R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16729 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== DHIRUBHAI KASTRUBHAI DANTANI Versus STATE OF GUJARAT ========================================================== Appearance:
MR HEMANT B RAVAL(3491) for the Applicant(s) No. 1 MR P P MAJMUDAR(5284) for the Respondent(s) No. 2 MS KRUTI A PARMAR(11165) for the Respondent(s) No. 2 MS MH BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 20/02/2023 CAV ORDER
1. Rule. Learned APP Ms. M.H. Bhatt waives service of Rule on behalf of the respondent No.1 and learned advocate Mr. Majmudar waives service of Rule on behalf of respondent No.2. Page 1 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023
R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023
2. This is an application filed by the original informant seeking cancellation of bail under Section 439(2) of Code of Criminal Procedure, 1973. By this application, the original informant has prayed for quashing and setting aside the order dated 02.08.2021 passed by the learned 8th Additional District and Sessions Judge, Ahmedabad (Rural) at Mirzapur in Criminal Misc. Application No.2378 of 2021. The respondent No.2 herein original accused was enlarged on regular bail in respect of complainat bearing FIR No.11191045210802 of 2021 registered with Sola High Court Police Station, Ahmedabad, for the offences punishable under Sections 498(A), 306, 294(B) read with Section 114 of Indian Penal Code and Section 4 of the Dowry Prohibition Act.
3. The gist of the complaint is:
3.1 The aforesaid complaint came to be lodged by the present applicant namely Dhirubhai Kasturbhai Dantani, who is the father of deceased Bhanuben, who was married to present respondent No.2. The marriage was solemnized in May, 2018. It is contended that after marriage, the deceased was staying with respondent No.2 in joint family along with accused Nos.2 and 3, who are the father-in-law and mother-in-law of deceased. Because of the ill- treatment given by the aforesaid accused, the deceased had Page 2 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 joined the parents' house since last one year. It is further alleged that the deceased was subjected to cruelty by giving mental harassment and was physically assaulted on account of not fulfilling the demand of dowry. It is further contended that the attempts were made through family friends and relatives and the deceased was sent to her matrimonial home.
3.2 It is further contended that in the month of October, 2019, during Diwali festival, the deceased had expressed her wish to stay back at her parent's house which resulted into altercation between them and the respondent No.2 had gone away leaving the deceased at parent house. Again attempts were made and the accused No.2 father-in-law of deceased had taken the deceased back to the matrimonial home.
3.3 It is further alleged that in the month of August, 2020, the accused persons have visited the house of the complainant and had raised issues that no child is borne out of the wedlock, neither any bike or ornaments have been given during marriage. It is further alleged that the respondent No.2 had physically and mentally caused the harassment to the deceased and after assaulting her, the deceased was drawn out from her matrimonial home since then the deceased had continued to reside at her Page 3 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 parental home.
