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Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel (son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a complaint petition was filed by the 3rd respondent against her husband and the appellants alleging commission of an offence under Sections 406 and 114 of the Indian Penal Code. In the said complaint the 3rd respondent accepted that her husband had incurred huge losses in the business in United States. Appellants were granted bail subject to the condition that they would not leave India without prior permission of the Court. Allegedly on the premise that Appellant No.2 requires medical treatment, an application for permission was filed in October 1997 but they left India without obtaining the same from the Court. 5. An application was filed for cancellation of the bail which was rejected by the Metropolitan Magistrate as also by the Sessions Judge. The 3rd respondent filed an application before the High Court being Special Criminal Application NO.1360 of 1997. The said application was allowed by the High Court by its order dated 18th November, 1997 cancelling the bail of the appellants. The learned Metropolitan Magistrate was directed to issue Standing Warrant of arrest against the appellants as and when they returned to India. 6. On an application filed by the 3rd respondent on 24th April, 1998 the husband of the appellant was declared an absconder and a public proclamation was issued in terms of Section 82(2) of the Code of Criminal Procedure attaching her properties if she did not present before the Learned Magistrate within 30 days from the issuance of the said publication. There is nothing on record to show that the said order was served on the appellants. It, however, is not disputed that on their failure to remain present within a period of 30 days their properties were subjected to order of attachment under Section 85 of the Code of Criminal Procedure. By an order dated 5th January, 2004 the District Magistrate was asked by the Leaned Metropolitan Magistrate to take further action in terms of Section 85 of the Code of Criminal Procedure by holding a public auction of the said properties. In the said order it was wrongly sated that the properties belonged to the appellants and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was the owner thereof.

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CASE NO.:
Appeal (civil) 2003 of 2008

PETITIONER:
Vimalben Ajitbhai Patel

RESPONDENT:
Vatslabeen Ashokbhai Patel and others

DATE OF JUDGMENT: 14/03/2008

BENCH:
S.B. SINHA & V.S. SIRPURKAR

JUDGMENT:
JUDGMENT

CIVIL APPEAL NO 2003 OF 2008
[Arising out of SLP (Civil) No. 1061 of 2007]
WITH
CRIMINAL APPEAL NO. 502 OF 2008
[Arising out of SLP (Crl.) No. 213 of 2007]

Ajitbhai Revandas Patel and another  Appellant
 Versus
State of Gujarat and another  Respondents

S.B. SINHA, J :

1. Leave granted in both the matters.

2. These two appeals being inter related were taken up together for 
hearing and are being disposed of by the common judgment.

3. Vimlaben Ajitbhai Patel (Appellant in Civil Appeal is the mother in 
law of Sonalben Rameshchandra Desai - respondent No.3 in Civil Appeal 
and respondent No.2 in Criminal Appeal) while she alongwith her husband 
are the appellants in the Criminal Appeal. For the purpose of disposal of 
these appeals, Vimalben Ajitbhai Patel is being described as Appellant No.1 
while her husband Ajitbhai Revandas Patel is being described as Appellant 
No.2. 

4. Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel 
(son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a 
complaint petition was filed by the 3rd respondent against her husband and 
the appellants alleging commission of an offence under Sections 406 and 
114 of the Indian Penal Code. In the said complaint the 3rd respondent 
accepted that her husband had incurred huge losses in the business in United 
States. Appellants were granted bail subject to the condition that they would 
not leave India without prior permission of the Court. Allegedly on the 
premise that Appellant No.2 requires medical treatment, an application for 
permission was filed in October 1997 but they left India without obtaining 
the same from the Court. 

5. An application was filed for cancellation of the bail which was 
rejected by the Metropolitan Magistrate as also by the Sessions Judge. The 
3rd respondent filed an application before the High Court being Special 
Criminal Application NO.1360 of 1997. The said application was allowed 
by the High Court by its order dated 18th November, 1997 cancelling the bail 
of the appellants. The learned Metropolitan Magistrate was directed to 
issue Standing Warrant of arrest against the appellants as and when they 
returned to India. 

6. On an application filed by the 3rd respondent on 24th April, 1998 the 
husband of the appellant was declared an absconder and a public 
proclamation was issued in terms of Section 82(2) of the Code of Criminal 
Procedure attaching her properties if she did not present before the Learned 
Magistrate within 30 days from the issuance of the said publication. There is 
nothing on record to show that the said order was served on the appellants. 
It, however, is not disputed that on their failure to remain present within a 
period of 30 days their properties were subjected to order of attachment 
under Section 85 of the Code of Criminal Procedure. By an order dated 5th 
January, 2004 the District Magistrate was asked by the Leaned Metropolitan 
Magistrate to take further action in terms of Section 85 of the Code of 
Criminal Procedure by holding a public auction of the said properties. In the 
said order it was wrongly sated that the properties belonged to the appellants 
and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was 
the owner thereof. 

