JUDGMENT Vinod Prasad, J.
1. This bail cancellation application under Section 439(2) Cr.P.C. has been preferred by Jai Pal Singh Mittal seeking cancellation of bail of respondent No. 2 Arvind S/o Sri Om Prakash in Crime No. 140 of 2006, under Section 498A, 304B I.P.C. and 3/4 D.P. Act, P.S. Nai Mandi, district Muzaffar Nagar who was granted bail by the in-Charge Sessions Judge Muzaffarnagar on 18.5.2006 vide Criminal Miscellaneous Bail Application No. 1110 of 2006, Arvind v. State. The notices were issued to opposite party No. 2, which was served to him and he has filed a counter affidavit in this bail cancellation application to which a rejoinder affidavit has also been filed by the applicant.
2. A bird eye view of the factual aspects of the matter giving rise to this bail cancellation application are that Sonia (deceased) daughter of the informant Jail Pal Singh Mittal was married to Arvind respondent No. 2 on 12th December 2004 according to Hindu customs and rights. In the marriage, informant Jail Pal Singh Mittal had given the dowry according to his economic strength but the husband and in-laws of the deceased were not satisfied with the offered dowry and the mother-in-law Smt. Swaran Lata, husband Arvind (opposite party No. 2) and father-in-law Om Prakash use to torture Sonia, the deceased, for bringing less dowry and were demanding more money. In the month of May 2005 when Sonia visited the informant at Dehradun she had informed him that even though she was having a pregnancy of two months but she was not given adequate food as a result of which she was keeping sick. The informant got Sonia treated from doctor Rekha Srivastava. Her medical examination revealed that the child has died in the womb as a result of which she was aborted. The in-laws of the deceased including opposite party No. 2 did not visit her during her hospitalization at Dehradun. At the request of Ashutosh Gupta, Jeth of Sonia, she was sent back to her in-laws house but the torture on her against started after a few days for bringing of Rs. 2 lacs more as dowry. Whenever the parents of Sonia wanted to meet her they were denied access to her. Sonia has also informed the informant that her in-laws threaten her that if her parental relative will came to meet her then they will murder them. Meanwhile marriage of the younger brother of opposite party No. 2 Anand was settled. It seems that the parents of Sonia were not invited in the marriage initially but when they apologized to Sonia's in-laws that they were invited for it. On 31.1.2006 Smt. Bala Rani, mother of Sonia talked to her on phone and sensed that she was disturbed. Sonia also informed her mother that if the in-laws will torture her then she will come back to Dehradun and will do service there. That day itself 31.1.2006 at 7 P.M. the informant was informed on phone that Sonia had died. Informant rushed to Muzaffarnagar and came to know that Sonia has been murdered by the malefactors who were her husband, father-in-law and mother-in-law. The informant Jai Pal Singh scribed the F.I.R. and lodged it at police station Nai Mandi, district Muzaffarnagar as crime No. 140 of 2006, under Sections 498A, 304B I.P.C. and 3/4 D.P. Act at 12.40 A.M. 1.2.2006. The inquest on the body was conducted at 10.30 AM that day and autopsy on her body was performed on 1.2.2006 at 3.15 P.M. The postmortem of the deceased indicated that she had a legature mark, her hyoid bone was intact and mucosa of trachea and laynx were congested. She had also an abraded contusion 1.5cm x 0.5cm. on the middle of lower lip. In the estimation of the doctor the cause of her death was asphyxia as a result antimortem hanging. The Investigating Officer during the investigation recorded the statement of informant Jai Pal Singh Mittal, his son Navneet Mitral and other witnesses and also prepared the site plan. In the aforesaid case during the pendency of investigation another F.I.R. NCR. No. 25 of 2006 was lodged by Smt. Bala Rani Mittal, mother of the deceased on 22.2.2006 at 3.15 P.M., under Sections 323, 506 I.P.C. against Asutosh Gupta brother of opposite party No. 2 at the police station Civil Lines, Muzaffarnagar with the allegation that on 22.2.2006 she had visited the court along with her husband for pairvi of the said case and there at quarter to twelve, outside the District Court, Asutosh the elder brother of Arvind opposite party No. 2 along with other companions threatened her that if she will do parvi of the case and henceforth if she will be seen in Muzaffamagar she will be shot dead. She was also assaulted with kicks, fists and shoes by Asutosh and his companions and was threatened with life. She further alleged that her family is to come to Muzaffarnagar from Dehradun in connection with the parvi of the murder case of her daughter Sonia and therefore, the accused persons be dealt with suitably an the informant be protected. After the said F.I.R. first of all the bail application of father-in-law Om Prakash @ Omprakash Gupta being Criminal Miscellaneous Bail Application No. 7277 of 2002 was heard by this Court and Hon'ble Justice Mr. K.N. Ojha, was please to enlarge him on bail in the aforesaid Crime vide his order dated 19.4.2006 by mentioning as follows:
Learned Counsel for the applicant submits that main beneficiary of Rs. 2 lac may be the husband and not the applicant, who is father-in-law of the victim. In any case it is a case of suicide. The applicant is not the main beneficiary of the alleged dowry.
