SHARMA, J. - (1.) INSTANT criminal miscellaneous petition involves manifold legal questions that run as follows:- (i) Whether after rejection of anticipatory bail application by the High Court, is the accused entitled to make second bail application before the Sessions Court under Section 438 Cr. P. C. ? (ii) Whether a Sessions Judge is competent to grant second bail application under Section 438 Cr. P. C. ignoring the earlier rejection order of the High Court? (iii) Has the complainant locus standi to make application under Sub-section (2) of Section 439 Cr. P. C. seeking cancellation of bail granted to an accused? (iv) Could the application made before the High Court under sub-section (2) of section 439 Cr. P. C. , be remitted back to the Sessions Court for a fresh decision? (v) What are the principles of judicial discipline and propriety?
(2.) CONTEXTUAL facts depict that informant Fateh Singh instituted FIR on March 26, 1997 with the Police Station Mahuwa in regard to death of his sister Vinod Kumari under suspicious circumstances in the house of the accused petitioners. Deceased was married to accused Dr. Suresh Chand Meena on June 20, 1995 and died on March 25, 1997. The informant stated in the FIR that he himself had seen the dead body of his sister. It turned blue completely and blood was oozing from the mouth and nostrils. Request of the informant for medical examination of the body was declined by the accused and it was creamated. It was also stated in the FIR that before her death, Vinod Kumari whenever visited the house of the informant, she used to complain that the accused had harassed and humiliate her in connection with demand of dowry. Police Station Mahuwa registered a case bearing FIR No. 98/97 under Sections 498a, 304 B and 201 IPC against the accused. Apprehending arrest the accused petitioners made application under Section 438 Cr. P. C. before the Sessions Judge Dausa but the same was dismissed on July 15, 1998. Thereafter the High Court was approached through S. B. Criminal Misc. Bail Application No. 3515 of 1998. While declining to issue direction under Section 438 Cr. P. C. , the High Court on August 21, 1998 made following order: "hon'ble Mr. P. C. Jain J. Mr. Naina Saraf for the petitioners Mr. S. M. Poddar, P. P. Mr. Shiv Lal for complainant After having perused the case diary more particularly the statements of Fateh Singh, Kistoori and Harphool and the fact that the deceased Vinod died within two years of her marriage in suspicious circumstances, I am not inclined to grant pre-arrest bail to the petitioners. The bail application is, therefore rejected". Even after the aforequoted rejection order of the High Court, the accused petitioners made second bail application under Section 438 Cr. P. C. before the Sessions Judge Dausa and the Sessions Judge (Mr. R. L. Agarwal R. H. J. S.) vide order dated October 30, 1998 granted anticipatory bail to the accused petitioners. Thereafter Fateh Singh, the brother of the deceased, made an application under sub-section (2) of Section 439 Cr. P. C. seeking cancellation of bail. The Sessions Judge Dausa (Mr. P. K. Bhatia, R. H. J. S.) dismissed the application on May 5, 2000 with the observations that the accused petitioners did not conceal the fact of earlier rejection, therefore the bail once granted could not be cancelled. The complainant assailed both the orders respectively passed on October 30, 1998 and May 5, 2000 by the Sessions Judge Dausa in the High Court by filing application under sub-section (2) of Section 439 Cr. P. C. bearing S. B. Criminal Misc. (Cancellation of Bail) Application No. 2750 of 2000. This court vide order dated October 11, 2000 remitted back the matter for fresh decision to the Sessions Judge Dausa with the following directions- "therefore the matter is remitted back under Section 439 (2) Cr. P. C. to Sessions Judge Dausa with a direction to dispose of the application of the complainant afresh and decide as to whether after rejection of anticipatory bail application by the High Court, is the second application under Section 438 Cr. P. C. maintainable before the Sessions Judge. " The Sessions Judge, Dausa vide order dated November 7, 2000 allowed the application made by the complainant Fateh Singh under sub-section (2) of Section 439 Cr. P. C. and cancelled the bail granted to the accused petitioners vide order dated October 30, 1998 under Section 438 Cr. P. C. and pursuant thereto vide order dated November 30, 1998 by the Judicial Magistrate Mahuwa. The accused petitioners in the instant criminal miscellaneous petition seek to quash the aforequoted order dated November 7, 2000.
(3.) MR. Suresh Sahni, learned counsel for the accused petitioners vehemently canvassed that the matter could not have been remitted back but ought to have been dealt with by the High Court under its jurisdiction in order to settle the controversy between the parties once for all. It was further contended that the Sessions Judge has not exercised the powers under sub-section (2) of Section 439 Cr. P. C. independently and the impugned order stands influenced by the order dated October 11, 2000 passed by the High Court. It was next contended that the Sessions Judge has concurrent jurisdiction under Section 438 Cr. P. C. along with the High Court and is free to exercise the same in the change circumstances. Grant of indulgence under Section 438 Cr. P. C. is a discretionary matter and cannot be put in a straight jacket formula. The discretion was rightly exercised by the Sessions Judge looking to the fact that accusations levelled against the accused petitioners do not connect them even remotely with the alleged offences. The petitioners did not conceal the fact of earlier rejection order of the High Court and put a specific note on the second bail application to this effect and also filed detailed affidavit. The second bail application was maintainable and the complainant had no locus standi to make cancellation application under sub-section (2) of Section 439 Cr. P. C. Learned counsel also urged that the accused petitioners never misused the liberty. Two of the accused petitioners are women and considerations of equity should prevail as no purpose will be served to send them to Jail. In support of his contentions learned counsel placed reliance on various judicial pronouncements, those shall be dealt with in the later part of this judgment. Per contra Mr. M. K. Kaushik, learned counsel for the complainant supported the impugned order and urged that petition under Section 482 Cr. P. C. is not maintainable against the impugned order. Learned counsel further contended that the course adopted by the learned Sessions Judge while passing the impugned order was not only contrary to settled principles of judicial discipline and propriety but also contrary to statutory provisions. The complainant has locus standi to assail the arbitrary and illegal order of the Sessions Judge. Various authorities cited by the learned counsel shall be referred at appropriate juncture. MAINTAINABILITY OF SECOND ANTICIPATORY BAIL APPLICATION The first question that requires my consideration is as to whether second anticipatory bail application after rejection of the first by the High Court, is maintainable? ;