7. The 1st Respondent (tenant) and the subsequent auction purchaser 
filed an application before the High Court of Gujarat which was marked as 
Special Civil Application No.15377 of 2004 against the Mamlatder. A 
learned Judge of the High Court by an order dated 5th April, 2005 directed :-

"8. In view of the above, I am inclined to pass the 
 following order:

8.1) Rule. By interim order it is directed that the 
Mamlatdar - Respondent No.1 shall proceed with the 
auction of the premises in question on 
condition that the auction which may be held 
shall be subject to the further condition that - 

i) the possession of the premises shall be handed 
over by the Mamlatdar to the auction purchaser, 
after the conclusion of the proceedings as ordered 
hereinafter by the ULC Authority against the 
petitioner as well as respondent No.3;

ii) after the auction, it would be open to the 
Mamlatdar to notify the said aspect regarding the 
transfer effected by auction in the conspicuous 
part of the premises and such an intimation may 
also be given to the concerned local 
authority;

iii) it is further directed that the Mamlatdar - 
Respondent No.1 herein shall make reference 
to competent Authority under ULC Act to 
examine the aspects as to whether the 
transaction between the absconder and 
Respondent No.3 can be said in breach of the 
condition of Scheme under Section 21 of the 
ULC Act and he shall also make reference on the 
aspects to the competent authority under ULC 
Act as to whether the action of the absconder and 
subsequently rectification by respondent No.3 to 
give the possession of the petitioner as tenant can 
be said in breach of the conditions of the Scheme 
under Section 21 on the basis of which the 
premises came to be allotted to the 
absconder  original allottee. Such reference shall 
be made within a period of two weeks from 
today and the Mamlatdar shall request the 
concerned authority to decide the reference within 
a period of three months from the date of receipt 
of the reference. In the event it is found by the 
competent authority under ULC Act 
that the action of absconder of entering into 
transaction with respondent No.3 and for handing 
over the possession to the petitioner as unlawful, 
the Mamlatdar shall be at liberty to take 
possession of the premises in question from 
the petitioner and thereafter he shall further 
be at liberty to hand over the vacant possession 
of the premises to the auction purchaser. 

iv) It is further directed that until the 
aforesaid reference is made and is 
decided by the Mamlatdar, the petitioner 
shall deposit the amount at the rate of 
Rs.1,500/= per month with the Mamlatdar 
without prejudice to the proceedings of 
the reference and the said amount shall 
remain as deposited with the Mamlatdar. In the 
event it is found by the competent authority under 
ULC Act as an outcome of the reference and the 
inquiry that the possession is unlawful of the 
petitioner and the transaction is unlawful of the 
absconder with respondent No.2, the 
Mamlatdar shall be at liberty to refund the 
amount. However, in the event it is 
found that the possession is lawful and 
there is no breach of the condition of 
allotment as per the scheme under Section 
21 of the ULC Act, the Mamlatdar shall be 
at liberty to appropriate the amount in 
accordance with law."

v) The aforesaid exercise of holding auction 
shall be completed within a period of 
five weeks from today. 

 9. The report of the proceedings and the outcome of 
the reference shall also be made by the Mamlatdar to this 
Court." 

8. However, the appellant and her husband were not made parties 
therein. Against the said order, an LPA, which was marked as LPA NO. 
1792 of 2005, was filed by the 1st respondent and a Division Bench of the 
High Court directed that the amount of rent deposited by him with the 
Mamlatder be deposited in the High Court and the 3rd respondent will be 
permitted to withdraw the same without prejudice to the rights and 
contentions of the parties. The said order was passed, purported to be on the 
premise, that the 3rd respondent had placed reliance on an order dated 13th 
May, 2005 passed by another Bench of the High Court in First Appeal No. 
2626 of 2004 whereby her husband was directed to deposit a sum of 
Rs.10,000/- per month towards arrears of maintenance and to continue to 
deposit the same.

9. By an order dated 25th January, 2006 the 1st respondent was asked to 
deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the 
said property) apart from a sum of Rs.10,000/- per month which was to be 
deposited with the Registrar by him from 10th February, 2006. It was 
furthermore directed :-
"6.2 The withdrawal of Rs.10,000/- by respondent No. 
2-Sonalben Rameshchandra Desai shall be adjusted 
against any amount which may be payable to her by 
Jitendra Ajitbhai Patel under any orders in First Appeal 
No. 2626 of 2004, in any other matrimonial proceedings 
or in any civil or criminal case between her, her husband 
and her mother in law."

10. Appellant No.1 made an application to get herself impleaded as a 
party but her application was dismissed by the High Court on 11.9.2006. 
On or about 21st November, 2006 the High Court directed the first 
respondent to pay a sum of Rs.17 lakhs to respondent No.3 in regard to the 
auction sale of the property in question. Respondent No.2, Mamlatdar, was 
also directed to execute the deed of conveyance and register the same in the 
name of the 1st respondent upon full payment. 

