Full Judgment Text
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CASE NO.:
Appeal (crl.) 543 of 2007
PETITIONER:
Gajanand Agarwal
RESPONDENT:
State of Orissa and Anr
DATE OF JUDGMENT: 12/04/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 543 OF 2007
(Arising out of S.L.P. (Crl.) No. 49 of 2007)
With
CRIMINAL APPEAL NO. 544 OF 2007
(Arising out of S.L.P. (Crl.) No. 50 of 2007)
Dr. ARIJIT PASAYAT, J.
Leave granted.
This is a second journey of the appellant to this Court.
Earlier the appellant had questioned grant of bail to the
respondent no.2 in each case by learned Single Judge of the
Orissa High Court. This Court held the impugned orders to be
indefensible by the judgment dated 18.9.2006 in Gajanand
Agarwal v. State of Orissa and Ors. (AIR 2006 SC 3248) and
the orders were nullified. The High Court again considered the
bail applications and passed the impugned order in each case
reiterating its view that the respondent no.2 in each case was
entitled to grant of bail.
Background facts in a nutshell are as follows:
Bimal (respondent No.2 in appeal relating to SLP (Crl.)
No.49 of 2007) was married to the daughter of the appellant-
accused i.e. Manisha (hereinafter referred to as ’deceased’).
The marriage between the deceased and the said accused took
place on 9.5.2005. Within five months of marriage, the
deceased was found dead on 1.10.2005. The appellant lodged
FIR at the Jharsuguda police station and on that basis a case
was registered and investigation was undertaken. The offences
indicated were punishable under Sections 498A, 304B, 302,
406 read with Section 34 of the Indian Penal Code, 1860 (in
short the ’IPC’) and Section 4 of the Dowry Prohibition Act,
1961, (in short ’the Act’) Respondent no.2 was arrested on
3.10.2005. Rest of the accused persons were found to be
absconding and police having failed to arrest them in spite of
issuance of non-bailable warrants of arrest. An application in
terms of Sections 82 and 83 of the Code of Criminal
Procedure, 1973 (in short ’Cr.P.C.’) was filed. On 16.12.2005
father-in-law of the deceased Kailash Khetan and mother-in-
law Kanta Khetan filed application in terms of Section 438
Cr.P.C. before the High Court which was rejected. Process
under Section 82 of the Cr.P.C. was issued by the learned
ADJM on 19.12.2005. On 16.1.2006 respondent no.2 filed
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application for bail which was rejected on the ground that
investigation was still in progress. Liberty was granted to the
accused to move the Sessions Judge for bail after completion
of investigation and submission of final form. On 24.1.2006
application in terms of Section 438 was filed by Sunil Kumar
(respondent no.2 in the connected appeal) and Sujata Khetan.
The same was rejected by order dated 24.1.2006. An
application under Section 438 Cr.P.C. was filed by Kailash and
Kanta. The same was again rejected by the High Court. On
27.1.2006 the Trial Court issued orders in terms of Section 83
Cr.P.C. to attach the moveable properties of the accused. On
30.1.2006 the investigating officer submitted the charge-
sheet/final report before the learned SDJM indicating that a
prima facie case has been made against the respondent No.2,
Kailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil
(brother-in-law) the respondent no.2 in the connected appeal
under Sections 498A, 304B, 302, 406 read with Section 34
IPC and Section 4 of the Act. The prosecution made a further
prayer to permit investigation in terms of Section 173(8)
Cr.P.C. since some of the accused persons were still
absconding and were not arrested. After surrendering, Kanta
Khetan and Sujata Devi filed application for bail. The same
was rejected by learned SDJM. The applications filed by
Kailashnath and Sunil were also subsequently rejected. On
13.2.2006, respondent no.2 filed fresh bail application before
the Sessions Court, which was rejected. The learned
Additional Sessions Judge took note of factual position which
according to him was relevant for the purpose of rejecting the
bail application. It was noted that strong case under Sections
302/304B IPC is made out. Sujata Devi filed bail petition
before the High Court after rejection of bail application by the
Sessions Judge. The High Court by order dated 6.3.2006
granted bail to her. Interestingly, it was noted that the order
was not to be treated as a precedent so far as other accused
persons are concerned. It is to be noted that on 22.3.2006
Kanta Devi moved the High Court for bail. The High Court
granted the bail imposing conditions similar to those which
were stipulated in case of Sujata Devi. Accused Sunil Kumar
moved the High Court for regular bail. By order dated
7.4.2006 the prayer was rejected but liberty was granted to
renew his prayer for bail after the case was committed to the
Court of Sessions. On 21.4.2006 the High Court granted bail
to Kailashnath on the ground that he was aged and sick. Here
again, the High Court passed an order to the effect that same
was not to be treated as a precedent so far as other accused
persons are concerned. On 3.5.2006 accused Sunil Kumar
moved the Sessions Court for bail on the ground that his
father requires further treatment at Apollo Hospital and there
was no male member to accompany him. The learned
Sessions Judge rejected the prayer of bail by order dated
3.5.2006 suspecting genuineness of the documents filed. It
was noted that report was dated 30.6.2006 i.e. date put on the
advisory report, while the application was made earlier.
