
have been invoked for the purpose of execution of a decree.
35. It is in the aforementioned context that we may now consider the
impugned judgment of the High Court directing cancellation of bail of the
36. The fact that they have surrendered is not in dispute. They are of old
age as also the fact that they have been suffering from various diseases has
also not been disputed.
37. The contention of Sonalben that the passports had not been deposited,
appears to be wholly incorrect. Ajitbhai Revandas Patel was the holder of U.S.
Passport. The same having expired another Passport bearing No.
217921248 was issued. It is that passport which was deposited. This is the
current Passport. Allegations that they are having other passports and may
leave the country appears to be wholly without any basis. They have been
attending the courts. The observation made by the Metropolitan Magistrate that
they had not come of their own is unfortunate. Nobody wants to come to court of
law and that too as an accused, of his own.
38. The High Court committed a manifest illegality in directing cancellation
of bail in so far as it failed to take into consideration that the factors
relevant for setting aside an order granting bail and directing cancellation of
bail are wholly distinct and different. An application for cancellation of bail
must be premised on the factors envisaged under sub- section (2) of Section 439
of the Code of Criminal procedure. The learned Metropolitan Magistrate in
passing the order dated 27th June, 2006 while granting bail took into
consideration all the relevant factors. He imposed a fine on them. Even the passports
had been surrendered. Application for cancellation of bail was filed on a
mis-statement that the passports had not been surrendered. Various contentions,
as noticed hereinbefore, in regard to purported suffering of the wife appears
to have been taken into consideration which were wholly irrelevant. We have
noticed hereinbefore that such contentions have also been raised before us not
on the basis that there exists and legal principle behind the same but as an
argument of desperation.
39. In Gurcharan Singh and others vs. State (Delhi Adminsitration) :
1978 (2) SCR 358 this Court held :
"24. Section 439(1) Cr. P.C. of the new Code, on the other hand,
confers special powers on the High Court or the Court of Session in respect of
bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1),
Cr. P.C. against granting of bail by the High Court or the Court of Session to
persons accused of an offence punishable with death or imprisonment for life.
It is, however, legitimate to suppose that the High Court or the Court of
Session will be approached by an accused only after he has failed before the
Magistrate and after the investigation has progressed throwing light on the
evidence and circumstances implicating the accused.
Even so, the High Court or the Court of Session will have to exercise its
judicial discretion in considering the question of granting of bail under
Section 439(1) Cr. P.C of the new Code. The overriding considerations in
granting bail to which we adverted to earlier and which are common both in the
case of Section 437(1) and Section 439(1) Cr. P.C. of the new Code are the
nature and gravity of the circumstances in which the offence is committed; the
position and the status of the accused with reference to the victim and the witnesses;
the likelihood, of the accused fleeing from justice; of repeating the offence;
of jeopardising his own life being faced with a grim prospect of possible
conviction in the case; of tampering with witnesses; the history of the case as
well as of its investigation and other relevant grounds which, in view of so
many valuable factors, cannot be exhaustively set out.
25. The question of cancellation of bail under Section 439(2) Cr. P.C. of
the new Code is certainly different from admission to bail under Section 439(1)
Cr. P.C. The decisions of the various High Courts cited before us are mainly
with regard to the admission to bail by the High Court under Section 498 Cr.
P.C. (old). Power of the High Court or of the Sessions Judge to admit persons
to bail under Section 498 Cr. P.C. (old) was always held to be wide without any
express limitations in law. In considering the question of b ail justice to
both sides governs the judicious exercise of the Court's judicial
[See also Bhagirath Singh s/o. Mahipat Singh Judeja vs. State of Gujarat :
 1 SCR 839 and Jayendra Saraswathi Swamigal vs. State of Tamilnadu : 2005
(2) SCC 13].
40. We may notice that recently a Bench of this Court considered the
consequence of issuance of warrant of arrest at some length in Inder Mohan
Goswami and another vs. State of Uttaranchal and others : (2007) 12 SCALE 15.
It was held :- "26. Before parting with this appeal, we would like to
discuss an issue which is of great public importance, i.e.
how and when warrants should be issued by the Court? It has come to our
notice that in many cases that bailable and non-bailable warrants are issued
casually and mechanically. In the instant case, the court without properly
comprehending the nature of controversy involed and without exhausting the
available remedies issued non-bailable warrants. The trial court disregard the
settled legal position clearly enumerated in the following two cases."
It was furthermore observed "51. In complaint cases, at the first
instance, the court should direct serving of the summons along with the copy of
the complaint. If the accused seem to be avoiding the summons, the court, in
the second instance should issue bailable- warrant. In the third instance, when
the court is fully satisfied that the accused is avoiding the court's
proceeding intentionally, the process of issuance of the non-bailable warrant
should be resorted to.
Personal liberty is paramount, therefore, we caution courts at the first and
second instance to refrain from issuing non-bailable warrants."
41. Keeping in view the entirety of the facts and circumstances of the case
we are of the opinion that gross injustice has been caused to the appellant.
She did not deserve such harsh treatments at the hands of the High Court.
Respondent No.3 speaks of her own human rights, forgetting the human rights
of the appellant, far less the funadamental right of life and liberty conferred
on an accused in terms of Article 21 of the Constitution of India.