11. Appellant and her husband returned to India. They filed an 
application for cancellation of the said Standing Warrants. By an order 
dated 27th June, 2006 the said application was allowed directing :-

"Application is granted and warrant against both the 
applicant accused are ordered to be cancelled with a fine 
of Rs.3,000/- (Rupees three thousand only) each and with 
condition to submit one new surety of Rs.10,000/- (Ten 
thousand) and on executing the bond of such like 
amount.
 CONDITIONS

1. Accused shall not leave India, without prior permission of 
the court.

2. Accused shall surrender his passport before the court."
12. Indisputably pursuant to the said order the Passports were deposited 
on 28th June, 2006 by them. 

13. The 3rd respondent filed an application for setting aside the said order 
by filing a Criminal Miscellaneous Application before the Sessions Judge, 
Ahmedabad inter alia contending that the Passports had not been deposited 
by the accused pursuant to the said order of 27th June, 2006. The learned 
Additional Sessions Judge set aside the said order dated 27th June, 2006 and 
non-bailable warrants were directed to be issued against the appellants 
herein. Aggrieved thereby she filed Criminal Misc. Application No. 14340 
of 2006 before the High Court on 13th December, 2006 which by reason by 
of the impugned judgment and order dated 27th December, 2006 has been 
dismissed. 

14. The questions which arise for consideration are :- 

(i) Whether in the facts and circumstances of the case, the 
property of Appellant No.1 could have been sold in auction? 
and 
(ii) Whether in a case of this nature, the bail granted to the 
appellants should have been directed to be cancelled?

15. Submissions of learned counsel appearing on behalf of the appellants 
are :

i) Having regard to the provisions of the Hindu Adoptions and 
Maintenance Act, 1956 duty to maintain a wife being on the 
husband and not on her mother-in-law, the impugned judgments 
are wholly unsustainable;
ii) The property of a person who is no longer absconding, cannot 
be subjected to continuous attachment or sale thereof. 
iii) Appellants having surrendered their Passports and having been 
attending the Court subsequently, the High Court committed a 
manifest error in directing cancellation of their bail without 
appreciating that the factors relevant for interfering with the 
order granting bail and directing cancellation of bail are distinct 
and different. 

16. Submissions of Mr. Mayur Shah, learned counsel appearing on behalf 
of the 3rd respondent, are :-

i) That her husband being the only son of his parents and the 
properties having been acquired through ancestral funds and there 
being no assertion that the properties are self acquired properties, 
she has a right of maintenance out of the Joint Family Property in 
terms of Section 18 of the Hindu Adoption and Maintenance Act. 
ii) In terms of Section 84 of the Code of Criminal Procedure, keeping 
in view the fact that her husband had been directed to pay 
maintenance @ Rs.10,000/- per month and which having not been 
paid, respondent No.3 could have prayed for realization of the said 
amount of maintenance from the sale proceeds of the auction sale. 
iii) Even an offer was made that one residential property would be 
transferred in her name, apparently goes to show that the properties 
are Joint Family Properties. She, having been denied her right of 
maintenance, could initiate the proceeding before the Metropolitan 
Magistrate as also before the High Court. 
iv) The Metropolitan Magistrate committed a serious error in granting 
bail upon cancellation of Standing Warrants as appellants have 
breached the conditions for grant of bail. They had, although 
placed a large number of documents and in particular medical 
certificates to show that they were ill, there is nothing on record to 
show that they were bed ridden and not permitted to move out. 
v) Their near relatives in India would be deemed to have knowledge 
of the pendency of the said proceeding and in that view of he 
matter neither under the guise of the medical certificates nor on the 
ground of age, they deserve any sympathy of the Court. 

17. Mr. Nikhil Goel, learned counsel appearing on behalf of the 1st 
respondent (Auction Purchaser) would submit :

i) The tenant has a right to reside in the property irrespective of the 
order of attachment and the same could not have been interfered 
with by Mamlatdar under the orders of the Learned Metropolitan 
Magistrate of the District Magistrate. 
ii) The 1st respondent had deposited a sum of Rs.10,000/- (Rupees ten 
thousand only) each month for a period of ten months which have 
been withdrawn by the 3rd respondent. Out of the total auction 
amount of Rs.17 lakhs, the 1st respondent had deposited Rs. 4 lakhs 
which has been invested in a short term deposit, besides a sum of 
Rs.1 lakhs. He has also deposited a further sum of Rs.12 lakhs 
which sum have, however, since been refunded. The learned 
counsel would contend that in this view of the matter the amount 
deposited by him should be directed to be refunded with interest. 

