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Bail Appln. No. 1824/2012 Page 1 HIGH COURT OF DELHI
BAIL APPLN. 1824/2012 & Crl.M.A. No. 548/2013
BALWAN SINGH & ORS. ..... Petitioner
Through: Mr.K.K.Manan, Mr.Nipun Bhardwaj and Mr.Narang, Advocates
BAIL APPLN. 1824/2012 & Crl.M.A. No. 548/2013
BALWAN SINGH & ORS. ..... Petitioner
Through: Mr.K.K.Manan, Mr.Nipun Bhardwaj and Mr.Narang, Advocates
VERSUS
STATE NCT OF DELHI ..... Respondent
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 16.01.2013
Crl.M.A. No.548/2013 (pre-ponement of hearing on Bail
Application)
Heard.
For the reasons stated in application, the same is allowed and the hearing on bail application is pre-poned today.
Application stands disposed of.
Crl.M.A. No.548/2013 (pre-ponement of hearing on Bail
Application)
Heard.
For the reasons stated in application, the same is allowed and the hearing on bail application is pre-poned today.
Application stands disposed of.
BAIL APPLN. 1824/2012
Parameters governing grant of bail and anticipatory bail are entirely different. Apex Court in HDFC vs. JJ. Mannan @ J.M. John
Paul and Anr., 2010 (1) JCC 489, has reiterated parameters which governed exercise of jurisdiction under Sections 438 of Cr.P.C. in these words: -
2013:DHC:276 Bail Appln. No. 1824/2012 Page 2
“The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of
Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial.
Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the Court and pray for regular bail.”
Petitioners herein are the parents-in-law, brother-in-law and maternal uncle-in-law of deceased, who had died within a period of three years of marriage with co-accused of petitioners against whom charge sheet has already been filed and the cause of death is shock and hemorrhage (internal hemorrhage) following rupture of uterine appendages.
Learned counsel for petitioners vehemently asserts that the FIR of this case is silent about the involvement of the petitioners in commission of the offence in question and supplementary statement of the complainant has been subsequently introduced to bring this
Bail Appln. No. 1824/2012 Page 3 offence within the ambit of Section 304B of I.P.C. as in fact it was an abortion of the deceased few days before her death, which has led to this unfortunate incident and so, petitioners deserves concession of pre-arrest bail as question of absconding does not arise because they had filed the instant petition for pre-arrest bail within a fortnight of
Sessions Court declining pre-arrest bail to petitioners. In this regard order passed in Harbhajan Singh vs. State, 2007 (4) JCC 2898 has been referred to.
Learned Additional Public Prosecutor for State relies upon an order in Deepa Devi Daya Ram & Jagdish vs. State of NCT of Delhi, 2010 (1) JCC 335, wherein pre-arrest bail was refused to the accused who were absconding and it is asserted that petitioners are absconding and so they do not deserve concession of pre-arrest bail, as prima facie case of dowry death is made out against petitioners in view of the charge sheet filed against co-accused of petitioners.
Grant of anticipatory bail in dowry death cases has been deprecated by Apex Court in Samunder Singh vs. State of Rajasthan
& Others, (1987) 1 SCC 466 in following words:-
“The widespread belief that dowry deaths are even now treated with some casualness at all levels seems to be well grounded. The High Court has granted anticipatory bail in such a matter. We are of the opinion that the High
Court should not have exercised its jurisdiction to release the accused on anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of the daughter-in-law at the house of her father-in-law was still under investigation and the appropriate course to adopt was to
Bail Appln. No. 1824/2012 Page 4 allow the concerned Magistrate to deal with the same on the basis of the material before the Court at the point of time of their arrest in case they were arrested. It was neither prudent nor proper for the High Court to have granted anticipatory bail which order was very likely to occasion prejudice by its very nature and timing. We therefore consider it essential to sound a serious note of caution for future. The High Court is under no compulsion to exercise its jurisdiction to grant anticipatory bail in a matter of this nature.”
Upon hearing and on perusal of the FIR in question and the material on record, I find that deceased was a teacher in a School who after her marriage was being harassed by petitioners/accused on account of bringing a small car and no cash and even if the supplementary statement made by the complainant excluded from consideration, it would not automatically bring the offence alleged out of the purview of dowry death. Upon reading of the F.I.R. in question, prudence persuades this Court not to extend the benefit of pre-arrest bail to petitioners. The submissions advanced to obtain pre-arrest bail are usual ones which can be considered when petitioners surrender and move for regular bail as there are no extra-ordinary circumstances, which entitle the petitioners to obtain pre-arrest bail for the serious offence of dowry death.