3.4 It is contended that on 20.05.2021 at around 3:30 hrs. in the afternoon, the respondent No.2 Arvindbhai and accused No.2 Kishorbhai had called on the Mobile of the complainant. It is alleged that the respondent No.2 had inquired from the deceased as to whether she is ready to give divorce since the deceased expressed her unwillingness, the respondent No.2 threatened her by stating that his marriage is fixed in the near date and he would share the invitation card and insisted for divorce. It is further alleged that within span of one hour, second call was received from respondent No.2 whereby he informed to the complainant that his marriage is fixed on 10 th June and insisted for divorce from his daughter. He also threatened the complainant by saying that his daughter may be married elsewhere as he is not ready to continue with this marriage. By using abusive words, he discontinued the phone. It is further alleged that since Mobile was on speaker, the deceased had heard their conversation. The deceased had called the respondent No.2, which resulted into further altercation between them. It is alleged that the respondent No.2 had used disrespectful words against the deceased and had disconnected the phone. It is further alleged that again on the next Page 4 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 day i.e. on 21.05.2021, in the evening around 4 O'clock, the respondent No.2 and his uncle Dahyabhai had called on his Mobile and had requested to have conversation with the deceased. During such conversation, the accused No.2 had used disrespectful words against the deceased and had insisted for divorce. The aforesaid incident had caused mental harassment to the deceased to such an extent that on 21.05.2021 at around 10:00 p.m., the deceased had committed suicide at her parent's house by hanging herself. The deceased was taken to the hospital, where she was declared dead by the Doctor. With such allegations, the FIR in question came to be registered on 23.05.2021 with the Sole High Court Police Station for the offences under Sections 498(A), 306, 294(B) read with Section 114 of Indian Penal Code and Section 4 of the Dowry Prohibition Act against the present respondent No.2 and five others. 3.5 The respondent No.2 had preferred application u/s. 439 of the Cr.P.C seeking regular bail in connection with the aforesaid FIR before the Court of learned 8 th Additional District and Sessions Court, Ahmedabad (Rural) at Mirzapur, Ahmedabad. The aforesaid bail application of respondent No.2 was opposed by the present applicant. The learned Additional Sessions Judge, after hearing Page 5 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 learned counsel of respective parties and having gone through the papers related to investigation, was pleased to enlarge the respondent No.2 on regular bail vide order dated 08.06.2021 passed in Criminal Misc. Application No. 1700 of 2021. The original informant - father of the deceased being aggrieved by the same has approached this Court by filing present application seeking cancellation of bail of respondent No.2.
4. Mr. Hemant B. Raval, learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Additional Sessions Judge while granting regular bail and has submitted that the learned Sessions Judge has totally overlooked the facts that the incident relates to Section 304-B of Indian Penal Code by not appreciating the fact that the marriage life span of the deceased was hardly two years and the demand of dowry alleged in the complaint. Such allegation of demand of dowry was accompanied by the allegations of cruelty and harassment being made to the deceased. He further submitted that if a woman dies, as a result of such circumstances narrated in the complaint, the Sessions Judge ought to have treated it as a case of dowry death. He therefore, submitted that respondent No.2 who is the husband of deceased was required to be made Page 6 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 accountable for such offence and the trial Court ought not to have exercised the discretion of granting him bail. He relied upon decision of this Court in the case of Vallabhbhai Naranbhai Parmer Vs. State of Gujarat and Ors. reported in 2002 (2) GLR 1731 and has submitted that in similar set of facts, the learned Single Judge of this Court has taken into consideration the principles laid down by the Hon'ble Supreme Court in case of Bhagirathsing Jadeja Vs. State of Gujarat reported in 1983(1) GLR 133 Supreme Court as well as in the case of Dolatram and Ors. Vs. State of Haryana reported in 1995 SCC Cri. 237. The learned Single Judge of this Court in the facts of the case noticed that the learned Judge below had totally overlooked the fact that it was the offence under Section 306 of Indian Penal Code where the duty was caste upon the trial Judge to raise presumption against the accused under Section 113 B of the Indian Evidence Act. The learned Judge noted that the trial Court had failed to exercise its discretion in judicial manner and therefore, had proceeded to quash and set aside the order of grant of bail whereby directed the accused to surrender to the police forthwith.
5. Mr. Raval, learned advocate had further invited attention of Page 7 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 this Court to the order dated 08.06.2021 passed by the learned 8 th Additional District and Sessions Judge, Ahmedabad Rural in Criminal Misc. Application No.1700 of 2021, whereby the same learned Judge had proceeded to grant bail to accused Nos.2 to 5 pending the investigation, however, had refused the bail application qua present respondent no.2 - original accused. Mr. Raval, further referred the reasons assigned by the learned Judge and submitted that the Court below at relevant stage, had taken into consideration the gravity of offence, more particularly noticing the allegations made against present respondent No.2 husband, who had forced the deceased to give divorce and had further threatened to get remarried on 10 th June, forcing the deceased to take such extreme steps. He further submitted that the respondent No.2 had approached this Court seeking regular bail pending investigation being Criminal Misc. Application No.10130 of 2021 which was withdrawn vide dated 29.06.2021. He therefore, submitted that the application seeking bail which was not entertained and was disposed of as withdrawn, the trial Court ought not to have subsequently passed the order of enlarging the respondent No.2 on regular bail.
