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Judgment
Dr. (Mrs.) Sarojnei Saksena, J.
Complainant Azad Nath has filed this petition under Section 439(2) read with Section 482 of the Code of Criminal Procedure, for cancellation of bail granted to the appellantaccused Baba Akkar Nath on 7.9.1997 by the High Court, while his appeal against conviction was admitted and sentence awarded therein was suspended on his furnishing bail bonds to the satisfaction of Chief Judicial Magistrate, Chandigarh.
Backdrop of the case is that on a complaint, lodged by applicantAzad Nath, appellant, Akkar Nath, Hari Om and Labh Singh were prosecuted for offences under Sections 364/511/34, 452/34 and 506 of the Indian Penal Code. All these accused persons/appellants were convicted vide judgment dated 14.8.1996 of the Additional Sessions Judge, Chandigarh and were sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 1,000/; two years with a fine of Rs. 500/ and one year respectively. All the sentences were ordered to run concurrently.
Samadh (dera) Baba Garibnath through its Mahant Peer Azadnath as plaintiffs filed a suit for declaration and injunction against Baba Akkar Nath claiming that Mahant Kedarnath had nominated Mahant Thumbinath as successor vide document dated 7.2.1991. When Thumbinath left the place without leaving any address and was untraceable, plaintiff No. 2 Azadnath was nominated as Mahant cancelling the nomination in favour of said Thumbinath. Defendant Baba Akkar Nath has no right, title or interest in the suit property. Therefore, plaintiffs prayed that it be declared that plaintiff No. 2 Baba Azadnath is the Mahant Mohtmim of plaintiff No. 1 and is entitled to control and manage the properties owned and possessed by Dera. They also prayed that injunction be issued restraining the defendant Baba Akkar Nath from taking possession of the suit property and interfering into the management and control of plaintiffs over the suit property in any manner.
The suit proceeded ex parte and an ex parte decree was passed in favour of the plaintiffs on 27.10.1995.
Baba Akkar Nath filed the suit for permanent injunction against Azadnath in March, 1996. He also filed an application under JUDGMENT 39 Rules 1 and 2, Civil Procedure Code, on 6.3.1996 praying that he was appointed as Mahant. Defendant Azadnath acted as Mahant of this Samadh (Dera) for some time, but vide writing dated 3.9.1993 he admitted the supremacy of Bhekh of Sampardayes. As Azadnathdefendant acted against the interest of Dera, he was relieved from his duties as Mahant on 1.3.1996, while plaintiff Akkar Nath was appointed as Mahant, but Baba Azadnath in the garb of an ex parte judgment and decree, dated 27.10.1995 is threatening to interfere in the smooth functioning of the Dera. Hence, injunction was prayed. This injunction petition was dismissed by the trial Court vide order dated 9.3.1996 holding that plaintiff is not entitled to get relief of temporary injunction, which will be a verdict in contradiction to the terms of the judgment and decree dated 27.10.1995 without setting aside the same.
Baba Akkar Nath filed an appeal against this order which was allowed and sought for injunction was granted in his favour and against Azad Nath (applicant). Against the order of the Appellate Court, Azadnath filed Civil Revision No. 2380 of 1996 wherein the High Court granted status quo order on 30.5.1996 subject to the condition that petitioner should deposit Rs. 50,000/ in a nationalised bank with an undertaking that he will not withdraw the amount till the disposal of the suit. This revision was decided by the High Court on 28.7.1997 with a direction that order of status quo as to possession shall continue till the disposal of the suit. This suit was dismissed by the lower Court on 4.8.1997 as on this date none appeared for the plaintiff. Plaintiff Baba Akkar Nath filed an appeal against that decision which was pending. In October, 1996, in the said Civil Revision, petitioner filed Civil Miscellaneous Petition No. 10573CII of 1997 praying that the order dated 28.7.1997 passed in the Civil Revision earlier be modified and clarified to the extent that the applicantrespondent in the Civil Revision, may be allowed only one opportunity to lead his entire evidence. That petition was disposed of on 6.10.1997 on petitioner''s counsel''s request that petition be dismissed as withdrawn with liberty to the applicant to avail any other remedy that may be available to him.
