Holding

The High Court's orders were unsustainable; attachment of the mother‑in‑law's property and cancellation of bail were illegal, and maintenance liability cannot be enforced against her property.

Summary

The Supreme Court examined a dispute arising from a criminal complaint filed by Sonalben against her husband and in‑laws for alleged offences under the IPC. The appellants were granted bail, left India without permission, and faced cancellation of bail, attachment of the mother‑in‑law's property under CrPC ss. 82 and 85, and a public auction. The High Court also ordered the tenant’s rent to be deposited with the court and directed the appellant to bear costs. The Court held that maintenance liability under the Hindu Adoptions and Maintenance Act, 1956, is a personal obligation of the husband and cannot be enforced against the mother‑in‑law’s property; the Domestic Violence Act does not confer a right of residence in a mother‑in‑law’s house; attachment of property is permissible only to secure the accused’s presence and must be released once bail is restored; and the bail cancellation order was illegal as it ignored the statutory criteria under s. 439 CrPC. Consequently, the High Court’s orders were set aside, the property was released from attachment, and the appellant was awarded costs.

Issues considered

Whether the mother‑in‑law's property could be attached and auctioned under CrPC after the accused surrendered and bail was restored.
Whether the cancellation of bail was valid under the provisions of s. 439 CrPC.
Whether maintenance liability can be attached to the mother‑in‑law's property under the Hindu Adoptions and Maintenance Act, 1956.
Whether a wife has a right of residence in her mother‑in‑law's property under the Protection of Women from Domestic Violence Act, 2005.
Whether the tenant's rights are affected by the attachment and auction of the property.
Whether the High Court erred in directing the appellant to bear costs and in other reliefs.

Legislation cited

Code of Criminal Procedure, 1973s. 437, s. 438, s. 439, s. 82, s. 84, s. 85
Hindu Adoptions and Maintenance Act, 1956s. 18, s. 19, s. 28, s. 3(b), s. 4
Indian Penal Code, 1860s. 114, s. 323, s. 406, s. 420, s. 427, s. 452, s. 468, s. 500, s. 504, s. 506
Protection of Women from Domestic Violence Act, 2005

Subjects

bailcancellation of bailattachment of propertymaintenance liabilityHindu Adoptions and Maintenance ActDomestic Violence Acttenant rightsCriminal Procedure CodeArticle 21human rightsproperty law

Judgment

[2008] 4 S.C.R. 1077

VIMALBEN AJITBHAI PATEL A
I-<! >- v.
VATSLABEEN ASHOKBHAI PATEL AND ORS.
(Civil Appeal No. 2003 of 2008)
MARCH 14, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

... Code of Criminal Procedure, 1973:
>
ss.437 and 438 - Bail - Cancellation of - Criminal case
against husband and In-laws - Warrants issued - Appellants- c
in Jaws declared absconder - Properties of mother-in-law
-f
attached - Order ofpublic auction - High Court directed tenant
' to deposit rent in court and permitted complainant to withdraw
the same as an order of maintenance was passed by another
bench of High Court - Also order of cancellation of bail and D
issue of non-bailable warrants against appellants - Held:
" Orders of High Court passed only on consideration that
complainant was a harassed lady, but fact that appellant was
also a much harassed lady was lost sight of - In-laws are old
and suffer from various diseases - Though sympathy should E
not be allowed to effect decision making process - However,
direction to 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, should also not be
passed, keeping in view conduct of complainant - She is an F
( . Advocate - She filed large number of criminal cases and
~

(
applications for cancellation of bail on wholly wrong premise
- Having regard to the facts and circumstances of this case,
the interest of justice would be subserved if orders of High
Court are set aside - Property directed to be rele2sed from
G
attachment - Complainant directed to bear costs of appellant
quantified at Rs. 50, 000 - Certain other directions passed.
ss. 82 and 83 - Object of- Held: Is to secure presence of
accused - Once the said purpose is achieved, attachment
1077 H
1078 SUPREME COURT REPORiS J2008] 4 S.C.R.

