Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1972 of 2022
(Arising out of SLP(Crl.) No.9508/2022]
BHURI BAI Appellant(s)
VERSUS
THE STATE OF MADHYA PRADESH Respondent(s)
JUDGMENT
Dinesh Maheshwari,J.
Leave granted.
2. This appeal is directed against the judgment and
order dated 10.02.2022, as passed by the High Court of
Madhya Pradesh at Gwalior Bench in M.Cr.C. No. 46653/2021,
that was registered under Section 439(2) of the Code of
Criminal Procedure, 1973 (‘CrPC’), for suo motu powers
exercised by the High Court in its order dated 07.09.2021
passed in M.Cr.C. No. 41406/2021.
3. By the order impugned, the High Court has proceeded
to cancel the bail granted to the appellant by the First
Additional Sessions Judge, Jaura, District Morena, in the
order dated 05.08.2021, as passed in Bail Application No.
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2022.11.12
20:35:15 IST
Reason:
357/2021.
4. Briefly put, the relevant background aspects of the
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matter are as follows:
The appellant is one of the accused persons in the
case arising from FIR No. 96/2020 for offences under
Sections 304B, 498A read with Section 34 of the Indian
Penal Code, 1860 (‘IPC’) and Sections 3/4 of the Dowry
Prohibition Act, 1961. The accusations have been that the
deceased, who was married to the son of the appellant, was
being subjected to physical and mental tortures for demand
of dowry after the marriage and ultimately, on 11.09.2020,
she died by hanging under unusual circumstances; and a
suicide note in the handwriting of the deceased was found,
implicating her husband and in-laws, including the present
appellant–the mother-in-law.
5. The prayer of the appellant for grant of pre-arrest
bail was rejected by the Sessions Court on 18.10.2020.
However, thereafter, the High Court granted pre-arrest bail
to the sister-in-law of the deceased on 02.11.2020 and
then, the Trial Court granted pre-arrest bail to the
brother-in-law of the deceased on 18.11.2020. It is also
noticed that on behalf of the appellant, twice over
attempts were again made to seek pre-arrest bail but the
applications moved in that regard, being M.Cr.C. No.
48592/2020 and M.Cr.C. No. 7199/2021, were dismissed as
withdrawn, respectively on 11.12.2020 and 16.02.2021.
Ultimately, the charge-sheet was filed on 13.12.2020. Until
that time, the appellant was not apprehended and it was
mentioned in the charge-sheet that she was absconding.
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6. In relation to this case, husband of the appellant
was also arrested, who was granted regular bail on
23.11.2020. However, the appellant surrendered only on
16.07.2021; and a supplementary chargesheet was also filed
on 02.08.2021.
7. Thereafter, the regular bail application (No.
357/2021) moved on behalf of the appellant was considered
by the First Additional Sessions Judge, Jaura, District
Morena and was allowed on 05.08.2021, essentially with
reference to the facts pertaining to the grant of pre-
arrest bail to two of the co-accused persons and regular
bail to the other co-accused–husband of the appellant.
8. When the record stood thus, with grant of bail to the
co-accused persons including the appellant, the son of the
appellant (husband of the deceased) moved a second
application for bail before the High Court, being M.Cr.C.
No. 41406/2021. The said application was considered by the
High Court on 07.09.2021 and one of the submissions made
before the High Court had been that the previous bail
application of the said accused was rejected on the ground
that his mother (the present appellant) was absconding. It
was sought to be contended on behalf of the said appellant
that his mother had surrendered on 16.07.2021 and was
granted bail by the aforesaid order dated 05.08.2021.
9. The High Court proceeded to examine the said order
dated 05.08.2021 and took exception against the same, for
the reason that the Trial Court had not adverted to a
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relevant fact that the present appellant was absconding and
was arrested only on 16.07.2021. Though, with reference to
the nature of accusations, the High Court proceeded to
reject the bail plea of the son of the appellant (husband
of the deceased) but at the same time, ordered a separate
case to be registered while issuing notice to the present
appellant to show-cause as to why the bail order dated
05.08.2021 be not recalled. Hence, the said suo motu case
bearing No. 46653/2021 came to be registered and finally
came to be decided by the impugned order dated 10.02.2022.