Because of this suspicious document, the application for bail
was rejected.
The date for framing of charges was fixed on 6.6.2002.
Accused Bimal filed bail application before the High Court. By
order dated 22.6.2006 bail was granted. The same was the
subject matter of challenge in the earlier matter. This Court
set aside the order on several grounds as noted in the order.
The High Court has reconsidered the matter after the
earlier orders were set aside and by the impugned orders the
prayer for bail has been accepted.
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In support of the appeals, learned counsel for the
appellant submitted that basic ground on which the earlier
orders granting of bail were set aside were (a) since earlier
orders rejecting prayer have not taken into consideration (b) in
case of accused Sunil lack of genuineness of documents as
noted by the Additional Sessions Judge were not considered (c)
the orders were practically non-reasoned. The High Court has
not only tried to justify the grant of bail on the earlier
occasion, but also has practically recorded order of acquittal to
the accused respondent no.2 in each case. While dealing with
the bail application, final view is not to be expressed. It was
only necessary to indicate reasons for grant of bail and not
detailed analysis of the evidence on record, with regard to the
nature of the offence and the evidentiary value of the materials
on record.
The High Court lost sight of the fact that it was not
dealing with any appeal on merits. It was considering bail
application. Even otherwise several irrelevant aspects have
been taken into consideration and this Court’s view regarding
use of non-genuine documents by respondent Sunil have been
lightly brushed aside. Curiously, the High Court has treated
the documents which were treated non-genuine by this Court
to be minor circumstances. It is also pointed out that
factually certain conclusions recorded are contrary to the
evidence on record. Merely because the relatives of the
deceased spoke out about the dowry demand that cannot be a
ground to come to the conclusion that the allegations relating
to dowry demand are prima facie untenable and "prima facie
throws doubt about the alleged torture". Learned Single Judge
has also put great emphasis on the alleged non mention of any
person other than family members regarding alleged torture. It
is pointed out that the same is also factually incorrect. Merely
because the doctor who conducted the post mortem
examination has not been examined by the investigating
agency and statement has not been recorded under Section
161 of the Cr.P.C., that cannot be a ground to grant bail to the
accused persons. It has been held by the learned Single Judge
that the accused persons were permanent residents and there
was no question of their absconding or there being problem in
ensuring their presence. It is submitted that at least accused
Sunil had absconded for a long time, more than once his
application in terms of Section 438 Cr.P.C. was rejected by the
High Court. He was absconding and, therefore, action of
attachment property in terms of Sections 82 and 83 of the
Cr.P.C. were taken. It is stated that charges have not been
framed as yet because proceedings have been stayed by the
High Court at the instance of the respondents-accused
persons.
