Satya Prakash Vs Anand Sarup Sharma and Others

Kamlesh Sharma, J.@mdashThe Petitioner is father of deceased Ashu Sharma. He has filed this petition u/s 439(2), Code of Criminal Procedure read with Sections 397/401, Code of Criminal Procedure with a prayer to quash the order dated 8.11.1996 passed by Sessions Judge, Shimla, whereby pre-arrest bail was granted in favour of Respondents 1 and 2 by confirming the interim bail order dated 30.10.1998. Respondent No. 1 is husband and Respondent No. 2 is mother-in-law of deceased Ashu Sharma.

2. Deceased Ashu Sharma was married to Respondent No. 1 in the year 1987. Two daughters and one son, aged 10, 8 and 4 years, were born out of their wed-lock. On 28.10.1998 at about 11.20 a.m. she was admitted in Casualty Ward of Indira Gandhi Medical College, Shimla with the history of poisoning, where despite treatment given by the doctors she breathed her last at 3.30 p.m. on receipt of telephonic call at 12.55 p.m. from Indira Gandhi Medical College, Shimla, police reached the hospital at 1.30.p.m. and found her in such a critical condition that her statement could not be recorded. She died at 3.30 p.m. and autopsy on her dead body was conducted on 29.10.1998. The intimation of her admission in the hospital as a result of her consuming poison as well as of death was given to the father and the brothers of deceased Ashu Sharma, who after reaching Shimla reported the matter to police. On the written complaint by the father of deceased Ashu Sharma, who is the Petitioner before this Court, FIR No. 175 of 1998 u/s 304B, I.P.C. was registered in Police Station, Shimla (East) on 29.10.1998. It was stated in the complaint that Respondents used to mal-treat his daughter deceased Ashu Sharma and Respondent No. 1 used to demand Rs. 4,50,000/- to Rs. 6,00,000/- by hurling abuses and giving threats that he would kill all of them. It was also stated that on 26.10.1998 Respondent No. 1 had again repeated the said demand but deceased Ashu Sharma had instructed on telephone not to pay and heed to his demand, on which Respondent No. 1 gave warning on telephone that he would finish his daughter. As per the Petitioner, the Respondents have killed his daughter by poisoning, for which legal action may be taken.

3. Before the police could arrest the Respondents, they filed anticipatory bail application on 30.10.1998 before Sessions Judge, Shimla, who after giving notice to the Public Prosecutor, Shimla on 30.10.1998 released Respondents 1 and 2 on anticipatory bail on the condition that they would join investigation by themselves reporting at Police Station, Chhota Shimla by 5.00 p.m. on the same date. On 31.10.1998 the Sessions Judge noticed in his order that since the marriage between deceased Ashu Sharma and Respondent No. 1 had taken place about 11 years back, the offence allegedly committed by him and Respondent No. 2 might be punishable u/s 306, I.P.C. instead of Section 304, Part B. I.PC., under which Section the FIR was registered. On the basis of the statement of a neighbour of Respondent No. 1, in whom Respondent No. 1 had confided on the Diwali night that his wife deceased Ashu Sharma was threatening him to commit suicide in case he would inform her parents, brothers and other relations about her extramarital relations with a cloth merchant of Chhota Shimla, about which he had come to know about one month back and also that she had written suicidal notes which were lying in his possession, the Sessions Judge asked Respondent No. 1 to hand over those suicidal notes to the Investigating Officer and directed that these be sent to Questioned Documents Examiner along with admitted handwriting of deceased Ashu Sharma and the report of the Questioned Documents Examiner be placed before him on 9.11.1998, for which date the case was adjourned. However, the report of the Questioned Documents. Examiner could be produced before the Sessions Judge on 17.11.1998 when the case was heard. On 18.11.1998 pre-arrest bail was granted in favour of Respondents 1 and 2 by confirming the interim bail, who had continued during the pendency of the bail application.

4. While granting bail it has weighed with the Sessions Judge that the police has collected sufficient evidence that deceased Ashu Sharma had developed a feeling of self-guilt and she used to often talk of taking away her life, after she had developed illicit relations with atleast two persons, namely, Sanjeev Sharma alias Laadi and Pappu businessmen in their neighbourhood, which feeling had aggravated after Respondent No. 1 and the persons in the neighbourhood had come to know about this fact of immoral conduct about one month before the date of occurrence. The Sessions Judge has also taken note of the material on record that in the year 1996 deceased Ashu Sharma had consumed pieces of blades to end her life and she was rushed to Indus Hospital and was saved as a result of immediate treatment. The version of suicide found support from the report of Questioned Documents Examiner, in which two suicidal notes handed over by responded No. 1 to the police were found to be in the handwriting of deceased Ashu Sharma. The Sessions Judge her also noticed that no doubt from the statements of a family friend of Respondent No. 1 as well as his children and Ors. it has come on record that Respondent No. 1 and deceased Ashu Sharma used to quarrel quite often and during the night preceding to the fateful day Respondent No. 1 had also given beating to deceased Ashu Sharma but according to him this was normal after the husband comes to know about the infidelity of his wife but it does not mean that the husband had abetted the commission of suicide. It seems that as a result of the observations made by the Sessions Judge in his order the police changed the section in FIR from 304, Part B to 306 and 498-A, I.P.C.