18. Sonalben Rameshchandra Desai is an Advocate. She filed a large 
number of cases against her husband and in-laws. She initially filed a 
Complaint Petition before the Metropolitan Magistrate, Ahmedabad, under 
Section 498A of the Indian Penal Code which was registered as Case 
No.1662 of 1996. It was transferred to the Court of Chief Judicial 
Magistrate, Baroda. It has since been dismissed for default. She initiated 
another criminal proceeding against the appellants and their family members 
under Sections 323, 452, 427, 504, 506 and 114 of the Indian Penal Code, 
the same proceeding has also been dismissed as withdrawn. Another 
criminal case was initiated by her against appellant No.2, his son and 
another, being Case No.47 of 1996 under Section 406, 420, 468 and 114 of 
the Indian Penal Code, which is still pending. Another case, being No.2338 
of 2006 was filed by her under Section 500 of the Indian Penal Code. 
Another case under Section 406 of the Indian Penal Code being Case 
No.2145 of 1993 was filed against the appellants. 

19. Before embarking on the questions of law which arise our 
consideration, we may notice some statutory provisions. 

20. The matter relating to grant of maintenance are now governed by the 
provisions of Hindu Adoptions and Maintenance Act, 1956. Sections 3 (b), 
18 and 19 of the said Act read as under :-
"3. (b) "Maintenance" includes- 
(i)in all cases, provision for food, clothing, residence, 
education and medical attendance and treatment;

Section 18 - Maintenance of wife 

(1) Subject to the provisions of this section, a Hindu 
wife, whether married before or after the commencement 
of this Act, shall be entitled to be maintained by her 
husband during her life time.

 Sub-section (2) of Section 18 thereof, however, lays down certain 
exceptions therefor. 
 Sub-section (3) of Section 18 reads :-

"(3) A Hindu wife shall not be entitled to separate 
residence and maintenance from her husband if she is 
unchaste or ceases to be a Hindu by conversion to 
another religion."

Section 19 - Maintenance of widowed daughter-in-law 
(1) A Hindu wife, whether married before or after the 
commencement of this Act, shall be entitled to be 
maintained after the death of her husband by her father-
in-law:
Provided and to the extent that she is unable to maintain 
herself out of her own earnings or other property or, 
where she has no property of her own, is unable to obtain 
maintenance-
(a) from the estate of her husband or her father or 
mother, or
(b) from her son or daughter, if any, or his or her 
estate.
(2) Any obligation under sub-section (1) shall not be 
enforceable if the father-in law has not the means to do 
so from any coparcenary property in his possession out of 
which the daughter-in-law has not obtained any share, 
and any such obligation shall cease on the re-marriage of 
the daughter-in-law."

21. Maintenance of a married wife, during subsistence of marriage, is on 
the husband. It is a personal obligation. The obligation to maintain a 
daughter-in-law arises only when the husband has died. Such an obligation 
can also be met from the properties of which the husband is a co-sharer and 
not otherwise. For invoking the said provision, the husband must have a 
share in the property. The property in the name of the mother-in-law can 
neither be a subject matter of attachment nor during the life time of the 
husband, his personal liability to maintain his wife can be directed to be 
enforced against such property. 

22. Wholly un-contentious issues have been raised before us on behalf of 
Sonalben (wife). It is well settled that apparent state of affairs of state shall 
be taken a real state of affairs. It is not for an owner of the property to 
establish that it is his self-acquired property and the onus would be on the 
one, who pleads contra. Sonalben might be entitled to maintenance from her 
husband. An order of maintenance might have been passed but in view of 
the settled legal position, the decree, if any, must be executed against her 
husband and only his properties could be attached therefor but not of her 
mother-in-law. 

23. Sections 4 and 28 of the Hindu Adoptions and Maintenance Act read 
as under :-
"4. Overriding effect of Act
Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any 
custom or usage as part of that law in force immediately 
before the commencement of this Act shall cease to have 
effect with respect to any matter for which provision is 
made in this Act;
(b) any other law in force immediately before the 
commencement of this Act shall cease to apply to Hindus 
insofar as it is inconsistent with any of the provisions 
contained in this Act.

28. Effect of transfer of property on right to maintenance
Where a dependant has a right to receive maintenance out 
of an estate, and such estate or any part thereof is 
transferred, the right to receive maintenance may be 
enforced against the transferee if the transferee has notice 
of the right or if the transfer is gratuitous; but not against 
the transferee for consideration and without notice of the 
right."