A should be withdrawn - Once accused surrenders before Court,
he is no longer an absconder'-- The purpose of attaching the ,... '
property comes to an end - Securing attendance of
absconding accused, .is matter between State and accused -
Complainant should not ordinarily derive any benefit therefrom
B - If property is to be sold, it vests with the State subject to any
order passed under s. 85 - 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.
A I
s. 83 -Attachment of property- Tenant - Right of:--- Held:
C His right as a tenant could not have been affected by reason
of any order of attachment - Terms and conditions of tenancy,
being governed by statute, the tenant cannot be evicted except
in accordance with Jaw.
s. 84 - Invocation of - Held: Cannot be invoked for the
0
purpose of execution of a decree.
Hindu Adoptions and Maintenance Act, 1956 - s. 18 - y

Maintenance claimed by wife, during subsistence of marriage
- Liability.to pay- Held: Is on the husband~ It is a personal
E obligation - Mother-in-law cannot be fastened with any legal
liability to maintain her daughter-in-law from her own property
or otherwise.
Title - Burden of proof- Held: It is not for an owner of the
property to establish that it is his se/f-acqqired property and
F the onus would be on the one, who pleads contra.
Protection of women from domestic violence Act - Right
of residence - Claim by wife - Held: The Act provides for a
higher right in favour of a wife - She not only acquires a right
G to be maintained but also acquires a right of residence - The
said right as per the legislation extends to joint properties in
which the husband has a share.
•'
Right to property - Is a constitutional right- Apart from
constitutional right it is also a human right "'"- The procedures
H laid down· for deprivation thereof must be scrupulously
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1079
ASHOKBHAI PATEL AND ORS.

~ complied with - Constitution of India, 1950-Art.21. A
Advocate - Permission to withdraw - Submission made
before Supreme Court by the counsel for complainant that
she may be permitted to withdraw from the case and the
complainant be allowed to argue in person - Held: Such a
submission was not expected from a counsel practicing in B
Supreme Court or from a party, who herself is an Advocate -
.i Such practice is deprecated .
4.
The complainant-third Respondent was married to
son of appellants. She filed complaint petition against her c
husband and inlaws-appellants under ss.406 and 114 IPC.
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
required medical treatment, an application for permission
D
was filed in October 1997 but they left India without
.. 't obtaining the same. An application was filed for
cancellation of the bail which was rejected by the
Magistrate as also by the Sessions Judge. However, High
Court allowed the application seeking cancellation of bail
and directed the Magistrate to issue standing warrants of E
arrest against the appellants as and when they return to
India.
On an application filed by the third respondent ,
father-in-law was declared an absconder and a public F
proclamation was issued in terms of s.82(2) Cr.P.C.
attaching properties of mother-in-law if she did not present
-~
before the Magistrate within 30 days from the issuance of
the said publication. Accordingly on their failure to remain
present within stipulated time, order of attachment of their
G
properties was passed under s.85 Cr.P.C.
The Metropolitan Magistrate ordered further action
in terms of s.85 by holding a public auction of the said
properties. In the said order it was wrongly stated that
the properties also belonged to husband of the H
1080 SUPREME COURT REPORTS [2008] 4 S.C.R.

A complainant, whereas in fact Appellant No.1 i.e. mother- ~ ~·
in-law alone was the owner thereof. The tenant and the )
•
subsequent auction purchaser filed an application before
the High Court, wherein an interim order was passed
directing the Mamlatdar to proceed with auction with
B certain conditions. However, the appellants were not
made parties therein. Against the said order, an LPA, was
filed by the tenant and High Court directed that the amount .l
of rent deposited by him with the Mamlatdar be deposited
~
in the High Court and permitted third respondent to
c withdraw the same without prejudice to the rights and
contentions of the parties. The said. order was passed,
on the premise, that the complainant had placed reliance
)-
on an order passed by another Bench of the High. Court. (
whereby her husband was directed to deposit a· sum of
Rs.10,000/- per month towards arrears of maintenance.
D
and to continue to deposit the. same. The tenant-First
respondent expressed his intention to purchase the said ""(
,.
property and he was asked to deposit additional amount ~

of Rs. 4 lakhs.