5. Now in this petition it is submitted that while passing his order the Sessions Judge has not taken note of the letter dated 16.9.1997 produced by the brother of deceased Ashu Sharma, which prima facie shows that Respondents 1 and 2 were treating deceased Ashu Sharma with cruelty punishable u/s 498A, I.P.C. Two letters, one dated 2.10.1998 written by the elder daughter of deceased Ashu Sharma and the other written by Sanjeev Kumar alias Laadi to the Petitioner have been placed on record of this petition to show that Respondents 1 and 2 were treating deceased Ashu Sharma with cruelty and she was killed by Respondent No. 1 by administering poison to her and Sanjeev Kumar alias Laadi was not having illicit relations with deceased Ashu Sharma. It is clear that these letters were written and received much after of death of Ashu Sharma. During the pendency of the bail application before the Sessions Judge by filing an application Respondent No. 1 showed his apprehension and brought some material on record in support thereof that the Petitioner had met his daughters in the school and told them to write a letter to the Petitioner at an address given on two slips of note pad by terrorising them that Respondent No. 1 had murdered their mother and now their lives are also in danger.

6. This Court has heard learned Counsel for the parties and gone through the record. The precise submission made by Shri Inder Singh, learned Counsel for the Petitioner is that from the allegations made in the complaint of the Petitioner case u/s 302, I.P.C. was made out and the police was not right in registering it either u/s 304, Part B and thereafter converting it to under Sections 306 and 498A, I.P.C. Further submission of learned Counsel is that looking to the gravity of offence the Sessions Judge was not justified to grant interim anticipatory bail without hearing the Public Prosecutor on 30.10.1998 and thereafter to confirm the same by the impugned order. According to the learned Counsel this is a case in which custodial interrogation of Respondents 1 & 2 was required to know the extent of their involvement in the alleged offence of murder of Ashu Sharma. The learned Counsel has further argued that it is a fit case in which order may be passed for handing over the custody of minor children to the Petitioner, who are important witnesses in the case and if their custody will continue with Respondent No. 1, they will be influenced and tutored by him, which will hamper the fair trial of the case. The learned Counsel has relied upon the judgments of the Supreme Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, ; Pokar Ram Vs. State of Rajasthan and Others, ; Samunder Singh v. State of Rajasthan and Ors. AIR 1987 S.C. 737 and Khimiben Vs. State of Gujarat and Another,

7. In para 31 of the judgment in Gurbaksh Singh Sibbia etc. v. The State of Punjab (supra) the learned Chief Justice Chandrachud has clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. It is said that:

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant''s presence not being secured at the trial, a reasonable apprehension that witnesses will be tempered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State Vs. Captain Jagjit Singh, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the Court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

These observations are quoted with approval in Pokar Ram v. State of Rajasthan and Ors. (supra).

8. So far as judgment in Samunder Singh v. State of Rajasthan and Ors. (supra) is concerned, it is on its own facts has no relevance in the present case. In Khimiben v. State of Gujarat and Anr. (supra) it is held that application for cancellation of anticipatory bail granted to the accused can be filed by an aggrieved member of the family of deceased, which proposition is not disputed.

9. On the other hand, learned Assistant Advocate-General and learned Counsel for Respondents 1 and 2 have supported the impugned order granting bail to Respondents 1 and 2. From the evidence collected by the police, they have pointed out that it is not a case u/s 304, Part B or 302, I.P.C. and even under Sections 306 and 498A, I.P.C. no prima facie case is made out to refuse anticipatory bail to Respondents 1 and 2. According to them, it is a clear case of suicide committed by Ashu Sharma by consuming poison, which caused her death despite the best efforts of Respondent No. 1 to save her by taking her to hospital immediately. It is also submitted that in view of the material on record, on the basis of which the Sessions Judge has come to the conclusion that Respondents 1 and 2 have not abetted the commission of suicide by deceased Ashu Sharma, the order passed by the Sessions Judge is neither arbitrary nor capricious and deserves to be affirmed. The learned Counsel have cited number of judgments to point out that the considerations for cancellation of bail do not exist in the present case.