10. In the impugned order dated 10.02.2022, the High
Court took note of the allegations and the fact that the
appellant was arrested only on 16.07.2021 i.e.,
approximately ten months after the death of the deceased
and seven months after filing of the charge-sheet against
co-accused persons; and in fact, she surrendered only after
her husband was granted bail. A submission was made before
the High Court on behalf of the appellant that all the
members of the family were either on run or were in jail
and it was left to the appellant to look after the minor
child of the deceased and, therefore, she surrendered only
after her husband was released, when she could hand over
the child to him. The High Court was not impressed with
this submission for the reason that no such fact was
mentioned in the application seeking bail, as filed before
the Sessions Court.
11. The High Court, in the impugned order, also took note
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of the fact that its directions for ensuring service of
notice were not adequately complied with and then, even the
requisite explanation was not forthcoming and hence, the
Director General of Police was required to file his
affidavit of explanation. The High Court reproduced all
the contents of the affidavit filed by the Director General
of Police as regards the steps taken in the matter and
other corrective steps being taken on the administrative
side.
12. Having taken note of the assurance stated by the
learned Advocate General in the matter for taking
corrective steps in the department, the High Court reverted
to the facts of the present case and referred to a decision
of this Court in the case of Manoj Kumar Khokhar v. State
of Rajasthan (Criminal Appeal No.36/2022) as regards the
parameters in exercise of power for granting bail. Having
reproduced a few passages from the said decision, the High
Court stated its conclusion that in the light of the said
judgment, the bail granted to the present appellant could
not be given a stamp of judicial approval. Thus, the High
Court proceeded to set aside the order dated 05.08.2021 and
thereby, cancelled the bail granted to the appellant.
13. In challenge to the order so passed by the High
Court, learned counsel for the appellant has argued that
the High Court has taken a too stern a view of the matter
but has not considered that there was no question of the
appellant absconding or running away from the process of
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law, which could be seen from the facts that successively,
the applications seeking pre-arrest bail were moved on her
behalf. It has also been submitted that the appellant could
not surrender earlier under the force of circumstances when
the other members of the family were either in custody or
were on run and that the appellant was the only responsible
person to look after the minor child left by the deceased;
and all this was coupled with the adversities created by
Covid-19 pandemic. Learned counsel would submit that in
the given circumstances, the appellant surrendered before
the Court after her husband was granted bail and in the
distressed condition of the family, her omission to
surrender earlier could not have been regarded as an act of
absconsion. Learned counsel would also submit that in the
circumstances of the case, even the allegations pertaining
to the offences under Section 304B IPC are wanting in
support by cogent material and in any case, when the Trial
Court had granted bail to the appellant, being elderly lady
in 55 years of age and when other accused persons, except
the husband of the deceased, had also been granted such
concession, there was no justification for cancelling the
bail already granted.
14. Learned counsel appearing for the respondent–State
has duly opposed with the submissions that the Sessions
Court had been unjustified in granting bail to the
appellant, and in the given set of circumstances, when the
appellant was not traceable even until filing of the first
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charge-sheet on 13.12.2020, the view as taken by the High
Court cannot be said to be wholly unjustified so as to call
for interference, more particularly looking into the nature
of accusations. It has been submitted that the Trial Court
had granted bail to the appellant in a rather mechanical
manner without considering the material on record and,
therefore, the High Court has been justified in
disapproving the order so passed by the Trial Court.
15. We have given anxious consideration to the rival
submissions and have examined the material placed on record
with reference to the law applicable.
16. In this matter, where daughter-in-law of the
appellant died by committing suicide and with reference to
the material on record, charge-sheet for serious offence
including Section 304B IPC has been filed, unavailability
of the appellant to all the processes of law until
16.07.2021 (the date of surrender/arrest) cannot be
appreciated. However, in the peculiar circumstances of the
case, particularly for the fact that the deceased left a
minor child and none except the appellant was available in
the family to look after the child, it is equally difficult
to say that the appellant has been an absconder or a
fugitive who had been intentionally running away from the
process of law. The challenge thrown at the relevant time
by Covid-19 pandemic also remains a factor which cannot be
ignored altogether. Further, the fact that the appellant is
a lady in 55 years of age cannot be ignored, particularly
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when examining the question of grant of regular bail.
