State of M.P. Vs. Prempuri Goswami and anr. - Court Judgment

Excerpt:
criminal - bail - sections 363, 366 and 376/34 of indian penal code, 1860(ipc) and section 439(2) of code of criminal procedure, 1973 (cr.pc) and national security act - petitioner lodged missing report about his minor daughter - on basis of enquiry, crime case registered against respondents for offences punishable under sections 363, 366 and 376 of ipc - bail application filed by respondent no. 1 - rejected - second bail application moved on behalf of respondent no. 1 also rejected - thereafter, respondent no. 1 submitted third bail application and respondent no. 2 filed his first bail application - sessions court granted bail to respondents - hence, present petition - held, on perusal of bail order it found that session court not considered facts of registration of 37 crimes against respondent no. 1 and nature of offences - in addition, respondent no. 1 was also convicted four time under provisions of act - similarly, sessions court not taken into account fact of registration of five earlier crimes against respondent no. 2 and nature of offences - as per precedent decided by apex court, bail order can be cancelled where it is perverse and passed by ignoring material and evidence on record - such order would be against principles of law and interest of justice require that such perverse order be set aside and bail be cancelled - therefore, arbitrary and wrong exercise of discretion by trial court has to be corrected -thus, order passed by sessions court liable to be cancelled and accordingly, cancelled - appeal allowed - - 1, who had a criminal background, developed good relations with dev singh thakur and under the garb of friendship, he started persuing ku. 2, since 1982 to 2001 which are enlisted in annexure a-5, and the nature of offences registered by those crimes, while passing the bail order dated 31-10-2001. had she considered all the aforesaid material, which was placed before her, it would have become crystal clear if a girl aged 18-19 years would voluntarily accompany a handicap person of bad criminal record, who is more than double of her age. one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons.ordernarain singh 'azad', j.1. this petition under sub-section (2) of section 439 of the code of criminal procedure is filed seeking cancellation of order of bail, passed by third addl. sessions judge, jabalpur, on 31-10-2001, wherein, each of the applicants is ordered to be released in connection with crime no. 261/2001 of police station, lordganj, dist. jabalpur, which pertains to offences punishable under sections 363, 366 and 376/34 of the ipc.2. according to the petitioner, on 9th of may, 2001, dev singh thakur lodged a gum insan report at police station, lordganj, alleging that his minor daughter ku. vandana thakur is not traceable. on enquiry, it was stated by the witnesses that ku. vandana has been taken away by the respondents, under the pretext of marrying her. it was also stated by the witnesses that dev singh thakur purchased a house in lordganj area and after release from jail, respondent no. 1 started threatening him. thereafter, respondent no. 1, who had a criminal background, developed good relations with dev singh thakur and under the garb of friendship, he started persuing ku. vandana, a minor, to marry him. it is under these circumstances that the respondent no. 1 managed to kidnap vandana on 8th may, 2001. on the basis of aforesaid enquiry, crime no. 261/2001 stood registered against the respondents at police station, lordganj, for offences punishable under sections 363, 366 and 376/34 of the ipc.3. thereafter, a habeus corpus petition bearing w.p. no. 3730/2001, was filed on behalf of the parents of ku. vandana thakur, which is still pending for adjudication. on a telephonic message dated 1st august, 2001, ku. vandana was found standing at railway station, madanmahal, she was immediately taken into possession by the police authorities and produced before the court of s.d.m., jabalpur.4. on 11th august, 2001, respondent no. 2 was taken into custody and on 20th august, 2001, respondent no. 1 surrendered before the court of shri a.k. chaturvedi, iind addl sessions judge, jabalpur. the first bail application of respondent no. 1 was opposed on the ground that he is a noted criminal with 33 criminal cases to his credit and on four occasions, he was detained under the national security act. a copy of objection petition is marked as annexure a-1. the first bail application of respondent no. 1 stood rejected. the second bail application moved on behalf of respondent no. 1 was also objected in writing, pointing out his criminal background and the fact that respondent no. 1 has an adjoining house to the house of father of ku. vandana thakur. a copy of this objection petition is marked as annexure a-2. the second bail application of respondent no. 1 also stood rejected. thereafter, respondent no. 1 submitted the third bail application and respondent no. 2 filed his first bail application. this