Shanti and others vs State of Punjab

N.K. Kapoor, J.

Petitioners seek prearrest bail in a case registered under Sections 498A/307, 304B, 316 read with section 34 of the Indian Penal Code. FIR No. 69 dated 3.6.1995 was registered on the statement of Smt. Sunita Rani deceased. Her statement when translated reads as under :

"Statement of Sunita Rani wife of Kewal Krishan aged about 20 years r/o Maujgarh.

It is stated on oath that incident is of today at 11.00 a.m. on 27.5.1995 I came to Abohar for injection. My husband Kewal Krishan, fatherinlaw Des Raj, Motherinlaw Shanti asked me to bring Rs. 50,000/ from my brother otherwise we shall harass you. Today again they asked me to bring Rs. 50,000/. I said that I will not bring the money. My fatherin law beat me, then my motherinlaw beat me and after that my husband beat me. Then my motherinlaw poured oil on me. Fatherinlaw caught hold of my arms, husband burning matchstick set me on fire. Then my motherinlaw came at bus stand. My sisterinlaw raised raula; neighbourers assembled there. I asked to take me to Mandi but they did not took me to Mandi and kept avoiding it.

R.T.I.

Sunita Rani."

On the basis of the aforesaid statement of Smt. Sunita Rani, the police, however, registered a case under sections 307, 498A read with section 34 of the Indian Penal Code. The accused were arrested on 9.6.1995 and were produced in the court. Subsequently an application was filed for discharge of the accused persons stating therein that during investigation no proof has been found and that there is no eyewitness to the occurrence. Accordingly, it was prayed that accused Kewal Krishan and Des Raj be discharged as nothing was found against them. The case was adjourned for recording statement of Talwinder Singh and Superintendent of Police to 31.7.1995. Meanwhile Additional Sessions Judge keeping in view the application filed by the prosecution agency for discharging Kewal Krishan and Des Raj accused, ordered for release of Smt. Shanti petitioner on her furnishing personal bond in the sum of Rs. 20,000/ with one surety in the like amount in the event of her arrest in case under section 498A/307 read with section 34 of the Indian Penal Code vide order dated 24.7.1995. Subsequently another application was filed by SI/SHO Police station Khuian Sarwar, Annexure P.3, that the earlier application for discharging the accused Kewal Krishan and Des Raj be dismissed as Smt. Sunita has died and so now a case under sections 304B and 316 of the Indian Penal Code has also been framed against the accused persons. It was further stated that the statement made by Smt. Sunita has become a dying declaration. Sessions Judge examined the matter in the light of the material reference to which has been made in the earlier part of the judgement found no case for enlarging the petitioners on bail in terms of Section 438 of the Code of Criminal Procedure (for short ''the Code''). The Court specifically noticed that Sunita has made specific allegations against Kewal Krishan, fatherin law; Smt. Shanti, motherinlaw; and her husband. Thus, the court dismissed the application vide order dated 30.9.1996.

Challenging the order passed by the Sessions Judge, counsel for the petitioners has argued that the same is unsustainable in law and otherwise unwarranted as per facts of the case. According to the learned counsel, the investigating agency after examining the matter in the light of the material, prima facie, came to the conclusion that Kewal Krishan and Des Raj accused need to be discharged as no material was found against them and so they were granted prearrest bail. Subsequently too, Addl. Sessions Judge keeping in view the prayer of the investigating agency earlier made vide Annexure P.1 dated 10.7.1995 enlarged the third accused, namely, Smt. Shanti too on prearrest bail on her furnishing personal bond in the sum of Rs. 20,000/ with one surety of the like amount. Since none of these accused persons had infringed any of the conditions imposed by the Court while granting concession of prearrest bail there was no reason for the Sessions Judge to decline the petitioners the concession of prearrest bail. Counsel further argued that factual aspects were urged before the court and so framing of case under sections 304B/316 of the Indian Penal Code does not in any manner affect the order passed by the Court considering the merit of the case. Reliance has been placed upon the decisions in cases reported as Darshan Singh v. The State of Punjab and another, 1986 Chandigarh Criminal Cases 248; Karan Singh v. State of Haryana, 1987(2) Recent Criminal Reports 503 and Lal Chand v. State of Haryana, 1988(2) Recent Criminal Reports 664.

