BHURI BAI versus THE STATE OF MADHYA PRADESH on 11 November 2022

190

[2022] 10 S.C.R. 190

SUPREME COURT REPORTS

[2022] 10 S.C.R.

BHURI BAI

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v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal No.1972 of 2022)

BNOVEMBER 11, 2022

[DINESH MAHESHWARI AND SUDHANSHU DHULIA, JJ.]

Code of Criminal Procedure, 1973: s. 439(2) – Cancellationof bail – Power of – Held: Power of cancellation of bail should beexercised with extreme care and circumspection – Such cancellationCcannot be ordered merely for any perceived indiscipline on the partof the accused before granting bail – Very cogent and overwhelmingcircumstances or grounds are required to cancel the bail alreadygranted – Unless a strong case based on any supervening event ismade out, an order granting bail is not to be lightly interfered withD– Cancellation is envisaged only in such cases where the liberty ofthe accused is going to be counteracting the requirements of a propertrial of the criminal case – On facts, it had not been the case of theprosecution that the appellant had misused the liberty or hadcomported herself in any manner in violation of the conditionsimposed on her, thus, the order setting aside the bail granted to theEappellant cannot be approved, and is set aside.

Allowing the appeal, the Court

HELD: 1.1 In the peculiar circumstances of the case,particularly for the fact that the deceased left a minor child andFnone except the appellant was available in the family to look afterthe child, it is equally difficult to say that the appellant has beenan absconder or a fugitive who had been intentionally runningaway from the process of law. The challenge thrown at the relevanttime by Covid-19 pandemic also remains a factor which cannotbe ignored altogether. Further, the fact that the appellant is aGlady in 55 years of age cannot be ignored. [Para 16][196-B-C]

1.2 The order passed by the First Additional Sessions Judge,though had not been explicit on all the surrounding factors butthen, the facts were indeed taken into consideration that two of H

the co-accused were granted pre-arrest bail whereas the otherco-accused person, husband of the appellant, was granted regularbail. In the given set of facts and circumstances, if the trial courtwas satisfied that the appellant was entitled to be given theconcession of bail while putting her to specific terms andconditions, the order so passed had neither been suffering fromany fundamental error nor there was any other material factor forwhich the bail granted to the appellant was to be annulled. Evenif the High Court had its reservations in the order so passed bythe trial court granting bail to the appellant, particularly whenthe fact of long absence of the appellant was not adverted to, itwas yet required to be taken note of by the High Court that thepower being exercised was not that of a regular appeal or revisionbut, it was that of cancellation of bail under Section 439(2) CrPC.[Para 17, 18][196-D-G]

1.3 It remains trite that normally, very cogent andoverwhelming circumstances or grounds are required to cancelthe bail already granted. Ordinarily, unless a strong case basedon any supervening event is made out, an order granting bail isnot to be lightly interfered with under Section 439(2) CrPC. [Para19][196-G-H]

1.4 It had not been the case of the prosecution that theappellant had misused the liberty or had comported herself inany manner in violation of the conditions imposed on her. Powerof cancellation of bail should be exercised with extreme care andcircumspection; and such cancellation cannot be ordered merelyfor any perceived indiscipline on the part of the accused beforegranting bail. In other words, the powers of cancellation of bailcannot be approached as if of disciplinary proceedings againstthe accused and in fact, in a case where bail has already beengranted, its upsetting under Section 439(2) CrPC is envisagedonly in such cases where the liberty of the accused is going to becounteracting the requirements of a proper trial of the criminalcase. In the matter of the present nature, over-expansion of theissue was not required only for one reason that a particular factorwas not stated by the trial court in its order granting bail. Thus,in totality of the circumstances, the order impugned setting asidethe bail granted to the appellant cannot be approved. The ABC

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Aimpugned order passed by the High Court is set aside and theorder passed by the First Additional Sessions Judge is restored.[Para 20-22][196-H; 197-A-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1972 of 2022.

B

From the Judgment and Order dated 10.02.2022 of the High Courtof Madhya Pradesh Bench at Gwalior (M.P.) in MCRC No. 46653/2021.

Shishir Kumar Saxena, Praveen Swarup, Advs. for the Appellant.

CYashraj Singh Bundela, Rajesh K. Singh, Gopal Jha, Umesh KumarYadav, Advs. for the Respondent.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Leave granted.D

2. This appeal is directed against the judgment and order dated10.02.2022, as passed by the High Court of Madhya Pradesh at GwaliorBench in M.Cr.C. No. 46653/2021, that was registered under Section439(2) of the Code of Criminal Procedure, 1973 (‘CrPC’), for suo motupowers exercised by the High Court in its order dated 07.09.2021 passedEin M.Cr.C. No. 41406/2021.