E Appellant No.1 made an application to get herself
impleaded as a party but her application was dismissed
by the High Court. The High Court directed the tenant to
pay a sum of Rs.17 lakhs to third respondent in regard to
the auction sale of the property in question. Respondent
F No.2, Mamlatdar, was also directed to execute the deed ~

of conveyance and register the same in the name of the
...
tenant upon full payment.
Appellant and her husband returned to India. They ~

successfully filed an application for cancellation of the
G said Standing Warrants. Pursuant to the said order, they
/
!
,
deposited their passpo~ts. The complainant filed an
application for setting.aside the said order contending that
the Passports had nof been deposited by the accused ~
pursuant to the said order. The Additional Sessions Judge
H set aside the said order and issued non-bailable warrants
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1081
ASHOKBHAI PATEL AND ORS.

against the appellants, which was upheld by High Court. A
Hence these appeals.
Allowing the appeals, the Court
HELD: 1.1. The matter relating to grant of
maintenance are governed by the provisions of Hindu B
Adoptions and Maintenance Act, 1956. Maintenance of a
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 c
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
0
personal liability to maintain his wife can be directed to
be enforced against such property. Ss.18 and 19 of the
Act 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- E
in-law from her own property or otherwise. [Paras 20, 21,
24] [1095-8; 1096-C, D; 1097-F]
Unnamalai Ammal v. F.W Wilson AIR (1921) Madras
1187; Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC F
479; Ba/want Kaur v. Chanan Singh (2000) 6 SCC 310 and
S. R. Batra v. Taruna Batra (2007) 3 SCC 169 - referred to.
1.2. Wholly un-contentious issues. have been raised
on behalf of third respondent. It is not for an owner of the
property to establish that it is his self-acquired property G
and the onus would be on the one, who pleads contra.
The complainant 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 H
1082 SUPREME COURT REPORTS [2008) 4 S.C.R.

A his properties could be attached therefor but not of her
mother-in-law. [Paras 20, 22] [1096-E, F, G]
1.3. 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
B 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. The orders passed by
the High Court are, thus, wholly unsustainable. They
suffer from total non-application of mind. [Paras 27, 30]
C [1099-E, F; 1101-B]
V Tulasamma and Ors. v. Sehsa Reddy (Dead) by L.Rs.
(1977) 3 SCR 261 - Distinguished.
2.1. The provisions contained in s.82 Cr.P.C. were put
D 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
. ~'.
E 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
F to an end. It is to be released subject to the provisions of .•T

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
G State subject to any order passed under s.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. [Para 32] [1101-E, F, G;
1102-A] j---

H 2.2. The Metropolitan Magistrate had, put the; said

..
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1083
ASHOKBHAI PATEL AND ORS.

... i properties on auction sale stating that to be belonging to A
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 B
right of tenancy. The terms and conditions of tenancy,
J. being governed by statute, the tenant cannot be evicted
;I_
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 complainant. Right to c
object in terms of s.84 of the Code 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.
• [Paras 33, 34] [1102-A-E]
D
r 3. The contention of complainant that the passports
had not been deposited, appears to be wholly incorrect.
Appellant No.2 was the holder of U.S. Passport. The same
having expired another Passport was issued. It is that
~
' passport which was deposited. This is the current E
(
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 F
to come to court of law and that too as an accused, of his
own. [Para 37] [1102-E-H; 1103-A]
4. 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 G
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 s.439 Cr.P.C .. The
Metropolitan Magistrate while granting bail took into H
1084 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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, in regard to purported suffering of
B the wife appears to have been taken into consideration
which were wholly irrelevant. Such contentions have
been raised not on the basis that there exists any legal
principle behind the same but as an argument of
desperation. The orders might have been passed only on
C consideration that third respondent 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 U.S.A. for obtaining
D medical treatment. They, assumingly, have violated the
conditions of grant of bail but the consequence therefore
must be kept confined to the four corners of the statutes.
[Paras 31, 38] [1103-B, C, D, E; 1101-C, D]
E Bhagirath Singh slo. Mahipat Singh Judeja v. State of
Gujarat (1984) 1 SCR 839; Jayendra Saraswathi Swamigal v.
State of Tamilnadu (2005) 2 SCC 13 - relied on.
Gurcharan Singh and Ors. v. State (Delhi Adminsitration)
(1978) 2 SCR 358; lnder Mohan Goswami and Anr v. State of
F Uttaranchal and Ors. (2007) 12 SCALE 15 - referred to. /
5. Keeping in view the entirety of the facts and
circumstances of the case, gross injustice has been
caused to the appellant. She did not deserve such harsh
treatments at the hands of the High Court. Respondent
G No.3 speaks of her own human rights, forgetting the
human rights of the appellant, far less the fundamental
right of life and liberty conferred on an accused in terms
of Article 21 of the Constitution of India. The right of >-~
property is no longer a fundamental right. But still it is a
H constitutional right. Apart from constitutional right it is also
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1085
ASHOKBHAI PATEL AND ORS.