third bail application of respondent no. 1 was objected mentioning the fact of pendency of habeas corpus petition and the criminal background of respondent no. 1. a copy of this written objection is marked as annexure a-3. the chart showing the criminal cases registered against respondent no. 1 is marked as annexure a-4 and the chart of criminal cases registered against respondent no. 2 is filed as annexure a-5. the photocopy of order dated 8th february, 2002, passed by this court in habeus corpus petition no. 3730/2001, is marked as annexure a-6. the learned iiird addl. sessions judge, jabalpur, granted bail to these respondents on 31-10-2001, without taking into account their criminal records aforesaid important facts and merely on the ground of completion of important part of the investigation, which is liable to be cancelled.5. it is submitted on behalf of the petitioner that the learned iiird a.s.j. did not consider the material, which was placed before it, on behalf of the petitioner, while granting bail to the respondents on 31-10-2001, therefore, the order granting bail to the respondents may kindly be cancelled.6. resisting this application, it is submitted on behalf of the respondents that inclusive of this case, only three cases are pending against respondent no. 1 and ku. vandana is adjudged to be 18-19 years of age by medical expert, who is found to be accustomed to intercourse therefore, it being a case of consent, the bail order is not liable to be interfered with, which is passed taking into account the physical disability of respondent no. 1 and the period of custody of both the respondents also.7. the relevant portion of the impugned bail order runs as under:-^^vkjksih izseiwjh ds iwozesa nks tekur vkosnu i= vuqla/kku iw.kz u gksus o lk{; izhkkfor djus dhlehkkouk dks ns[krs gq;s fujlr fd;s x;s gsaa ysfdu vc ifjflfkfr;ka cny pqdhgsa d;ksafd vfrfjdr ykss vfhk;kstu dk dguk gs fd izdj.k dk egroiw.kz vuqla/kkuiw.kz gks pqdk gsa uohu vuqla/kku ds nksjku vfhk;ksd=h dh ,dl&js; fjiksvzizlrqr dh xbz gs] ftlesa vfhk;ksd=h dh mez 18 ls 19 o'kz gksuk n'kkz;hxbz gsa vkjksih izseiqjh jh u;k;ky; esa is'k fd;k x;k gsa mls hkksfrd :i lsns[kus esa izdv gksrk gs fd mldk ck;ka isj ?kqvus ds uhps dgk gqvk gsa ,slhflfkfr esa mlds qjkj gksus dh lahkkouk ugha gsa vkjksih nqxsz'k fnukad11&8&2001 ,oa vkjksih izseiqjh fnukad 30&8&2001 ls fxjrkjgksdj tsy esa gsa] mlls muds ifjokj izhkkfor gksus dh lahkkouk ls badkj ughafd;k tk ldrk gsa vhkh vfhk;ksx i= izlrqr ugha fd;k x;k gs blfy, izdj.k dsvfure fujkdj.k esa le; yxus dh lehkkouk gsa vr% mdr cnyh gqbz ifjflfkfr;ksadks ns[krs gq, vkjksihx.k dks tekur ij eqdr fd;k tkuk mfpr gsa**8. a careful perusal of order dated 31-10-2001 discloses that the learned iiird a.s.j., jabalpur, did not consider the facts of registration of 37 crimes against respondent no. 1, since 1982 to 2001 and the nature of offences which were registered in those crimes, in addition to this fact that four times respondent no. 1 was dealt with under the provisions of national security act. similarly, the learned addl. sessions judge, did not take into account the fact of registration of five earlier crimes against respondent no. 2, since 1982 to 2001 which are enlisted in annexure a-5, and the nature of offences registered by those crimes, while passing the bail order dated 31-10-2001. had she considered all the aforesaid material, which was placed before her, it would have become crystal clear if a girl aged 18-19 years would voluntarily accompany a handicap person of bad criminal record, who is more than double of her age.9. it is explained by their lordships of the supreme court in the case of puran v. rambilas and another, reported in air 2001 sc 2023, that in case the material which was available for consideration is not taken into account while granting bail, the order is liable to be cancelled, being perverse. relevant parts of aforesaid case runs as under:-'the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation.'it is further found explained by their lordships of the supreme court in puran v. rambilas (supra) that:-'generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. however, these instances are merely illustrative and not exhaustive. one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons. such an order would be against principles of law. interest of justice would also require that such a perverse order be set aside and bail be cancelled. it must be remembered that such offences are on the rise and have a very serious impact on the society. therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.'10. thus, the order dated 31-10-2001 passed by iiird addl. sessions judge, jabalpur, wherein, respondent nos. 1 and 2 are admitted to bail in connection with crime no. 261/2001 of police station, lordganj, is liable to be cancelled, being perverse, which is cancelled accordingly.respondent nos. 1 and 2 are ordered to be taken into custody forthwith. a copy of this order be sent to t.i., lordganj, and superintendent of police, jabalpur, for immediate compliance.