3. Subsequently Smt. Swarnlata the mother-in-law was also bailed out by the same Judge vide his order dated 25.4.2006 vide Bail Application No. 7787 of 2006 by mentioning the following observations:
It is further submitted that applicant is mother-in-law and she cannot be said to be the main beneficiary of the alleged dowry of Rs. 2 lac and in similar circumstances father-in-law Om Prakash has been enlarged on bail by this Court It is submitted by the learned Counsel for the complainant that the main accused is husband.
4. Thereafter opposite party No. 2Arvind who is he husband of the deceased Sonia applied for bail before the Sessions Judge, Muzaffarnagar, which was allowed by the In-charge Sessions Judge, Muzaffarnagar vide his order dated 18.5.2006 (annexure No. 10) vide bail application No. 1110 of 2006. It is this order, which is under challenge and the cancellation of bail of opposite party No. 2 is sought through this bail cancellation application.
5. I have heard Sri I.K. Chaturvedi, learned Counsel on behalf of the applicant informant and Sri Satish Trivedi, learned senior counsel assisted by Sri Amit Dagga on behalf of the accused Arvind opposite party No. 2 as well as learned A.G.A. at a great length and have gone through the averments made in the affidavit appended along with this bail cancellation application the counter affidavit and rejoinder affidavits.
6. Before adverting to factual aspect of the matter a synopsized view of the law relating to bail cancellation as has been laid down by this Court as well as by Apex Court. Chapter XXXIII Cr.P.C. relates with PROVISION AS TO BAIL AND BAIL BONDS. Section 437 Cr.P.C. relates with the power of Magistrate relating to bail in nonbailable offences. Section 439 Cr.P.C. relates with the power of Sessions Judge and the High Court in bail matters. It does not distinguish between offences bailable and non-bailable as is the case with the power of Magistrate under Sections 436 and 437 Cr.P.C. Section 439 Cr.P.C. is quoted below:
439. Special powers of High Court or Court of Session regarding bail-
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and I custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
7. It is thus clear that Sub-section (1) of Section 439 empowers the Sessions Court as well as the High Court to grant bail to an accused charge with any offence with or without condition. For the said purpose the hands of Sessions Court as well as of this Court are not tied up but the Apex Court has laid down certain guidelines for the said purpose. It has been held by the Apex Court in Gurucharan Singh and Ors. v. State 1978 Cr.L.J. page 129 in paragraph 24 as thereof as follows:
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 jeopardizing 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 variable factors, cannot be exhaustively set out.
8. Thus it is clear from the aforesaid judgment that the guidelines laid down for the Magistrate for enlarging an accused on bail also applies to the Sessions Court as well as to the High Court in matters of enlargement of an accused on bail. However, so far as cancellation of bail is concerned the same stands on different footing altogether. It has been held by the Apex Court that granting of bail is one thing and cancellation thereof is quite another. Supreme Court in Dolat Ram and Ors. v. State of Haryana in paragraph 4 thereof has observed thus;
Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation to the bail, already granted Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) 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. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered fit no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted.
9. It is also been held by the Apex Court in Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh in paragraph 7, 8 and 9 as follows;
It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed also bears upon the issue.
Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. (Patrick Debbrin, The Criminal) Prosecution in England (London) 1960), p. 75-Mod Law Rev. ibid p. 54) Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore, not an exercise in irrelevance.