a human right. The procedures laid down for deprivation A
- .J_ thereof must be scrupulously complied with. [Paras 41,
42] [1105-E, F, G]
Devinder Singh and Ors. v. State of Punjab and Ors. JT
(2007) 12 SC 256 - relied on.
B
Chandra Bansi Singh v. State of Bihar (1984) 4 SCC 316;
l.J. Divakar and Ors. v. Govt. ofAndhra Pradesh and Anr. (1982)
A.
3 sec 341 - held inapplicable.
~

Raghubir Singh v. State of Biahr (1986) 4 SCC 481
Secretary, State of Karnataka and Ors. v. Umadevi and Ors. c
(2006) 4 sec 1 - referred to.
6. 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
D
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.
However, direction to 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, E
should also not be passed, keeping in view the conduct
of the third respondent. She is an Advocate. She not only
filed a large number of cases against her in-laws, some of
which have been dismissed for default or withdrawn but
filed applications for cancellation of their bail on wholly F
. ,,.., wrong premise. [Paras 47, 48] [1108-A, B, C, DJ
\ 7. A strange submission was made before this Court
by the counsel for respondent No.3 that she may be
permitted to withdraw from the case and the 3rd
G
respondent be allowed to argue in person. Such a
submission was not expected from a counsel practicing
in this Court or from a party, who herself is an Advocate.
~
Such practice is deprecated. [Para 49] [1108-E, F]
; 8. Having regard to the facts and circumstances of H
1086 SUPREME COURT REPORTS [2008] 4 S.C.R.

A this case, the interest of justice would be subserved if the
impugned judgments are set aside. The property in
question is directed to be released from attachment; the
,. third respondent" is directed to refund the sum of Rs. 1
lakhs with interest @ 6% per annum; the amount of Rs. 4
· B lakhs deposited by the 1st respondent to be refunded to
him immediately with interest accrued thereon; the
Magistrate before whom the cases filed by the third
respondent are pending directed to bestow serious
consideration of disposing of the same, as expeditiously
C as possible; and third responde'lt directed to bear the
CO$ts of the appellant which is quantified at Rs.50,000/-.
[Para 50] [1108-F, G, H; 1109-A, B, C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2003 of 2008.
D
From the Judgment and Order dated 21 /11 /2006 of the
High Court of GujaratatAhmedabad in LP.A. No.1792 of2005
. in Spl. CivflAppln. No. 15377of2004.
WITH
E.:
Criminal Appeal No. 502 of 2008.
Rohit M. Alex, P.S. Sudheer and Anne Mathew for the
Appellant.
F Mayur Shah, Sonal Patel, Shankar Divate, Nikhil Goel,
Sheela Goel, Hemantika Wahi, Shivangi and Sangeeta Singh
for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted in both the matters.
G
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
H
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1087
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

mother in law of Sonalben Rameshchandra Desai - respondent A
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 B
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 3rct respondent against her husband and the appellants C
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 D
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 E
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 N0.1360 of
1997. The said application was allowed by the High Court by
its order dated 18th November, 1997 cancelling the bail of the F
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 G
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
H
1088 SUPREME COURT REPORTS {2008] 4 S.C.R.

A is nothing on record to show that the said order was served on
the appellants. It, however, is not d ispi.Jted 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
B District Magistrate was asked by the Learned Metropolitan
Magistrate to take further action in terms of Section 85 of the
Code of Criminal f>rocedure by holding a public auction of the
said properties. In the said order it was wrongly stated that the
properties belonged to the appellants and husband of the 3rd
c responden( 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
D 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:
E 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
F 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
G
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;

H iii) it is further directed that the Mamlatdar- Respondent
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1089
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

A 4 No.1 herein shall make reference to competent A
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 B
to the competent authority under ULC Act as to
j 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 c
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
D
period of three months from the date of receipt of the
r reference. In the event it is found by the competent
authority under ULCAct 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 E
possession of the premises in question from the
petitioner and thereafter he shall further be at liberty

-- iv)
to hand over the vacant possession of the premises
to the auction purchaser.
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
F

Rs.1,500/= per month with the Mamlatdar without
prejudice to the proceedings of the reference and
G
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
H
1090 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B ULC Act, the Mamlatdar shall be at liberty to
appropriat~ th·e amount in accordance with law."

