@JUDGMENTTAG-ORDER
S. Nagamuthu, J.@mdashApprehending arrest at the hands of the respondent police in Crime No. 4 of 2010, for offence under Sections 498(A),
406, 313 I.P.C., and Sections 4 & 6 of the Dowry Prohibition Act, the petitioner, who happens to be the first accused in the said case, has come
forward with this petition seeking anticipatory bail.
2. The defacto complainant is the wife of the petitioner. She has filed M.P. No. 1 of 2010 seeking permission to intervene and accordingly, she is
permitted.
3. The case of the prosecution is that the marriage between the petitioner and defacto complainant was solemnized on 21.01.2007 at Chennai. At
the time of marriage, several sovereigns of jewels worth several lakhs was given as dowry to the petitioner. It is further alleged that these articles
are now in the custody of the mother of the petitioner. Subsequent to the marriage, it is also stated, huge amount of money was also paid by the
parents of the defacto complainant. The petitioner has opened two textile show rooms in Banjara Hills, Hyderabad. Thereafter, he started
demanding more money from the defacto complainant. The defacto complainant and her parents could not meet the said demand. The defacto
complainant was ill-treated in many ways. In the mean while, the defacto complainant had become pregnant. The petitioner and his mother insisted
to abort the child. The mother of the petitioner gave a tablet for the said purpose which resulted in abortion. She has been sent out of the
matrimonial home and now, she is living separately with her parents. With the above allegations, she preferred the complaint on 25.02.2010, on
which this case has been registered.
4. It is submitted by the learned Senior Counsel appearing for the petitioner that these allegations are false. According to him, the consent for the
marriage itself was obtained from him by playing fraud by the uncle and family members of the defacto complainant. It is stated that some time after
the marriage, the defacto complainant, while returning from a restaurant, suddenly fell semi conscious. Subsequent examination by the specialist
neurologist revealed that she is suffering from temporal lobe epilepsy due to Hypoxic Ischaemic Encephalopathy. As a matter of fact, she was
suffering from the said disease even before the marriage. By suppressing the said fact, she was married to the petitioner. In view of the same, the
petitioner preferred a complaint to the Narayanguda Police Station, Hyderabad against the defacto complainant and her father. The case was
registered in Crime No. 60 of 2010 u/s 417, 418, 506, 389 I.P.C., on 10.02.2010. Subsequently, the petitioner filed a Original Petition on
24.02.2010 before the Family Court, Hyderabad seeking a decree for dissolution of marriage. Thereafter, the petitioner preferred the present
complaint on 25.02.2010 before the respondent police, on which this case was registered on the same day. On the next day (26.02.2010), he filed
Crl.O.P. No. 5158 of 2010 before this Court u/s 482 Cr.P.C., seeking a direction to the respondent to investigate the case and to file charge
sheet at the earliest in accordance with law. Accordingly, on 17.03.2010, this Court directed the police to complete the investigation and to file
final report at the earliest. Thereafter, the petitioner filed the present petition seeking anticipatory bail. This Court by order dated 06.04.2010, while
granting interim anticipatory bail to the petitioner, referred the matter to the Mediation Centre of this Court for mediation. Mediation has however
failed and therefore, the case is now again before this Court.
5. The learned Senior Counsel appearing for the petitioner would submit that it is because of the case registered at the earliest on the compliant of
the petitioner and also because of the divorce petition filed by him before the Family Court, the defacto complainant has rushed to the respondent
police with this false complaint. He would further submit that during the pendency of the investigation, the other accused in this case were all
arrested, interrogated and thereafter, they were released on bail. He would further add that the investigation would have been completed by this
time and therefore, his custodial interrogation is not required. He would further submit that the materials placed before the Court would go to show
that there are no prima facie materials to decline anticipatory bail to the petitioner. He would further add that he is prepared to co-operate with the
police for further investigation.
6. The learned Government Advocate (Crl.side) appearing for the respondent police would submit that investigation has been almost completed
and what remains to be done is to record further statements from the father and mother of the petitioner. In all other aspects, the investigation has
been completed and final report is likely to be filed soon after the further examination of the father and mother of the petitioner is over.
7. The learned Counsel for the Intervenor/defacto complainant would stoutly oppose this petition. According to him, the allegation made in the
complaint and the materials collected during investigation would make out a very strong prima facie case against the petitioner and therefore, he is
not entitled for anticipatory bail. He would further submit that the petitioner may either surrender to the police so as to subject himself for custodial
interrogation or he may surrender before the Lower Court and apply for regular bail. He would further add that the properties, viz., jewels and
cash, are in the possession of the petitioner and his parents; the same have not been returned to the defacto complainant and if anticipatory bail is
granted, it would seriously cause prejudice to the further investigation. Therefore according to the learned Counsel for the Intervener, this petition
deserves only to be dismissed.
