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2009 Supreme(Raj) 886
[Citation : 2010(1) RLW 266 (SC)]
(Supreme Court)
Savitri Agarwal & Ors. Vs. State of Mah. & Anr. (Jain, J.)
HON'BLE D.K. JAIN, J.
HON'BLE R.M. LODHA, J.
Savitri Agarwal & Ors.
Versus
State of Maharashtra & Anr.
Criminal Appeal Nos. 1178-1179 of 2009, decided on 10.07.2009
Headnote:Cr.P.C., 1973, Sec. 438 read with Penal Code, Sec. 498-A, 304-B and Dowry Prohibition Act, 1961, Sec. 3 and 4 — Anticipatory bail — Guidelines for Courts to keep in mind while dealing with an application for grant of anticipatory bail : 1. Its an extraordinary power to be exercised with due care and circumspection; 2. Mere fear of arrest is not enough to grant pre-arrest bail in a non-bailable offence case. The accused must disclose specific events and facts in order to enable the Court to judge reasonableness of his apprehension of arrest; 3. Though anticipatory bail could be granted in offences punishable with life imprisonment, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal; 4. No blanket order of anticipatory bail should be passed. Conditions must be imposed to ensure uninterrupted investigation. And if police finds something incriminating against the accused, then they should be free to take him into custody for un-earthing material connected with the crime; 5. Pre-arrest bail can be given before or after filing of FIR; 6. Though pre-arrest bail can be given ex-parte, the Court should immediately give notice to the public prosecutor or government advocate and in the light of their arguments, reconsider the decision to grant anticipatory bail; and 7. Anticipatory bail should be for a very limited period with a direction to the accused to move the competent court for regular bail.
Appeal disposed of. (Para 17)
na-iz-la-] 1973] /kkjk 438 lifBr n.M lafgrk] /kkjk 498d] 304[k ,oa ngst fu"ks/k vf/kfu;e] 1961] /kkjk 3 o 4 & vfxze tekur & vfxze tekur iznku djus gsrq vkosnu i= dk laO;ogkj djrs le; U;k;ky; ds fy, /;ku j[kus gsrq fnkk funsZk %& 1- ;g ,d vlk/kkj.k kfä gS ftldk iz;ksx lE;d~ lko/kkuh ,oa lrdZrk ls djuk gksrk gS( 2- xSj tekurh vijk/k ds ekeys esa fxjrkjh dk Hk; ek= fxjrkjh iwoZ tekur eatwj djus gsrq i;kZIr ugha] vfHk;qä dks viuh fxjrkjh dh vkkadk dh rdZ laxrrk dk fu.kZ; djus gsrq U;k;ky; ds le{k ?kVukvksa vkSj rF;ksa dk fofufnZ"V :i ls [kqyklk djuk vko;d gS( 3- gkyk¡fd vkthou dkjkokl ls n.Muh; vijk/k esa Hkh vfxze tekur eatwj dh tk ldrh gS fQj Hkh U;k;ky; fdlh Hkh ekeys esa vfxze tekur ls badkj djus gsrq LorU= gS] ;fn bl rjg ls badkj dks U;k;ksfpr Bgjkus gsrq mlds le{k dksbZ lkexzh gks( 4- vfxze tekur dk dksbZ vLi"V vknsk ikfjr ugha fd;k tkuk pkfg;s] vck/k vUos"k.k lqfufpr djus gsrq krZ vf/kjksfir dh tkuh pkfg;s] vkSj ;fn vfHk;qä ds fo:) iqfyl dks vijk/k esa Q¡lkus okyh dksbZ lkexzh feyrh gS rks mUgsa vijk/k ls lEcfU/kr lkexzh dks m?kkM+us gsrq mls vfHkj{kk esa ysus dh LorU=rk gksuh pkfg;s( 5- fxjrkjh iwoZ tekur izFke lwpuk izfrosnu ds nk;j djus ls iwoZ ;k ipkr~ nh tk ldrh gS( 6- gkyk¡fd fxjrkjh iwoZ tekur ,di{kh; nh tk ldrh gS] fQj Hkh U;k;ky; dks vfoyEc yksd vfHk;kstd ;k ljdkjh vf/koäk dks uksfVl nsuk pkfg;s vkSj mudh cgl dh n`f"V ls vfxze tekur eatwj djus ds fu.kZ; ij iqufoZpkj djuk pkfg;s( ,oa 7- vfxze tekur vR;Ur gh lhfer vof/k gsrq vfHk;qä dks bl funsZk ds lkFk eatwj dh tkuh pkfg;s fd og fu;fer tekur gsrq l{ke U;k;ky; esa vkosnu djsaA ¼in la- 17½
vihy fuLrkfjr dhA
2. Challenge in these two appeals is to the judgment and order dated 2nd July, 2008 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Applications No.250 and 2081 of 2008, whereby the said two applications filed by the State and the complainant respectively, have been allowed and the protection granted to the appellants by the Sessions Judge, Amravati vide order dated 18th December, 2007 in terms of Section 438 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) has been withdrawn. The appellants herein are the mother-in-law, father-in-law, husband and the younger brother of the father-in-law of the deceased-Laxmi. They are accused of having committed offences punishable under Sections 498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’) and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
3. Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to appellant No.3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On 6th December, 2007 at about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries of Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse the fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found that the child also had burns. Laxmi and her child were removed to the hospital. At about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving the intimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th December, 2007, at about 1.40 p.m. another statement of Laxmi was recorded by the Executive Magistrate wherein again she reiterated that she had got burnt accidentally.
4. On 8th December, 2007, father of Laxmi lodged a complaint with Police Station City Kotwali, Amravati against the appellants, inter alia, alleging that after the marriage of his daughter on 26th January, 2006, the appellants were torturing her for not meeting dowry demand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned back to Amravati. On the said complaint, the police registered an FIR against the appellants for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
5. On 6th December, 2007 the appellants applied for grant of anticipatory bail before the Sessions Judge, Amravati, who, vide order dated 10th December, 2007, initially granted interim protection to them from arrest till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi expired and offence under Section 304-B IPC came to be added against the appellants. On 18th December, 2007, after hearing both sides and upon taking into consideration the said two dying declarations made by the deceased - Laxmi, statements of the complainant and witnesses and after perusing the case diary, the learned Sessions Judge confirmed the anticipatory bail granted to the appellants.
6. Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation of anticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court has cancelled the anticipatory bail granted to the appellants, on the ground that the Sessions Judge had failed to apply his mind to certain vital circumstances viz. - absence of mention of lantern and match stick in the panchnama; necessity of lantern and its lighting at 4 p.m. in the afternoon when the house was equipped with an inver