6. By making aforesaid submissions, Mr. Raval, learned Page 8 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 advocate has urged this Court that impugned order be quashed and set aside as the same is perverse and illegal.
7. The aforesaid submissions of the learned advocate of the application have been vehemently objected by Mr. P.P. Majmudar, learned advocate of respondent No.2. He has invited attention of this Court to the affidavit filed by the respondent No.2. He supported the order passed by the learned Sessions Judge by submitting that after taking into consideration the investigation case papers, the learned Sessions Judge has assigned the reasons while exercising its discretion. He further submitted that the investigation has culminated into charge-sheet against the respondent No.2, for the offence punishable under Sections 306, 498(A), 294-B read with 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. He has placed on record the charge-sheet counter and relevant statements of the witnesses and the copy of P.M. report and Panchnama of the scene of offence. By referring to the aforesaid investigation case papers, he has submitted that considering the nature of allegations made, the same would be subject matter of evidence, which may come on record during the course of trial. In such circumstances, the trial Court considering the principle of "Bail is Rule and Jail is an Page 9 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 exception" and following the principles of the Hon'ble Apex Court as laid down in the case of Sanjay Chandra Vs. CBI, reported in AIR 2012 SC 830 had proceeded to grant regular bail. He therefore, submitted that such exercise of discretion by the Court below is within the purview of grant of bail, which cannot be termed as perverse or illegal. He further relied upon decision of this Court order 10.06.2022 passed in Criminal Misc. Application No.19704 of 2017 in the case of Divyaben Jashwantsinh Rathod Vs. State of Gujarat and order dated 29.04.2022 passed in Criminal Misc. Application No.24873 of 2017 and allied matters and has submitted that cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, which is already granted. He further submitted that the application for cancellation of bail is generally examined on the anvil of existence of supervening circumstances or violation of condition of bail by a person to whom bail has been granted. By relying upon aforesaid proposition of law, he submitted that in absence of any supervening circumstances or allegations being made with regard to breach of condition, the present application may be rejected.
8. Ms. Monali Bhatt, learned APP has appeared for the Page 10 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 respondent No.1 State. This Court had directed the learned APP to call for investigation case papers and to verify status of trial, more particularly, the submission being made by the learned advocate with regard to framing of charge of alleged offence was concerned. Ms. Bhatt, learned APP had placed on record the report along with certified copy of the order passed by the learned trial Court framing charge, which was permitted to be taken on record by order dated 24.01.2023. Responding to the query of this Court, learned APP has submitted that no separate application has been filed by State seeking cancellation of bail granted to the respondent No.2. However, by inviting attention to the reasons assigned by the learned Sessions and report of Investigating Officer, she supported the case of the complainant and prayed for cancellation of bail granted to respondent No.2.
9. Considering the submissions made by the learned advocates appearing for the respective parties and having perused the relevant documents placed on record, along with the documents placed with the present application, the only question which falls for consideration of this Court seeking cancellation of bail is as to whether the trial Court committed error in enlarging the respondent No.2 on regular bail by impugned order and as to whether this Page 11 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 Court is required to invoke power u/s. 439(A) of Cr.P.C. cancelling the regular bail of respondent No.2.