42. The right of property is no longer a fundamental right. But still it is
a constitutional right. Apart from constitutional right it is also a human
The procedures laid down for deprivation thereof must be scrupulously
complied with [See-Devinder Singh and Ors. vs. State of Punjab and Ors. :
JT 2007 (12) SC 256].
43. Last but not the least, a plea of equity has been raised by Mr. Shah
stating that this Court should issue some directions keeping in view the
equitable principles. Reliance has been placed on Chandra Bansi Singh vs.
State of Bihar : (1984) 4 SCC 316, wherein it was observed :- "16. On
an analysis of the various steps taken by the parties and others in the taking
of possession, there is undoubtedly a delay of about 1 years and for the
purpose of calculation and convenience when rounded off, the delay may be taken
to be of two years. So far as this delay is concerned, the appellants have
undoubtedly a case for payment of some additional compensation in equity though
not under law and as this Court is not only a Court of law but a Court of
equity as well, it will be impossible for us to deny this relief to the
After taking into consideration the various shades and aspects of the case
we are clearly of the opinion that apart from compensation which may be awarded
by the Collector or enhanced by the Judge or a higher Court, the appellants
should get an equitable compensation in the form of interest calculated at the
rate of 7 per cent per annum for two years on the value of land owned by each
land-owner. This equitable compensation has been awarded in the special facts
of this case and will not be the subject-matter of appeal, if any, under the
Act on the amount of compensation. "
44. The said case arose out of a proceeding under the Land Acquisition Act
which has no relevance to the issues involved in these appeals.
45. On cancellation of bail Mr. Shah has relied upon a decision of this
Court in Raghubir Singh vs. State of Biahr: (1986) 4 SCC 481 wherein this Court
observed :- "22. The result of our discussion and the case-law is this:
An order for release on bail made under the proviso to Section 167(2) is not
defeated by lapse of time, the filing of the charge-sheet or by remand to
custody under Section 309(2). The order for release on bail may however be
cancelled under Section 437(5) or Section 439(2). Generally 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
course of justice, or abuse of the liberty granted to him. The due
administration of justice may be interfered with by intimidating or suborning
witnesses, by interfering with investigation, by creating or causing
disappearance of evidence etc. The course of justice may be evaded or attempted
to be evaded by leaving the country or going underground or otherwise placing
himself beyond the reach of the sureties. He may abuse the liberty granted to
him by indulging in similar or other unlawful acts. Where bail has been granted
under the proviso to Section 167(2) for the default of the prosecution in not
completing the investigation in 60 days, after the defect is cured by the
filing of a charge- sheet, the prosecution may seek to have the bail cancelled
on the ground that there are reasonable grounds to believe that the accused has
committed a non-bailable offence and that it is necessary to arrest him and
commit him to custody. In the last mentioned case, one would expect very strong
grounds indeed. "
46. A bare perusal of the decision of this Court demonstrates that the ratio
laid therein runs counter to the submissions of the learned counsel.
47. Reliance has also been placed on I.J. Divakar and others vs. Govt. of
Andhra Pradesh and another : (1982) 3 SCC 341. The said decision was rendered
under the Industrial Law.
Regularization was directed to be provided to the workmen. A Constitution
Bench of this Court in Secretary, State of Karnataka and others vs. Umadevi and
others : (2006) 4 SCC 1 opined that all such decisions shall stand overruled.
Sympathy or sentiment, as is well known, should not allow the Court to have
any effect in its decision making process. Sympathy or sentiment can be invoked
only in favour a person who is entitled thereto. It should never be taken into
consideration as a result whereof the other side would suffer civil or evil
48. We are at a loss to understand as to on what premise such a contention
has been raised. If we accept the contention of the learned counsel the same
would mean that we send the old couple to jail or deprive them of their lawful
right of a valuable property and/or ask them to meet obligations which
statutorily are not theirs. Such a direction, in our opinion, should also not
be passed, keeping in view the conduct of the 3rd respondent. She not only
filed a large number of cases against her in-laws, some of which have been
dismissed for default or withdrawn but also have been filing applications for
cancellation of their bail on wholly wrong premise.
49. We may also notice that after the arguments were over, a strange
submission was made before us. Learned counsel for respondent No.3 submitted
that he may be permitted to withdraw from the case and the 3rd respondent be
allowed to argue in person. Such a submission was not expected from a counsel
practicing in this Court or form a party, who herself is an Advocate. We
deprecate such practice.
50. Having regard to the facts and circumstances of this Court we are of the
opinion that the interest of justice shall be subserved if the impugned
judgments are set aside with the following directions :- i) The property in
question shall be released from attachment.
The 3rd respondent shall refund the sum of Rs. 1 lakhs to the respondent
with interest @ 6% per annum.
The amount of Rs. 4 lakhs deposited by the 1st respondent shall be
refunded to him immediately with interest accrued thereon.
The 3rd respondent should be entitled
to pursue her remedies against her husband in accordance with law.
The Learned Magistrate before whom
the cases filed by the 3d respondent are pending should bestow serious
consideration of disposing of the same, as expeditiously as possible.
The 3rd respondent shall bear the
costs of the appellant which is quantified at Rs.50,000/- (Rupees fifty
51. The appeals are allowed with the aforesaid directions.
I.A. for direction Dismissed.