Proper scrutiny of evidence and assessment of risk is paramount in determining bail applications under IPC sections related to dowry.

ORDER :

1. Both the applications have been filed by the original informant under Section 439 (2) of Cr.P.C.

2. The respondent No.1 in ACB No.95 of 2021 is the husband of the deceased, whereas the respondents in ACB No.96 of 2021 are the brothers-in-law, father-in-law, mother-in-law of the deceased. The present applicant/original informant lodged the FIR vide Crime No.312 of 2020 with Bidkin Police Station, Aurangabad Rural, District Aurangbad, on 03-12-2020 against THE respective respondents under Section 304B, 498A, 323, 504 r.w.34 of IPC. Learned Additional Sessions Judge, Aurangabad granted bail under Section 439 of Cr.P.C. in Bail Application No.233 of 2021 to the respondent husband Salim on 24-02-2021 and as regards the other respondents are concerned, they were granted anticipatory bail in Cri.Bail Appln.No.1918 of 2020 on 17-12-2020. These are the orders under challenge in these applications.

3. It has been vehemently submitted on behalf of the applicant/informant that the learned Additional Sessions Judge has not considered the criteria which are required to be considered for grant of bail application. The husband used to assault deceased Sana intentionally so as to compel her to bring dowry. There was specific demand of dowry and prima facie involvement could be seen from the evidence that was collected, still husband was granted bail. It was also on record that Sana expired in the custody of husband. She was found hanging at about 05.45 a.m. on 03-12-2020. The demand of dowry was to the extent of amount of Rs.1 lakh. In fact, Salim had married twice earlier and it was his third marriage. The harassment was on the count of dowry as well as the fact that she was unable to cook food. There was assault on the deceased by husband on the earlier day i.e. 02-12-2020 in presence of daughter- in-law of the informant. When it was unnatural death and even the learned Additional Sessions Judge has opined that there appears to be involvement of the accused, still by imposing stringent conditions, the application has been allowed, which is illegal.

4. The learned Advocate for the applicant relied on the decision in Dr. Naresh Kumar Mangla Vs. Anita Agarwal and Others , reported in 2020 SCC OnLine SC 1031. The three Judges Bench of Hon’ble Apex Court in the case wherein also the offence were under Section 498A, 304B, 323, 506 and 313 of IPC as well as Section 3/4 of the Dowry Prohibition Act, considered the documents on record as the charge-sheet was filed and taken note of decision in, Myakala Dharmarajam Vs. The State of Telangana , reported in (2020) 2 SCC 743 , wherein it has been held that :-

“It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the Accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the Accused, the High Court or the Sessions Court would be justified in cancelling the bail.”

Further the note has been taken of the decision in Gurbaksh Singh Sibbia Vs. State of Punjab , reported in [(1980) 2 SCC 565], wherein the distinction between an ordinary order of bail and an order of anticipatory bail, is considered.

The decision by Constitution Bench in Sushila Aggarwal vs State (NCT Of Delhi), reported in 2020 (5) SCC 1 , wherein it has been reiterated that :-

“While considering an application for grant of anticipatory bail,