8. I have considered the rival submissions and also perused the records carefully.
9. As narrated above, though the marriage was solemnised in the year 2007, the complaint in respect of the alleged demand of dowry and
harassment was made only on 25.02.2010. In the mean while, there were several developments. According to the petitioner, the defacto
complainant is suffering from epilepsy. There are prima facie materials available to believe the said statement as of now. Based on the said medical
report, on the complaint of the accused a case has been registered against the defacto complainant in Crime No. 60 of 2010 on the file of the
Narayanguda Police Station, Hyderabad on 10.02.2010 for cheating. Further, Original Petition for divorce was filed by the petitioner on
24.02.2010. After all these developments only, the present complaint was preferred. A perusal of the complaint would also go to show that the
allegations are very vague. There are no specific instances making out either demand of dowry or harassment. As submitted by the learned
Government Advocate, investigation has been almost completed except for further examination of the parents of the petitioner who are on bail. It is
not the case of the prosecution that custodial interrogation of the petitioner is required. Thus, I am satisfied that the petitioner has made out a prima
facie case for grant of anticipatory bail.
10. The learned Counsel for the Intervenor would submit that such order of anticipatory bail could be granted to the petitioner only by limiting the
duration of the order and it should not be a blanket order. The learned Senior Counsel appearing for the petitioner would submit that though this
Court can also limit the duration of the order of anticipatory bail, in the facts and circumstances of the present case, the said course need not be
adopted and the order of anticipatory bail may be granted for unlimited period i.e., until the conclusion of the trial of the case. In this regard, the
learned Counsel on either side would advance arguments at length and they have also submitted number of judgments of the Hon''ble Supreme
Court as well as a Full Bench of this Court to substantiate their rival contentions.
11. Let me now analyse the law on the point:
The learned Senior Counsel appearing for the petitioner would rely on the judgment of the Constitution Bench of the Hon''ble Supreme Court in
Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, wherein, a similar questions, ""should the operation of an order passed u/s 438(1) be
limited in point of time?"" and ""what is a blanket order of anticipatory bail?"" came up for consideration. In paragraph No. 40 of the said judgment,
the Hon''ble Supreme Court has held that:
the blanket order of anticipatory bail, means an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful
activity, in fact and eventuality, likely or unlikely regarding which, no concrete information can possibly be bad.
12. The Hon''ble Supreme Court further proceed to say that normally a direction should not be issued u/s 438(1) to the effect that the applicant
shall be released on bail whenever arrested for whichever offence whatsoever. Having so explained as to what is meant by a blanket order, the
Hon''ble Supreme Court in paragraph No. 42 has held as follows:
42. There was some discussion before us on certain minor modalities regarding the passing of bail orders u/s 438(1). Can an order of bail be
passed under the Section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government
Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too
must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the
operation of an order passed u/s 438(1) be limited in point of time. Not necessarily. The court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing of an F.I.R in respect of the matter covered by the order. The applicant may in such
cases be directed to obtain an order of bail u/s 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R as aforesaid.
But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.
13. However, in Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, a three Judges Bench of the Hon''ble Supreme Court has held as
follows:
...It is therefore necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or
extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence
placed before it after the investigation has made progress or the charge sheet is submitted. It should be realised that an order of anticipatory bail
could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be
limited and ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the
offence. It is that Court which has then to consider whether, having regard to the material placed before it the accused person is entitled to bail.
14. Nextly, the learned Senior Counsel has placed yet another judgment of a Division Bench of the Hon''ble Supreme Court in K.L. Verma Vs.
State and Another, wherein following Salauddin''s case (cited supra), the Division bench has again reiterated that it necessary that such anticipatory
bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory
bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made
progress or the charge sheet is submitted.
15. However, the learned Senior Counsel would submit that the judgment of the Constitution Bench of the Hon''ble Supreme Court in Shri
Gurbaksh Singh''s case was not brought to the notice of the three Judges Bench in Salauddin case and the Division Bench in K.L. Verma''s case.
Therefore, according to him, these two judgments cannot be taken as a binding precedent and this Court has to follow only the judgment of the
Constitution Bench of the Hon''ble Supreme Court in Shri Gurbaksh Singh''s case.
16. The learned Senior Counsel has also brought to the notice of this Court yet another judgment of the Hon''ble Supreme Court in Nirmal Jeet
Kaur Vs. The State of Madhya Pradesh and Another, wherein after referring to Salauddin case, the Hon''ble Supreme Court has held as follows:
For making an application u/s 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin case the
protection in terms of Section 438 is for a limited duration during which the regular court has to be moved for bail. Obviously, such bail is bail in
terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and
439 shall be rendered meaningless and redundant.