Petitioner has alleged in his petition that Baba Akkar Nath is continuously trying to dispossess Azadnathapplicant through forcible means. The applicant made representation to the Director General of Police, Haryana, regarding security of the property of Dera. He sent representations on 6.5.1997 and 3.10.1997. On 3.10.1997 a compromise was effected between the applicant Azad Nath and appellant Baba Akkar Nath in Police Station, Pehowa to the effect that whatever would be the decision of the High Court, shall be binding on both the parties and till the decision of the High Court, Akkar Nath will not visit/enter the Dera. On 6.10.1997 the High Court dismissed the application of Baba Akkar Nath seeking one more opportunity to lead his evidence. According to the petitioner, thereafter, Akkar Nath, in view of agreement dated 3.10.1997, has no right to interfere with the possession of dera of Azad Nath. On 10.10.1997 Akkar Nath has taken possession of Samadh (Dera) Baba Garibnath, Pehowa, Since then, he is in its illegal possession. Petitioner filed Civil Writ Petition No. 15639 of 1997 against various respondents including Akkar Nath seeking a direction to the Deputy Commissioner, Kurukshetra and police authorities to protect the life and property of the petitioner with a specific direction to get properties from the appellants to Azadnath applicant. Notice was issued to the respondents.
Petitioner has also averred that the appellant is misusing the liberty granted to him by the High Court while admitting his appeal on 7.9.1996. Baba Akkar Nath is continuously making efforts to dispossess the complainant in spite of decree passed in his favour, which has become final and is binding between the parties. AppellantBaba Akkar Nath is also bound by the agreement which was arrived at between the applicant and Akkar Nath on 3.10.1997 in Police Station. Thus, on these grounds, the applicant has prayed that since the appellant has clearly misused the liberty granted to him and is committing series of offences like trespassing and violating the orders of the trial Court, he prayed that bail granted to Baba Akkar Nathappellant be cancelled.
In reply, appellantBaba Akkar Nath has denied all the allegations and submitted that on 1.3.1996, a meeting of Bhekh was held wherein Baba Azadnath (applicant) was removed from Mahantship of Dera. Baba Akkar Nath was made Mahant of Dera. This decision was given wide publicity in local papers as well. Baba Azadnath felt aggrieved by this decision and started interfering in the management and control of the dera. Baba Akkar Nath filed the suit for injunction and also made a prayer of temporary injunction which was declined by the trial Court, but his appeal was allowed by the Additional District Judge, Kurukshetra vide order dated 27.5.1996 and Azadnath was restrained from interfering in the use and possession of the property of Dera. Azadnath filed Civil Revision which was disposed of by the High Court on 28.7.1997 wherein temporary injunction order was not vacated; it was modified to the extent that status quo be maintained. On 4.8.1997 as he could not go to attend to the hearing, his suit was dismissed by the trial Court, but the trial Court directed him to move the High Court to modify or clarify the order dated 28.7.1997. He filed an application before the High Court, which was fixed for hearing on 26.3.1998. He denied that he made any effort to dispossess Baba Azadnath by any forcible means. In pursuance of the decision of the Bhekh in the meeting held on 1.3.1996 he is in possession of the property of dera. He also alleged that on 3.10.1997 he was called at the Police Station and under the threat of police and close friends of Baba Azad Nath, he was made to sign on blank papers. He denied that he ever entered into any compromise with Azadnath on 3.10.1997. Baba Azadnath also filed the writ petition in the High Court, which has been finally disposed of and no relief is given to him. He denied that he misused his liberty or made any effort to disobey any order of the Court.
During arguments petitioner''s learned counsel valiantly submitted that AppellantAkkar Nath was convicted for the aforesaid offences on the applicant''s complaint. He filed an appeal and without notice to the complainant, their appeal was admitted and bail was granted to them by the High Court vide order dated 7.9.1996. After being released on bail, the appellantBaba Akkar Nath is misusing the concession of bail and has forcibly taken possession of the property of Dera; therefore, petitioner''s learned counsel submitted that the appellant''s bail be cancelled. The applicant''s counsel clearly stated that this is the only way how the applicant can get the possession of the property of dera. When appellant will be taken in custody, again the applicant will be in a position to take possession of Dera and this is how he can protect the interest of dera by occupying the office of Mahant of the same.
