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High Court Of Delhi
JAYANTI PRASAD GOEL - Appellant
Versus
SUMITRA JAIN - Respondent
Criminal Miscellaneous (Main) 1300 of 1992
Decided On : 09/10/1993
2. Indian Evidence Act, 1872 - Section 113A, Section 113B — Dowry death within one year of marriage — presumption merits strong consideration.
Petitioner/complainant, father of the deceased has prayed for cancellation of bail granted to the mother-in-law & sister-in-law of the deceased who allegedly had been burnt to death within one year of her marriage when she was six months pregnant.
Allowing the application in part, and cancelling the bail of the mother-in-law alone, the Court.
Held:
1. It is well settled that the Courts are not to explore the merits of the case in detail or to weigh the evidence in golden scales while considering the question of grant or refusal of bail. Court has to decide the question taking into consideration the nature and seriousness of the offence, the character of the evidence, circumstances which may be peculiar to the accused, a reasonable apprehension of witnesses being tampered with, reasonable apprehension of witnesses being tampered with, reasonable likelihood of the accused fleeing from justice and larger interests of the State. In a grave matter pertaining to the alleged dowry death, the Court has to proceed with caution and prudence while considering the question of grant of bail.
2. Section 439 of the Code of Criminal Procedure confers concurrent powers on the High Court and the Court of Session for granting bail.
3. Both the High Court and the Court of Session under section 439(2) have been conferred with power to direct any person, who has been released on bail, to be arrested and committed to custody. This power to commit a person to custody after being enlarged on bail has to be exercised with care and circumspection as it involves the liberty of a person. The exercise of power by the High Court under section 439(2) of the Code of Criminal Procedure, however, will depend upon the facts and circumstances of each case and there cannot be a strait jacket formula in regard to the considerations, which prevail with the High Court for cancellation of bail granted by a Court of Session.
4. There is no doubt that the liberty of the accused has to be safeguarded in accordance with law but while keeping in mind the interests of the accused, the collective interest of the community cannot be lost sight of so that the parties do not lose faith in the administration of justice and take law into their own hands to wreak vengeance by provate retribution.
5. The High Court while considering the question of cancellation of bail can also examine the propriety and legality of the order passed by the Court of Session.
6. Learned Additional Sessions Judge completely misdirected himself in thinking that there were no specific allegations against the respondents in regard to the role played by them. As already observed, there were specific allegations of harassment of the deceased at the hands of the respondents in connection with demand of dowry. These allegations are found in the statements of the father and mother of the deceased.
The out-ladish remarks of Ld. Add. Session Judge are out of tune with his ultimate order granting bail to the respondents. To say the least, it was not proper on his part to state that the accused including the respondents had committed the crime. These are observations on merits which can only be recorded at the conclusion of the trial.
7. In the instant case, the deceased died within less than one year of her marriage and the death took place in the house of her in-laws. The helpless girl had burn injuries all over her body and was found in that condition in her matrimonial home. When death takes place of a bride in these circumstances, the Court should be mindful of the magnitude and seriousness of the offence and must give due weight to the provisions of sections 113 A and 113 B of the Evidence Act, 1872 in the exercise of its jurisdiction.
Considering the weight of sections 113A and 113B of Evidence Act and the propriety of the matter, Court is of the opinion that it was not a fit case for grant of bail to her.
8. Accordingly the bail granted to the first respondent by the order of Additional Sessions Judge dated May 2, 1992 is cancelled. The fact that the first respondent is a lady does not entitle her to demand bail under proviso to section 437 (i)(ii) of the Code Criminal Procedure as a matter of right. In a henious crime of the nature with which she is accused of, does not warrant extending the benefit of the said provision to her at this stage.
9. As regards the second respondent she being a young girl may not be treated at par with first respondent and deserves leniency. thereforee, order of the learned Addl. Sessions Judge granting bail to her is not interfered with.
( 1 ) THIS is an application by the petitioner-complainant under section 439 (2) ofthe Code of Criminal Procedure, 1973 for cancellation of bail of the respondents.
( 2 ) THE petitioner is the father of the deceased Smt. Chhama Jain. On July 4, 1991 marriage of Chhama Jain was solemnised with Suresh Jain. On April 5, 1992 Chhama Jain died of burn injuries. At the time of death, she was six month s pregnant. The incident took place in the matrimonial home ofthe deceased.
( 3 ) ON April 6, 1992 the petitioner Jayanti Prasad Goel, father ofthe deceased lodged a report about the incident. In the report it was, inter-alia, stated that after four months of marriage, when Chhama came to the paternal house,she told him that her sisterin-law, Savitaand mother-in-law, Sumitra were harassing her for bringing insufficient dowry. After five and a half months of her departure to the in-law s house, Suresh husband of the deceased came to the house of the complainant and demanded a sum of Rs. 15,000. 00 but was given only Rs. 5,000. 00 by the complainant, as the financial position of the latter was not good. Thereafter Suresh accompanied by deceased again visited the complainant and demanded the remaining amount of Rs. 10,000. 00. Shri Jayanti Prasad not being in a position to pay, expressed his inability to fulfil the demand at that juncture. He however, assured Suresh that he would be paid Rs. 10,000. 00 in due course of time. Then on April5,1992 at about9. 30 p. m. Jayanti Prasad heard from his nephew, Bharat Vir Goel, that Chhama had suffered burn injuries. According to the complainant the deceased was either burnt to death by her in laws on account of non-fulfilment of the demand of dowry or she committed suicide on being harassed and tortured by them. On the report of the petitioner, the FIR was registered against the accused persons including the respondents under sections 398a/ 304b/34 of the Indian Penal Code.
( 4 ) DURING investigation, statement of Smt. Umawati, mother of the deceased was recorded. She also by and large repeated the same story as narrated by her husband Jayanti Prasad Goel. She stated that Suresh was a widower and his first wife also died of bum injuries. It is also specifically alleged by her that mother-in-law and sister-in-law used to harass the deceased for bringing insufficient dowry.
( 5 ) BESIDES the statements of the parents of the deceased, statements of Laxmi Devi, Bahu Parkash and Champat Ram were also recorded by the police under section 161 of the Code of Criminal Procedure. According to Laxmi, who is the sister of the deceased, Chhama was harassed and used to be given beatings by her in laws on account of dowry. Bahu Parkash, the husband of Laxmi, reiterated the statement given by his wife. Champat Ram, a relation of the complainant, stated that he was responsible for getting the deceased married to Suresh. According to him, Chhama told him about her plight by classifying the situation in which she was placed as "hell". He also stated that the deceased told him that her in-laws used to beat her day and night. During investigation Suresh, the first respondent, Sumitra Jain, the second respondent, Savita Jain and Tej Vir Jain were arrested. First respondent and second respondent were granted bail by the learned Additional Sessions Judge on May 2, 1992. This application is for cancellation of their bail.
( 6 ) MR. S. K. Shanna, learned counsel appearing for the complainant submitted that the deceased died of bum injuries within one year of her marriage. He invited my attention to the fact that the deceased had 80% burns on her body and according to him she was found lying in or near the bath room of the house of her in laws. Mr. Sharma further submitted that the first wife of Suresh also died of burn injuries. According to the learned counsel same method was used to finish off Chhama. Learned counsel contended that in view of the nature and gravity of the offence and the manner in whic
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