17. In Sunita Devi Vs. State of Bihar and Another, the Hon''ble Supreme Court has held that in K.L. Verma case shall have to be treated as
having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody.
18. A close reading and deep understanding of all the above judgments cited would go to show that in Shri Gurbaksh Singh case the Constitution
Bench of the Hon''ble Supreme Court has held that the period of an order of anticipatory bail need not be limited whereas, in all the subsequent
judgments cited supra, the Hon''ble Supreme Court has taken different view. Therefore, in those circumstances, a learned single Judge of this
Court in Palanikumar v. State 2007 (4) CTC 1 was of the view that there is an apparent conflict in the judgments of the Supreme Court on the
coveted issue namely, whether the Court has the power to grant Anticipatory bail limiting it to a specified period or not? Therefore, by order dated
26.03.2007, learned Single Judge directed the Registry to place the entire papers before the Hon''ble Chief Justice for deciding the issue by a
Division Bench to be constituted by the Hon''ble Chief Justice. Thus, the matter came to be placed before a Division Bench consisting of two
Hon''ble Judges sitting in the Madurai Bench of Madras High Court, who by their order dated 25.04.2007, the and after adverting to the case law
cited at the Bar, both for and against, disposed of that reference as here under:
In view of the divergent views taken by the Supreme Court, the issue could be solved only by getting a clarification from the Apex Court. This
Reference is accordingly, answered.
19. Thereafter, the Madurai Bench of the Madras Bar Association and the Madurai Bench of the Madras High Court Advocates'' Association,
moved Review Petitions to review the the order dated 25.04.2007. The very same Bench heard those Review Applications and by order dated
25.06.2007, disposed of the Review Petitions by recalling the earlier order dated 25.04.2007 and holding that the issue has got to be referred to a
Larger Bench. Thus, the Division Bench, which heard the Review Petitions, directed the Registry to place the entire matter once again before the
Hon''ble Chief Justice. On the note put up by the Registry after that, the Hon''ble Chief Justice, by administrative order dated 29.06.2007, directed
the ""lis"" to be placed before the Full Bench.
20. Before the Full Bench, the following judgments were referred to:
(a) Gurubaksh Singh Sibbia v. State of Punjab 1980 SCC 465;
(b) Salauddin Abdulasamad Shaikh v. State of Maharashtra 1996 SCC (Cri.) 198;
(c) Sunita Devi v. State of Bihar and Anr. 2005 SCC 435;
(d) Adri Dharan Das v. State of West Bengal 2005 SCC 933.
(e) D.K. Ganesh Babu v. P.T. Manoharan and Ors. 2007 (1) MWN 170 (SC); and
(f) Sohan Lal Juneja and Ors. v. State of Punjab 2007 (1) Crimes 20 (SC).
21. After having considered all the above judgments, the Full Bench of this Court in the said judgment in Palanikumar v. State 2007 (4) CTC 1 in
paragraph No. 8A and 9 has answered the reference as follows:
8A. From a reading of the judgments of the Supreme Court last referred to above, it is clear that the High Court has to follow the procedure
indicated therein. If that procedure is followed, then this Court has to doubt at all that it has to follow the Constitution Bench judgment of the
Supreme Court reported in Shri Gurubaksh Singh Sibbia v. State of Punjab 1980 SCC (Cri.) 465. The Supreme Court in Shri Gurubaksh Singh
Sibbia''s case had emphasized that the normal rule should be to limit the operation of the order in relation to a period of time. Paragraph Nos. 40,
41 and 42 in Shri Gurubaksh Singh Sibbia''s case, in our respectful opinion, should be understood in the context of reason No. 2 mentioned in that
judgment, which weighed with the Punjab & Haryana High Court. The reason given therein is whether a blanket anticipatory bail order could be
granted for offences not yet committed or with regard to the accusations not so far levelled. In Shri Gurubaksh Singh Sibbia''s case the Supreme
Court had also highlighted as to what is meant by blanket order. Under these circumstances we hold that the High Court and the Court of sEs in
this Sate should have the principles enumerated in Shri Gurubaksh Singh Sibbia''s case and in particular paragraph 42 of the judgmnet whenever an
application u/s 438 of the Code of Criminal Procedure comes up for consideration.
9. The Reference is therefore answered as here under:
The High Court and the Court of Sessions in this State has to follow the Constitution Bench Judgment of the Supreme Court reported in Shri
Gurubaksh Singh Sibbia''s case 1980 SCC (Cri.) 465 in preference to the judgments of the Supreme Court reported in Salauddin''s case 1996
SCC (Cri.) 198; K.L. Verma''s case 1998 SCC (Cri.) 1031; Sunitha Devi''s case 2005 SCC (Cri.) 435; Adri Dharan Das''s case 2005 SCC
(Cri.) 933 and D.K. Ganesh Babu''s case 2007 (1) MWN (Cri.) 170 (SC).
