2009 ALL MR (Cri) JOURNAL 359
(ALLAHABAD HIGH COURT)

SHIV CHARAN, J.

Sumant Kumar Rathi Vs. State Of U.P. & Anr.

Crl. M. B. Cancellation Appln. No.5914 of 2007

25th November, 2008

Petitioner Counsel: D. K. DEWAN
Respondent Counsel: DHARMENRA SINGHAL

Criminal P.C. (1973), S.439(2) - Cancellation of bail - Wife of accused was fired at in the house of in-law, six months after her marriage - She was harassed for not bringing sufficient dowry and after a quarrel with her mother-in-law in the morning her husband allegedly opened fire on her at 10.00 a.m. when she was in the bath room - She received bullet injuries on the spine and became permanently handicapped - Sessions Judge without considering statement of injured wife recorded under S.161, Cr.P.C., prosecution case and seriousness of the offence relied on defence story of suicide by mentally depressed wife and huge amount spent on medical treatment to her, granted bail - Held, bail having been granted on irrelevant and inadmissible evidence ought to be cancelled. 2008 ALL MR (Cri) 1988 (S.C) - Foll. (Paras 13, 14)

Cases Cited:
Manjit Prakash Vs. Shobha Devi, 2008 ALL MR (Cri) 2605 (S.C.)=ACC 2008(62) 666 [Para 7]
Satish Jaggi Vs. State of Chhattisgarh, 2007 ALL SCR 1438=ACC 2007(58) 1059 [Para 10]
Satish Jaggi Vs. State of Chhattisgarh, 2007 ALL MR (Cri) 828 (S.C.)=ACC 2007(58) 1059 [Para 10]
Dinesh M. N. (S.P.) Vs. State of Gujarat, 2008 ALL MR (Cri) 1988 (S.C.)=2008 Crl.L.J. 3008 [Para 12]


JUDGMENT

JUDGMENT :- The instant application has been moved for cancellation of bail granted by learned Sessions Judge, Hathras to Opp. party No.2 Rohit Jakhetia on 15-12-2006 in Crime No.446 of 2006 u/Ss.498-A, 307 and 406, IPC and Section 3/4 D.P. Act P. S. Sikandra Rau District Hathras.

Perusal of the record shows that complainant Sumant Kumar Rathi lodged FIR on 1-10-2006 with the allegations that marriage of his daughter, namely Sachi was solemnized with Rohit Jakhetia according to Hindu rites on 15-2-2006. And that the dowry was delivered according to his capacity and capability to O.P. No.2 and his parents. But they were not satisfied with the dowry and then he started harassing Sachi for non-fulfillment of demand of dowry. Even after one month of the marriage Rohit Jakhetia thrashed her for not fulfillment of demand of dowry and the mother-in-law used to state that her parents did not deliver a four wheel vehicle in the marriage and hence the O.P. No.2 and his other relation subjected her to cruelty for non fulfillment of demand of dowry. They wanted to get rid off of her by declaring her as mad and of unsound mind. Efforts were made for reconciliation by the complainant but their cruelty continued. On 31-8-2006 the complainant tried to bring Sachi at his house for some time but O.P. No.2 and his relation did not agree to it and assured that Sachi will properly be dealt with. On 1-9-2006 the mother-in-law of Sachi had a quarrel with Sachi from the morning and all these relations hatched up a conspiracy to eliminate Sachi. At about 10.00 a.m when Sachi was inside the bathroom then in pursuance of the conspiracy O.P. No.2 opened fire on Sachi. On the noise of firing, numerous persons of the vicinity and passers by reached at the spot and hence she was taken by the O.P. No.2 and his relation at Medical College Aligarh and thereafter at Delhi. She remained under treatment up to 28-9-2006 and as the complainant remained busy in looking after Sachi at Delhi and moreover he also remained perturbed. Hence FIR could not be lodged at the earliest.

