Rikhi Dev Malhotra vs Shaman Sareen and ors.

J. S. Sekhon, J.

The complainant has moved this application under Section 439, subsection (2) of the Code of Criminal Procedure, 1973, for cancellation of anticipatory bail granted to the accusedrespondents by the learned Sessions Judge, Jalandhar, vide his order dated 1241990 in case FIR No. 108, dated 671989, registered for offences under Sections 302/201 of the Indian Penal Code at Police Station Nawanshahr.

The brief resume of facts collected during the investigation of the case and relevant for the disposal of this petition is that Mst. Kamlesh Kumari was married with Shaman Sareen, accused respondent, on 551989. Prem Sagar and Smt. Sita Devi, accusedrespondents Nos. 2 & 3, are parents of Shaman Sareen while Parvesh Sareen, accusedrespondent No. 4, is the brother of a aforesaid Shaman Sareen, Mst. Kiran Sareen and Mst. Nita Dhir. accused respondents Nos 5 and 6, are the sisters of Shaman Sareen while Girish Dhir, accused respondent No. 7, is the husband of aforesaid Nita Dhir. In the FIR Rikhi Devi Malhotra petitioner, alleged that the aforesaid accused respondents had been harassing the deceased and demanding more dowry. The deceased wrote letters in this regard to her sister and mother. She also complained of this maltreatment to Surender Kumar of Ludhiana a day prior to this incident. According to the judicial confession of Shaman Sareen and Prem Sagar accused before Ravi Dutt witness on 571989 she was administered poison forcibly by Shaman Sareen after her parentsinlaw had secured her from the arms. She was then removed to Civil Hospital, Nawanshahr. The accused represented before the Doctor that the victim had consumed chloroquine. The victim died on the next morning. Her deadbody was subjected to postmortem examination and three antemortem injuries were found on her person. Her viscera and stomach wash was sent to the Chemical Examiner for analysis. The Chemical Examine found the presence of aluminium phosphide therein. This fact was recorded by the Doctor in the history sheet. This case was initially registered for offence under Section 304B, Indian Penal Code, at the instance of the father of the victim. The learned Sessions Judge, Jalandhar, granted interim anticipatory bail to the accused respondents on 1071989 and confirmed this order on 2581989. The offence under Section 32, Indian Penal Code, was thereafter added. The accusedrespondents then apprehending their rearrest again approached the learned Sessions Judge, Jalandhar, for grant of anticipatory bail and the learned Sessions Judge vide order dated 1241990 also granted anticipatory bail to the accused for offence under Section 302 read with Section 201, Indian Penal Code on the ground that his predecessor had granted. anticipatory bail after full application of mind to the entire evidence collected during the investigation and therefore, the previous order should be treated as halving granted not only bail for the offence under Section 304B, Indian Penal Code, but for all the offences spelled out from the allegations of the prosecution.

I have heard the learned counsel for the parties besides perusing the record.

In a dowry death case of a daughterinlaw at the hands of her inlaws. grant of anticipatory bail during the pendency of the investigation is an exceptional circumstance because there is hardly any scope for direct evidence of murder in such like cases as residents of the locality are usually reluctant to come forward as witness, even if they had witnessed the occurrence, at the risk of incurring the wrath of the accused residing in that locality. Moreover, such like acts are done in a secretive manner within the four wall''s of the house of the accused. Thus one cannot except/direct evidence in such like cases and has to appraise circumstantial evidence. Shaman Sareen, accusedhusband of the deceased, had settled in Canada. He had sent about Rs. 39,000/ to the deceased and this fact weighed with the learned Sessions Judge in doubting the allegations of maltreatment of the deceased by her husband or his relations. The assertion of Mr. M. R. Midha, the learned counsel for the petitioner during the course of arguments, that this amount was withdrawn on the next day from the account of Mst. Kamlesh Kumari deceased had not been contradicted by the learned counsel for the accused respondents. Thus it appears to be no circumstance to conclude healthy relations between the parties in the face of letters written by the deceased to her sisters complaining that her motherinlaw and other relations of her husband used to maltreat her on account of having brought less dowry. These letters were collected during the investigation of the case and could not be said to he forged by any stretch of imagination. The statement of Surender Kumar recorded during the investigation also shows that a day prior to the occurrence, he met the deceased at her inlaws house and she complained about her maltreatment at the hands of the accused respondents. Baldev Mitter one of the witnesses stated that he was not allowed to see the victim on the eve of occurrence by the accused

Following three injuries were found on the person of the victim by the Doctor

Abrasion on the side of the bridge of the nose.

