Virendra Garg vs State of M.P.

J.G. Chitre, J.—This bail application has been filed by the accused, who has been charged for committing an offence punishable u/s 304B, I.P.C., after the charge-sheet has been filed in the Court.

The applicant has been charged, for causing his wife Kalpana Garg to commit suicide on account of demand of dowry, along with his parents, sisters and brother. The prosecution case in short is that after the marriage of deceased Kalpana, she was ill-treated by the applicant and his parents etc. and, therefore, she committed suicide. It is also the case of the prosecution that on account of Rakhi, Kalpana had visited the house of her parents and left a chit addressed to her sister conveying that she was not safe at her husband''s and in-laws'' house.

After Kalpana committed suicide, the room where Kalpana and present applicant were residing was sealed by the investigating agency. Probably it felt that there was something suspicious in the said room which may help in further investigation. After the charge sheet is filed on completion of investigation, it is disclosed by the papers of investigation that only a note-book was seized from the said room.

The prayer made by the applicant for bail was dismissed by this Court when the investigation was incomplete and now the applicant is strongly contending that he be released on bail as investigation is complete and charge sheet has been filed against all the accused in the Court.

Heard Shri Jaisingh, learned Counsel for the applicant and Shri S.M. Jain, learned Govt. Advocate for the State assisted by Shri R.K. Trivedi for the complainant.

Shri Jaisingh, learned Counsel for the applicant submitted that this Court dismissed the bail application of the applicant previously became the investigation was incomplete and now the investigation is complete and charge sheet has been filed in the Court and, therefore, material is available for the purpose of coming to the conclusion whether applicant should be released on bail or not. He pointed out that there are two letters allegedly written by deceased Kalpana speaking of the alleged ill-treatment. He pointed out that signatures of Kalpana on those two letters are different. He further pointed out that though the room where Kalpana and present applicant were residing was sealed, prosecution is coming with a case that only a note-book was found. According to Shri Jaisingh the prosecution is suppressing the fact that 150 Saris and 5 kgs dry-fruits were a recovered from the said room which was clearly proving that Kalpana was not at all ill-treated but was living happily in the said house.

Shrs Jaisingh submitted that in view of the judgment of the Supreme Court in the matter of Bhagirathsinh Judeja Vs. State of Gujarat, , in view of the judgment, in the matter of Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, , the applicant be released on bail. He also argued that the applicant is permanent resident of Indore and is not likely to abscond. He further submitted that as the investigation is complete, there is no likelihood of applicant tampering with the prosecution evidence.

Shri Jain, Government Advocate for the State assisted by Shri R.K. Trivedi for the complainant, submitted that these two letters were written by Kalpana and the signatures are same. It was submitted that those letters are sent to handwriting expert for necessary examination. Shri Jain submitted that prosecution is not suppressing anything and is coming with clean hands and stating that only a note-book was found from the room where Kalpana and present applicant Virendra were residing. He pointed out that papers of investigation do not show that 150 Saris and 5 kgs. dry-fruits ware found. He submitted further that applicant is charged for making his wife to commit suicide on account of demand of dowry and, therefore, in view of the judgment of the Supreme Court in the matter of Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and Another, and State of Orissa v. Rajendra Prasad (1994 SCC Cri. 1372) the prayer for bail made by the applicant be rejected. He also argued that when two bail applications of the applicant are dismissed on merit, the third one should also be dismissed as there is no change in circumstances.

In the matter of Gudikanti Narasimhula v. Public ''Prosecutor (supra), the Supreme Court has given elaborate guidance as to how the Court should approach while deciding the bail application. It has been observed by the Supreme Court that "bail or jail" at the pre-trial or post-conviction stage belonging to the blurred area of the criminal justice system and largely hinges on the huaoh of the bench, otherwise called judicial discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 of the Constitution that the crucial power to negate is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.

In the same matter Supreme Court further observed pointing out the guideline while deciding the bail applications that "when the crime (of which conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. The nature of the charge is vital factor and the nature of the evidence also is petitinent. The punishment to which party may be liable, if convicted or conviction is confirmed, also bears upon the issue. The Supreme Court further observed in the same matter that another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. The legal principle and practice validate the Court considering the likelihood of the applicant interfering with the witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the anticidents of a man who is applying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore, not an exercise in irrelevance." The Supreme Court observed further in the same matter that "the significance and sweep of Article 21 of the Constitution make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even handed and geared to the goals of community good, and State necessity spelt out in Article 19.

It has further been observed by Supreme Court in the same matter that the considerations set out as criteria are germane to the above constitutional proposition. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal or bail is not for punitive purpose but for the bifocal interests of justice to the individual involved and society affected. The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions.

In the matter of Bhagirath Singh Judeja v. State of Gujarat (supra), the Supreme Court observed that it is well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tempering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.