2. A writ petition was instituted in this court for quashing the FIR but the writ petition was disposed of finally with a direction to the Court 16 decide the bail application of O.P. No.2 expeditiously in accordance of the direction of this Court in view of law laid down in the case of Amrawati. And in pursuance of the order of this Court bail application was moved in the Court of Sessions Judge, Hathras and this bail application was disposed by the Sessions Judge on 15-12-2006 and O.P. No.2 was admitted to bail. It has been alleged in the application for cancellation of bail that when application for bail was moved on behalf of O.P. No.2 an appearance was put up on behalf of the complainant before the Sessions Judge and three days time was prayed for preparation and to file reply/counter-affidavit but the Sessions Judge refused to grant time on the pretext that there is an order of this Court to decide the bail application in view of Amrawati case. That the evidence collected by the I.O. during investigation was not considered by the Sessions Judge for the disposal of the bail application. Even the statement of the victim/injured was not considered and no inquiry at all was made about the statement of the victim injured by the sessions Judge and there is no reference at all regarding statement of the injured recorded u/S.161, Cr.P.C. That the victim was married about six months earlier with O.P. No.2 and she sustained fire arm injury on her abdomen at the time when she was pregnant and injuries were caused when the victim was inside her house. Rather learned Sessions Judge in order to grant the bail to the O.P. No.2 considered the statement allegedly recorded of the injured on 7-9-2006 by a police personnel of police Station Shree Niwas Puri Delhi. That the so called statement was recorded by the police personnel without any authority without obtaining certificate from the doctor that whether she was in a position to depose or not. That this statement was a manipulation of O.P. No.2 and his relation. There was a direction of the police officer to send a message to SSP Hathras for taking cognizance in the matter but it was not complied with. That the injury report of the injured was also not considered by the Sessions Judge and the fact is that due to the injuries the victim has become permanently handicapped and lower portion of body paralyzed. Bullet injury was caused in the spinal cord. Much has been alleged on behalf of the O.P. No.2 regarding mental condition of Smt. Sachi but the statement of Dr. Rakesh. Kumar Gaur and Smt. Mani Bhargava at Aligarh was not considered by the Sessions Judge. In this context copy of the statement of these two doctors have been filed. Smt. Sachi has specifically stated about the involvement of her in-laws also but for the reasons best known to the I.O charge-sheet was submitted only against the husband O.P. No.2. That the O.P. No.2 is pressurizing the applicant and the victim to withdraw the complaint otherwise face consequences. That manipulation has been made in the medical evidence regarding the cause of injuries by the O.P. No.2 and his relation. That there was no justification to grant bail to the O.P. No.2 by learned sessions Judge on the pretext of Amrawati case. The seriousness of the case was not considered rather irrelevant and inadmissible evidence was considered by the Sessions Judge for granting the bail.

3. Opp. Party No.2 filed objection against the application moved for cancellation of bail and it has been alleged in the affidavit that the statement of the victim was recorded by a police personnel of P. S. Shree Niwas Puri Delhi on 7-9-2006 and this statement is admissible in evidence and she has stated about the cause of sustaining injuries. That all the relevant papers were filed before the Sessions Judge at the time of the disposal of the bail application and the bail application was vehemently opposed by the counsel for the complainant. There was sufficient ground for granting the bail to the O.P. No.2 and the learned Sessions Judge was justified in granting the bail. That the opp. party No.2 spent a sum of Rs.four lac in treatment of Smt. Sachi and if O.P. No.2 is involved in the offence then there was no reason for him to provide medical treatment and spend a huge amount of Rs.4 lac. That there is inordinate delay in lodging the FIR and the delay has not been explained. The allegations made in the F.I.R. are false. The fact is that the injured herself tried to commit suicide and sustained injuries in making attempt to commit suicide and the country made pistol used by the victim was seized by the I.O. In all medical certificate cause of sustaining injuries has been mentioned as self suffered and there is no reason to disbelieve this fact. That no treatment was provided by the complainant in spite of the fact that he remain present at Delhi. That the application for cancellation of bail is liable to be rejected.

4. I have heard Sri D. K. Diwan learned counsel for the applicant and Sri Dharmendra Singhal Advocate for O.P. No.2 and perused the entire material on record.

