Ram Narain vs Om Parkash and Others

K.K. Srivastava, J.—This is a petition filed u/s 439(2) of the Code of Criminal Procedure seeking cancellation of bail granted to respondent Nos. 1 to 4 i.e. Om Parkash son of Jai Ram Dass, Jai Ram Dass son of Tikaya Ram, Smt. Ramwanti wife of Jai Ram Dass and Ish Kumar son of Jai Ram Dass, all residents of Village Kahnaur, Police Station Kalanaur, District Rohtak by Sessions Judge, Rohtak in case F.I.R. No. 12 dated 25.1.1995 under Sections 304-B/201 /34 of Indian Penal Code, Police Station Kalanaur.

Petitioner Ram Narain son of Gian Chand, resident of Kalanaur aforesaid is the father of Smt. Lalita (since deceased). Smt. Lalita was married with respondent No. 1 Om Parkash son of respondent Nos. 2 and 3 on 28.1.1988. Respondent No. 4 Ish Kumar is the real brother of Om Parkash aforesaid. Smt. Lalita was educated and had done B.A. B.Ed. She was employed as a teacher in Government High School Kahnaur. Smt. Lalita died an unnatural death on 20.1.1995. The F.I.R. of the case was lodged by the son of the petitioner on 25.1.1995. According to the allegations made in the F.I.R., deceased Smt. Lalita was being harassed by respondent Nos. 1 to 4 on account of demand of dowry on various occasions. It was alleged in the F.I.R. that at the time of the marriage of the deceased-Smt. Lalita with respondent No. 1 sufficient dowry was given beyond the financial capacity of the parents of Smt. Lalita. Respondent Nos. 1 to 4 were, however, not satisfied with the dowry given in the marriage and were pressing Smt. Lalita for bringing more dowry. Smt. Lalita was being harassed and tortured for being unable to fulfil their demands. It has been alleged further that on 1.1.1995 Smt. Lalita visited the house of her father i.e. the petitioner and informed him about the demand by respondent Nos. 1 to 4 of a sum of Rs. 80,000/- and she was asked to bring the aforesaid amount from her parents or else she would be killed. The parents of Smt. Lalita being poor persons were unable to go to arrange such a huge amount and they persuaded her daughter Lalita (sic) back to the house of her husband. A son named Yogesh and a daughter were born to Smt. Lalita from her husband out of the wedlock. The son Yogesh was aged about five years while the daughter was about six months old. On 20.1.1995 the son of the petitioner learnt from some unknown person at about 2.00 P.M. that Smt. Lalita had been burnt to death at her matrimonial house. The petitioner and his sons went to the house of respondent Nos. 1 to 4 and saw dead-body of Lalita lying in the bathroom and the smoke was coming out of the dead body. One tin container of oil was found lying there. The respondents accused were present at their house. The petitioner and the sons tried to talk to them but the respondents did not listen to them. Smt. Lalita was cremated. The petitioner and his sons after making enquiries and verifying the facts learnt about Smt. Lalita being burnt to death by respondent Nos. 1 to 4 and thereafter the F.I.R. was lodged against respondent Nos. 1 to 4.

During investigations Sadhu Ram, S.H.O. P.S. Kalanaur; on 25.1.1995 recorded statement of Yogesh son of respondent No. 2 and the deceased Smt. Lalita who told him that his Papa (father) had killed his mother. A challan was submitted by the Investigating Officer after completion of the investigation.

Respondent Nos. 1 to 4 applied for bail in the Court of the Sessions Judge, Rohtak who granted bail to the respondents after noting the arguments advanced by both sides. The relevant part of the orders of the learned Sessions Judge, Rohtak may be reproduced as under :

"I have considered the arguments advanced by both sides. The marriage had been solemnised about seven years back. There is delay of about five days in lodging the F.I.R. There are no specific allegations against any particular accused. Jai Ram Dass and Ram Wanti are old persons aged 70 years and 65 years respectively and Ish Kumar accused-petitioner was living separately at Rohtak alongwith his family from husband of the deceased.

Considering the overall facts and circumstances of the case and without expressing anything on the merits of the case, I am of the opinion that accused-petitioners be allowed concession of bail. Accordingly, it is ordered that accused-petitioners namely Jai Ram Dass, Ramwanti and Ish Kumar be released on bail on their furnishing bail bonds in the sum of Rs. 15,000/-each with one surety each in the like amount to the satisfaction of IIIaqa/Duty Magistrate.

Sd/- Sessions Judge, Rohtak."

