2020 Supreme(SC) 484

SUPREME COURT OF INDIA
ARUN MISHRA, INDIRA BANERJEE, JJ.
Preet Pal Singh - Appellant
Versus
The State of Uttar Pradesh And Another - Respondent
Criminal Appeal No. 520 of 2020 [Arising out of SLP (Crl) No. 2102 of 2019]
Decided On : 14-08-2020

IMPORTANT POINTS
(1) There is a difference between grant of bail under Section 439 of Cr.P.C. in case of pre-trial arrest and suspension of sentence under Section 389 of Cr.P.C. and grant of bail, post conviction.
(2) In considering application for suspension of sentence, Appellate Court is only to examine if there is such patent infirmity in order of conviction that renders order of conviction prima facie erroneous.
(3) Once there is material to show that victim was subjected to cruelty or harassment before death, there is a presumption of dowry death and onus is on the accused in-laws to show otherwise.

Headnote:

(A) Indian Penal Code, 1860 – Sections 304B, 498A and 406 – Dowry Prohibition Act, 1961 – Sections 3 and 4 – Criminal Procedure Code, 1973 – Section 389 – Stay of execution of sentences of imprisonment and grant of bail – Dowry death – High Court passed a short, cryptic, non-speaking order granting bail to accused husband – Victim died in circumstances which were not natural, within about 8½ months of her marriage – Victim used to make phone calls to her mother, maternal grandmother and her aunt, complaining of harassment meted out to her by members of her matrimonial family – From oral evidence it also transpires that in-laws of victim used to pressurize victim to bring cash from her parents – Post-mortem report reveals ante-mortem injuries – Defence suggestions are somewhat contradictory – Suggestion of mental illness is unsupported by any evidence whatsoever – Judgment and order of Sessions Court, under appeal in High Court is based on evidence – Oral evidence adduced before Sessions Court, which has meticulously been recorded in judgment and order under appeal before High Court, reveals that there is evidence of torture and harassment of victim, by husband and his parents, for more dowry, soon after marriage which continued till her death – In view of mandate of Section 389(3) of Cr.P.C., principles are different in case of sentence not exceeding three years and/or in case of bailable offences – Respondent–husband has been given life imprisonment – As discretion under Section 389(1) is to be exercised judicially, Appellate Court is obliged to consider whether any cogent ground has been disclosed giving rise to substantial doubts about validity of conviction and whether there is likelihood of unreasonable delay in disposal of appeal. (Paras 8, 14, 15, 17, 19, 23, 26 and 27)

(B) Criminal Procedure Code, 1973 – Section 389 – Indian Penal Code, 1860 – Sections 304B, 498A and 406 – Dowry Prohibition Act, 1961 – Sections 3 and 4 – Stay of execution of sentences of imprisonment and grant of bail by High Court – Dowry death – Legislative intent of incorporating Section 304B was to curb menace of dowry death with a firm hand – In dealing with cases under Section 304B, this legislative intent has to be kept in mind – Once there is material to show that victim was subjected to cruelty or harassment before death, there is a presumption of dowry death and onus is on the accused in-laws to show otherwise – Even though detailed examination of merits of case may not be required by courts while considering an application for bail but, at the same time, exercise of jurisdiction has to be based on well settled principles and in a judicious manner and not as a matter of course – There is a difference between grant of bail under Section 439 of Cr.P.C. in case of pre-trial arrest and suspension of sentence under Section 389 of Cr.P.C. and grant of bail, post conviction – In earlier case there may be presumption of innocence which is a fundamental postulate of criminal jurisprudence, and courts may be liberal, depending on the facts and circumstances of the case, on principle that bail is rule and jail is an exception – However, in case of post conviction bail by suspension of operation of sentence, there is a finding of guilt and question of presumption of innocence does not arise – Nor is principle of bail being rule and jail an exception attracted once there is conviction upon trial – Court considering application for suspension of sentence and grant of bail, is to consider prima facie merits of appeal coupled with other factors – There should be strong compelling reasons for grant of bail, notwithstanding order of conviction, by suspension of sentence and this strong and compelling reason must be recorded in order granting bail as mandated in Section 389(1) of Cr.P.C. (Paras 30, 32 and 36)

(C) Criminal Procedure Code, 1973 – Section 389 – Indian Penal Code, 1860 – Sections 304B, 498A and 406 – Dowry Prohibition Act, 1961 – Sections 3 and 4 – Stay of execution of sentences of imprisonment and grant of bail by High Court – Dowry death – It is nobody’s case that death of victim was accidental or natural – There is evidence of demand of dowry which Trial Court has considered – Death took place within 7 or 8 months and there is oral evidence of parents of cruelty and torture immediately preceding death – There is also evidence of payment of Rs.2,50,000/- to Respondent-Accused by victim’s brother – In considering application for suspension of sentence, Appellate Court is only to examine if there is such patent infirmity in order of conviction that renders order of conviction prima facie erroneous – Where there is evidence that has been considered by Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend execution of sentence and release convict on bail – Failure to lodge FIR complaining of dowry and harassment before death of victim, is inconsequential – Impugned order of High Court set aside and bail bonds cancelled. (Paras 38, 39, 42 and 43)

Facts of the case:

Instant appeal, filed by the father of the deceased victim, is against the order dated 21.01.2019 passed by the Allahabad High Court, Lucknow Bench in Criminal Misc. Application No. 129789 of 2018, in Criminal Appeal No. 1594 of 2018, whereby the High Court granted bail to the husband of deceased victim, convicted by a judgment dated 23.7.2018 of Additional District and Sessions Judge/Special Judge (EC Act), Lucknow, in Sessions Trial No.1385 of 2010, for offences under Sections 304B, 498A and 406 of the Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 by staying execution of the sentences of imprisonment.

Findings of Court:

Even though the term ‘dowry’ is not defined in the Indian Penal Code, it is defined in the Dowry Prohibition Act, 1961 as any valuable security given or agreed to be given either directly or indirectly by one party to the marriage to the other party to the marriage, or by any person at or before or any time after the marriage, in connection with the marriage of the parties.

Result : Appeal allowed.