9911796707
TMI Blog2020 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. Whether such an incident, as reported by the deceased to the police on 1 October 2017 did take place, leading to her suffering injuries which were examined at the Government Hospital, is a matter for investigation. The trail of monies alleged to be received by the deceased for her professional work is a matter to be investigated. Similarly, the transfer of monies by the deceased to her father-in-law and the nexus, if any, with the funds which she had received from her parents is a matter for serious investigation. The death was unnatural which took place within seven years of the marriage. The alleged phone calls received by the informant from some of the accused and by the deceased on the day when she was found to be hanging are matters which required to be probed. The alleged absence of an external injury on the body of the deceased is a matter for investigation. The approach of the High Court is casual - The observation of the High Court that no specific role is assigned in the FIR to the accused is based on a misreading of the FIR. The entire approach of the High Court is flawed. It is contrary to the record and, as we shall now explain, contrary to settled principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances - the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication in the news media, is rejected. The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition. The apprehension of the appellant that A-2 and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified - The CBI is directed to conduct a further investigation of the case arising out of case Crime No. 0623 of 2020 registered at Police Station Tajganj, District Agra, dated 7 August 2020. Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... days ago, all the abovementioned family members of her in-laws badly beaten up Dipti on account of dowry and threatened her that if she informed the family of her parents, she will have to face the consequences. On 03.08.2020, in the morning, Dr S. C. Agarwal telephonically threatened the applicant and demanded the money, and also threatened that either I should fulfill the demand, otherwise, I will be responsible for whatever happens in future. The same day in the afternoon at 3:09 PM and thereafter at 5:31 PM in the evening, Dipti told the applicant and the wife of the applicant about beating up done by them about 18-19 days ago and regarding taking advice by all the people and about threat to her life. At the time, the applicant was in Faridabad and he told her about coming to Agra in the night itself. However, before the applicant could reach in the evening on the same day these dowry greedy people killed Dipti in [xxx] for non-receipt of dowry and non-fulfilment of the demands, and admitted Dipti in their hospital itself in the almost dead condition, in order to save themselves, but she was not allowed any treatment with the intention of killing her. In order to save the life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the four accused. Applications for anticipatory bail were filed on their behalf before the High Court [Criminal Misc Anticipatory Bail Application Nos. 5457/5460 of 2020]. On 22 September 2020, a learned Single Judge, after noting the submissions, posted the applications for anticipatory bail for "further hearing" on 28 September 2020 and protected the accused against arrest in the interim. On 28 September 2020, another Single Judge of the High Court before whom the application was listed noted the fact that the earlier order dated 22 September 2020 had posted the application for "further hearing" and directed the registry to process the listing of the proceedings accordingly. Eventually, anticipatory bail has been granted by the order of the High Court dated 29 September 2020. The reasons on the basis of which the High Court proceeded to grant anticipatory bail are contained in paragraph 20 of the judgment of the High Court which is extracted below: "20. Having heard the learned counsel for applicants, learned A.G.A. and the learned counsel for the informant and the undisputed position which has emerged from the record as noted above, the fact of the matter is that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of her father-in-law. Details of these payments are as follows: C. AMOUNT TRANSFERRED FROM DECEASED TO R-5 FOR INVESTMENT [PG. K, SLP] S. No Date Amount Purpose Pages (Counter) Corresponding same entry in A2's Balance Sheet @ Pg (Counter) 1. 04.12.2015 2,00,000 Building Construction Investment 274 180 2. 02.06.2016 2,00,000 Building Construction Investment 275 183 (Received next day i.e 03.06.2016) 3. 30.06.2016 5,00,000 Building Construction Investment 275 184 4. 