Ashok Kumar Bansal and Others vs The State and Another

Badar Durrez Ahmed, J.—This is an application for anticipatory bail filed on behalf of the four petitioners. Rajiv Bansal (hereinafter referred to as ''the husband''), was married to Pooja, since deceased. The petitioner No.1 is the father of the husband. The petitioner Nos. 2 & 3 are the elder brothers of the husband and the petitioner No. 4 is the wife of the petitioner No.3. The marriage between Rajiv Bansal and Pooja took place on 16.02.2003. The learned counsel for the petitioner submitted that Pooja left her matrimonial home on 19.12.2003. A legal notice was issued on 20.12.2003 for restitution of conjugal rights on behalf of the husband, a reply to which was received from the advocate of the wife (Pooja). The reply was dated 27.12.2003. On January, 2004, the husband filed a petition for restitution of conjugal rights. A written statement was filed therein on behalf of the wife (Pooja) which was verified on 01.04.2004 and an affidavit in support was dated 30.04.2004. In the meanwhile, the wife (Pooja) had filed an application u/s 125 of the Code of Criminal Procedure, 1973 on 16.03.2004 for maintenance, copy of which is filed at page 90. Taking the Court through these documents, it was the submission of Mr Mathur, the learned counsel for the petitioner, that throughout the grievance against the husband has been that he has not been faithful to his wife (Pooja) and that he is leading an adulterous life akin to that of a rich playboy. This is the gravamen of all the allegations against the husband.

According to Mr Mathur, there is not even a whisper of any dowry related demand. Mr Mathur further submitted that earlier on 09.01.2004, a complaint had been filed with the Crime Against Women Cell by the Wife (Pooja) and that complaint was with regard to various allegations including the allegation of cruelty on the part of the husband (Rajiv Bansal). Be that as it may, Mr Mathur submitted that to put an end to all the disputes, an agreement had been entered into and a compromise had been struck between the husband and the wife and the agreement was reduced to writing on 22.07.2004 and was placed before the learned M.M. in the Section 125 proceedings and the matrimonial Court. In fact, the statement of Pooja was also recorded which is at page 48 of the paper book.

According to Mr Mathur, the recording of the statement as well as the reference to the said agreement dated 22.07.2004 in the said statement and the reference in the order of the M.M. clearly indicates that the matter was disposed of on the basis of the statements recorded and the petition/complaint stood compromised. It was directed that the parties shall be bound by that statements.

In these circumstances, it is stated by Mr Mathur that the death of the petitioner on 22.12.2004 in her paternal home by way of suicide, although unfortunate, would not, in any way, stand in the way of the petitioners seeking an anticipatory bail in respect of the alleged offences u/s 498A read with 304B which was added subsequently. Initially, the FIR that was registered on 04.11.2004 was u/s 498A and upon the death of Pooja, upon her committing suicide on 22.12.2004, Section 304B was added. Although arguments were advanced that Section 304B could not be added in this fashion and it was refuted by Mr Sud, who appears for the complainant, these need not be gone into at this stage.

On the other hand, Mr Sud argued with a great degree of vehemence that it was a fit case in which anticipatory bail should be refused. He submitted that the girl was an educated girl and she came from a respective family and the entire sequence of events disclosed that there was mental and physical cruelty which was meted out to her by her husband and also the members of his family. The suicide note which was left by the deceased (Pooja) was also referred to and upon going through the same, both the counsel advanced their respective cases. It was argued by Mr Mathur that in the suicide note, there is no mention of any demand for dowry or cruelty in the hands of the petitioners. On the other hand, Mr Sud argued that the entire conduct of the parties was such that it led to suffocation of the deceased (Pooja) and which ultimately led her to desperation and frustration in taking her life by committing suicide. In this context, Mr Sud referred to the decision of the Supreme Court in the case of Union of India (UOI) and Others Vs. Arun Kumar Roy, and in particular to the following passage:-

"The matter regarding the unnatural death of the daughter-in-law at the house of her father-in-law still under investigation and the appropriate course to adopt was to 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."

The learned counsel for the petitioner, however, submitted that this case would not really apply to the facts of the present case inasmuch as the death in that case was in the matrimonial household, whereas in this case, the suicide was committed in the paternal household and that, too, after almost one year of her leaving the matrimonial home. Furthermore, Mr Sud, referred to another decision of the Supreme Court in the case of Pokar Ram Vs. State of Rajasthan and Others, and in particular to paragraph 13 wherein the Supreme Court observed that:-

" it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In fact, the Investigating Officer did not even attempt to arrest the appellant (sic accused) though the initial accusation was u/s 307 IPC punishable with imprisonment for life. ..... If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail."

As regards this decision also it is seen that it is on a different footing as the question here is not of murder, but of a death, albeit unnatural by means of suicide committed in the paternal home.

Mr Sud also submitted, in the context of the compromise agreement, that the offence u/s 498A, firstly, is not compoundable and, secondly, an agreement will not come in the way of reviving the same in the investigation subsequently. Mr Sud states that the husband is absconding. On the other hand, Mr Mathur states that the husband got interim protection in respect of the offences u/s 498A and the next date fixed in the matter is 17.01.2005. So, according to him, there is no question of the husband absconding.

Looking at the totality of the circumstances, I feel that the petitioners ought to be released on bail in the event of their arrest on their furnishing personal bonds of Rs. 1 lakhs each with one surety of the like amount to the satisfaction of the arresting officer with the further condition that they shall fully participate in the investigation as and when directed by the I.O. and that they shall not leave the country without the permission of the Trial Court.

dusty.