10. Thus from the discussions made above it is absolutely clear that cancellation of bail requires altogether a different consideration than granting of bail. Albeit it has been held by the Apex Court in case of Gurucharan Singh (supra) that while seeking cancellation the prosecution has not to prove the case beyond all reasonable doubts.
11. In view of the above legal position as laid down by the Apex Court that this bail cancellation application has to decided.
12. Sri I.K. Chaturvedi, learned Counsel for the applicant contended that in this case the opposite party No. 2 is the husband. Admittedly the death has taken place within seven years of the marriage. He further submitted that the cause of death is unnatural and there are allegation of demand of dowry. Thus the prosecution case is fully and completely engulfed within the ambit of Section 304B, 498A I.P.C. and 3/4 D.P. Act. He further submitted that in this case the deceased was maltreated to such an extent that even in case of her first child, she was aborted because of malnutrition meted to her by her husband and in-laws. He further submitted that the deceased was a well educated lady and was well versed with both English and Hindi. She was B.Sc. and diploma in Textile and Fashion Designing. He, therefore, submitted that there was no occasion for such an educated girl to commit suicide and for no reason whatsoever all of a sudden on the date of the incident. He further contended that right from lodging of the F.I.R. the informant and his family members, who were a resident of Dehradun, were being threatened and harassed at the hands of the accused respondent and his family members and even they were threatened for life, so much so that the mother of the deceased had to lodge an N.C.R. against the elder brother of opposite party No. 2 (annexure No. 7) to this bail cancellation application. He further submitted that while granting bail to opposite party No. 2 the In-charge Sessions Judge had not only misread the prosecution case but has also wrongly given the benefit of parity to the opposite party No. 2. He submitted that so far as opposite party No. 2 is concerned his case stands entirely on a different footing from those of his parents. He submitted that while arguing bail of his parents it was contended by the learned Counsel for the accused that the real beneficiary of the demand of Rs. 2 lac alleged in the F.I.R. was the opposite party No. 2 the husband and therefore, the Sessions Judge went astray in his reasoning in holding that case of the applicant is at par with the other co-accused persons. He further submitted that there was a contusion found on the lower lip of the deceased and the In-charge Sessions Judge while allowing bail to the opposite party No. 2 even did not care to look into the postmortem report and as observed that but for legature mark there was no other injury found on the body of the deceased. He further submitted that the In-charge Sessions Judge has exercised his jurisdiction illegally without any reasonable basis and has allowed bail to opposite party No. 2, which deserves to be cancelled. He submitted that the injury on the lips was caused when the deceased was being hacked to death by the accused persons. He further submitted that in the site plan nothing was found by the Investigating Officer suggestive of suicide. In his view the site plan and the inspection note (annexure No. 5) does not indicate at all that there was anything hanging from the ceiling or from the fan suggestive of suicide. He further submitted that the dead body of the deceased was found on a double bed and therefore, the prosecution has prima facie established that opposite party No. 2 is guilty of charged offences and the In-charge Sessions Judge wrongly granted him bail ignoring all the mandates of law as has been laid down by the Apex Court as well as by this Court. He further submitted that the defense that somebody has informed the deceased that she will be not mother, therefore she, in depression committed suicide is absolutely false and bogus plea as such an educated lady who is graduate in science (B.Sc.) with such bent of mind as to do Diploma in Textile and Fashion Design will not commit suicide merely on some body's mere saying. He further contended that ten days before her death the deceased whole heartedly participated in the marriage of Anand her dever with fully gaiety and interest. Just ten days thereafter nothing had been done to her so as to make her depressed so much as to commit suicide. It was his submission that the deceased because of the lust and greed of money was hang to death by the in-laws and the husband who has been wrongly granted bail by the In-charge Sessions Judge. Moreover, there was attempt for tampering and threatening of witnesses who are a broken family. The opposite party No. 2 does not deserve bail as the fair trial will not be possible and the justice will be slaughtered at the altered of those who are the prime accused of the murdering her own relative a married young girl aged about 26 years was his last harangue.
