Nidhi Lohiya vs State of M.P.

Heard.

This is an application u/s 439(2) of Cr.P.C. for cancellation of anticipatory bail granted to the respondent No. 2 by this court vide order dated 26.7.2013 passed in M.Cr.C. No. 6063/2013.

It is submitted that respondent No. 2 has filed an application, which was registered as M.Cr.C. No. 6063/2013 and after hearing the learned counsel for the parties the respondent No. 2 has been granted anticipatory bail. It is further submitted that during course of the arguments counsel for the respondent No. 2 accused had mis-lead the Court on the point that the husband has filed an application u/s 13(1) of Hindu Marriage Act and thereafter, the complainant has lodged the report.. The complainant has lodged the report in the year 2008 before filing the petition u/s 13(1) of Hindu Marriage Act. It is further submitted that the delay in filing complaint is not a factor because the offence u/s 498(A) of IPC is a continuing offence. The respondent No. 2 accused is neither cooperating in the investigation nor complying with the conditions imposed by this Court because respondent No. 2 accused is threatening the complainant to give false evidence otherwise he would kill her. Hence the bail granted to respondent No. 2 be cancelled.

The prayer is opposed by the learned counsel appearing on behalf of respondent No. 2 submitting that allegation of misleading the court is incorrect and allegation that respondent is threatening the petitioner is also not correct. It is submitted that there is no ground for cancellation of the bail.

I have considered the submissions of the learned counsel for the parties and perused the record. The petitioner has filed a copy of the complaint dated 5.11.2008 addressed to SHO, P.S., Lahar. From perusal of the copy it appears that it does not bear the seal of the concerning Police Station. Copy of the another complaint dated 17.12.2003 addressed to SHO, Mahila Thana, Padav has been filed, but it does not bear any receipt. The petitioner has also filed a copy of the application addressed to Supdt. Of Police, Gwalior regarding non-registration of FIR on complaint dated 17.12.2008. This application has been filed on 12.4.2013 i.e. the date on which the report of Crime No. 110/2013 was lodged. If the FIR was not recorded why the petitioner has not moved the Superior Officers or approached the Court, Petitioner has not explained why she has not taken the aforesaid action.

If for the sake of argument it is assumed that the complaint was lodged on 6.11.2008 and 17.12.2008, then when the demand of dowry and harassment was started after second day of marriage on 20-11-2003 why petitioner remained mum upto 6-11-2008 that is about five years. The petitioner has not come forward to lodge a complaint. No explanation has been furnished for not lodging the complaint. Thus the submission of the learned counsel that petitioner has lodged the complainant in the year 2008 before the present F.I.R. Is devoid of merits.

Next submission of the learned counsel for the petitioner is that the respondent No. 2 is not complying with the conditions imposed by this Court while granting anticipatory bail and the respondent No. 2 is creating pressure upon the petitioner not to give statement against him and also threatening that if the statement is given the petitioner will be killed. The petitioner has not given any particulars when she was pressurized and when such threat was given to her. No report has been lodged against the respondent No. 2 regarding giving threat to kill her. Had really threat was given, there was no reason not to lodge the complaint against the respondent No. 2.

Learned counsel for the petitioner has cited the decision rendered in the case of Ramesh Kateha and Another Vs. State of Madhya Pradesh and Others, , wherein it has been observed as under.:-

It is the duty of the litigant to approach the Courts with clean hands. It is obligatory on the part of the every litigant as well as every officer of the Court to preserve the dignity of the Court and respect the majesty of law. In all circumstances the supremacy of law has to prevail. Law is a great leveler . It cannot be countenanced that due to deprivation of liberty someone can make a false statement in a Court of law and obtain the benefit. This is nothing but a fraud on the Court.

As noticed, the respondent No. 2 has not concealed any fact nor mis-lead this Court, therefore, this case law is not applicable in the present case. Learned counsel for the petitioner has also cited the in the matter of Uday Bhan Vs. State of M.P. and Another, . In this case the Division Bench of this Court has held that victim is a aggrieved party as defined and in a proceeding regarding transfer of sessions trial, the victim is required to be given an opportunity of hearing.

In the bail application the petitioner-victim cannot claim hearing as a right.

The Apex Court in D.K. Jain and Others Vs. State of Haryana and Others, has observed in para 4 as under:-

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

In the instant case, as noticed above, I do not find any substance in the allegation of the petitioner that counsel of the respondent mislead the court and respondent No. 2 has breached the conditions of bail granted by this Court. Hence, this application for cancellation of bail is devoid of any merits and is hereby dismissed.