Learned counsel for the State submitted that the High
Court not only acted on erroneous premises but completely
overlooked the fact that undisputedly accused Bimal and
deceased went to the bed together, the latter died under
suspicious circumstances. Charge sheet has been filed
therefore, the grant of bail is not proper. Reliance was placed
on a decision of this Court in Gajanand Agarwal’s case (supra)
more particularly what is stated in para 19.
In response, learned counsel for the respondent no. 2-
accused submitted that the accused persons are unnecessarily
being hounded by the complainant. Though the High Court
need not have gone beyond giving reasons and should not
have recorded findings which are matters of trial, that cannot
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be a ground to deny bail to the accused (Respondent no.2 in
each case). The unnecessary findings may be set aside. But
the order granting bail should not be interfered with as that
was perfectly legitimate. The Court may have exceeded what
was required to be done while dealing with the bail
application. But that is no ground to cancel the bail. On
reading of the inquest report, the post-mortem report and FSL
report one thing is clear that the death was natural and was
certainly not homicidal as is being presented by the
prosecution and the complainant. On the earlier occasion the
High Court had not considered the effect of the FSL report.
The report clearly rules out homicidal angle and, therefore, the
presence of blood in the mouth cannot be attributed to any
homicidal action. Because of the informant’s interference the
investigation has not been done in a fair manner, and the
whole family of the husband’s family has been roped in. The
damage already done to their reputation and dignity cannot be
adequately compensated even if in trial the accused persons
are acquitted. In view of the strong possibility of death being
natural, the High Court has rightly granted bail. It is not a
case as if accused Sunil was absconding. He was running
from pillar to post to prove his innocence for grant of bail. The
mere fact that there has been some mistake in the date of the
certificate, that cannot be considered to be vital. It appears to
be a genuine and bona fide mistake. The reports clearly
establish that the death was natural. Since the complainant
has acted with motives to unleash personal vendetta that
should not be permitted.
At this juncture, it would be appropriate to take note of a
decision of this Court in Omar Usman Chamadia v. Abdul and
Anr. (JT 2004 (2) SC 176). In para 10, it was observed as
follows:
"However, before concluding, we must advert
to another aspect of this case which has
caused some concern to us. In the recent past,
we had several occasions to notice that the
High Courts by recording the concessions
shown by the counsel in the criminal
proceedings refrain from assigning any reason
even in orders by which it reverses the orders
of the lower courts. In our opinion, this is not
proper if such orders are appealable, be it on
the ground of concession shown by learned
counsel appearing for the parties or on the
ground that assigning of elaborate reasons
might prejudice the future trial before the
lower courts. The High Court should not,
unless for very good reasons desist from
indicating the grounds on which their orders
are based because when the matters are
brought up in appeal, the court of appeal has
every reason to know the basis on which the
impugned order has been made. It may be that
while concurring with the lower court’s order,
it may not be necessary for the said appellate
court to assign reasons but that is not so while
reversing such orders of the lower courts. It
may be convenient for the said court to pass
orders without indicating the grounds or basis
but it certainly is not convenient for the court
of appeal while considering the correctness of
such impugned orders. The reasons need not
be very detailed or elaborate, lest it may cause
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prejudice to the case of the parties, but must
be sufficiently indicative of the process of
reasoning leading to the passing of the
impugned order. The need for delivering a
reasoned order is a requirement of law which
has to be complied with in all appealable
orders. This Court in a somewhat similar
situation has deprecated the practice of non-
speaking orders in the case of State of Punjab
and Ors. v. Jagdev Singh Talwandi (AIR 1984
SC 444)".
(underlined for emphasis)
These aspects were recently highlighted in V.D.
Chaudhary v. State of Uttar Pradesh and Anr. (2005 (7) SCALE
68).
Even on a cursory perusal the High Court’s order shows
complete non-application of mind. Though detailed
examination of the evidence and elaborate documentation of
the merits of the case is to be avoided by the Court while
passing orders on bail applications, yet a court dealing with
the bail application should be satisfied as to whether there is a
prima facie case, but exhaustive exploration of the merits of
the case is not necessary. The court dealing with the
application for bail is required to exercise its discretion in a
judicious manner and not as a matter of course.