3. By the order impugned, the High Court has proceeded to cancelthe bail granted to the appellant by the First Additional Sessions Judge,Jaura, District Morena, in the order dated 05.08.2021, as passed in BailApplication No. 357/2021.F4. Briefly put, the relevant background aspects of the matter areas follows:

The appellant is one of the accused persons in the case arisingfrom FIR No. 96/2020 for offences under Sections 304B, 498A readGwith Section 34 of the Indian Penal Code, 1860 (‘IPC’) and Sections3/4 of the Dowry Prohibition Act, 1961. The accusations have been thatthe deceased, who was married to the son of the appellant, was beingsubjected to physical and mental tortures for demand of dowry after themarriage and ultimately, on 11.09.2020, she died by hanging under unusualcircumstances; and a suicide note in the handwriting of the deceased H

was found, implicating her husband and in-laws, including the presentappellant–the mother-in-law.

5. The prayer of the appellant for grant of pre-arrest bail wasrejected by the Sessions Court on 18.10.2020. However, thereafter, theHigh Court granted pre-arrest bail to the sister-in-law of the deceasedon 02.11.2020 and then, the Trial Court granted pre-arrest bail to thebrother-in-law of the deceased on 18.11.2020. It is also noticed that onbehalf of the appellant, twice over attempts were again made to seekpre-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 aswithdrawn, respectively on 11.12.2020 and 16.02.2021. Ultimately, thecharge-sheet was filed on 13.12.2020. Until that time, the appellant wasnot apprehended and it was mentioned in the charge-sheet that she wasabsconding.

6. In relation to this case, husband of the appellant was alsoarrested, who was granted regular bail on 23.11.2020. However, theappellant surrendered only on 16.07.2021; and a supplementarychargesheet was also filed on 02.08.2021.

7. Thereafter, the regular bail application (No. 357/2021) movedon behalf of the appellant was considered by the First Additional SessionsJudge, Jaura, District Morena and was allowed on 05.08.2021, essentiallywith reference to the facts pertaining to the grant of pre- arrest bail totwo 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-accusedpersons including the appellant, the son of the appellant (husband of thedeceased) moved a second application for bail before the High Court,being M.Cr.C. No. 41406/2021. The said application was considered bythe High Court on 07.09.2021 and one of the submissions made beforethe High Court had been that the previous bail application of the saidaccused was rejected on the ground that his mother (the present appellant)was absconding. It was sought to be contended on behalf of the saidappellant that his mother had surrendered on 16.07.2021 and was grantedbail by the aforesaid order dated 05.08.2021.

9. The High Court proceeded to examine the said order dated05.08.2021 and took exception against the same, for the reason that theTrial Court had not adverted to a relevant fact that the present appellant A

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Awas absconding and was arrested only on 16.07.2021. Though, withreference to the nature of accusations, the High Court proceeded toreject 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 whileissuing notice to the present appellant to show-cause as to why the bailorder dated 05.08.2021 be not recalled. Hence, the said suo motu caseBbearing No. 46653/2021 came to be registered and finally came to bedecided by the impugned order dated 10.02.2022.

10. In the impugned order dated 10.02.2022, the High Court tooknote of the allegations and the fact that the appellant was arrested onlyon 16.07.2021 i.e., approximately ten months after the death of theCdeceased and seven months after filing of the charge-sheet against co-accused persons; and in fact, she surrendered only after her husbandwas granted bail. A submission was made before the High Court onbehalf of the appellant that all the members of the family were either onrun or were in jail and it was left to the appellant to look after the minorDchild of the deceased and, therefore, she surrendered only after herhusband was released, when she could hand over the child to him. TheHigh Court was not impressed with this submission for the reason thatno such fact was mentioned in the application seeking bail, as filed beforethe Sessions Court.E11. The High Court, in the impugned order, also took note of thefact that its directions for ensuring service of notice were not adequatelycomplied with and then, even the requisite explanation was not forthcomingand hence, the Director General of Police was required to file his affidavitof explanation. The High Court reproduced all the contents of the affidavitfiled by the Director General of Police as regards the steps taken in theFmatter and other corrective steps being taken on the administrative side.