13. Sri Satish Trivedi, learned senior counsel contrarily submitted that under Section 439 Cr.P.C. the High Court and the Sessions Judge has got concurrent powers of bail. It is only under the rules of the Court that the bail is to be moved before the Sessions Judge first before approaching the High Court. He further submitted that in such a scheme the Sessions Judge has got the same power to release on bail an accused which is possessed by the High Court and since the two accused in the same Crime No. were enlarged on bail by this Court, the Sessions was justified in granting parity to the opposite party No. 2 on the premise that there were general allegations against him without any specification and therefore in all material aspects of the matter the case of opposite party No. 2 stood on the same footing as that of his parents. He further contended that In-charge Sessions Judge has passed a reasoned order and he was swayed by the fact that two earlier rejections orders of bail by him did not find favour with the High Court who allowed bail to the father-in-law and mother-in-law. He further contended that no finding has been recorded by the High Court that the husband is the main accused and mearly a technical error in mentioning that the deceased did not sustained any other injury but for a legature mark is no ground to cancel his bail. He further argued that the rolling down of salvia from the mouth of the deceased is indicative and established proof and good evidence of committing of suicide by the deceased. He further submitted that in this case Section 113A of the Evidence Act has to be applied and not Section 113B. In his submission under Section 113A the Court may presume that the suicide has been abated by her husband. In his submission the rigor of proof under Section 113A is not the same as is provided under Section 113B where the word 'shall' has been used. He further contended that the postmortem report also indicate that the deceased died due to hanging and the reasoning given by the In-charge Sessions Judge while allowing bail to his client cannot be said to be perverse. He further submitted that there are many letters of the deceased which showed that both the spouses loved each other very much. There was no demand of dowry and tension between them. He contended that there was no evidence of tampering and the applicant had not done anything to thwart the course of justice and therefore, the bail should not be cancelled, especially, when the In-Charge Sessions Judge while granting bail to the husband has imposed the conditions that he will not leave the district without the permission of the Court and will cooperate with the trial.
14. I have considered the submission raised by both the sides. In this case certain facts are admitted to both the sides in relation to the ingredients for making out offences under Sections 498A, 304B I.P.C. and 3/4 D.P. Act. The counsel for the accused opposite party No. 2 did not addressed at all on this aspects of the matter that the ingredients which are sine qua non for making out offences alleged against the opposite party No. 2 are not present in the allegations levelled. His contention was that the deceased has committed suicide and therefore, Section 113A of the Evidence Act should be implanted instead of Section 113B whereas learned Counsel for the applicant had argued that since the death was caused by hanging Section 113B has to be put forth in the case. This contention by both the sides has to be adjudicated upon by the trial court during the trial. At this stage, any observation made by this Court regarding applicability of Section 113A and 113B of the Evidence Act will definitely prejudice the case of either side. Therefore, I am not inclined to express any opinion on the said submission raised by both the counsels.
15. In respect of tampering Sri Satish Trivedi, learned senior counsel has contended that the F.I.R. lodged by the mother of the deceased was as a counter blast to the F.I.R. lodged by the elder brother of the present applicant and the applicant was in jail at the relevant time. He has field the copy of the F.I.R. lodged by elder brother as annexure No. C.A.-8. A perusal of the said annexure C.A.-8 indicated that the same was lodged on 22nd February 2006 at 3.15 P.M. in respect of an incident of the same day at 12 P.M. The F.I.R. by the mother of the deceased (annexure No. 7) indicates that the same was lodged at 3.50 P.M. on the same day. The difference between the two F.I.R.s is only 25 minutes. The time of the incident in both the F.I.R.s is more or less the same being 12.00 P.M. and 11.45 A.M. respectively. However, the delay in lodging the F.I.R. by the mother of the deceased should be viewed from the point that they were resident of district Dehradun and for them Muzaffarnagar was an alien city. The lady was harassed threatened beaten by the shoes as alleged by her and she had lodged an F.I.R. with such allegations. This in my humble view is an evidence of tampering. The F.I.R. lodged by the elder brother of the opposite party No. 2 about this incident alleged by him definitely established that the marpeet between the two fractions definitely ensued outside the Court premise on that day. There is no denying of the fact that such a marpeet had taken place because of the pending litigating in which the husband opposite party No. 2 and his parents were in jail. None of them were granted bail on the day on which this marpeet had taken place. Naturally it was the brother of opposite party No. 2 who must be labouring under tension and agony of getting his brother and parents released from jail and the parents of the deceased and his brother were an impediment