10. After giving its best consideration to the respective contentions of the parties, this Court finds that in view of the material collected by the police the Sessions Judge has rightly exercised jurisdiction u/s 438, Code of Criminal Procedure for granting anticipatory bail and his impugned order does not call for interference of this Court. The letter dated 16.9.1997 written by deceased Ashu Sharma to her brother, which is the main plank of the case set up by the Petitioner, does not contain demand of dowry, as complained in the FIR. It only shows that deceased Ashu Sharma was maltreated by the Respondents and relations between them were strained. Despite this, deceased Ashu Sharma continued residing with Respondents 1 and 2 and her parents and brothers did not come forward even when she made an attempt of suicide in July, 1996 by swallowing a piece of blade and was admitted in Indus Hospital, may be for the reason that they knew that due to her own conduct she had developed the tendency to suicide. Despite this, Respondent No. 1 was affording full opportunity to deceased Ashu Sharma to participate in his business as she was made sole proprietor of M/s. Swati Industry, Dehri Ghat, District Solan and a plot of land was purchased in her name on 9.7.1998 for a consideration of Rs. 1,80,000/-. The suicidal notes, which have been opined to be in the handwriting of deceased Ashu Sharma, also show that when her husband and persons in the neighbourhood had come to know about her extra marital relations she developed self-guilt and wanted to commit suicide. The conduct of Respondent No. 1 in taking deceased Ashu Sharma to the hospital immediately after coming to know that she had consumed some poison also entitles him to grant to anticipatory bail. The letters of the daughter of Respondent No. 1 and Sanjiv Kumar alias Laadi, produced along with the present petition, are of no value to support the case urged on behalf of the Petitioner that Respondent No. 1 had administered poison to deceased Ashu Sharma, as the said daughter was away to school when deceased Ashu Sharma had consumed poison and Sanjeev Kumar alias Laadi himself is in the dock.

11. No doubt, the custodial interrogation is more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order u/s 438, Code of Criminal Procedure, as held by the Supreme Court in State Rep. by the C.B.I. Vs. Anil Sharma, but its necessity is to be adjudged in the facts and circumstances each case. If by clothing a suspected person with anticipatory bail there is reasonable apprehension that his effective interrogation will not be possible and the investigation will be hampered, custodial interrogation must be allowed by rejecting the anticipatory bail. The case in hand is not such a case, as no complaint has been made by the police that in the absence of custodial interrogation or Respondents 1 and 2 the investigation has been affected adversely. It is pointed out by learned Assistant Advocate-General, appearing on behalf of the State, that but for the report of viscera from the Chemical Examiner, the investigation is complete and the challan will be filed shortly.

12. In The State through the State (Delhi Administration) Vs. Sanjay Gandhi, the learned Judges of the Supreme Court have held that, "It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." In Bhagirathsinh Judeja Vs. State of Gujarat, the learned Judges of the Supreme Court have further held that, "very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the 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 tampering with evidence."

13. Further in Raghubir Singh and Others Vs. State of Bihar, the learned Judges of the Supreme Court have broadly enunciated the grounds for cancellation of bail u/s 437(5) or Section 439(2), Code of Criminal Procedure, which are: interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence, etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.

14. In Dolat Ram and Others Vs. State of Haryana, the learned Judges of the Supreme Court reiterated that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Reiterating the grounds of bail as given in Raghubir Singh and Ors. v. State of Bihar (supra), it was observed that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

15. Applying the law laid down in above referred to judgments of the Supreme Court to the case in hand, this Court does not find any ground for cancellation of bail of Respondents 1 and 2. The only ground on which the Petitioner has sought cancellation of anticipatory bail granted to Respondents 1 and 2 is that in view of the seriousness and gravity of offence anticipatory bail has been wrongly granted by the Sessions Judge. But in Ramesh Kumar v. State of Himachal Pradesh 1984 (1) Chandigrah Law Reporter 341 and State of H.P v. Nand Lal 1989 (2) Crimes 624, it has been held that serious nature of the accusation is no ground for cancellation of bail, which was duly considered at the time of granting it.

16. So far the prayer of the Petitioner for the custody of children of deceased Ashu Sharma and Respondent No. 1 is concerned, it cannot be entertained in the present proceedings. However, the Petitioner is at liberty to seek this relief in appropriate forum.

17. The result of above discussion is that there is no merit in this petition and it is rejected. Any observation made in this judgment will not affect the trial of the case.