5. Considering the facts and circumstances of the case there are certain undisputed facts in this case. It is undisputed and established fact that marriage of Smt. Sachi with O.P. No.2 was solemnized on 15-2-2006. It is also a fact and undisputed fact that Smt. Sachi sustained injuries by fire arm on 1-9-2006 at about 10.00 a.m. when she was inside the house of O.P. No.2 and it is also undisputed fact that O.P. No.2 was residing in the house along with the injured and his parents. It is also undisputed fact that applicant/complainant is also resident of Sikandra Rau Hathras to which Opp. Party belong. And the house of the complainant situated at a distance of 250 yards from the house of the O.P. No.2. It is also undisputed fact that no intimation was given of this incident to the complainant immediately after sustaining the injury prior to shifting her at Aligarh Medical College for treatment. It is also undisputed fact that the injured Smt. Sachi remained under treatment at Delhi for about a month. And all expenses of the treatment were paid by the O.P. No.2. For cancellation of bail it is to be decided that whether the Sessions Judge Hathras was justified in granting bail or whether learned sessions Judge granted the bail to O.P. No.2 on the basis of irrelevant and inadmissible evidence. Whether proper and sufficient opportunity was provided to the prosecution to place the correct facts at the time of the disposal of the bail application. It is also material in a case when the bail of accused is to be considered that the evidence collected by the I.O is to be considered. The statement of the victim in a case of 307, IPC is of prime importance. Sufficient weightage must be given to the statement of injured and if the learned Sessions Judge even failed to consider the statement of the injured at the time of granting bail then it can certainly be said that the Sessions Judge is not justified in granting the bail. The perusal of the order itself shows that sufficient time was not granted to the prosecution to place the correct facts before the Court. Moreover, there is no reference at all of the statement of the victim recorded by the I.O u/S.161, Cr.P.C. Much reliance has been placed by the Sessions Judge on the statement of Sachi recorded by the police personnel of Shree Niwas Puri P. S. Delhi when Smt. Sachi was admitted in the hospital and defence theory was also considered but the statement of Smt. Sachi was not at all considered and touched which was recorded by the I.O during investigation after registration of the case. The authority of the police personnel of P. S. Shree Niwas Puri has been challenged by the learned counsel for the complainant and it has also been argued that firstly the police constable had no authority at all to record the statement of the victim. Moreover, there was no justification for this police constable to record the statement. And that the certificate was not obtained from the doctor about the fit mental condition of the injured. When a patient is admitted in the hospital after sustaining fire arm injuries and the statement of such injured is to be recorded by the police or by any other authority with this assumption that in case patient succumbed to the injuries then this statement may be treated as dying declaration. Then it is a must for that authority to obtain the certificate from the doctor that whether patient is in fit state of mind to give statement. But it appears that no such certificate was obtained from the doctor by the police personnel prior to recording the statement. Whereas learned sessions Judge mainly based his order for granting the bail on this statement of Sachi. And in my opinion this was most unjustified on the part of the sessions Judge. In the statement recorded by the police personnel of P. S. Shree Niwas Puri Delhi, Sachi stated that some unknown person caused injuries of fire arm to her and she could not see the assailant. Learned Sessions Judge has not tried to ascertain the possibility of this fact. And there are three stories in the case regarding sustaining injuries by Sachi. Firstly there is the statement of Sachi recorded by police personnel on 7-9-2006 when she was admitted in the hospital, secondly there is the theory alleged by the accused persons. It is alleged by the accused that she was under mental depression, the treatment was going on of mental ailment and that she herself sustained this injury in attempting to commit suicide and third story of the prosecution. Surprisingly learned Sessions Judge considered both the above story as stated by Sachi in statement at Delhi and second theory of accused but the theory of the prosecution was not considered. The injured Sachi in her statement emphatically stated that it was O.P. No.2 who caused fire arm injury to her when she was inside the bath room and hanging her clothes. She also stated that O.P. No.2 opened fire on her at the instance of her in-laws and her other relation. Firstly this theory ought to have been considered by the sessions Judge and not the theory which has been alleged by the accused in his defence or so called statement of Sachi recorded by the police personnel.

