Govinda Chandra Senapati vs State of Orissa

R.K. Patra, J.—By this application made u/s 438 of the Code of Criminal Procedure, the petitioner has prayed for bail in anticipation of his arrest in connection with Cantonment P. S. Case No86 of 1995 u/s 498A, 1PC and Section 4 of the Dowry Prohibition Act.1961.

I have heard Sheri B. M. Patnaik. learned counsel for the petitioner, learned Advocate-Genera I for the State and Shri B.. H. Mohanty learned counsel appearing for the informant.

The petitioner''s son Vikram has married Lusna, the daughter of Bijayalaxmi Mohapatra on 28-6-1994. On the basis of FIR lodged by Bijayalaxmi the aforesaid Cantonment P. S. Case No. 86 of 1995 has come to be registered. As the petitioner apprehends his arrest in connection with the aforesaid cast, it is relevant to note the contents of the related FIR lodged on 19-6-1995. The informant in the FIR has stated that her daughter Lusna was given in marriage to Vikram and after the marriage, there was demand of dowry in the shape of a Maruti Car and Air-Conditioner. The FIR goes on to say that on her inability to meet the aforesaid demand of dowry her daughter was being tortured and even attempt was made to do away with her life on account of which she has now been staying with the informant. In the FIR it has been alleged that Vikram, son of the petitioner and his friends have been abusing the informant and his daughter (wife of Vikram) over telephone. In the premises stated above, the informant has prayed the police to take appropriate action.

Learned Advocate General by drawing my attention to paragraph-4 of the petition contended that the "tragedy" as mentioned in the said paragraph which has be fallen on Lusna is something else. In this connection he referred to Lusna''s medical report dated 15-3-1995 as well as the statement dated 18-7-1995 recorded u/s 161, Cr PC of the concerned doctor from which it would appear that Lusna was subjected to carnal inter-course. According to the learned Advocate General, the carnal inter-course was being committed on her by her husband which was inhuman and barbarous and constitutes cruelty and torture and this inhuman behaviour of Vikram towards his wife was brought to the notice of the petitioner who instead of taking any steps for solution threatened his daughter-in-law. It was, if at all true, an affair between the couple for which the husband might be at fault. I have not been able to appreciate as to how the said affair is relevant for the case u/s 498A, IPC and Section 4 of the Dowry Prohibition Act, 1961. The petitioner in any case by no stretch of fertile imagination comes to the picture so far as the alleged carnal intercourse is concerned.

Let me now proceed to note certain events- preceding the filing of the FIR which have direct bearing for decision of this petition. On 6-2-1995 the son of the petitioner has filed a petition against his wife Lusna u/s 10 of the Hindu Marriage Act, 1955.for judicial separation in the Family Court, Cuttack. It has been registered as Civil Proceeding No. 30 of 1995. The informant Bijayalaxmi and her daughter Lusna after receipt of notice have appeared before the Judge, Family Court, Cuttack and sought time for filing objection About three months thereafter, i.e. dated on 30-5-1995 Lusna filed complaint (ICC No. 67 of 1995)in the Court of the Sub-divisional Judicial Magistrate Cuttack u/s 493A/307/323/506/34, IPC and u/s 4 of the Dowry Prohibition Act. In the said complaint, the husband and mother-in-law of Lusna have been arrayed as Accused Nos. 1 and 2 and petitioner as accused No. 3. The learned Magistrate after taking initial statement of the complainant and three Witnesses has taken cognizance u/s 498A/323/34, IPC and Section 4 of the Dowry Prohibition Act by order dated 5-6-1995 and issued summons against the accused persons instead of issuing warrants. It is significant to note that in the entire compalaint there is no allegation against the petitioner except what has been stated in paragraph (x). There is also no mention of commission of carnal inter-course on Lusna which is now being highlighted after the FIR was lodged. In paragraph (x) of the complaint, a sentence has been added by hand as follows :

"Incident took place at the instance and instigation of "accused No.3 meaning the petitioner."

The said incident referred to was a push and kick given to Lusna by her mother-in-law. At the worst, so far as the petitioner is concerned, it may constitute abetment of commission of an offence u/s 323, IPC. To Pick-up the thread of narration, in paragraph-xv of the complaint, Lusna, the complainant, has stated that she went to the Cantonment police station on 28-5-1995 who refused to accept the FIR and there after consulting advocates, she filed the complaint. The present FIR was lodged on 19-6-1995 u/s 493A. IPC and Section 4 of the Dowry Prohibition Act whose contents have already been noted in proceding paragraph 2 of this order.