12. Having taken note of the assurance stated by the learnedAdvocate General in the matter for taking corrective steps in thedepartment, the High Court reverted to the facts of the present case andreferred to a decision of this Court in the case of Manoj Kumar KhokharGv. State of Rajasthan (Criminal Appeal No.36/2022) as regards theparameters in exercise of power for granting bail. Having reproduced afew passages from the said decision, the High Court stated its conclusionthat in the light of the said judgment, the bail granted to the presentappellant could not be given a stamp of judicial approval. Thus, the High H

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, learnedcounsel for the appellant has argued that the High Court has taken a toostern a view of the matter but has not considered that there was noquestion of the appellant absconding or running away from the processof law, which could be seen from the facts that successively, theapplications seeking pre-arrest bail were moved on her behalf. It hasalso been submitted that the appellant could not surrender earlier underthe force of circumstances when the other members of the family wereeither in custody or were on run and that the appellant was the onlyresponsible person to look after the minor child left by the deceased; andall this was coupled with the adversities created by Covid-19 pandemic.Learned counsel would submit that in the given circumstances, theappellant surrendered before the Court after her husband was grantedbail and in the distressed condition of the family, her omission to surrenderearlier could not have been regarded as an act of absconsion. Learnedcounsel would also submit that in the circumstances of the case, eventhe allegations pertaining to the offences under Section 304B IPC arewanting in support by cogent material and in any case, when the TrialCourt had granted bail to the appellant, being elderly lady in 55 years ofage and when other accused persons, except the husband of the deceased,had also been granted such concession, there was no justification forcancelling the bail already granted.

14. Learned counsel appearing for the respondent–State has dulyopposed with the submissions that the Sessions Court had been unjustifiedin granting bail to the appellant, and in the given set of circumstances,when the appellant was not traceable even until filing of the first charge-sheet on 13.12.2020, the view as taken by the High Court cannot be saidto be wholly unjustified so as to call for interference, more particularlylooking into the nature of accusations. It has been submitted that theTrial Court had granted bail to the appellant in a rather mechanical mannerwithout considering the material on record and, therefore, the High Courthas been justified in disapproving the order so passed by the Trial Court.

15. We have given anxious consideration to the rival submissionsand have examined the material placed on record with reference to thelaw applicable.

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A16. In this matter, where daughter-in-law of the appellant died bycommitting 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 thepeculiar circumstances of the case, particularly for the fact that theBdeceased left a minor child and none except the appellant was availablein the family to look after the child, it is equally difficult to say that theappellant has been an absconder or a fugitive who had been intentionallyrunning away from the process of law. The challenge thrown at therelevant time by Covid-19 pandemic also remains a factor which cannotCbe ignored altogether. Further, the fact that the appellant is a lady in 55years of age cannot be ignored, particularly when examining the questionof grant of regular bail.

17. The order dated 05.08.2021 as passed by the learned FirstAdditional Sessions Judge, Jaura, District Morena, though had not beenDexplicit on all the surrounding factors but then, the facts were indeedtaken 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, ifthe Trial Court was satisfied that the appellant was entitled to be giventhe concession of bail while putting her to specific terms and conditions,Ethe order so passed had neither been suffering from any fundamentalerror nor there was any other material factor for which the bail grantedto the appellant was to be annulled.

18. In our view, even if the High Court had its reservations in theorder so passed by the Trial Court granting bail to the appellant, particularlyFwhen the fact of long absence of the appellant was not adverted to, itwas yet required to be taken note of by the High Court that the powerbeing exercised was not that of a regular appeal or revision but, it wasthat of cancellation of bail under Section 439(2) CrPC.

19. It remains trite that normally, very cogent and overwhelmingGcircumstances or grounds are required to cancel the bail already granted.Ordinarily, unless a strong case based on any supervening event is madeout, an order granting bail is not to be lightly interfered with under Section439(2) CrPC.

20. It had not been the case of the prosecution that the appellantHhad misused the liberty or had comported herself in any manner in violation

of the conditions imposed on her. We are impelled to observe that powerof cancellation of bail should be exercised with extreme care andcircumspection; and such cancellation cannot be ordered merely for anyperceived indiscipline on the part of the accused before granting bail. Inother words, the powers of cancellation of bail cannot be approached asif of disciplinary proceedings against the accused and in fact, in a casewhere bail has already been granted, its upsetting under Section 439(2)CrPC is envisaged only in such cases where the liberty of the accused isgoing to be counteracting the requirements of a proper trial of the criminalcase. In the matter of the present nature, in our view, over-expansion ofthe issue was not required only for one reason that a particular factorwas not stated by the Trial Court in its order granting bail.

21. In totality of the circumstances, we are unable to approve theorder impugned setting aside the bail granted to the appellant.

22. Accordingly, and in view of the above, this appeal succeedsand is allowed; the impugned order dated 10.02.2022 as passed by theHigh Court is set aside and the order dated 05.08.2021 as passed by theFirst Additional Sessions Judge, Jaura, District Morena is restored.

23. It goes without saying that this order shall have no bearing onthe merit consideration of the matter by the Trial Court.

24. All pending applications stand disposed of.

Nidhi Jain

Appeal allowed.

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