6. Learned counsel for the applicant also stated that one WT message was sent to SSP Hathras U. P. by SHO Shree Niwas Puri, D C P south Delhi and it is alleged in the WT message that Smt. Sachi aged about 22 years is admitted in Vimhans hospital Nehru Nagar New Delhi due to the gun shot injury allegedly sustained on 1-9-2006 in her house. She was initially treated in JN Medical Aligarh. She was married six months back only. There is very serious nature of case and the 10 of the concerned police station may be immediately directed to record the statement and further action in this regard. Learned counsel for the appellant on the basis of the WT message argued that on one hand a WT message was sent to SSP Hathras for giving direction to the IO of concerned police station to record the statement of injured as the matter is of serious nature but at the same time statement was recorded of Smt. Sachi by a police personnel who was not competent to record the statement. I agree with the argument of learned counsel for the applicant. In view of this WT message it was incumbent on the police concerned to direct the police to register the case and investigate the matter and record the statement of the injured. But the police of Hathras remain indifferent in initiating any action in the matter. Moreover sufficient opportunity was provided by the police to O.P. No.2 and his other relation to fabricate the evidence. At the stage of deciding the bail learned Sessions Judge was not expected to record a final judgment in the case and it appears from the order of learned sessions Judge that he decided the trial without recording the evidence. He placed reliance on the evidence and the theory set up by the defence. It is expected from the sessions Judge while hearing the bail to consider the case of the prosecution and not of the defence. Although probability or improbability of the case may be considered. Either the Court will have to place reliance on the statement of Sachi recorded by the police, of Delhi or the evidence collected by the I.O. If it may be presumed that Smt. Sachi gave a statement to the police at Delhi then she has not stated in the statement, that she herself sustained these injuries by fire arm. It is the defence theory that Smt. Sachi herself suffered this injury by fire arm. And surprisingly the Sessions Judge placed reliance on both the version. But how it is probable is not intelligible. The circumstance shows that Smt. Sachi sustained injury inside the house of her in-laws and if some unknown person caused the injury as stated by Sachi to the police at Delhi then it is the accused who will have to explain it but theory of attempt to commit suicide is not at all reliable. Hence it appears that sufficient opportunity was not provided to prosecution. Moreover evidence of prosecution was not considered.

7. Learned counsel for the opp. party No.2 placed reliance on a judgment of Hon'ble Apex Court reported in ACC 2008(62) Page 666 : [2008 ALL MR (Cri) 2605 (S.C.)] - Manjit Prakash and others Vs. Shobha Devi and another and learned counsel on the basis of this judgment argued that it will not be justified at this stage to cancel the bail of the appellant. Hon'ble Apex Court held in this judgment as follows :

"It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to."

8. But the Hon'ble Apex Court in this judgment has not held that bail cannot be cancelled of a person to whom the bail was granted on irrelevant material. It has been held by the Apex Court in this judgment :

"Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail under section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail."

Further held that --

"The perversity as highlighted in Puran's case (supra) can also flow from the fact that as noted above, irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature."

9. Under these circumstances in view of the judgment of Hon'ble Apex Court bail can be cancelled if the same was granted on irrelevant material and has further stated that learned sessions Judge granted the bail to the opp. party No.2 on irrelevant material. The material which ought to have been considered by the Sessions Judge was not considered and the defence theory which was irrelevant at the time of the consideration of bail was considered.

10. In this context learned counsel for the applicant cited the judgment of Hon'ble Apex Court reported in ACC 2007(58) page 1059 : [2007 ALL SCR 1438 : 2007 ALL MR (Cri) 828 (S.C.)] - Satish Jaggi Vs. State of Chhattisgarh and others. It has been held by Hon'ble Apex Court :

"It is settled law that in granting or non-granting of bail in non-bailable offence, the primary consideration is the nature and gravity of the offence. In the present case the respondent No.3 is accused of murdering a rival political leader while campaigning the election".

"It appears that learned Chief Justice did not consider the nature and the gravity of the offence while considering the bail application of the accused. On the contrary, while considering for bail, the learned Chief Justice appears to have decided the case pending trial on merit after scrutinizing the evidence. To say the least, it is against all canons of law and judicial propriety."

It has further been observed in the judgment by Hon'ble Apex Court :

"Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges leveled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial."

11. Hence in view of the above judgment of Hon'ble Apex Court while granting bail to accused of a serious offence the gravity of the offence must be considered and in the order of bail merits of the case should not be considered to this extent that the case will amount to acquittal of the case at the stage of bail.

12. For the reasons mentioned above, I am of the opinion that the learned Sessions Judge while granting the bail delivered a judgment of acquittal of the opp. party No.2. There is also one more judgment relevant in this connection of Hon'ble Apex Court reported in 2008 Crl.L.J. page 3008 : [2008 ALL MR (Cri) 1988 (S.C.)] - Dinesh M. N. (S.P.) Vs. State of Gujarat :

"The perversity as highlighted in Puran's case (supra) can also flow from the fact that as noted above, irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature. In the instant case, the trial court seems to have been swayed by the fact that Sohrabuddin had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police. The accused was the leader of the Rajasthan team and the other officials were Abdul Rehman, Himanshu Singh, Mohan Singh, Shyam Singh and Jai Singh. The first named Abdul Rehman had lodged the FIR. It is pointed out from the General Diary in respect of entry on 26-11-2005 that accused Dinesh was present. In FIR CR-I 5/2005 also the presence of Dinesh has been noted. The relevance of these factors does not appear to have been noticed by the High Court. In other words, relevant materials were kept out of consideration. Once it is concluded that bail was granted on untenable grounds, the plea of absence of supervening circumstances has no leg to stand."