10. At the outset, this Court notices that charge sheet has been filed for the offence punishable under Section 306, 498A, 294-B of Indian Penal Code read with 114 of Indian Penal Code and Section 4 of the Dowry Prohibition Act. It further transpires from the report of Investigating Officer that filing of the aforesaid charge sheet has resulted into criminal case being Sessions Case No.191 of 2021, which is tried before the Court of 9th Additional Sessions Judge, Ahmedabad (Rural) Ahmedabad. It is reported that charge has been framed by the learned Additional Sessions Judge by order 09.11.2022 for the offences punishable u/s. 306, 498(A), 294B read with Section 114 of Indian Penal Code and Section 4 of Dowry Prohibition Act. A bare reading of the allegations made in the complaint, which has resulted into charge-sheet being filed against accused Nos.1 to 5 including present respondent No.2, prima facie this Court is of the opinion that charge u/s. 304B of Indian Penal Code is made out. The Court cannot ignore the fact that indisputably the marriage span was of two years i.e. less than 7 years and very specific allegations have been made by the father of the deceased original informant with regard to demand of dowry. Page 12 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 The Court cannot overlook by treating it as an absurd claim since such allegations have ultimately drawn the deceased to commit suicide. The manner in which the incident is narrated in the FIR, it transpires that she was physically and emotionally abused. Initially at the matrimonial home, which had further aggravated by the subsequent incident of 23.05.2021 which forced her to the extreme step to commit suicide in the house of her parents. The allegations with regard to threatening and abusive behaviour, including physical, emotional meted to the deceased falls in the category of cruelty and can also be termed as "abatement" of suicide at the hands of present respondent No.2. The trail Court ought to have appreciated the aforesaid factors and prima facie the offence u/s. 304B of Indian Penal Code was attracted in the facts of the case.
11. The offence u/s. 304B of Indian Penal Code is a cognizable and non-bailable and non-compoundable offence. The sentence of term of imprisonment of not less than 7 years, which may extend to life imprisonment, has been proved u/s. 304B(2) of Indian Penal Code. In fact, Section 113 B of Indian Evidence Act, 1872, provides for presumption with regard to dowry death and the Court notices that woman was exposed to cruelty or harassment by person soon before her death, or in connection with dowry Page 13 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 demand.
12. Three different decisions have illustrated various instances in such type of cases. In the case of Kansraj Vs. State of Punjab reported in (2000) 5 SCC 207 the Hon'ble Supreme Court has discussed the relevancy of the word "soon before death" appears to indicate that it was not a natural death and the cruelty or harassment to deceased have persisted over a period of time. Again in the case of Rameshwar Dass Vs. State of Punjab reported in AIR 2008 SC 890, where the Hon'ble Supreme Court decided that a pregnant woman would not commit suicide with her husband deteriorated to the point, where she felt oblige to do so and that the accused was liable to be convicted. In the case of Shersingh @ Partapa Vs. State of Haryana reported in 2015(3) SCC 124 where the Hon'ble Supreme Court while dealing with the word "Soon" appearing in Section 304B of Indian Penal Code, opined that the word "soon" finds place in Section 304B would not be interpreted literally in terms of days or month or years, but necessarily indicating the demand for dowry was not stale or an aberration of the past, but should be continuing cause for death under Section 304 or suicide under Section 306 of Indian Penal Code. The Hon'ble Supreme Court held that with aid of Section Page 14 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 113B of the Evidence Act, even by preponderance of the evidence, the prosecution can discharge the initial burden of proving the element of Section 304 B of Indian Penal Code. Thus, the preliminary presumptions are supplant by an assumption of the guilt of the accused who has to prove his innocence by establishing the fact that there never existed a demand for dowry.
13. In light of aforesaid legal position, where the specific allegations have been made by the informant against the respondent No.2 being husband of deceased, this Court finds that the deceased had taken extreme step of committing suicide pursuant to the telephonic conversations which had taken between accused and deceased hardly few hours before the incident. Prima facie, the Court is of the opinion that the respondent No.2 being husband had subjected the deceased to cruelty and had coerced her in a manner resulting into her death thereby attracting the offences punishable u/s. 304B of Indian Penal Code along with offences punishable u/s. 306, 498A, 294B read with Section 114 of Indian Penal Code and Section 4 of Dowry Prohibition Act.