24. Section 4 provides for a non obstante clause. In terms of the said 
provision itself any obligation on the part of in-laws in terms of any text, 
rule or interpretation of Hindu Law or any custom or usage as part of law 
before the commencement of the Act, are no longer valid. In view of the 
non obstante clause contained in Section 4, the provisions of the Act alone 
are applicable. Sections 18 and 19 prescribe the statutory liabilities in regard 
to maintenance of wife by her husband and only on his death upon the 
father-in-law, Mother-in-law, thus, cannot be fastened with any legal 
liability to maintain her daughter-in-law from her own property or otherwise. 
25. In Unnamalai Ammal vs. F.W. Wilson : AIR 1921 Madras 1187 the 
obligation to maintain wife by a husband has been held to be a personal 
obligation. This Court in Kirtikant D. Vadodaria vs. State of Gujarat : 
(1996) 4 SCC 479 has held as under :-
"8. We have given serious thought and consideration to 
the submissions made above by the learned counsel for 
the appellant and notice that Dhayalal Hirachand, the 
husband of Respondent 2 Smt Manjulaben, has been 
found to be a person of sufficient means and income. It is 
also true that there are 5 natural born sons of Respondent 
2 besides 2 daughters, who are all major. It is also a fact 
that Dalip one of the sons had contested the Municipal 
Election and two other sons are carrying on various 
businesses. According to the Law of the Land with 
regard to maintenance, there is an obligation of the 
husband to maintain his wife which does not arise by 
reason of any contract  express or implied  but out of 
jural relationship of husband and wife consequent to the 
performance of marriage. Such an obligation of the 
husband to maintain his wife arises irrespective of the 
fact whether he has or has no property, as it is considered 
an imperative duty and a solemn obligation of the 
husband to maintain his wife." 

 It was, furthermore, observed :-

"Further, according to Section 20 of the Hindu Adoptions 
and Maintenance Act, 1956, a Hindu is under a legal 
obligation to maintain his wife, minor sons, unmarried 
daughters and aged or infirm parents. The obligation to 
maintain them is personal, legal and absolute in character 
and arises from the very existence of the relationship 
between the parties. But the question before us is whether 
a stepmother can claim maintenance from the stepson 
under Section 125 of the Code. In other words, whether 
Section 125 of the Code includes within its fold the 
stepmother also as one of the persons to claim 
maintenance from her stepson."

26. We may notice that in Balwant Kaur vs. Chanan Singh : (2000) 6 SCC 
310, this Court reiterated the said principle in the following words :- 
"21. This provision clearly indicates that if the widowed 
daughter-in-law is a destitute and has no earnings of her 
own or other property and if she has nothing to fall back 
upon for maintenance on the estate of her husband or 
father or mother or from the estate of her son or daughter, 
if any, then she can fall back upon the estate of her 
father-in-law. This provision also indicates that in case of 
a widowed daughter-in-law of the family if she has no 
income of her own or no estate of her husband to fall 
back upon for maintenance, then she can legitimately 
claim maintenance from her father or mother. On the 
facts of the present case, therefore, it has to be held that 
Appellant 1, who was a destitute widowed daughter of 
the testator and who was staying with him and was being 
maintained by him in his lifetime, had nothing to fall 
back upon so far as her deceased husband's estate was 
concerned and she had no estate of her own. 
Consequently, as per Section 19(1)( a ) she could claim 
maintenance from the estate of her father even during her 
father's lifetime. This was a pre-existing right of the 
widowed daughter qua testator's estate in his own 
lifetime and this right which was tried to be crystallised 
in the Will in her favour after his demise fell squarely 
within the provisions of Section 22(2) of the 
Maintenance Act." 

27. The Domestic Violence Act provides for a higher right in favour of a 
wife. She not only acquires a right to be maintained but also thereunder 
acquires a right of residence. The right of residence is a higher right. The 
said right as per the legislation extends to joint properties in which the 
husband has a share. 

28. Interpreting the provisions of the Domestic Violence Act this Court in 
S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169 held that even a wife could 
not claim a right of residence in the property belonging to her mother-in-law, 
stating : 
"17. There is no such law in India like the British 
Matrimonial Homes Act, 1967, and in any case, the 
rights which may be available under any law can only 
be as against the husband and not against the father-in-
law or mother-in-law. 
18. Here, the house in question belongs to the mother-
in-law of Smt Taruna Batra and it does not belong to 
her husband Amit Batra. Hence, Smt Taruna Batra 
cannot claim any right to live in the said house. 
19. Appellant 2, the mother-in-law of Smt Taruna Batra 
has stated that she had taken a loan for acquiring the 
house and it is not a joint family property. We see no 
reason to disbelieve this statement." 