Judgment:
ORDER

Narain Singh 'Azad', J.

1. This petition under sub-section (2) of Section 439 of the Code of Criminal Procedure is filed seeking cancellation of order of bail, passed by Third Addl. Sessions Judge, Jabalpur, on 31-10-2001, wherein, each of the applicants is ordered to be released in connection with Crime No. 261/2001 of Police Station, Lordganj, Dist. Jabalpur, which pertains to offences punishable under Sections 363, 366 and 376/34 of the IPC.

2. According to the petitioner, on 9th of May, 2001, Dev Singh Thakur lodged a Gum Insan report at Police Station, Lordganj, alleging that his minor daughter Ku. Vandana Thakur is not traceable. On enquiry, it was stated by the witnesses that Ku. Vandana has been taken away by the respondents, under the pretext of marrying her. It was also stated by the witnesses that Dev Singh Thakur purchased a house in Lordganj area and after release from jail, respondent No. 1 started threatening him. Thereafter, respondent No. 1, who had a criminal background, developed good relations with Dev Singh Thakur and under the garb of friendship, he started persuing Ku. Vandana, a minor, to marry him. It is under these circumstances that the respondent No. 1 managed to kidnap Vandana on 8th May, 2001. On the basis of aforesaid enquiry, Crime No. 261/2001 stood registered against the respondents at Police Station, Lordganj, for offences punishable under Sections 363, 366 and 376/34 of the IPC.

3. Thereafter, a Habeus Corpus petition bearing W.P. No. 3730/2001, was filed on behalf of the parents of Ku. Vandana Thakur, which is still pending for adjudication. On a telephonic message dated 1st August, 2001, Ku. Vandana was found standing at Railway Station, Madanmahal, she was immediately taken into possession by the police authorities and produced before the Court of S.D.M., Jabalpur.

4. On 11th August, 2001, respondent No. 2 was taken into custody and on 20th August, 2001, respondent No. 1 surrendered before the Court of Shri A.K. Chaturvedi, IInd Addl Sessions Judge, Jabalpur. The first bail application of respondent No. 1 was opposed on the ground that he is a noted criminal with 33 criminal cases to his credit and on four occasions, he was detained under the National Security Act. A copy of objection petition is marked as Annexure A-1. The first bail application of respondent No. 1 stood rejected. The second bail application moved on behalf of respondent No. 1 was also objected in writing, pointing out his criminal background and the fact that respondent No. 1 has an adjoining house to the house of father of Ku. Vandana Thakur. A copy of this objection petition is marked as Annexure A-2. The second bail application of respondent No. 1 also stood rejected. Thereafter, respondent No. 1 submitted the third bail application and respondent No. 2 filed his first bail application. This third bail application of respondent No. 1 was objected mentioning the fact of pendency of Habeas Corpus petition and the criminal background of respondent No. 1. A copy of this written objection is marked as Annexure A-3. The chart showing the criminal cases registered against respondent No. 1 is marked as Annexure A-4 and the chart of criminal cases registered against respondent No. 2 is filed as Annexure A-5. The photocopy of order dated 8th February, 2002, passed by this Court in Habeus Corpus Petition No. 3730/2001, is marked as Annexure A-6. The learned IIIrd Addl. Sessions Judge, Jabalpur, granted bail to these respondents on 31-10-2001, without taking into account their criminal records aforesaid important facts and merely on the ground of completion of important part of the investigation, which is liable to be cancelled.