22. I have to state that in view of the said Full Bench judgment, this Court has been consistently following the Shri Gurubaksh Singh Sibbia''s case
and in general, the order of anticipatory bail granted by this Court are not of a limited duration.
23. Now the learned Senior Counsel has relied on another judgment of the Hon''ble Supreme Court in Savitri Agarwal and Others Vs. State of
Maharashtra and Another, wherein, the Hon''ble Supreme Court has held that the guidelines issued by the Constitution Bench in Shri Gurubaksh
Singh Sibbia''s are to be kept in mind while dealing with the petition for anticipatory bail. As a matter of fact, the Hon''ble Supreme Court has
extracted the guideline No. ix in Shri Gurubaksh Singh Sibbia''s case which reads as follows:
(ix) Though it is not necessary that the operation of an order passed u/s 438(1) of the Code be limited in point of time but the Court may, if there
are reasons for doing so, limit the operation of the order to a short period until after the filing of F.I.R in respect of the matter covered by the order.
The applicant may, in such cases, be directed to obtain an order of bail u/s 437 or 439 of the Code within a reasonable short period after the filing
of the F.I.R.
24. In the said judgment, the Hon''ble Supreme Court has referred to Adri Dharan Das v. State of W.B. case and Shri Gurubaksh Singh Sibbia''s
case and as a matter of fact the Hon''ble Supreme Court has doubted the view expressed in Adri Dharan Das case.
25. In view of the law reiterated by the Hon''ble Supreme Court, in the recent judgment in Savitri Agarwal case following Gurubaksh Singh
Sibbia''s case coupled with the Full Bench jdugment of this Court in Palanikumar''s case, I am of the view that it is not necessary that invariably in
all cases, the duration of an order of anticipatory bail should be limited but, it all depends upon the facts and circumstances of each case.
26. The learned Counsel for the Intervener would rely on a recent judgment of the Hon''ble Supreme Court in HDFC Bank Ltd. Vs. J.J. Mannan
@ J.M. John Paul and Another, . In that case, the Hon''ble Supreme Court in paragraph Nos. 17 and 18 has held as follows:
17. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective
cases, we are of the view that the role of respondent 1 in the entire episode did not entitle him to the relief of anticipatory bail, much less a blanket
order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a
way that it could be interpreted to mean, as has been done by all concerned, that respondent 1 was not required to even appear and surrender
before the court during the entire investigation stage and the trial. Taking advantage of the same, respondent 1 has successfully avoided the court
from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated u/s 438 Cr.P.C., as has been repeatedly
explained by this Court. The said position has been clearly enunciated in Adri Dharan Das case.
18. Furthermore, it has also been consistently indicated that no blanket order could be passed u/s 438 Cr.P.C., to prevent the accused from being
arrested at all in connected with the case. To avoid such an eventuality it was observed in Adri Dharan Das case that anticipatory bail is given for a
limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddin case wherein it was, inter
alia, observed that anticipatory bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the court
granting anticipatory m bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the
investigation has made progress or the charge sheet is submitted.
27. In that case, it appears that the Hon''ble Supreme Court was of the view that the order of anticipatory bail granted by this Court to the accused
was a blanket order and that was the reason why following Adri Dharan''s case and Salauddin case, the Hon''ble Supreme Court had to modify
the order passed by this Court.
28. In the instant case, as I have already stated, the investigation has almost been completed and all the materials have been placed before this
Court for consideration, from which I am satisfied that this is a fit case where anticipatory bail needs to be granted and the same is not a blanket
order as defined in Gurubaksh Singh Sibbia''s case and so, I hold that the duration of this order need not be limited.
29. As I have already stated, the presence of the petitioner is also not required by the respondent for custodial interrogation however, in my
considered opinion, it is necessary to direct the petitioner to appear before the respondent police for one month every day at 10.30 am so that he
can be interrogated by the respondent.
30. In view of all the above, the petitioner is ordered to be released on bail in the event of arrest or on his appearance before the learned II
Metropolitan Magistrate, Egmore, Chennai on executing a bond for a sum of Rs. 10,000/- (Rupees ten thousand only) with two sureties each for a
like sum to the satisfaction of the respondent police or the police officer who intends to arrest or to the satisfaction of the learned Magistrate
concerned and on further condition that the petitioner shall appear before the respondent police for interrogation for a period of one month from
10.07.2010 onwards daily at 10.30 a.m and thereafter, as and when required.