13. Hence on the basis of the above judgment of Hon'ble Apex Court it is an established law that this court can cancel the bail of the opp. party No.2 u/S.439(2), Cr.P.C. when learned Sessions Judge considered the bail on irrelevant material and without considering the seriousness of the offence. And I am of the opinion that in the present case learned sessions Judge utterly failed to consider the evidence of the prosecution for granting the bail and even the statement of the victim was not considered and the theory of the defence which was not relevant at the time of the disposal of the bail application was considered by the Sessions Judge. Much has been argued by learned counsel for the opp. party No.2 that efforts were made by opp. party No.2 and his other relation to provide medical aid to the injured and injured was taken firstly at Aligarh and then at Delhi for treatment and he spent roughly a sum of Rs.4 lac for the treatment of Smt. Sachi. If the applicant wanted to get rid of injured then there was no compulsion for him to spend a huge amount for treatment and that the applicant remained present in the hospital at Delhi but no amount was spent for her treatment. This fact shows that the opp. Party No.2 is not involved in the offence. The circumstances shows that opp. Party No.2 did not provide the medical aid to Sachi voluntarily but it appears from the facts of the case that there were certain compelling circumstances for opp. Party No.2 in which there was no option to him except to provide medical treatment. On hearing the noise of fire arm numerous persons of the vicinity and passers by reached on the spot and it appears that under the compulsion in order to show bona fide Smt. Sachi was taken at Aligarh for treatment thereafter at Delhi. If the injury was sustained by Smt. Sachi accidentally then who restrain him not to inform the applicant who was residing merely at the distance of 250 yards from the spot. It shows the mala fide of the opp. Party No.2 and it also appears that instead of taking the injured directly to the hospital for treatment firstly injured was taken at the police station to get an entry made in the GD alleging that injured sustained fire arm injury in attempt to commit suicide. From the very initial stage the intention of the opp. Party No.2 was to fabricate the evidence and in all the medical reports it was specifically got mentioned that the injured sustained this injury as self suffered, thereafter evidence was also fabricated in collusion of the police. And from the fact that there was an ample evidence against other accused persons also but police submitted charge-sheet against only opp. Party No.2.

14. For the reasons mentioned above, I am of the confirm opinion that the learned Sessions Judge was most unjustified in granting bail in a very serious offence in which the injured sustained fire arm injury at the abdomen inside the house of her in laws only after six months of her marriage. Learned Sessions Judge was in haste in granting the bail. And even sufficient opportunity was not provided to the prosecution to place the correct facts before the Court for consideration and the Sessions Judge even failed to consider the statement of the injured recorded u/S.161, Cr.P.C. Learned Sessions Judge also failed to consider the condition of the injured. After sustaining the injury the injured Smt. Sachi was paralyzed. The bullet struck in spinal cord and due to this injury on the spinal cord the lower part of the body of the injured was paralyzed and even this fact was not considered by learned sessions Judge and the Sessions Judge considered the irrelevant and inadmissible material. When the bail has been granted by the Sessions Judge to the accused on the basis of the irrelevant and inadmissible evidence then this Court must certainly cancel the bail. And in my opinion this is the most appropriate case in which the bail of the opp. Party No.2 must be cancelled. For the reasons mentioned above, the application for cancellation of bail deserves to be allowed.

15. Application for cancellation of bail is allowed. Bail granted to the opp. Party No.2 Rohit Jakhetia by Sessions Judge, Hathras vide order dated 15-12-2006 in case Crime No.446 of 2006 u/Ss.498-A, 307, 323, 504, IPC and 3/4, D.P. Act P. S. Sikandra Rau District Hathras is cancelled. And the opp. party No.2 is directed to surrender in the court of C.J.M. Hathras within 15 days from the date of this order and in case the opp. Party No.2 failed to surrender in the court of CJM, learned CJM shall issue NBW against Opp. Party No. 2 and notices to the sureties to ensure the appearance of Opp. Party No.2 and on surrender or on arrest the opp. Party No.2 shall be sent to jail. Copy of orders be sent to C.J.M., Hathras for compliance.

Petition allowed.