29. Reliance placed by Mr. Goel on V. Tulasamma and others vs. Sehsa 
Reddy (Dead) by L.Rrs. : [1977] 3 SCR 261 is wholly misplaced. The 
question which arose for consideration therein was the nature or the right, a 
widow acquires in the property in which she had been in possession in lieu 
of maintenance. Interpreting sub-section (1) of Section 14 of the Hindu 
Succession Act this Court held that the term "possessed" should receive a 
wide meaning. It is in this context this Court noticed the authorities from 
Sastric Hindu Law whereupon our attention has been drawn :- 

"Similar observations have been made by the learned 
author at p. 528 of the book which may be extracted thus:
'According to both the schools, the lawfully 
wedded wife acquires from the moment of her 
marriage a right to the property belonging to the 
husband at the time and also to any popery that 
may subsequently be acquired by him. so that she 
becomes a co-owner of the husband, though her 
right is not co-equal to that of the husband, but a 
subordinate one. owing to her disability founded 
on her status of perpetual or life long tutelage or 
dependence.
...
This right of the wife to maintenance from 
her husband is not lost even if the husband 
renounce Hinduism.
This right subsists even after the husband's 
death although her husband's right as distinguished 
from hers may pass by survivorship or by 
succession to sons or even to collaterals; these 
simply step into the position of her husband, and 
she is required by Hindu law to live under their 
guardianship after her husband's death.' "

30. The orders passed by the High Court which are impugned before us 
are, thus, wholly unsustainable. They suffer from total non-application of 
mind.
31. The said orders might have been passed only on consideration that 
Sonalben is a harassed lady, but the fact that the appellant is also a much 
harassed lady was lost sight of. She has more sinned than sinning. 
Appellant and her husband are old. They suffer from various diseases. They 
have been able to show before the Court that they had to go to the United 
States of America for obtaining medical treatment. They, we would assume, 
have violated the conditions of grant of bail but the consequence therefore 
must be kept confined to the four corners of the statutes. 
32. The provisions contained in Section 82 of the Code of Criminal 
Procedure were put on the statute book for certain purpose. It was enacted 
to secure the presence of the accused. Once the said purpose is achieved, the 
attachment shall be withdrawn. Even the property which was attached, 
should be restored. The provisions of the Code of Criminal Procedure do 
not warrant sale of the property despite the fact that the absconding accused 
had surrendered and obtained bail. Once he surrenders before the Court and 
the Standing Warrants cancelled, he is no longer an absconder. The purpose 
of attaching the property comes to an end. It is to be released subject to the 
provisions of the Code. Securing the attendance of an absconding accused, 
is a matter between the State and the accused. Complainant should not 
ordinarily derive any benefit therefrom. If the property is to be sold, it vests 
with the State subject to any order passed under Section 85 of the Code. It 
cannot be a subject matter of execution of a decree, far less for executing the 
decree of a third party, who had no right, title or interest thereon. 
33. The learned Metropolitan Magistrate had, in his order dated 5th 
January, 2004 wrongly asked the District Magistrate to put the said 
properties on auction sale stating that to be belonging to the appellants and 
their son. The Mamlatdar appears to have exceeded his jurisdiction in trying 
to evict the 1st respondent. His right as a tenant could not have been affected 
by reason of any order of attachment. An order of attachment of a property 
has nothing to do with the right of tenancy. The terms and conditions of 
tenancy, being governed by statute, the tenant cannot be evicted except in 
accordance with law. It is a matter of grave concern that an independent 
right was also sought to be interfered with at the instance of Sonalben 
34. Right to object in terms of Section 84 of the Code to which reliance 
has been placed by Mr. Mayur Shah, could not have been invoked by the 
wife as she has no independent claim over the property. The said provisions 
also could not have been invoked for the purpose of execution of a decree.
35. It is in the aforementioned context that we may now consider the 
impugned judgment of the High Court directing cancellation of bail of the 
appellants. 
36. The fact that they have surrendered is not in dispute. They are of old 
age as also the fact that they have been suffering from various diseases has 
also not been disputed. 
37. The contention of Sonalben that the passports had not been deposited, 
appears to be wholly incorrect. Ajitbhai Revandas Patel was the holder of 
U.S. Passport. The same having expired another Passport bearing No. 
217921248 was issued. It is that passport which was deposited. This is the 
current Passport. Allegations that they are having other passports and may 
leave the country appears to be wholly without any basis. They have been 
attending the courts. The observation made by the Metropolitan Magistrate 
that they had not come of their own is unfortunate. Nobody wants to come 
to court of law and that too as an accused, of his own. 
38. The High Court committed a manifest illegality in directing 
cancellation of bail in so far as it failed to take into consideration that the 
factors relevant for setting aside an order granting bail and directing 
cancellation of bail are wholly distinct and different. An application for 
cancellation of bail must be premised on the factors envisaged under sub-
section (2) of Section 439 of the Code of Criminal procedure. The learned 
Metropolitan Magistrate in passing the order dated 27th June, 2006 while 
granting bail took into consideration all the relevant factors. He imposed a 
fine on them. Even the passports had been surrendered. Application for 
cancellation of bail was filed on a mis-statement that the passports had not 
been surrendered. Various contentions, as noticed hereinbefore, in regard to 
purported suffering of the wife appears to have been taken into consideration 
which were wholly irrelevant. We have noticed hereinbefore that such 
contentions have also been raised before us not on the basis that there exists 
and legal principle behind the same but as an argument of desperation. 