The petitioner, father of the deceased Smt. Lalita, felt aggrieved against the order granting bail to respondent Nos. 1 to 4 and he has filed this petition u/s 482(2) of the Code of Criminal Procedure praying that the bail granted by the learned Sessions Judge, Rohtak to respondent Nos. 1 to 4 is contrary to the facts and provisions of law and the same be cancelled.

Notice of the petition was issued to respondent Nos. 1 to 4 as also respondent No. 5 - State of Haryana. Respondent Nos. 1 to 4 filed separate reply while respondent No. 5 filed a separate reply which was filed by the Superinten- dent of Police, Rohtak. The reply filed on behalf of respondent Nos. 1 to 4 is by way of affidavit of respondent No. 4 Ish Kumar who is the brother of Om Parkash, respondent No. 1 and husband of deceased Smt. Lalita. Respondent Nos. 1 to 4 have averred that Lalita died on 20.1.1995. The parents of the deceased were informed by Om Parkash and the cremation was done in their presence. It was further averred that the F.I.R. has been lodged after consultations and deliberation on 25.1.1995. It was deposed further that the contents of the F.I.R. reproduced in para 4 are correct. Para 4 of the affidavit of Ish Kumar may be reproduced as under:

"That the contents of para No. 4 are wrong. Hence denied. Lalita died on 20.1.1995. The parents of the deceased were informed by Om Parkash and the cremation was done in their presence. It was after consultations and deliberation the present false case was got registered against the deponent and others on 25.1.1995. The contents of F.I.R. reproduced in para 4 are correct."

It was deposed in para 5 that the complainant in connivance with the police manipulated, the statement of Yogesh. In para 6 it was deposed, inter alia, that no inspection of spot was made and the police in connivance with the complainant has manipulated all documents and presented a report u/s 173 of Code of Criminal Procedure. It was further mentioned in para 6 that it is correct that Om Parkash was granted bail after presentation of challan. The contents of para 7 were admitted to be correct. The contents of para 8 of the petition were deposed as wrong and it was mentioned that the learned Sessions Judge rightly granted bail to the deponent and other respondents.

(i) That the learned Trial Judge has rightly granted bail by considering relevant evidence on record.

(ii) That contents of Sub-para 8{ii) are wrong. If the allegation of demand of dowry had been true, Om Parkash would not have deposited money in FDR in joint account with his wife. This apparently shows that there was no such demand as is being alleged by the prosecution.

(iii) That contents of para 8(iii) are denied. Jai Ram Dass and Ram Wanti are old and infirm persons.

(iv) That contents of para 8(iv) are denied. Jai Ram Dass and Ram Wanti had been living at Delhi whereas the deponent had been living at Rohtak with his family for the last ten years before the occurrence and has got a separate ration card also. Only general and vague allegations have been levelled to falsely implicate whole of the family.

(v) That contents of para No. 8{v) are wrong. Hence denied. The deponent and other co-accused have been rightly granted bail by the learned Sessions Judge.

(vi) That contents of para No. 8(vi)do not relate to the deponent or other co-accused.

(vii) That contents of para No. 8(vii) are legal and need no reply.

Respondent No. 5 has taken the stand that it has nothing to do in the matter because granting of bail is discretionary and the learned Court exercised its discretion after considering all the circumstances of the case and by way of speaking order. It was mentioned that the petitioner might have brought his entire facts to the notice of the police authorities and if necessary, the State could move an application for cancellation of bail.

At the time of hearing of the case, learned Counsel for the petitioner did not press this petition for cancellation of bail in respect of respondent Nos. 2 to 4 i.e. Jai Ram Dass, his wife Smt. Ram wanti and his other son Ish Kumar. Learned Counsel for the petitioner pressed the petition for cancellation of bail against the husband Om Parkash, respondent No. 1, of the deceased Smt. Lalita. Learned Counsel for the petitioner submitted that there is prima facie cogent evidence against respondent No. 1 Om Parkash to the effect that Smt. lalita was Killed by him. Learned Sessions Judge while granting bail to respondent No. 1 did not consider this important evidence of Yogesh. The statement of Yogesh son of respondent No. 1 Om Parkash is prima facie sufficient to connect respondent No. 1 with the commission of the alleged offence. Regarding the four FDRs it was mentioned that these FDRs are in respect of the amount transferred from Saving Bank Account No. 30/6525. The fixed deposit receipts showed that the amount was payable on maturity to either of survivor that is to say that the amount of the F.D.R. would be paid either to the husband Om Parkash or the wife Smt. Lalita or the survivor in the event of death of one of them. Learned Counsel for the petitioner pointed out that these F.D.Rs. clearly show that respondent Om Parkash had an evil mind behind this and he managed the same accordingly. The learned Sessions Judge while granting bail to respondent No. 1 husband Om Parkash did not discuss the evidence of his son Yogesh or the allegations made in the F.I.R. A perusal of the order of learned Sessions Judge, a part of which has been quoted above, wherein he has discussed the case of the either side while granting bail, he has noticed the delay of five days in lodging the F.I.R. and further that there are no specific allegations against any particular accused. (-sic-) and in para 7 of the order the learned Sessions Judge granting the concession of bail to respondent Nos. 1 to 4 - accused said that he granted the concession of bail without expressing anything on the merits of the case. The learned Sessions Judge failed to take into consideration the offence of dowry death as contained in Section 304-B of the Indian Penal Code which lays as under :

