- (1.) VINOD Prasad, J. 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 Sections 498-A, 304-B, 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 498-A, 304-B 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 a. m. that day and autopsy on her body was performed on 1-2-2006 at 3. 15 p. m. The post-mortem of the deceased indicated that she had a ligature mark, her hyoid bone was intact and mucosa of trachea and laynx were congested. She had also an abraded contusion 1. 5 cm x 0. 5 cm. on the middle of lower lip. In the estimation of the doctor the cause of her death was asphyxia as a result anti-mortem hanging. The Investigating Officer during the investigation recorded the statement of informant Jai Pal Singh Mittal, his son Navneet Mittal 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 alongwith 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 alongwith other companions threatened her that if she will do pairvi of the case and henceforth if she will be seen in Muzaffarnagar 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 pairvi 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. " 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. " Thereafter opposite party No. 2 Arvind 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.
(3.) 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 alongwith this bail cancellation application the counter-affidavit and rejoinder affidavits. 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 non-bailable 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. ";