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

parties therein. Against the said order, an LPA, which was
D 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
E 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
F 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
G Rs.10,000/- per month which was to be deposited with the
Registrar by him from 1oth 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
H
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1091
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

any amount which may be payable to her by Jitendra A
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 8
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 C
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.
0
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 E
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 F
permission of the court.
2. Accused shall surrender his passport before the
court."
12. Indisputably pursuant to the said order the Passports G
were deposited on 2ath June, 2006 by them.
13. The 3rc1 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 H
1092 SUPREME COURT REPORTS
.''·
[2008) 4 S. C.R.

A 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
B High Court on 13th December, 2006 which by reason by of the
impugned judgment and order dated 27th December, 2006 has
been dismissed.
..A.

14. The questions which arise for consideration are:- ...
c (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
D cancelled?
-(
15. Submissions of learned counsel appearing on behalf
of the appellants are :
i) · Having regard to the provisions of the Hindu
E Adoptions and Maintenance Act, 1956 d~ty 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
F 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
G
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. >--

H 16. Submissions of Mr. Mayur Shah, learned counsel
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1093
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

.. -i appearing on behalf of the 3rd respondent, are :- A
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 B
in terms of Section 18 of the Hindu Adoption and
-1. Maintenance Act.
...
ii) In terms of Section 84 of the Code of Criminal
Procedure, keeping in view the fact that her husband c
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.
D
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 E
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 F
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. G

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
H
.
l

J-
1094 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
c 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
D 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
E 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 498Aofthe Indian Penal
F 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
G the Indian Penal Code, the same proceeding has also been
dis.missed as withdrawn. Another criminal case was initiated
by her against appellant No.2, his son and another, being Case
No.47of1996 under Section 406, 420. 468 and 114 of the Indian
Penal Code, which is still pending. Another case, being No.2338
H of 2006 was filed by her under Section 500 of the Indian Penal
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1095
ASHOKBHAI PATEL AND ORS. [S.S. SINHA, J.]

• Code. Another case under Section 406 of the Indian Penal Code A
being Case No.2145of1993 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 B
~ · 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-
c
(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,
0
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. · E
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." F
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- G
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- H
~J
1096 SUPREME COURT REPORTS [2008] 4 S.C.R.

A (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.

B (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 ol:.!ained any share,
and any such obligation shall cease on the re-marriage of
c 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 r
D 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
E 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 a.n owner of the property to establish that it is his self-
F 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
G 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
H
• VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1097
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

,, j Save as otherwise expressly provided in this Act,- A
(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

>... (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. c
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
D
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 E
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 F
~i
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.
G
25. In Unnamalai Ammal vs. FW 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 0 .
... ""'
Vadodaria vs. State of Gujarat: (1996) 4 SCC 479 has held as
under:- H
1098 SUPREME COURT REPORTS [2008] 4 S.C.R.
•
A "8. We have given serious thought and considerati~n 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
B 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 carriing ·on various
businesses. According to the Law of the Land with regard
c to maintenance, there is an obligation of the husband toi'
maintain his wife which does not arise by reason of any
contrad - 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
D
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 :-
E "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
F 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
G stepmother also as one of the persons to claim
maintenance from her stepson."
26. We may notice that in Ba/want Kaur vs. Chanan Singh
: (2000) 6 ~CC 310, this Court reiterated the said principle in
the following words:- -
H
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1099
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

"21. This provision clearly indicates that if the widowed A
..., I
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- B
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 c
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 oack upon so far as
her deceased husband's estate was concerned and she
D
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 E
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 F
__ -., 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 th · 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 G
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
H
1100 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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 " '
c house and it is not a joint family property. We see no
reason to disbelieve this statement."
29. Reliance placed by Mr. Goel on \/. Tulasamma and
others vs. Sehsa Reddy (Dead) by L.Rrs. : [1977] 3 SCR 261
is wholly misplaced. The question which arose for consideration
D 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
E 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:

F '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
G
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 fr;..1m her husband is )-.. .....
not lost even if the husband renounce Hinduism.
H
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1101
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

This right subsists even after the husband's death although A
j
,~ 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.' " B
30. 'The orders passed by the High Court which are
k
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 c
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
D
of America· for obtaining medical treatment. They, we would
'y 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 E
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 F
-- .,, 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
G
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.
H
A
1102 SUPREME COURT REPORTS [2008] 4 S.C.R.