"304-B. Dowry death-(I) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circum- stances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation-for the purposes of this Sub-section "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

A perusal of Section 304-B of Indian Penal Code will go to show that where the prosecution makes out the case of dowry death as defined in Section 304-B of Indian Penal Code, the husband or relative shall be deemed to have caused her death. Section 304-B(l) of Indian Penal Code provides for a deeming clause against the husband of the woman who has died due to burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and where it has been shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Explanation appended at the bottom of Section 304-B(l) shows that for the purpose of this sub-section dowry shall have the same meaning Sub-section (2) of the Dowry Prohibition Act, 1961 (28 of 1961). The Parliament has nominated the husband of such a woman as the principal accused and in case it has been shown that the dowry death u/s 304(b)(l) of IPC has been committed, the husband of the woman shall be deemed to have caused the dowry death. Not only this, Section 113-B of the Indian Evidence Act, 1872 provides for a presumption as to dowry death and it lays down as under :

"113-B. Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such persons to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation-For the purpose of this Section, "dowry death" shall have he same meaning as in Section 304-B of Indian Penal Code."

Now coming to the facts of the present case the marriage of Smt. Lalita was solemnized with respondent No. 1 Om Parkash on 28.1.1988 and the death of Smt. Lalita due to burn injuries took place on 20.1.1995 i.e. within seven years of her marriage. As mentioned above, Smt. Lalita died due to burn injuries, at the house of her husband and parents-in-law. In the F.I.R. there are categorical and specific allegations regarding the demand of dowry and the harassment and torture of Smt. Lalita (deceased) wife of Om Parkash, respondent No. 1.

In view of these facts and circumstances, the necessary ingredients attracting Section 304-B I.P.C. were prima facie shown. The learned Sessions Judge, however, did not consider these provisions and he proceeded to consider the case of respondent No. 1 and husband alongwith his relatives i.e. his parents and brother and granted bail on the ground of delay in lodging the F.I.R. and that there were no specific allegations made against the accused. Learned Counsel for respondent No. 1 pointed out that once the concession of bail has been granted to the respondent-accused, the same ought not to be withdrawn by cancelling the bail unless the grounds for cancellation of bail, in law, exist and he argued that the bail could be cancelled only where it has been shown that the accused misused the concession of bail.

Learned Counsel for the petitioner, on the other hand, argued that in the instant case respondent No. 1 was released on bail by the learned Sessions Judge on totally irrelevant considerations. He submitted further that when there was sufficient prima facie evidence including the demands of dowry, the bail granted to the husband by the Sessions Judge u/s 304-B, I.P.C. was fit to be cancelled. He further contended that wrong exercise of jurisdiction and abuse of process of law is a justified ground for cancellation of bail and in the instant case respondent No. 1-accused who was the husband of the deceased and accused of dowry death was released on bail without considering the relevant facts and circumstances of the case.

After considering the facts and circumstances of the case and carefully perusing the order passed by the learned Sessions Judge and keeping in view the provisions of Section 304-B of I.P.C. and Section 113-B of the Evidence Act and considering that the learned Sessions Judge failed to consider these provisions and the material on record including the statement of Yogesh, son of Om Parkash, respondent No. 1, the learned Sessions Judge granted bail to respondent No. 1 on totally irrelevant considerations and he did not properly appreciate the seriousness and gravity of the matter regarding the dowry death, the order passed by the learned Sessions Judge granting bail to respondent No. 1-husband cannot be held to be a proper, valid and legal order. Resultantly, the petition is allowed to the extent that the order granting bail to respondent No. 1 Om Parkash accused is cancelled. The learned Sessions Judge shall issue non-bailable warrants for the arrest of respondent No. 1 and commit him to judicial custody.