Learned Government Advocate Shri Jain placed reliance on the judgment of the Supreme Court in the matter of Shahzad Basan v. Ishtlaq Hasan (supra). In the said matter the Supreme Court observed that "where three successive bail applications of accused involved in a murder case were rejected by a particular Judge of the High Court and subsequent application was also directed by another Judge sitting as vacation Judge to be placed before the former Judge who was afterwards available as vacation Judge, the latter should not have, on a subsequent date, to the passing of the order recalled his order and entertained the bail application and ordered the release of the accused in disregard to the prevailing practice of the High Court that subsequent bail application should be placed before the Judge who had disposed of the earlier application "

Reliance was placed by learned Government Advocate on the judgment of the Supreme Court in the case of Shahzad Hasan (supra) for the purpose of canvassing the argument that when two bail applications of the applicant were dismissed on merit, the third application should also be dismissed. It is to be noted that the Supreme Court made those observations in different context. In the said matter when two bail applications were dismissed by Hon. Justice Nath, according to view of the Supreme Court, third bail application should have also been decided by the same Judge.

Shri Jaisingh, learned Counsel for the applicant argued that now investigation is complete in the present matter and charge-sheet has been filed against the accused and, therefore, there is no ground for denying bail to the applicant. The applicant is permanent resident of Indore and not a criminal. He also pointed out that medical evidence is not corroborating the prosecution case. It is not known whether Kalpana really died because of consumption of poison.

Shri Jain, Government Advocate appearing for prosecution, assisted by Shri R.K. Trivedi submitted that there are statements of parents of Kalpana as well as her friend Rajani showing that Kalpana was ill-treated. He pointed out that there are other witnesses also from Jankinagar area who are speaking of the said ill-treatment of Kalpana. He submitted that in view of the material collected against the applicant by the prosecution, this bail application should be rejected.

The alleged incident took place on 16-10-94 at about 12 midnight and Kalpana died in Choithram Hospital at about 2.45 a.m. She was medically treated by Dr. Saluja in the said hospital and the Doctor had given the information of death of Kalpana to police as record shows. There is nothing in the investigation to show that Kalpana was admitted in Choithram hospital when she was unconscious. The material collected by the investigating agency itself shows that when Kalpana was vomitting in the house, she was conscious. In natural course, Kalpana could have told about her ill-treatment and cause of trouble and the cause prompting her to commit suicide, if any, to Dr. Saluja when he was medically treating her in the hospital. But prosecution is without any material to substantiate its case on that point.

It is to be noted that Rajani and other witnesses are from Jankinagar area. Shri Jaisingh, learned Counsel for the applicant submitted that Jankinagar is at the distance of about 5-6 kilometers from the house where Kalpana and the applicant were residing. Shri Jain, Government Advocate and Shri Trivedi, Advocate admitted that Jankinagar is at the distance of 5-6 kms. from Kasera Bazar, the locality where Kalpana and the applicant were residing. It is note-worthy that prosecution is without any statement of persons residing in the vicinity where Kalpana and applicant were residing.

In the matter of Slate of Orissa v. Rajendra Prasad (supra) the facts were different. In the said matter there were dying declarations statements u/s 164 Cr P.C. of two security men, with the prosecution. In that matter deceased was set afire within the premises of the mill because of the disputes between the deceased and her father, brother on one side and accused on other side. The Supreme Court pointed out in the said judgment that the said crime was committed with cruelty and heinousness. The heinousness of the said crime seems to be the important factor which was for consideration before the Supreme Court when that bail application was dismissed. The facts of the said matter are quite different from the facts of present matter.

The facts of Shahzad Hasan''s case (supra) were also different from the facts of present matter. In the said matter number of applications were moved before different Benches and that was a case of murder which took place in broad, day light and to which there was number of eyewitnesses. In the said matter the accused was also absconding.

In the matter of Gudikanti Narasimhutu (supra) the Supreme Court has observed that when the crime charged (of which conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment. In the present matter the applicant is not charged with an offence which is punishable with death. That means it is not punishable with highest magnitude and with extreme severe punishment.

Hence while considering this bail application the important criteria would be whether the applicant would be available for trial readily, whether the applicant is having criminal anticidents, whether the applicant is likely to tamper with the prosecution evidence and what is the strength of material collected against him by the investigating agency after the investigation is completed. The applicant comes from a business community and doing the business. There is no criminal record of the applicant. He is permanent resident of Indore and even the prosecution is not coming with a complaint that if released on bail, the applicant would be tampering with the prosecution evidence.

Investigation is complete and charge sheet has been filed in the Court. Thus, keeping in view the trend of the Supreme Court judgments mentioned above. I come to the conclusion that now after the charge sheet is filed against the accused in Court, he deserves to be bailed out. Hence, I allow this bail application and direct that applicant shall be released on bail on furnishing a security in the sum of Rs. 25,000/- (twenty-five thousand) with one surety and PR bond to that extent before C.J.M. Indore in respect of Crime No. 123/94. The applicant shall not threat, contactor induce any of the prosecution witnesses. He shall attend Police Station Sarafa once in a fortnight at any time in between 8 a.m. to 8 p.m. The observations made in this order shall not weigh in any way at the time of trial, C.C. on payment of usual charges.