Diffused swelling on left forearm below the elbow.

Diffused swelling on medial aspect of left forearm.

All these injuries were ante mortem in nature. A bare perusal of the nature and location of these injuries leaves no doubt that these could not be suffered during an ordinary fall but could be caused if somebody secures the victim from her arms and tries to put poison in her mouth forcibly. Thus the presence of these injuries exfacie rules out the possibility of the victim having herself consumed the poison. These injuries also provide due assurance at least exfacie to the alleged confession of Shaman Sareen accused before Ravi Dutt witness on 881989 when he stated that his father and mother secured the victim from her arms and he administered poison meant for preserving wheat; The learned Sessions Judge discarded the evidence of extrajudicial confession on the ground that the accused would be the last person to do so after they had secured interm anticipatory bail from the Court. The perusal of evidence to the extent of disbelieving the alleged extra judicial confession of the accused is not warranted at this stage, yet all the same the explanation given by Ravi Dutt witness that he knew the accused as his maternal parents had also resided at the town of the latter i. e. Nawanshahr and that he used to meet them quite often clearly probabilise that the accused would try to approach him for effecting reconciliation with the parents of the deceased in this case. This witness promised to help the accused on making clean breast of the facts of the case, whereafter Shaman Sareen accused made the detailed confession which was confirmed by his father Prem Sagar accused on the query of this witness.

In the face of the above referred circumstantial evidence besides the conduct of the accused in not lodging the report at the Police Station, the grant of anticipatory bail during the investigation of the case to Shaman Sareen and his father Prem Sagar is not justifiable and had resulted in miscarriage of justice because the people residing in the locality would lose confidence in the machinery administering the justice. The apex Court in Samunder Singh v. State of Rajasthan and Others, AIR 1987 Supreme Court 737, had deprecated the grant of anticipatory bail in a dowry death case of a daughterinlaw at the house of her in laws during the pendency of the investigation by the High Court by sounding a serious note of caution which reads as under :

"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 daughterinlaw at the house of her fatherinlaw was 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 We therefore consider it essential to sound a serious note of caution for future."

Again in Kiran Devi v. State of Rajasthan and another, 1988 Supreme Court Cases (Cri) 106, the apex Court had deprecated the grant of anticipatory bail by the High Court during the pendency of the investigation in a murder case and set aside the impugned order by remarking in para No. 2 which reads as under :

"We are of the opinion that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete. The proper course to adopt was to leave it to the trial court to do the needful if and when the person concerned was arrested in the light of the record available at that point of time. The order passed by the High Court is, therefore, set aside. It will be open to respondent 2 if and when he is arrested to apply for bail to the appropriate court which will decide the matter on the basis of the available records in accordance with law. We have set aside the order under appeal on principle and we are not making any observation one way or the other on the merits of the case."

No doubt, it cannot be said that once a murder case is registered against any person, the jurisdiction of the Court to grant anticipatory bail under Section 438 of the Criminal Procedure Code is taken away as the Court can grant anticipatory bail in those cases where there is absolutely no evidence against the accused, but all the same in such like cases where a daughterinlaw is murdered at the house of her inlaws due to grouse regarding the dowry, the grant of bail at the initial stage of investigation would certainly result in miscarriage of justice as it will not only hamper the investigating agency to collect evidence especially when without detention of the accused, no person residing in the neighbourhood would dare to disclose the truth or figure as witness at the risk of incurring the wrath of their neighbour, that is, the accused but also give rise to the general impression that Courts take the bride burning cases very lightly or in other words it can be well said that people will lose confidence in the machinery administering justice.

Anyhow, since the case has already been committed to the Court of Sessions an accused have been directed to appear before the learned Sessions Judge on 23.7.1990, there is no justification to cancel the order of granting anticipatory bail to Sita Devi, Parvesh Sareen, Smt. Kiran Sareen, Smt. Nita Dhir and Girish Dhir, respondents Nos. 3 to 7, as it can be well said that there is not much evidence against them for having conspired with their coaccused to administer poison to the victim as the confession of an accused against the other coaccused is a very weak type of evidence.

For the foregoing reasons, the order dated 12.4.1990 of the learned Sessions Judge granting bail to Shaman Sareen and Prem Sagar, accused respondents Nos. I and 2, is set aside by accepting this petition to the extent indicated above and these two respondents are directed to surrender before the Court concerned through their counsel. Petition qua remaining respondents (3 to 7) stands dismissed. It is clarified that this order will have no bearing on the merits of the case. The learned Sessions Judge is directed to dispose of the case expeditiously.