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
B 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
C 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
D 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
E 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.
F 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
G 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
H may leave the country appears to be wholly without any basis.
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1103
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]
• ).
They have been attending the courts. The observation made by A
~
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 B
consideration that the factors relevant for setting aside an order
,l,
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 c
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. D
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 E
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 F
v---y
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
G
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
- -4 before the Magistrate and after the investigation has
progressed throwing light on the evidence and
H
1104 SUPREME COURT REPORTS [2008) 4 S.C.R.
.....
A 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
B 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
-1_
in which the offence is committed; the position and the
status of the accused with reference to the victim and the "'
c 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
D
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
E 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
F wide without any express limitations in law. In considering
· the question of b ail justice to both sides governs the y--.~

judicious exercise of the Col;Jrt's judicial discretion."
[See also Bhagirath Singh slo. Mahipat Singh Judeja vs.
State of Gujarat: [1984) 1 SCR 839 and Jayendra Saraswathi
G 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 lnder Mohan Goswami and another vs. State of i -
Uttaranchal and others: (2007) 12 SCALE 15. It was held:-
H
VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1105
ASHOKBHAI PATEL AND ORS. [S.S. SINHA, J.]

~
J. "26. Before parting with this appeal, we would like to A
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 B
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 c
"51. In complaint cases, at the first instance, the court
should (jirect 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
D
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 E
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 F
» ...,
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.
G
42. The right of property is no longer a fundamental right.
But still it is a constitutional right. Apart from constitutional right
- -4.. it is also a human right. The procedures laid down for deprivation
thereof must be scrupu!ously complied with [See-Devinder
Singh and Ors. vs. State of Punjab and Ors. : JT 2007 (12) SC H
1106 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A 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
8 sec 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
c 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
D
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
E 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 lane-owner. This equitable
compensation has been awarded in the special facts of
this case and will not be the subject-matter of appeal, if
F ariy, under the Act on the amount of compensation. "
44. lhe said case arose out of a proceeding under the
Land Acquisition Act which has no relevance to the issues
involved in these appeals.
G 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
H
• VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1107
ASHOKBHAI PATEL AND ORS. [S.B. SINHA, J.]

.., J Section 167(2) is not defeated by lapse of time, the filing A
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 B
administration of justice, or evasion or attempt to evade
,l 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 c
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)
D
r 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- E
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 F
- 'f demonstrates that the ratio laid therein runs counter to the
submissions of the learned counsel.
47. Reliance has also been placed on l.J. Divakar and
others vs. Govt. of Andhra Pradesh and another: (1982) 3
SCC 341. The said decision was rendered under the Industrial G
Law.

,. ...4., Regularization was directed to be provided to the
workmen. A Constitution Bench of this Court in Secretary, State
of Kamataka and others vs. Umadevi and others : (2006) 4
H
~

1108 SUPREME COURT REPORTS [2008] 4 S.C.R.

A sec 1 opined that all such decisions shall stand overruled. A
"f'

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
B as a result whereof the other side would suffer civil or evil
consequences.
.1
48. We are at a loss to understand as to on what premise A
such a contention has been raised. If we accept the contention
c 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, ~
D
some of which have been dismissed for default or withdrawn
'f
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,
E 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
F an Advocate. We deprecate such practice.
Y" ---
50. Having regard to the facts and circumstances of this
Court we are -of the opinion that the interest of justice shall be
subserved if the impugned judgments are set aside with the
following directions :-
G
i) The property in question shall be released from
attachment.
ii) The 3rd respondent shall refund the sum of Rs. 1 .>-- ....,
lakhs to the respondent with interest @ 6% per
H annum.
I

VIMALBEN AJITBHAI PATEL v. VATSLABEEN 1109
ASHOKBHAI PATEL AND ORS. [S.8. SINHA, J.]

iii) The amount of Rs. 4 lakhs deposited by the 1st A
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
Iaw. B

v) The Learned Magistrate before whom the cases filed
by the 3d respondent are pending should bestow
>
serious consideration of disposing of the same, as
expeditiously as possible. c.
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.
0
I.A. for direction : Dismissed.
D.G. Appeals allowed.