Learned Advocate General relying on the judgment of the Supreme Court in Union of India (UOI) and Others Vs. Arun Kumar Roy, submitted that the petitioner should not be granted anticipatory bail. Samunder Singh was a case of dowry death where the accused was granted bail. The present is not a case of dowry death.

Shri B. H. Mohanty, learned counsel for the informant, Submitted that the petition for anticipatory bail should not be accepted because the petitioner being a former Director General of Police, there is every likelihood of his interference with the investigation. In this connection, he placed reliance on an order of tine Supreme Court in Kiran Devi Vs . State of Rajasthan . I have carefully read the order in Kiran Devi (supra). There is no such observation of the Supreme Court in the said case as submitted by Shri Mohanty. Kiran Devi was a case where anticipatory bail was granted by the High Court in a murder case when investigation was still incomplete and the apex Court set aside the order of the High Court by observing that when investigation was incomplete, anticipatory bail should not have been granted. There is no inexorable rule that anticipatory bail should not be granted when the investigation is in progress. Each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.

Shri B. M. Patnaik, learned counsel for the petitioner, submitted that in the complaint filed by Lusna, the petitioner, his wife and son have entered appearance pursuant to the summons issued to them and it is perhaps because no warrants of arrest was issued against the petitioner and his family members the informant in order to wreck her private vengeance has approached the police by filing FIR so that the petitioner and his family members could be arrested and put behind the bars.

Shri. Mohanty, learned counsel for the informant, submitted that the police has in fact been assisting the petitioner and his family members. He stated that on 15-7-1995 after arresting the petitioner''s wife and his son at 3 p. m. police deliberately did not forward them to the Court of the Sub-divisional Judicial Magistrate Cuttack when the latter was available till 8 p. m. and instead, detained the arrested persons at the police station. The allegation made on behalf of the informant against the police has absolutely no relevance for adjudication of the present application. As already indicated, there is no whisper of a word against the petitioner in the FIR lodged by Bijayalaxmi. The alleged commission of carnal sexual assault on Lusna has got nothing to do with the petitioner. No other material was brought to my notice specifically involving the petitioner in the commission of the offence u/s 498A and Section 4 of the Dowry prohibition Act. There is no basis to share the apprehension that the petitioner being a former Director General of Police would interfere with the investigation which is being supervised by an able and competent DIG of Police. In the circumstances, the investigating agency would in no way be prejudiced if the petitioner is granted anticipatory bail. In the complaint which was filed by Lusna prior to the lodging of the FIR there is no allegation against the petitioner except what has been noted in the preceding paragraph of this order which hardly makes out case against the petitioner u/s 498A, IPC and Section 4 of the Dowry Prohibition Act.

I am aware of the legal position that anticipatory bail cannot be granted in all cases as a matter of course. The exercise Of power u/s 498, Cr PC being of an extraordinary nature, has to be invoked in exceptional cases only. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free and fair investigation '' and there should be prevention of harassment and - unjustified detention of the accused.

Section 498A, IPC deals with the offence of cruelty on a woman which is punishable with an imprisonment for a term which may extend to three years. Section 4 of the Dowry Prohibition Act, 1961 deals with penalty for demanding dowry and the offender shall be punishable with imprisonment for a term which shall not be less than six months, which may extend to two years and with fine.

For all the aforesaid reasons and having regard to the nature of the offences, the circumstances preceding the filing of the FIR and in absence of any positive material of commission of the alleged offences by the petitioner, I am of the considered opinion that it is a fit case to allow this petition. I order accordingly,

In the event the petitioner is arrested in connection with Cantonment P.S, Case No. 80 of 1995, he may be released, on bail of Rs. 10,000/- (Rupees ten thousand) with two sureties for the like amount to the satisfaction of the Investigating Officer. The petitioner shall make himself available for interrogation as and when required by the investigating agency. He shall not in any way attempt to intimidate, coerce or influence any person who may or might have knowledge about the incident. He shall also not leave the jurisdiction of Cuttack Municipality without prior permission of the Sub-divisional Judicial Magistrate, Cuttack till completion of investigation.

The criminal misc. case is disposed of. Urgent certified copy of the order may be granted by tomorrow on proper application.