39. In Gurcharan Singh and others vs. State (Delhi Adminsitration) : 
1978 (2) SCR 358 this Court held :
"24. Section 439(1) Cr. P.C. of the new Code, on the 
other hand, confers special powers on the High Court or 
the Court of Session in respect of bail. Unlike under 
Section 437(1) there is no ban imposed under Section 
439(1), Cr. P.C. against granting of bail by the High 
Court or the Court of Session to persons accused of an 
offence punishable with death or imprisonment for life. It 
is, however, legitimate to suppose that the High Court or 
the Court of Session will be approached by an accused 
only after he has failed before the Magistrate and after 
the investigation has progressed throwing light on the 
evidence and circumstances implicating the accused. 
Even so, the High Court or the Court of Session will have 
to exercise its judicial discretion in considering the 
question of granting of bail under Section 439(1) Cr. P.C 
of the new Code. The overriding considerations in 
granting bail to which we adverted to earlier and which 
are common both in the case of Section 437(1) and 
Section 439(1) Cr. P.C. of the new Code are the nature 
and gravity of the circumstances in which the offence is 
committed; the position and the status of the accused 
with reference to the victim and the witnesses; the 
likelihood, of the accused fleeing from justice; of 
repeating the offence; of jeopardising his own life being 
faced with a grim prospect of possible conviction in the 
case; of tampering with witnesses; the history of the case 
as well as of its investigation and other relevant grounds 
which, in view of so many valuable factors, cannot be 
exhaustively set out. 

25. The question of cancellation of bail under Section 
439(2) Cr. P.C. of the new Code is certainly different 
from admission to bail under Section 439(1) Cr. P.C. The 
decisions of the various High Courts cited before us are 
mainly with regard to the admission to bail by the High 
Court under Section 498 Cr. P.C. (old). Power of the 
High Court or of the Sessions Judge to admit persons to 
bail under Section 498 Cr. P.C. (old) was always held to 
be wide without any express limitations in law. In 
considering the question of b ail justice to both sides 
governs the judicious exercise of the Court's judicial 
discretion." 

 [See also Bhagirath Singh s/o. Mahipat Singh Judeja vs. State of 
Gujarat : [1984] 1 SCR 839 and Jayendra Saraswathi Swamigal vs. State 
of Tamilnadu : 2005 (2) SCC 13].

40. We may notice that recently a Bench of this Court considered the 
consequence of issuance of warrant of arrest at some length in Inder Mohan 
Goswami and another vs. State of Uttaranchal and others : (2007) 12 
SCALE 15. It was held :-
"26. Before parting with this appeal, we would like to 
discuss an issue which is of great public importance, i.e. 
how and when warrants should be issued by the Court? 
It has come to our notice that in many cases that bailable 
and non-bailable warrants are issued casually and 
mechanically. In the instant case, the court without 
properly comprehending the nature of controversy 
involed and without exhausting the available remedies 
issued non-bailable warrants. The trial court disregard 
the settled legal position clearly enumerated in the 
following two cases." 

It was furthermore observed
"51. In complaint cases, at the first instance, the court 
should direct serving of the summons along with the 
copy of the complaint. If the accused seem to be avoiding 
the summons, the court, in the second instance should 
issue bailable- warrant. In the third instance, when the 
court is fully satisfied that the accused is avoiding the 
court's proceeding intentionally, the process of issuance 
of the non-bailable warrant should be resorted to. 
Personal liberty is paramount, therefore, we caution 
courts at the first and second instance to refrain from 
issuing non-bailable warrants."

41. Keeping in view the entirety of the facts and circumstances of the case 
we are of the opinion that gross injustice has been caused to the appellant. 
She did not deserve such harsh treatments at the hands of the High Court. 
Respondent No.3 speaks of her own human rights, forgetting the human 
rights of the appellant, far less the funadamental right of life and liberty 
conferred on an accused in terms of Article 21 of the Constitution of India. 

42. The right of property is no longer a fundamental right. But still it is a 
constitutional right. Apart from constitutional right it is also a human right. 
The procedures laid down for deprivation thereof must be scrupulously 
complied with [See-Devinder Singh and Ors. vs. State of Punjab and Ors. : 
JT 2007 (12) SC 256].