5. It is submitted on behalf of the petitioner that the learned IIIrd A.S.J. did not consider the material, which was placed before it, on behalf of the petitioner, while granting bail to the respondents on 31-10-2001, therefore, the order granting bail to the respondents may kindly be cancelled.

6. Resisting this application, it is submitted on behalf of the respondents that inclusive of this case, only three cases are pending against respondent No. 1 and Ku. Vandana is adjudged to be 18-19 years of age by medical expert, who is found to be accustomed to intercourse therefore, it being a case of consent, the bail order is not liable to be interfered with, which is passed taking into account the physical disability of respondent No. 1 and the period of custody of both the respondents also.

7. The relevant portion of the impugned bail order runs as under:-

^^vkjksih izseiwjh ds iwoZesa nks tekur vkosnu i= vuqla/kku iw.kZ u gksus o lk{; izHkkfor djus dhlEHkkouk dks ns[krs gq;s fujLr fd;s x;s gSaa ysfdu vc ifjfLFkfr;ka cny pqdhgSa D;ksafd vfrfjdr ykss vfHk;kstu dk dguk gS fd izdj.k dk egRoiw.kZ vuqla/kkuiw.kZ gks pqdk gSA uohu vuqla/kku ds nkSjku vfHk;ksD=h dh ,Dl&js; fjiksVZizLrqr dh xbZ gS] ftlesa vfHk;ksD=h dh mez 18 ls 19 o'kZ gksuk n'kkZ;hxbZ gSA vkjksih izseiqjh Jh U;k;ky; esa is'k fd;k x;k gSA mls HkkSfrd :i lsns[kus esa izdV gksrk gS fd mldk ck;ka iSj ?kqVus ds uhps dgk gqvk gSA ,slhfLFkfr esa mlds Qjkj gksus dh laHkkouk ugha gSA vkjksih nqxsZ'k fnukad11&8&2001 ,oa vkjksih izseiqjh fnukad 30&8&2001 ls fxjrkjgksdj tsy esa gSa] mlls muds ifjokj izHkkfor gksus dh laHkkouk ls badkj ughafd;k tk ldrk gSA vHkh vfHk;ksx i= izLrqr ugha fd;k x;k gS blfy, izdj.k dsvfUre fujkdj.k esa le; yxus dh lEHkkouk gSA vr% mDr cnyh gqbZ ifjfLFkfr;ksadks ns[krs gq, vkjksihx.k dks tekur ij eqDr fd;k tkuk mfpr gSA**

8. A careful perusal of order dated 31-10-2001 discloses that the learned IIIrd A.S.J., Jabalpur, did not consider the facts of registration of 37 crimes against respondent No. 1, since 1982 to 2001 and the nature of offences which were registered in those crimes, in addition to this fact that four times respondent No. 1 was dealt with under the provisions of National Security Act. Similarly, the learned Addl. Sessions Judge, did not take into account the fact of registration of five earlier crimes against respondent No. 2, since 1982 to 2001 which are enlisted in Annexure A-5, and the nature of offences registered by those crimes, while passing the bail order dated 31-10-2001. Had she considered all the aforesaid material, which was placed before her, it would have become crystal clear if a girl aged 18-19 years would voluntarily accompany a handicap person of bad criminal record, who is more than double of her age.

9. It is explained by Their Lordships of the Supreme Court in the case of Puran V. Rambilas and another, reported in AIR 2001 SC 2023, that in case the material which was available for consideration is not taken into account while granting bail, the order is liable to be cancelled, being perverse. Relevant parts of aforesaid case runs as under:-

'The concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation.'

It is further found explained by their Lordships of the Supreme Court in Puran V. Rambilas (supra) that:-

'Generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected.'

10. Thus, the order dated 31-10-2001 passed by IIIrd Addl. Sessions Judge, Jabalpur, wherein, respondent Nos. 1 and 2 are admitted to bail in connection with Crime No. 261/2001 of Police Station, Lordganj, is liable to be cancelled, being perverse, which is cancelled accordingly.

Respondent Nos. 1 and 2 are ordered to be taken into custody forthwith. A copy of this order be sent to T.I., Lordganj, and Superintendent of Police, Jabalpur, for immediate compliance.