in his that effort. It was because of the parvi done by the parents of the deceased that the father, mother and opposite party No. 2 were not being released from jail. In these circumstances the assault on the mother of the deceased Smt. Bala Rani by the brother of opposite party No. 2 and that too in his own home town seems to be more probable. I am taking this view also because of the fact that to me it does not seems to be probable that the well educated lady will assault a male outside the court premises when she was having the mental agony and trauma of the death of her daughter and had travel all the way from Dehradun to Muzaffarnagar to seek justice for her dead daughter. I am also taking this view because Muzaffarnagar was a new city so far as parents of the deceased were concerned and for the accused it was their home town. In this view of the matter, I am constrained to observed that even though the applicant was in jail on the date when marpeet had taken place with the mother of the deceased but there was definitely an attempt by the close relatives of respondent No. 2 to thwart the course of justice and to force the parents of the deceased to deist from doing parvi of the case. Tampering of evidence and fair trial are the two conditions which are of prime importance to allow a person to remain on bail. A possibility, more so a genuine one, of tampering the course of justice or fleeing from justice disentitle the person to remain on bail. In cases of such a nature as the present one the family of the deceased is in a most vulnerable position and they had to rely upon the circumstantial aspect of the case and have to go to another place to plead justice for death of their most young one in the prime of her life. There is no hard and fast rule that if a person is in jail and the attempt is being made by his relatives and other associates to thwart the course of justice that the said circumstance cannot be considered a circumstance against him. It is not the rule of law that the relatives are free to tamper with course of justice and yet the person incarcerated in jail be released. Such view will not be only a hazardous to the society but will definitely be a travesty of justice. Moreover all the ingredients of the offence are present in the case and no satisfactory explanation has been given by the respondent No. 2 regarding the death of his wife, the deceased. Even if she had committed suicide the offence will be well within the purview of Section 304B, 498A I.P.C. and 3/4 D.P. Act and it cannot be said that the husband is not guilty of the offences charge with prima facie.
16. I am also convinced that in this case the In-Charge Sessions Judge has wrongly granted the benefit of parity to the opposite party No. 2. Parity can be granted only in those cases where on all relevant and germane aspects of the case the case of the two accused stands same and identical footing. In a case of dowry death the case of the husband is not at all at par with case of the other relatives for the simple reason that it was the responsibility of the husband to take care of his wife to whom he has brought from her parental house. It is the responsibility of the husband to protect the wife from the onslaught from his family members, which are fired on her and who has no body to sympathize but for her husband. The In-Charge Sessions Judge not only adopted a reason which is totally absurd but also perverse. The In-Charge Sessions Judge was expected to look into the aspect of the matter from the point of view of the allegations leveled, the gravity of charge and the chances of tampering. In the discussions which have been made by In-Charge Sessions Judge he had completely ignored the aspect of tampering as well as the charge which has been levelled against the husband. In the impugned order of granting bail to respondent No. 2 dated 18.8.2006 he has only observed that the allegations levelled in the F.I.R. against the two accused Om Prakash and Swaran Lata were identical and the postmortem report had shown the cause of death as hanging and but for a legature mark no other external injury was found by the doctor and therefore, on the ground of parity the accused respondent is entitled to bail. All the above reasons are wholly untenable and factually incorrect but for the fact of death being ensued by hanging. To say the least it was observed by this Court while granting bail to the parents that it was argued before it that the real beneficiary of the demand of dowry of Rs. Two lacs was the husband present opposite party No. 2 and hence the defence itself had made a distinction between the cases of respondents No. 2 and his parents. Further I, am of the view that fair trial will not be possible so long as respondent No. 2 remains on bail and that the chances of tampering are very grave.
17. In view of the discussions made above Arvind respondent No. 2 cannot be allowed to remain on bail. Resultantly, I allow this bail cancellation application and cancel his bail granting order dated 18.5.2006 passed by In-Charge-Sessions Judge Muzafar Nagar in Bail Application No. 1110 of 2006, Arvind Kumar v. State, under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, P.S. Nai Mandi, district Muzaffar Nagar in Case Crime No. 140 of 2006 and cancel the bail of opposite party No. 2 Arvind son of Om Prakash, Resident of Mohalla Patel Nagar, P.S. Nai Mandi, district Muzaffar Nagar.
18. I direct the C.J.M. Muzaffarnagar to issue a non-bailable warrant of arrest against the opposite party No. 2 Arvind in the aforesaid crime number and sections and get him arrested forthwith and lodge him in jail till the disposal of the case of aforesaid crime number against him.