State counsel, on the other hand, argued that the petitioners cannot derive any benefit from the earlier concession granted by the court below as the same was granted in view of the application filed by the investigating agency seeking discharge of Kewal Krishan and Des Raj accused persons. Besides it, earlier case was registered under Sections 307/498A/34 IPC and thereafter on the death of Smt. Sunita a case under Sections 304B/316 of the Indian Penal Code has also been made against them. This way, Sessions Judge has rightly examined the case in the light of the statement of Smt. Sunita Rani which is now dying declaration. Since the death has occurred within a period of seven years from the date of marriage, under section 113B of the India Evidence Act there is a presumption of dowry death when it is shown that soon before her death such a woman had been subjected by such persons to cruelty or harassment for or in a connection with any demand of dowry. In fact, Sessions Judge rightly commented upon the order passed by Sh. M.R. Garg, Additional Sessions Judge, wherein no reference was made to the statement of Smt. Sunita deceased while granting prearrest bail to Smt. Shanti Devi. Even if it be taken that the Sessions Judge ought not to have commented upon the order passed by the Addl. Sessions Judge, this Court can independently examine the case of the petitioners in the light of material reference to which has been made in the petition as well as Annexures. Accordingly, the petition deserves to be dismissed.

I have heard learned counsel for the parties. A case under Section 498 A/307 read with section 34 of the Indian Penal Code was registered by the police against the petitioners in the first instance. The accused were taken in custody and were produced before the Magistrate. Soon thereafter an application was filed for discharge of Des Raj and Kewal Krishan. Before order could be passed. Addl. Sessions Judge taking support from the prayer made by the investigating agency for discharge of other two accused persons consequently enlarged the third accused, namely, Smt. Shanti Devi, on pre arrest bail. It is worth noticing that till then the case was registered under sections 498A/307/34 of the Indian Penal Code. Subsequently, another application was filed by the SHO, Police Station Khuiyan Sarwar, on 4.1.1996 in view of the legal advice received that the statement of Smt. Sunita since dead has become a dying declaration instructed the agency to file a challan in the court. Accordingly, a prayer was made that the accused persons be not discharged. Now a case under sections 498A/307/304B/316 read with section 34 of the Indian Penal Code has been registered which led to the filing of application under section 438 of the Code of Criminal Procedure seeking a direction from the Court that the petitioners be not arrested. Sessions Judge on considering the matter found no ground to grant prearrest bail to the accused persons vide order dated 30.9.1996.

A resume of the events shows that though statement of Smt. Sunita had been recorded at the earliest on 2.6.1995 yet for certain unknown reasons only a case under sections 498A/307 read with section 34 of the Indian Penal Code was registered against the petitioners thereby minimising the gravity of the offence alleged to have been committed. Not only this, an application was filed for discharge of two accused persons i.e. Kewal Krishan and Des Raj petitioners. Additional Sessions Judge too appears to have been swayed by this approach of the investigating agency while granting prearrest bail to the third accused i.e. Shanti Devi petitioner. So in the context of the present case, one mistake led to another. Learned Addl. Sessions Judge examined the case in the light of statement of Smt. Sunita Rani wherein she has specifically accused all the three persons of demand of dowry and their subsequent act of pouring oil on her and burning her would have brought the gravity of the offence committed in right prospective. Perhaps for this precise reason, Sessions Judge chose to examine the matter in the light of statement of Smt. Sunita Rani. No doubt, each one of the petitioners were earlier granted prearrest bail but that itself cannot be a factor to be considered especially in the light of dying declaration where each one of the accused person have been specifically named. Thus, I find no substance in the plea of the counsel for the petitioners that since the have not been found guilty of violating the conditions they imposed while enlarging them on bail, such a concession could not be withdrawn. How far the court will ultimately be persuaded by the statement of Smt. Sunita Rani is a matter which need not be commented upon at this stage. So absence of any other evidence is wholly immaterial while examining the case of the petitioners for prearrest bail. None of the judgments cited by learned counsel for the petitioners has any bearing upon the point under scrutiny. Thus, finding no merit in the petition, the same is dismissed. It is, however, made clear that the Court shall examine the matter uninfluenced by the observations, if any, made in this order.