2007 Supreme(SC) 498

2007(3) Supreme 434
SUPREME COURT OF INDIA
(From Orissa High Court)
Dr. Arijit Pasayat and Lokeshwar Singh Panta, JJ.
Gajanand Agrawal — Appellant
versus
State of Orissa and Ors. — Respondents
Criminal Appeal No. 543 of 2007
(Arising out of S.L.P. (Crl.) No. 49 of 2007)
With
Criminal Appeal No. 544 of 2007
Arising out of S.L.P. (Crl.) No. 50 of 2007)
Decided on 12-4-2007
Counsel for the Parties :
For the Appellant : Uday U. Lalit, Sr. Advocate, Sanjay Sen, Rana S. Biswas, Manish P.S. Choudhan, Vishal Anand, Ms. Ruchika Rathi and Mrs. Sarla Chandra, Advocates.
For the Respondents : K.T.S. Tulsi, Sr. Advocate, Suresh C. Gupta, J.K. Mahapatra, Sidharth Srivastava, Kuber Boddh and Sunil Kumar Jain, Advocates.

IMPORTANT POINTS
1. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. However, only broad features of the case are to be noted. Elaborate analysis of the evidence is to be avoided.
2. Merely because the family members of the deceased spoke about the alleged dowry demand and not others that cannot be certainly a ground to conclude that same throws doubt on the alleged torture.

Headnote:(i) Criminal Procedure Code, 1973 — Section 439 — Indian Penal Code, 1860 — Sections 498A, 304B, 302, 406 rw/s 34 — Grant of bail — Death of bride within five months of marriage — Need to indicate in the order granting bail, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence — Factors to be considered before granting bail.

       Held : Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. (Para 12)

       There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

        1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

        2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

        3. Prima facie satisfaction of the Court in support of the charge. (Para 13)

       Any order dehors of such reasons suffers from non-application of mind as was noted by this Court. (Para 14)

       (ii) Indian Penal Code, 1860 — Sections 498A, 304B, 302, 406 rw/s 34 — Dowry death — Bail applications — Within five months of marriage, deceased was found dead — Husband of deceased was arrested after about two days of the incident — Rest of his family members including parents, brother and sister of husband were found absconding — Police having failed to arrest them in spite of issuance of non-bailable warrants of arrest — Anticipatory bail applications filed by them were rejected — After surrendering, bail applications filed by the accused persons were rejected — Sessions Judge held that strong case under Sections 302/304B, IPC is made out — However, High Court granted bail to all the accused by separate orders imposing similar conditions — However, High Court has given findings which could have been given at the trial — High Court has virtually written an order of acquittal by commenting on the evidentiary value of evidence on record — Whether impugned orders of High Court granting bail are sustainable — (No).

       Held : As has been rightly contended by learned counsel for the appellant, the High Court has given findings which could have been given at the trial. In fact, some of the conclusions are contradictory. In para 9 of the judgment the High Court has noted as follows:

       “Be that as it may, the post-mortem report is a prima facie piece of material the evidentiary value can be considered at the time of trial.”

       But indicating “peculiar features of the case”, the High Court has observed that “the post-mortem report coupled with chemical examination report prima facie reveals that the death of Manisha was neither homicidal nor suicidal”. Interestingly, earlier the same learned Judge concluded as follows about the blood stains on the pillow. (Para 16)

       The reasoning given by the High Court that only the family members earlier did not lodge reports and, therefore, prima facie throws doubt about alleged torture, is another conclusion which was not required to be given while dealing with the bail application. The High Court was factually wrong in saying that the persons of the locality had not alleged regarding torture meted out on account of dowry. Even otherwise merely because the family members of the deceased spoke about the alleged dowry demand and not others that cannot be certainly a ground to conclude that same throws doubt on the alleged torture. (Para 17)

       The High Court has virtually written an order of acquittal by commenting on the evidentiary value of evidence on record. This is impermissible. Only broad features of the case are to be noted. Elaborate analysis of the evidence is to be avoided. (Para 19)

       Looked from any angle the impugned orders of the High Court are indefensible and are set aside. (Para 21)