Jai Kumar vs Balhari & Anr

CRIMINAL APPEAL NO. 1712 OF 2010 [ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 6100 OF 2010]

JAI KUMAR ..... APPELLANT

VERSUS

BALHARI & ANR. ..... RESPONDENTS

O R D E R

1. Leave granted.

2. Accused, aggrieved by the order of the High Court

cancelling his bail has preferred this appeal.

3. Appellant happens to be the husband of the deceased

Meera with whom he married on 23rd November, 2005.

According to the prosecution, she committed suicide on 5th

November, 2008. On the statement of her father Balhari,

FIR under Section 498A and 304B of the Indian Penal Code

was registered against the husband, mother-in-law Phulwati

and sister-in-law Gyanwati. After investigation, police

submitted the charge sheet. Accused filed an application

for discharge along with an application filed by the

appellant for grant of bail. Additional Sessions Judge,

Dwarka, by order dated 27th June, 2009 rejected the

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application of discharge of all the accused excepting the

mother-in-law. By order of the same day, the learned

Additional Sessions Judge, granted bail to the appellant.

4. Aggrieved by the order of discharge of the mother-in-

law and granting bail to the appellant, the informant

Balhari filed two separate applications before the High

Court which was registered as Criminal M.C. No. 3547 of

2009 and Criminal MC No. 3506 of 2009. By the impugned

order dated 25th May, 2010, the order of discharge had been

set aside and the order granting bail to the appellant has

been cancelled.

5. Appellant aggrieved by the cancellation of his bail

has preferred this appeal.

6. Mr. Neeraj Kumar Jain, the learned Senior Counsel for

the appellant submits that the Additional Sessions Judge

after assigning reasons had granted bail to the appellant

and that ought not to have been cancelled by the High

Court. He submits that the parameters for cancellation of

bail is entirely different from that for granting of bail.

Mr. S.K. Dubey, learned Senior Counsel appearing on behalf

of respondent No. 1, however, submits that without

discussing the merits of the case, the trial court has

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granted bail to the appellant and the same was rightly

cancelled by the High Court. In support of the

submission, he has placed reliance in a large number of

decisions of this Court in Puran v. Ram Bilas & Anr.

(2001) 6 SCC 338; Kalyan Chandra Sarkar v. Rajesh Ranjan @

Pappu Yadav & Anr. (2004) 7 SCC 528; Anwari Begum v. Sher

Mohammad & Anr. (2005) 7 SCC 326; and Ram Govind

Upadhyay v. Sudershan Singh & Ors. (2002) 3 SCC 598.

7. True it is, that the High Court possesses power to

cancel the bail granted to an accused by an inferior Court

but it is well-settled that the parameters for cancellation

of bail and for granting of bail is entirely different.

Here, in the present case, the trial court taking into

account the period of custody as also delay in conclusion

of the trial, directed for the release of the appellant.

Relevant portion of the order of the trial court in this

regard reads as follows:

"Accused is in custody in this case since

07/11/2008 and the trial of the case is going to take

time. There is no likelihood of accused jumping the

bail or influencing the witnesses in any manner.

Considering the facts and circumstances of the case,

accused Jai Kumar is admitted to bail on his

furnishing personal bond in the sum of Rs. 50,000/-

with one surety in the like amount. The application

for bail stand disposed of."

8. The High Court, however, has cancelled the bail on

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its finding that the trial court has not given any reason

for granting bail. It has also observed that by the same

order when the trial court has found materials to frame

charge against the appellant, it ought not to have granted

bail to him. Relevant portion of the judgment of the High

Court in this regard reads as follows:

"A perusal of the impugned bail order would

show that the learned trial court has not given any

reasons at all for releasing the husband on bail on the

same day of framing of charges under Sections

498A/304B IPC against him."

9. We have considered the rival submissions and we find

that it was not a fit case in which the High Court should

have cancelled the bail. The trial court while granting

bail has taken into consideration the period of

incarceration and further expected delay in conclusion of

the trial. The High Court, in our opinion, is not correct

when it observes that the trial court has not given any

reason to grant bail to the appellant. Further, the High

Court erred in holding that when there were materials to

frame charge against the appellant the trial court ought

not to have granted bail. Charges are framed when

materials prima facie show the complicity of the accused in

the crime. It is not correct to say that bail is granted

only in those cases where there are no materials.

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Considerations are entirely different for exercising the

power to grant bail and to frame charge. As the High Court

had cancelled the bail on erroneous considerations, the

same requires to be interfered with by this Court.

10. In the result, we allow the appeal, set aside the

impugned order of the High Court whereby it has cancelled

the bail granted to the appellant with the observation

aforesaid. We make it clear that any observations made by

us in this order shall have no bearing on the merits of

the case.

........................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI SEPTEMBER 06, 2010.