Cancellation of bail cannot be based on non-payment of maintenance as per a private settlement; valid grounds must align with provisions of the Criminal Procedure Code.

ORDER :

PRADEEP KUMAR SRIVASTAVA, J.

1. The instant application has been filed for quashing the order dated 21.01.2021 passed by learned Judicial Magistrate, Deoghar in connection with Complaint Case No. 768 of 2017, arising out of Deoghar, P.S. Case No. 145 of 2016 corresponding to G.R. case No. 365 of 2016, by which learned Judicial Magistrate, Deoghar has cancelled the bail bond furnished by the petitioner on the ground that the petitioner has not complied with the terms and conditions of anticipatory bail granted by the court of learned Sessions Judge, Deoghar in ABP No. 930 of 2019 dated 28.11.2019.

2. Learned counsel for the petitioner has submitted that petitioner, aged about 82 years, is the accused for the offence under Sections 323, 498- A of the I.P.C. and he happens to be the husband of the complainant. It is further submitted that the petitioner was granted anticipatory bail vide order dated 28.11.2019 passed by learned Sessions Judge, Deoghar in A.B.P. No. 930/2019 on the basis of settlement between the parties arrived at DLSA, Deoghar, whereby the petitioner has undertaken for payment of Rs. 15,000/- per month to his wife and children and it has regularly been paid by the petitioner.

3. It is further submitted that meanwhile, a regular order was passed in Criminal Miscellaneous Case No. 05/2016 filed under Section 125 of the Cr.P.C. and petitioner was directed to pay of Rs. 10,000/- to his wife and Rs. 1,000/- to each child (total Rs.12,000/-) as maintenance. Hence, petitioner is regularly depositing money in the account of the complainant and he has also filed the supplementary affidavit annexing the documents that the amount is being remitted from his account to the account of the Complainant / O.P. No. 2.

4. It is further submitted that the bail bond furnished by the petitioner in compliance of anticipatory bail granted to him was cancelled by the impugned order only on the ground that petitioner has not complied the order of payment of maintenance of Rs.15,000/- per month as per the settlement arrived at DLSA, Deoghar, which is absolutely illegal and not justified under law. There is no provision to pay maintenance as per bail order, while order has been passed by competent court in proceeding under Section 125 Cr.P.C.

5. Learned counsel for the petitioner has placed reliance upon the judgement of the Honb’le apex Court rendered in Biman Chatterjee Versus Sanchita Chatterjee and others reported in (2004) 3 SCC 388.

6. On the other hand, learned Spl.P.P. assisted by the learned counsel for the O.P. NO. 2 has opposed the aforesaid contentions and submitted that the petitioner is not regular in payment of maintenance allowance as per settlement arrived at DLSA, Deoghar. Therefore, his bail bond has rightly been cancelled by the court below.

7. I have gone through the impugned order in the light of rival contentions of the parties and also perused the citation relied upon by the learned counsel for the petitioner. There is no doubt that bail bond of the petitioner has been cancelled only on the ground of non-payment of maintenance amount as per settlement arrived at DLSA, Deoghar in Complaint Case No. 768 of 2017 for the offence under Sections 323 and 498-A of the I.P.C. which was the conditions of his bail as per order dated 28.11.2019 passed in A.B.P. No. 930 of 2019.

8. The Honb’le Supreme Court in the case of Biman Chatterjee (Supra) has held in Para-7 as under:

Having heard the learned counsel for the parties, we are of the opinion that the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise. Though, in the original order granting bail there is a reference to an agreement of the parties to have a talk of compromise through the media of well-wishers, there is no submission made to the court that there will be a compromise or that the appellant would take back his wife. Be that as it may, in our opinion, the courts below could not have cancelled