01.03.2017 15,00,000 Building Construction Investment 277 187 Total 24,00,000 (iii) The deceased was an anesthetist and was working in the family run nursing home of the respondent-accused. She died within 5 years and 8 months of her marriage. There are specific allegations in the FIR of an incident which took place on 1 October 2017 when the deceased was assaulted by her mother-in-law and by the elder brother of her husband (brother-in-law of the deceased) and his spouse (sister-in-law of the deceased); at the instance of her father-in-law, which led to the filing of a complaint with the SHO, Police Station Kosi Kalan, District Mathura on 1 October 2017. The medical report of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amarmani Tripathi (iii) (2012) 4 SCC 379; Jaiprakash Singh vs State of Bihar (iv) (2016) 15 SCC 422; Neeru Yadav vs State of U.P. (v) (2020) 5 SCC 1; Sushila Agarwal vs NCT of Delhi (vi) (1997) 7 SCC 187; State vs Anil Sharma and (vii) (2005) 4 SCC 303; Adri Narayan Das vs State of West Bengal 8 Opposing the above submissions, Mr Sidharth Luthra, Senior Counsel submitted that: (i) The deceased and her husband commenced living separately from 12 October 2018; (ii) The post mortem report indicates that the death occurred as a result of suicide by hanging. The absence of bodily injuries would displace the allegation that the in-laws are involved in the murder of the deceased; (iii) An amount of Rs.16.01 lacs received by the deceased in her bank account from the family of the informant between 4 December 2015 and 25 March 2017, has been converted into fixed deposit receipts in the State Bank of India. While the deceased has transferred an amount of Rs.24 lacs from her account to her father-in-law between 4 December 2015 and 1 March 2017, this was as a part of the investment towards the construction of a hospital. As a part of the family understanding, the father-in-la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse (A-3) have two sons who are doctors by profession, namely A-1 and A-4. A1 was the spouse of the deceased while A-4 and A-5 are spouses. Two hospitals were set up by A-2 with the object of ensuring separate establishments for his sons, A-1 and A-4. Supporting the grant of anticipatory bail by the High Court, Mr Basant submitted that: (i) The tenor of the suicide note indicates that the deceased was suffering from mental depression as a result of successive miscarriages and she had, in fact, adopted a girl child in June 2018; (ii) On 12 October 2018, the deceased and her spouse set up a separate residence for themselves; (iii) The deceased had drawn salary from both the hospitals which have been set up by her father-in-law. A-2 had transferred money to A-1 and the deceased to enable them to buy immovable property in their joint names; and (iv) After the deceased attempted to commit suicide on 3 August 2020, she was rushed to the family run nursing home run by her father-in-law. The police reached the scene of the incident on the evening of 3 August 2020, though no FIR was registered until 7 August 2020. Articles were recovered on 3 and 4 August 2020. The suicide note was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnificantly, on the specific query of the Court as to whether any investigation has been carried out on the allegation that Deepti was murdered, Mr Vimlesh Kumar Shukla, learned Senior Counsel has answered in the negative. On the alleged suicide note, learned Senior Counsel submitted that it was initially returned back by the FSL in the absence of adequate material for comparing the hand writing and it has now been re-submitted by the Investigating Officer with necessary supporting material to the FSL, whose report is awaited. C Cancellation of Anticipatory Bail 12 The rival submissions will now be considered. The appellant, who is the father of the deceased, lodged a complaint on 7 August 2020 on the basis of which FIR No. 0623 of 2020 was registered at Police Station Tajganj in the District of Agra. The FIR contains the following allegations: (i) The marriage of the deceased to A-1, the son of A-2 took place on 3 November 2014; (ii) The deceased was a qualified doctor by profession; (iii) An amount of Rs.1.5 crores was spent on the occasion of her marriage; (iv) A-1 to A-5 were dissatisfied with the moneys brought by the bride and she was pressurized to bring an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat though the deceased had been assaulted in 2017, the informant had not proceeded against the spouse of the deceased and the other members of his family, simply to save the marriage. The Single Judge, while analyzing the rival submissions, noted that (i) The applicants for bail are the father-in-law, mother-in-law, brother-in-law and sister-in-law; (ii) The spouse of the deceased is in custody; and (iii) The FIR is not to be treated as "an encyclopedia of the prosecution‟s case but must reflect the basic prosecution case." Having recorded the above premises, the Single Judge held that (a) "the FIR prima facie appears to be engineered to implicate the applicants"; (b) "there is no corelation in between the various allegations leveled in the FIR"; and (c) the allegations "are general in nature" with no specific role being assigned to the accused. 14 We have prefaced this analysis by a reference to the FIR. There is no cogent basis for the Single Judge to have arrived at any of the three prima facie findings. The informant had suffered a loss of his own daughter due to an unnatural death in close proximity to the lodging of his complaint. The FIR contains a reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasons recorded by the High Court have no basis in the materials with which it was confronted. The observation of the High Court that no specific role is assigned in the FIR to the accused is based on a misreading of the FIR. The entire approach of the High Court is flawed. It is contrary to the record and, as we shall now explain, contrary to settled principles of law governing the exercise of discretion on the grant of anticipatory bail in a case involving the alleged commission of a serious offence. 