17. The order dated 05.08.2021 as passed by the learned
First Additional Sessions Judge, Jaura, District Morena,
though had not been explicit on all the surrounding factors
but then, the facts were indeed taken into consideration
that two of the co-accused were granted pre-arrest bail
whereas the other co-accused person, husband of the
appellant, was granted regular bail. In the given set of
facts and circumstances, if the Trial Court was satisfied
that the appellant was entitled to be given the concession
of bail while putting her to specific terms and conditions,
the order so passed had neither been suffering from any
fundamental error nor there was any other material factor
for which the bail granted to the appellant was to be
annulled.
18. In our view, even if the High Court had its
reservations in the order so passed by the Trial Court
granting bail to the appellant, particularly when the fact
of long absence of the appellant was not adverted to, it
was yet required to be taken note of by the High Court that
the power being exercised was not that of a regular appeal
or revision but, it was that of cancellation of bail under
Section 439(2) CrPC.
19. It remains trite that normally, very cogent and
overwhelming circumstances or grounds are required to
cancel the bail already granted. Ordinarily, unless a
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strong case based on any supervening event is made out, an
order granting bail is not to be lightly interfered with
under Section 439(2) CrPC.
20. It had not been the case of the prosecution that the
appellant had misused the liberty or had comported herself
in any manner in violation of the conditions imposed on
her. We are impelled to observe that power of cancellation
of bail should be exercised with extreme care and
circumspection; and such cancellation cannot be ordered
merely for any perceived indiscipline on the part of the
accused before granting bail. In other words, the powers of
cancellation of bail cannot be approached as if of
disciplinary proceedings against the accused and in fact,
in a case where bail has already been granted, its
upsetting under Section 439(2) CrPC is envisaged only in
such cases where the liberty of the accused is going to be
counteracting the requirements of a proper trial of the
criminal case. In the matter of the present nature, in our
view, over-expansion of the issue was not required only for
one reason that a particular factor was not stated by the
Trial Court in its order granting bail.
21. In totality of the circumstances, we are unable to
approve the order impugned setting aside the bail granted
to the appellant.
22. Accordingly, and in view of the above, this appeal
succeeds and is allowed; the impugned order dated
10.02.2022 as passed by the High Court is set aside and the
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order dated 05.08.2021 as passed by the First Additional
Sessions Judge, Jaura, District Morena is restored.
23. It goes without saying that this order shall have no
bearing on the merit consideration of the matter by the
Trial Court.
24. All pending applications stand disposed of.
……………………………………………J.
[DINESH MAHESHWARI]
……………………………………………J.
[SUDHANSHU DHULIA]
New Delhi;
November 11, 2022.
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ITEM NO.44 COURT NO.7 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 9508/2022
(Arising out of impugned final judgment and order dated 10-02-2022
in MCRC No. 46653/2021 passed by the High Court Of M.P At Gwalior)
BHURI BAI Petitioner(s)
VERSUS
THE STATE OF MADHYA PRADESH Respondent(s)
( IA No. 140850/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT and IA No. 140845/2022 - EXEMPTION FROM FILING O.T.)
Date : 11-11-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE SUDHANSHU DHULIA
For Petitioner(s) Mr. Shishir Kumar Saxena, Adv.
Mr. Praveen Swarup, AOR
For Respondent(s) Mr. Yashraj Singh Bundela, Adv.
Mr. Rajesh K. Singh, Adv.
Mr. Gopal Jha, AOR
Mr. Umesh Kumar Yadav, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed reportable
judgment.
Pending applications stand disposed of.
(MEENAKSHI KOHLI) (RANJANA SHAILEY)
ASTT. REGISTRAR-cum-PS COURT MASTER
[Signed reportable judgment is placed on the file]
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