BINU B vs STATE OF KERALA

This petition is filed under section 438 of the Code of Criminal Procedure.

The petitioner is working in the Indian Air Force. He married a girl by name Anju on 29.10.2010. They have a child, who was born in the year

2011. While so, the relationship between the petitioner and his wife became strained. She started residing separately from the petitioner from

12.06.2014 onwards. After their separation, his wife initiated proceedings before the Family Court seeking maintenance for herself and her child

and another petition seeking realization of money and gold. She also filed a petition seeking divorce. Simultaneously, she filed a complaint before

the learned Magistrate, Thiruvananthapuram alleging offence punishable under Section 323,498A, 511 r/w. Section 34 of the IPC against the

petitioner. Based on the said complaint, Crime No.777 of 2015 was registered on 27.7.2015. While the proceedings were pending as aforesaid,

his wife committed suicide by hanging herself in the window of her parental home some time between 8.30 P.M., on 30.11.2015 and 6 A.M. on

01.12.2015. Based on the information furnished by a near relative, Crime No. 1578 of 2015 was registered initially under Section 174 of the

Cr.P.C.

Nothing much happened to the case till 13.5.2017, on which day, an order was issued by the Assistant Superintendent of Police, Attingal,

directing the S.I. of Police, Chirayinkeezhu, to take up investigation. Immediately thereafter, by order dated 14.6.2017 issued by the ADGP,

investigation was entrusted with the District Crime Branch. Thereafter, Section 304B of the IPC was incorporated and the investigation was taken

over by the Dy.S.P District Crime Branch and the investigation was linked with Crime No.777 of 2015 of the Sreekaryam Police Station.

Apprehending arrest and detention, the petitioner is before this Court.

Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

It is submitted by the learned counsel that at the time of registration of the Crime and for two years subsequent thereto, neither the de facto

complainant nor the family members of his deceased wife had a case that it was as a result of some acts committed by the petitioner that his wife

had committed suicide. The learned counsel also referred to Annexure-C petition filed by the wife in the month of June 2015 to contend that the

deceased was living separately from the petitioner as early as from 12.6.2014. According to the learned counsel, though the expression ""soon

before her death"" has been interpreted to be an elastic expression, there must be something to show that immediately prior to her death or some

time proximate thereto the petitioner had subjected his wife to cruelty or harassment demanding dowry and the same led her to take her own life.

The same is not satisfied in the instant case is the submission. The learned counsel also referred to the decision of the Apex Court in Surinder Singh

v. State of Haryana [2014 (4) SCC 129] to substantiate his submission. It is submitted by the learned counsel that in connection with his

employment, the petitioner was employed in different parts of India and had only limited access to his wife. During the period when his wife had

decided to take her own life, the petitioner was stationed at Hyderabad. It is then submitted by the learned counsel that the immediate provocation

for initiation of the fresh proceedings against the petitioner is the filing of Annexure-B petition by the petitioner before the Family Court seeking

custody of the minor child. It is submitted that on 3.12.2015, the petitioner herein had filed a complaint before the Chirayinkeezhu Police Station

with a prayer to investigate into the matters relating to the death of his wife and this fact is made mention of in Annexure-B petition. He also refers

to the averments in para 7 of Annexure-B petition to contend that certain events which came to the knowledge of the petitioner prompted him to

file such a complaint. The petitioner had contented that the in-laws of the petitioner who were arrayed as the respondents were not interested in the

welfare of his child and sought for entrustment of the custody to the petitioner. This prompted his in-laws to exert undue influence politically and to

rejuvenate the investigation by pointing fingers of suspicion on the petitioner.

Learned Public Prosecutor has very fervently opposed the prayer advanced by the learned counsel. It is submitted that the victim during her

lifetime had complained of cruelty and harassment and in that view of the matter, merely because there was some delay in incorporating section

304B of the IPC, no advantage can be granted to the petitioner.

I have considered the submissions advanced and have gone through the case diary. The prosecution has no case that the petitioner had any

access with the victim for more than 1 1/2 years from 12.06.2014.

The crime was registered in the month of November 2015 and for more than two years no one had a case that the deceased had committed

suicide due to the mental and physical harassment meted out by the petitioner demanding dowry. It is born out that the petitioner is now working as

Airman in the Indian Air Force at Hyderabad. A deeper probe into the matters are not warranted at this stage. The question whether the offence

under section 304 B will be attracted or not has to be considered by the Trial Court at the appropriate stage. The custodial interrogation of the

petitioner does not appear to be necessitous for an effective investigation in the instant case. I am of the considered view that an order of

anticipatory bail can be granted by imposing conditions to safeguard the interest of the prosecution.

This petition will stand allowed on the following conditions:-

i). The petitioner shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is

proposed to be arrested, he shall be released on bail on him executing a bond for a sum of Rs.50,000/- (Rupees forty thousand only) each with

two solvent sureties each for the like sum.

ii)The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 10

a.m., for two months or till final report is filed, whichever is earlier.

iii)The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him/ her from disclosing such facts to the court or to any police officer nor shall he tamper with the evidence.

iv)The petitioner shall not commit any similar offence while on bail.

v) The petitioner shall not leave India without seeking the prior permission of the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if

any, and pass appropriate orders in accordance with the law.