15 It is a well settled principle of law that the setting aside of an "unjustified, illegal or perverse order" granting bail is distinct from the cancellation of bail on the ground of the supervening misconduct of the accused or because some new facts have emerged, requiring cancellation. In Puran vs. Ramvilas [(2001) 6 SCC 338] , this Court has held that where an order granting bail ignores material on record or if a perverse order granting bail is passed in a heinous crime without furnishing reasons, the interests of justice may require that the order be set aside and bail be cancelled. The recording of no reasons is one end of the spectrum. The other end of the domain for inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record." Adverting to the above observations, in Jai Prakash Singh vs State of Bihar [(2012) 4 SCC 379] , this Court held: "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons... Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been roped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [(2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345] , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008) 1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. Padam Narain Aggarwal [(2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)" 17 In the recent decision of the Constitution Bench in Sushila Aggarwal vs State (NCT of Delhi), [(2020) 5 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation. 6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 561] clearly lays down that "the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest". Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as "engineered" to falsely implicate the spouse of the deceased and his family. We hasten to add that our observations at this stage are prima facie in nature, and nothing that we have said should be construed as a determination on the merits of the case which will be adjudicated at the trial. D Transfer of further investigation to the CBI 20 The investigation by the UP Police in the present case leaves much to be desired. We have already extracted in the earlier part of this judgment, the contents of the counter affidavit which have been filed on behalf of the Deputy Superintendent of Police, Agra. The contents of the counter affidavit are at a material divergence with the contents of the charge-sheet filed on 5 November 2020. During the course of the hearing, this Court has been specifically informed by learned Senior Counsel appearing on behalf of the State of Uttar Pradesh, that no investigation was conducted into the allegation in the FIR that the deceased had been murdered. Though much was sought to be made out of the alleged suicide note, at this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified. 21 In the backdrop of what has been stated above and the serious deficiencies in the investigation, we have during the hearing, made all the counsel aware of the possibility of this court referring the case for further investigation to the CBI. The court must enter upon the prospect of such a course of action with circumspection for two reasons. First, this court has repeatedly observed that the power which is vested in a superior court to transfer the investigation to another agency, such as the CBI, must be wielded with caution. In a recent judgement of this Court, Arnab Goswami vs. Union of India [WP (Crl) 130 of 2020, decided on 19 May 2020] , one of us (Dr. Justice D Y Chandrachud) had interpreted the rationale underpinning the circumspection in the following terms: "44. In assessing the contention for the transfer of the investigation to the CBI, we have factored into the decisionmaking calculus the averments on the record and submissions urged on behalf of the petitioner. We are unable to find any reason that warrants a tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection." (emphasis supplied) The court held that wherever a charge-sheet has been submitted to the court, even this Court would not ordinarily reopen the investigation especially by entrusting it to a specialized agency. However, in a proper case, when the Court feels that the investigation by the police has not been in the proper perspective and that in order to do complete justice, where the facts of the case demand that the investigation be handed over to a specialized agency, a superior court is not bereft of the authority to do so. (Disha v. State of Gujarat [(2011) 13 SCC 337: (2012) 2 SCC (Cri) 628] and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006]) In Pooja Pal vs Union of India [(2016) 3 SCC 135], a two judge Bench of this Court, speaking through Justice Amitava Roy, obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It held: "24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor. 25. ….If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic…." ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