In view of the aforesaid, while refusing to grant concession of pre-arrest bail to petitioners, they are directed to surrender forthwith.
It is made clear that as and when petitioners seek regular bail, the same would be considered objectively, strictly on merits and
Bail Appln. No. 1824/2012 Page 5 uninfluenced by this order.
With aforesaid observations, this petition is disposed of.
(SUNIL GAUR)
Judge JANUARY 16, 2013 pkb
Parameters governing grant of bail and anticipatory bail are entirely different. Apex Court in HDFC vs. JJ. Mannan @ J.M. John
Paul and Anr., 2010 (1) JCC 489, has reiterated parameters which governed exercise of jurisdiction under Sections 438 of Cr.P.C. in these words: -
2013:DHC:276 Bail Appln. No. 1824/2012 Page 2
“The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of
Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial.
Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the Court and pray for regular bail.”
Petitioners herein are the parents-in-law, brother-in-law and maternal uncle-in-law of deceased, who had died within a period of three years of marriage with co-accused of petitioners against whom charge sheet has already been filed and the cause of death is shock and hemorrhage (internal hemorrhage) following rupture of uterine appendages.
Learned counsel for petitioners vehemently asserts that the FIR of this case is silent about the involvement of the petitioners in commission of the offence in question and supplementary statement of the complainant has been subsequently introduced to bring this
Bail Appln. No. 1824/2012 Page 3 offence within the ambit of Section 304B of I.P.C. as in fact it was an abortion of the deceased few days before her death, which has led to this unfortunate incident and so, petitioners deserves concession of pre-arrest bail as question of absconding does not arise because they had filed the instant petition for pre-arrest bail within a fortnight of
Sessions Court declining pre-arrest bail to petitioners. In this regard order passed in Harbhajan Singh vs. State, 2007 (4) JCC 2898 has been referred to.
Learned Additional Public Prosecutor for State relies upon an order in Deepa Devi Daya Ram & Jagdish vs. State of NCT of Delhi, 2010 (1) JCC 335, wherein pre-arrest bail was refused to the accused who were absconding and it is asserted that petitioners are absconding and so they do not deserve concession of pre-arrest bail, as prima facie case of dowry death is made out against petitioners in view of the charge sheet filed against co-accused of petitioners.
Grant of anticipatory bail in dowry death cases has been deprecated by Apex Court in Samunder Singh vs. State of Rajasthan
& Others, (1987) 1 SCC 466 in following words:-
“The widespread belief that dowry deaths are even now treated with some casualness at all levels seems to be well grounded. The High Court has granted anticipatory bail in such a matter. We are of the opinion that the High
Court should not have exercised its jurisdiction to release the accused on anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of the daughter-in-law at the house of her father-in-law was still under investigation and the appropriate course to adopt was to
Bail Appln. No. 1824/2012 Page 4 allow the concerned Magistrate to deal with the same on the basis of the material before the Court at the point of time of their arrest in case they were arrested. It was neither prudent nor proper for the High Court to have granted anticipatory bail which order was very likely to occasion prejudice by its very nature and timing. We therefore consider it essential to sound a serious note of caution for future. The High Court is under no compulsion to exercise its jurisdiction to grant anticipatory bail in a matter of this nature.”
Upon hearing and on perusal of the FIR in question and the material on record, I find that deceased was a teacher in a School who after her marriage was being harassed by petitioners/accused on account of bringing a small car and no cash and even if the supplementary statement made by the complainant excluded from consideration, it would not automatically bring the offence alleged out of the purview of dowry death. Upon reading of the F.I.R. in question, prudence persuades this Court not to extend the benefit of pre-arrest bail to petitioners. The submissions advanced to obtain pre-arrest bail are usual ones which can be considered when petitioners surrender and move for regular bail as there are no extra-ordinary circumstances, which entitle the petitioners to obtain pre-arrest bail for the serious offence of dowry death.
In view of the aforesaid, while refusing to grant concession of pre-arrest bail to petitioners, they are directed to surrender forthwith.
It is made clear that as and when petitioners seek regular bail, the same would be considered objectively, strictly on merits and
Bail Appln. No. 1824/2012 Page 5 uninfluenced by this order.
With aforesaid observations, this petition is disposed of.
(SUNIL GAUR)
Judge JANUARY 16, 2013 pkb
JUDGMENT