Appellant''s learned counsel contested the merits of the petition and submitted that in the meeting held on 1.3.1996, he was duly appointed as Mahant of Dera. Since then he is continuously in possession of dera and is discharging the duty of Mahant. Thereafter at no point of time the applicant came in possession of the property of dera or acted as Mahant of dera. When he started interfering in the control and management of the appellant so far as dera''s property is concerned, he filed civil suit. He never agreed in the Police Station that he will not visit the property of dera. He was made to sign on blank papers. On that premise, he prayed that the petition be dismissed.
After hearing the rival contentions, in my considered view, there is no merit in this petition and is liable to be dismissed.
First of all, property dispute is going on between the parties in the civil court. Whether appellantAkkar Nath is duly appointed Mahant and is entitled to take possession or to be in possession of the property of dera or the applicantAzadnath is entitled to discharge the duty of Mahant of the said dera and to take care of the property of dera, are questions which are being tried by the Civil Courts. Parties are litigating upto the High Court. If the High Court would have agreed with the contention of the applicantAzadnath that he is duly appointed Mahant and is in possession of the property of dera, while disposing of the aforementioned revision after notice was issued on 30.5.1996, the High Court would not have asked the applicantAzadnath to deposit Rs. 50,000/ in the nationalised bank with an undertaking not to withdraw it till the disposal of the suit and while disposing of the said revision would not have observed that status quo as to possession shall continue till the disposal of the suit. Thus, the orders indicate that the High Court was never convinced at that stage that Azadnathapplicant is in possession of the property of dera or is duly appointed Mahant of this dera. While deciding this petition, it is not necessary for me to advert to these complicated questions of fact which relate to civil liabilities of the parties, which are sub judice before the civil Court.
Whether after being released on bail, Baba Akkar Nathappellant has forcibly taken possession of the dera''s property or not is again a question of fact, which is yet to be enquired into by the competent Court. But if Azadnath would have been able to prove this fact, his Civil Writ Petition would not have been disposed of with a direction that he may avail of other legal remedies available to him. If the applicant considers that in view of the ex parte judgment and decree dated 27.10.1995, he is Mahant and is also in possession of property of dera and has been wrongly dispossessed by the appellantAkkar Nath, he could have filed an application under Section 144 of the Civil Procedure Code or could have approached the Criminal Court by filing a criminal complaint against Azadnath on these facts. Even if it is to be believed that applicantAzad Nath was in possession of the property of dera and was working as Mahant but under the garb of this petition filed under Section 439(2) of the Code of Criminal Procedure, he cannot be allowed to make such a prayer that the appellant''s bail be cancelled; he be taken back in custody so that applicant may get possession of the property of dera and may start working again as Mahant of dera. Provisions of Section 439(2) of the Code of Criminal Procedure cannot be used as a weapon; it is nothing but a shield to protect the interests of justice to see that in the pending trial, the accused does not flee away; makes himself available for trial; does not tamper with the prosecution evidence, does not repeat such like offences and for such like cognate reason; does not interfere in the course of investigation and such like cognate variable factors which cannot be exhaustively set out. On that premise, there is no merit in the petition.
Secondly, the appellantAkkar Nath was granted bail and his sentence was suspended under Section 389 of the Code which falls in Chapter XXIX. Section 439(2) of the Code of Criminal Procedure reads as under :
"A High Court or the Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
This Section falls in Chapter XXXIII; therefore, bail granted under Section 389 cannot be cancelled under Section 439(2) of the Code of Criminal Procedure. Literal interpretation of these provisions indicate that they are distinct and separate remedies. JUDGMENT under Section 389 of the Code of Criminal Procedure is passed whereby sentence is suspended and bail is granted, that is not granted during the pendency of the trial. Under Sections 437 to 439(1) of the Code of Criminal Procedure, bail is granted either when investigation is going on or trial is pending. Even if it is to be considered that this petition is also filed under Section 482 of the Code of Criminal Procedure, still from the facts enumerated above, there is no ground to cancel the bail granted to appellantAkkar Nath. Provisions of grant of bail and cancellation of bail cannot be utilised for an ulterior purpose.
Thus, finding no merit in the petition, it is hereby dismissed.