- (1.) This criminal misc. petition under S. 482, Cr. P.C. has been filed by the accused petitioner against the order dated 16-9-1999 passed by the learned Sessions Judge, Dungarpur in Criminal Misc. Case No. 282/99 by which he cancelled the bail granted earlier to the accused petitioner under S. 438, Cr. P.C. on 23-8-1999 in a case FIR No. 99/99, Police station Vardha for the offence under Ss. 498-A and 307, IPC and lateron 302, IPC was added.
(2.) It arises in the following circumstances :- On 18-8-1999, the complainant Ganesh Lal lodged a report before the Police Station Vardha, District Dungarpur to the effect that his sister Sarla (hereinafter referred to as the deceased) was married with Vinod S/o Lal Shankar and on 16-8-1999 her husband Vinod Kumar and mother-in-law Smt. Sharda (present accused petitioner) burnt her. On that report, FIR No. 99/99 was registered at the police station Vardha for the offence under Ss. 307 and 498, IPC and investigation was started. It is further stated by the accused petitioner that on 16-8-1999, the deceased was admitted in the hospital and her statement was recorded where she has stated that she was preparing food on the stove and stove burst whereby her sari caught fire and she has not been burnt by anybody and in that statement, she did not utter a single word regarding ill-treatment or torture for demand of dowry. During the pendency of that FIR, a bail application under S. 438, Cr. P.C. was presented before the learned Sessions Judge, Dungarpur on behalf of accused Vinod, husband of the deceased and Smt. Sharda, mother-in-law of the deceased (present accused petitioner) and the same was granted by the learned Sessions Judge on 23-8-1999 after perusal of the case diary. Lateron, complainant Ganesh Lal filed an application under S. 439(2), Cr. P.C. for cancellation of the bail granted to both accused Vinod, husband of the deceased and Smt. Sharda, mother-in-law of the deceased (present accused petitioner) on the ground that deceased had died on 23-8-1999 at Ahmedabad and her statement was recorded by the Magistrate at Ahmedabad as dying declaration on 19-8-1999 where she has specifically stated that her mother-in-law Sharda, present accused petitioner poured kerosene oil on her and lighted the fire, but this dying declaration was concealed by the present accused petitioner and obtained the bail order and it is further alleged that this dying declaration was within the knowledge of the present accused petitioner as when the statement of the deceased was recorded by the Magistrate, she was present in the hospital at Ahmedabad and thus, accused Vinod and the present accused petitioner Sharda obtained the anticipatory bail from the learned Sessions Judge, Dungarpur on 23-8-1999 by suppressing the material facts and, therefore, anticipatory bail which was granted to accused Vinod and the present accused petitioner Sharda on 23-8-1999 be cancelled. The learned Sessions Judge, Dungarpur after giving notice to accused Vinod and the present accused petitioner Sharda vide order dated 16-9-1999 cancelled the anticipatory bail granted to the present accused petitioner Sharda, mother-in-law of the deceased, but maintained the order granting anticipatory bail to accused Vinod, husband of the deceased holding inter alia :- 1. That at the time when he granted anticipatory bail on 23-8-1999, the fact that deceased had died at Ahmedabad and her statement was recorded by the Magistrate was not brought to his knowledge. 2.That the fact that kerosene oil was poured on the body of the deceased by the mother-in-law Sharda, present accused petitioner was also not brought to his knowledge. 3.That since these material facts were suppressed, the bail granted to the accused petitioner Sharda was liable to be cancelled and he accordingly cancelled it. Aggrieved from the said order dated 16-9-1999 passed by the learned Sessions Judge, Dungarpur cancelling bail granted earlier to the present accused petitioner Sharda, the present criminal misc. petition under S. 482, Cr. P.C. has been filed by her with the prayer that the order of the learned Sessions Judge by which anticipatory bail granted earlier to her was cancelled, be set aside and the order of the learned Sessions Judge dated 23-8-1999 granting anticipatory bail to her may be restored.
(3.) In this criminal misc. petition, it has been argued by the learned counsel for the accused petitioner :- 1. That it is well settled that once bail has been granted, same cannot be cancelled merely on the ground that higher offence has been added and there is no evidence to suggest that the accused petitioner is trying to tamper with the witnesses. Note :- It may be stated here that after the death of the deceased on 23-8-1999 at Ahmedabad, in place of 307, IPC, Section 302, IPC was added. 2.That the bail, which was granted to the accused petitioner on 23-8-1999, was granted after seeing the case diary and, therefore, no question of suppression of material facts arises.;