14. Now, in light of the aforesaid role of the respondent No.2, the next question arises for consideration of this Court is as to whether trial Court committed error in enlarging the respondent No.2 on Page 15 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 bail. The order granting regular bail to respondent No.2 passed by trial Court is mainly challenged on the ground of perversity and illegality. For the reasons stated above, this Court is of the view that the trial Court committed error by not closely examining the facts of the case, more particularly with regard to Section 304B of Indian Penal Code. Indisputably, this was not a case of natural death. The investigation has culminated in the charge-sheet for the offence of Section 498A of Indian Penal Code and Section 4 of Dowry Prohibition Act. Thus, prima facie, the material has come on record to suggest that the deceased was subjected to cruelty in respect to dowry. The very threat of remarrying given by the husband in such circumstances was a crucial element to force the deceased to commit suicide. However, the aforesaid aspect would be subject to the evidence which may come on record during the course of trial.
15. So far as the scope of this court while exercising jurisdiction u/s. 439(2) of Cr.P.C. with regard to cancellation of bail order is concerned any serious infirmity, which may have resulted into miscarriage of justice, while granting bail is required to be looked into. If the Court granting bail, ignore the relevant material and has taken into consideration irrelevant factors, which are secondary Page 16 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 factors to grant the bail to the accused then in that case, this Court can certainly invoked its power us. 439(2) of Cr.P.C. The Hon'ble Supreme Court has on number of occasions laid down Guidelines to be followed by the Courts while granting bail the most relevant factors to be considered at the stage of grant of bail, which includes gravity of crime, character of evidence, position and status of accused with reference to victim and witnesses, repeating of the offence, the possibility of his tampering with the evidence and witnesses and obstructing the course of justice. Thus, the Court is expected to examine overall to take into consideration the aforesaid factors vis-à-vis the allegations made in the complaint, the material produced by the Investigating Officer during the investigation to ascertain the aforesaid factors. The Court below at the first instance while examining the application seeking regular bail, having noticed that the prosecution had made out prima facie against the present respondent No.2 - husband, also noted the fact that the investigation was pending and respondent no.2 was in custody since 30.05.2021 and had therefore, refused to grant regular bail at the stage of pending investigation. As against the earlier order, upon completion of the investigation and filing of the charges-sheet the Court below thought it fit to not to discuss the Page 17 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 merits of the case more particularly on the issue of abetment. Taking into consideration the factors like the respondent No.2 being a local resident, his presence to be secured by bail bond and surety and considering the principles laid down by the Hon'ble Apex Court in the case of Sanjay Chandra (Supra) held that the personal liberty of an individual was equally important in comparison to the social interest and there should not any pre trial punishment. The Court below proceeded to exercise discretion in favour of the respondent No.2 by enlarging him on bail without taking consideration of the role of the accused and the charge alleged. In the opinion of this Court, as against role of the accused
- respondent No.2, the aforesaid factors if given weightage becomes insignificant. In the opinion of this Court, it was not a case for grant of bail where serious allegations with regard to abetment of suicide coupled with dowry demand has been made against respondent No.2 husband. The applicant complainant has made out sufficient grounds for cancellation of bail granted by learned Sessions Judge. The order granting bail to respondent No.2 is hereby quashed and set aside. Bail bonds stands cancelled. The respondent No.2 is directed to surrender forthwith to the concerned police station. If the respondent No.2 does not Page 18 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023 R/CR.MA/16729/2021 CAV ORDER DATED: 20/02/2023 surrender, then the police shall arrest him as per procedure prescribed.
16. After the order was pronounced, learned advocate for the respondent No.2 - original accused has prayed for one month period to surrender. Considering the request made, period of 15 days is granted to surrender from the date of receipt of copy of this order.
17. This application succeeds and stands disposed of. Rule is made absolute.
(NISHA M. THAKORE,J) Y.N. VYAS Page 19 of 19 Downloaded on : Fri Feb 24 20:38:11 IST 2023