43. Last but not the least, a plea of equity has been raised by Mr. Shah 
stating that this Court should issue some directions keeping in view the 
equitable principles. Reliance has been placed on Chandra Bansi Singh vs. 
State of Bihar : (1984) 4 SCC 316, wherein it was observed :- 
"16. On an analysis of the various steps taken by the 
parties and others in the taking of possession, there is 
undoubtedly a delay of about 1 years and for the purpose 
of calculation and convenience when rounded off, the 
delay may be taken to be of two years. So far as this 
delay is concerned, the appellants have undoubtedly a 
case for payment of some additional compensation in 
equity though not under law and as this Court is not only 
a Court of law but a Court of equity as well, it will be 
impossible for us to deny this relief to the appellants. 
After taking into consideration the various shades and 
aspects of the case we are clearly of the opinion that apart 
from compensation which may be awarded by the 
Collector or enhanced by the Judge or a higher Court, the 
appellants should get an equitable compensation in the 
form of interest calculated at the rate of 7 per cent per 
annum for two years on the value of land owned by each 
land-owner. This equitable compensation has been 
awarded in the special facts of this case and will not be 
the subject-matter of appeal, if any, under the Act on the 
amount of compensation. "

44. The said case arose out of a proceeding under the Land Acquisition 
Act which has no relevance to the issues involved in these appeals.

45. On cancellation of bail Mr. Shah has relied upon a decision of this 
Court in Raghubir Singh vs. State of Biahr: (1986) 4 SCC 481 wherein this 
Court observed :-
"22. The result of our discussion and the case-law is this: 
An order for release on bail made under the proviso to 
Section 167(2) is not defeated by lapse of time, the filing 
of the charge-sheet or by remand to custody under 
Section 309(2). The order for release on bail may 
however be cancelled under Section 437(5) or Section 
439(2). Generally the grounds for cancellation of bail, 
broadly, are, interference or attempt to interfere with the 
due course of administration of justice, or evasion or 
attempt to evade the course of justice, or abuse of the 
liberty granted to him. The due administration of justice 
may be interfered with by intimidating or suborning 
witnesses, by interfering with investigation, by creating 
or causing disappearance of evidence etc. The course of 
justice may be evaded or attempted to be evaded by 
leaving the country or going underground or otherwise 
placing himself beyond the reach of the sureties. He may 
abuse the liberty granted to him by indulging in similar 
or other unlawful acts. Where bail has been granted 
under the proviso to Section 167(2) for the default of the 
prosecution in not completing the investigation in 60 
days, after the defect is cured by the filing of a charge-
sheet, the prosecution may seek to have the bail cancelled 
on the ground that there are reasonable grounds to 
believe that the accused has committed a non-bailable 
offence and that it is necessary to arrest him and commit 
him to custody. In the last mentioned case, one would 
expect very strong grounds indeed. "

46. A bare perusal of the decision of this Court demonstrates that the ratio 
laid therein runs counter to the submissions of the learned counsel.

47. Reliance has also been placed on I.J. Divakar and others vs. Govt. of 
Andhra Pradesh and another : (1982) 3 SCC 341. The said decision was 
rendered under the Industrial Law. 

 Regularization was directed to be provided to the workmen. A 
Constitution Bench of this Court in Secretary, State of Karnataka and others 
vs. Umadevi and others : (2006) 4 SCC 1 opined that all such decisions shall 
stand overruled. 

 Sympathy or sentiment, as is well known, should not allow the Court 
to have any effect in its decision making process. Sympathy or sentiment 
can be invoked only in favour a person who is entitled thereto. It should 
never be taken into consideration as a result whereof the other side would 
suffer civil or evil consequences. 

48. We are at a loss to understand as to on what premise such a contention 
has been raised. If we accept the contention of the learned counsel the same 
would mean that we send the old couple to jail or deprive them of their 
lawful right of a valuable property and/or ask them to meet obligations 
which statutorily are not theirs. Such a direction, in our opinion, should also 
not be passed, keeping in view the conduct of the 3rd respondent. She not 
only filed a large number of cases against her in-laws, some of which have 
been dismissed for default or withdrawn but also have been filing 
applications for cancellation of their bail on wholly wrong premise. 

49. We may also notice that after the arguments were over, a strange 
submission was made before us. Learned counsel for respondent No.3 
submitted that he may be permitted to withdraw from the case and the 3rd 
respondent be allowed to argue in person. Such a submission was not 
expected from a counsel practicing in this Court or form a party, who herself 
is an Advocate. We deprecate such practice. 

50. Having regard to the facts and circumstances of this case we are of 
the opinion that the interest of justice shall be subserved if the impugned 
judgments are set aside with the following directions :-
i) The property in question shall be released from attachment.
ii) The 3rd respondent shall refund the sum of Rs. 1 lakh to the 
respondent with interest @ 6% per annum.
iii) The amount of Rs. 4 lakhs deposited by the 1st respondent shall 
be refunded to him immediately with interest accrued thereon.
iv) The 3rd respondent should be entitled to pursue her remedies 
against her husband in accordance with law.
v) The Learned Magistrate before whom the cases filed by the 3rd 
respondent are pending should bestow serious consideration of 
disposing of the same, as expeditiously as possible. 
vi) The 3rd respondent shall bear the costs of the appellant which is 
quantified at Rs.50,000/- (Rupees fifty thousand) consolidated.

51. The appeals are allowed with the aforesaid directions. 

I.A. for direction

 Dismissed.

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