Surinder Kaur vs State of Punjab and Others

Mahesh Grover, J.—This is a petition u/s 439(2) Cr.P.C. read with Section 482 Cr.P.C. for cancellation of pre-arrest bail granted by this Court to respondents No. 2 and 3. The facts of the case may be noticed in brief.

The petitioner herein is the elder sister of respondent No. 2 and sister-in-law of respondent No. 3 (wife of respondent No. 2). She is a non-resident Indian and came back to India in 1992. It is stated that while she was abroad she used to send money to the family including respondent No. 2 who is an alcoholic. Out of the said money, few properties were purchased. The details of the amount given and the properties purchased have been given in para 2 of the petition.

Respondent No. 2 frittered away the amounts and the properties and clandestinely sold the same and misappropriated the funds leading to registration of FIR 245 dated 04.11.2012 at the instance of the petitioner.

As a measure of settlement a memorandum of understanding between the parties was entered into in the year 2004 but apparently it was not adhered to and that is the reason the FIR in question was registered. Soon after the registration of the FIR with the intervention of some relations a Panchayatnama was allegedly executed on 07.11.2012 indicating resolution of dispute between the parties and this Panchayatnama contained a stipulation by the petitioner that she would not proceed against the respondents and persist with the proceedings and that no action would be initiated against the respondents.

The respondents then filed a petition u/s 438 of the Code of Criminal Procedure and projected to this Court that the matter had been resolved between the parties who are related and a separate petition for quashing had also been filed. This Court persuaded by the fact of the compromise and noticing that the parties were related granted the concession of pre-arrest bail to the respondents.

In this petition, the petitioner contends that the respondents manipulated and maneuvered the situation to their advantage whereas they had no intention to either honour the memorandum of understanding or the settlement. Infact, they merely used the plea of settlement as a ploy to gain the concession of pre-arrest bail.

It has been contended by learned counsel for the petitioner that after the previous date of hearing i.e. 09.07.2013 when the Court made certain oral observations, respondent No. 2 has now filed a suit for declaration seeking invalidation of the memorandum of understanding between the parties. It is, thus, contention of learned counsel for the petitioner that the intention of the respondents was never to settle the matter and by making a deliberately wrong projection to the Court they have gained the advantage of pre-arrest bail. It is further contended by the petitioner that she was not party to the proceedings and the petition for quashing of the FIR filed by the respondent is also being resisted by the petitioner on similar grounds.

The respondents on the other hand have no justification to offer except to say that the matter had indeed been settled and is on record as Annexure R-1.

After hearing learned counsel for the parties, I am of the view that the respondents have clearly abused the process of law by making a projection that the matter had been settled which settlement they never intended to honour which is evident from the fact that they have now questioned the memorandum of understanding during the pendency of the present petition. The dishonest intention of the respondents is manifest and by asserting before this Court that the matter had been settled they took undue advantage by precluding the Court from examining the matter on merits and by persuading it to believe that the petitioner and the respondents being related have settled the matter.

It is a settled principle of law that the matter such as these revolve around the grant of a discretionary relief and persons approaching the Court have to do so with clean hands and if the Court concludes that the person approaching it has tried to over reach the Court then such a discretionary relief can certainly be denied to him. The Supreme Court in Ramjas Foundation and Another Vs. Union of India (UOI) and Others, has held that who does not come to the Court with clean hands or attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief.

The Court is also conscious of the fact that the matter concerning the bail and cancellation thereof are governed by different set of para metres. A pre-arrest bail granted under the provisions of Section 438 of the Code of Criminal Procedure is also distinct from the one granted to an incumbent under the provisions of Section 439 of the Code of Criminal Procedure. The provisions of Section 438 of the Code of Criminal Procedure are intended to prevent the abuse of process of law and protect a person from an intended abuse, whereas the provisions u/s 439 of the Code of Criminal Procedure is intended to liberate a person from incarceration to protect his liberty during the period of prosecution that may entail time consuming procedure. A benefit u/s 438 of the Code of Criminal Procedure if obtained by mis-representation can certainly be withdrawn, if the Court concludes and finds material which would satisfy its conscience that such a benefit has been obtained by the strength of mis-representation.

This Court finds sufficient material to conclude like wise and, thus, exercising its powers u/s 439(2) Cr.P.C. cancels the bail granted to the respondents vide its order dated 18.03.2013. The Investigating Officer shall be at liberty to proceed against the respondents in accordance with law. The petition stands disposed of.