There is a need to indicate in the order, reasons for prima
facie concluding why bail was being granted particularly where
an accused was charged of having committed a serious
offence. It is necessary for the courts dealing with application
for bail to consider among other circumstances, the following
factors also before granting bail, they are:
1. The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence;
2. Reasonable apprehension of tampering of
the witness or apprehension of threat to the
complainant;
3. Prima facie satisfaction of the Court in
support of the charge.
Any order dehors of such reasons suffers from non-
application of mind as was noted by this Court, in Ram
Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3
SCC 598], Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC
338)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias
Pappu Yadav & Anr. [JT 2004 (3) SC 442].
The above position was highlighted by this Court in
Chaman Lal v. State of U.P. and Anr. (JT 2004 (6) SC 540), and
in Kamaljit Singh v. State of Punjab and Anr. (2005 (7) SCC
326).
As has been rightly contended by learned counsel for the
appellant, the High Court has given findings which could have
been given at the trial. In fact, some of the conclusions are
contradictory. In para 9 of the judgment the High Court has
noted as follows:
"Be that as it may, the post-mortem report is a
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prima facie piece of material the evidentiary
value can be considered at the time of trial."
But indicating "peculiar features of the case", the High Court
has observed that "the post-mortem report coupled with
chemical examination report prima facie reveals that the death
of Manisha was neither homicidal nor suicidal". Interestingly,
earlier the same learned Judge concluded as follows about the
blood stains on the pillow by order dated 24.1.2006 in Crl.MC
No.25 of 2006:
"xx xx xx xx
I have heard learned counsel for the parties at
length and have perused the materials available in
the Case Diary. The post-mortem report reveals that
blood mixed with fluid was detected from both the
nostrils and mouth of the deceased. It is also
submitted by the learned counsel for the State that
a pillow cover stained with blood has also been
recovered by police. All these facts prima facie
reveal that the death in question might have been
homicidal."
The reasoning given by the High Court that only the
family members earlier did not lodge reports and, therefore,
prima facie throws doubt about alleged torture, is another
conclusion which was not required to be given while dealing
with the bail application. The High Court was factually wrong
in saying that the persons of the locality had not alleged
regarding torture meted out on account of dowry. Even
otherwise merely because the family members of the deceased
spoke about the alleged dowry demand and not others that
cannot be certainly a ground to conclude that same throws
doubt on the alleged torture.
The High Court was also not correct in saying that there
was no likelihood of the accused persons absconding in view of
what has been pointed out by learned counsel for the
appellant about his not surrendering requiring issuance notice
in terms of Sections 82 and 83 of the Act.
The High Court has virtually written an order of acquittal
by commenting on the evidentiary value of evidence on record.
This is impermissible. Only broad features of the case are to
be noted. Elaborate analysis of the evidence is to be avoided.
In Imran Ali v. Habibullah and Anr. (SLP (Crl.) 3986 of
2006) disposed of on 19th March, 2007 it has been held as
follows:
"It is no doubt true that the High Court felt
persuaded to grant bail to the respondents in the
pending appeal before it. The High Court however,
went on to record a very detailed reasoned order
virtually holding that the prosecution case has no
merit. Such observations either for or against the
prosecution, made in orders disposing of bail
applications may prejudicially affect the interests of
the parties because in case a trial is pending before
the Sessions Court, the trial Judge may consider
itself bound by the observations made in such an
order. In any event, such observations are bound to
influence its mind. It is no doubt true that in
appropriate cases particularly in serious matters,
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the High Court may record reasons, but the High
Court while recording reasons must take care to
safeguard against prejudicing the case of the
parties. The recording of reasons, wherever
necessary, is only to indicate the considerations
that may have weighed with the Court in passing
the order and the Court must do so in a manner
that may not prejudice the case of the parties. The
trend recently noticed, to virtually write a judgment
while disposing of an application for grant of bail
must be discouraged."
Looked from any angle the impugned orders of the High
Court are indefensible and are set aside. The appeals are
allowed.