Shakuntala Saxena And Ors. vs State
2005 Latest Caselaw 838 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The counsel for the petitioners as well as the counsel for the State were heard.

2. These petitioners had earlier approached this Court for the grant of anticipatory bail. This Court after hearing detailed arguments had passed an order on 9.5.2005 granting the prayer for anticipatory bail. However, as the petitioner had been enjoying interim protection for some length of time and they had joined investigation, it was directed that they may apply for regular bail within fifteen days. The order passed on 9.5.2005 is reproduced hereunder:-

"The counsel for the parties were heard. The learned counsel for the petitioner argued at length and so did the counsel for the State. The learned counsel for the petitioners pointed out that the deceased received burn injuries on 30th of October, 2002 and in attempting to save her, her sister-in-law also receive burn injuries. Both of these persons were admitted to hospital. Unfortunately, despite the best efforts of the petitioners and the doctors, the deceased after undergoing treatment for a period of over five months died on 6th of March, 2003 after being admitted, discharged and again admitted to hospital during this period. The learned counsel for the petitioner also pointed out that the deceased had in her statement before the SDM itself not leveled any allegation against the present petitioners. The learned counsel for the petitioners also indicated that in her statement before the SDM, the deceased, in response to a specific query with regard to her parents replied "Hai Hi Nahin" and on an earlier part of the same statement she did not indicate that her mother existed on the date of her statement. He, therefore, submitted that the present complaint which has been made by the complainant on the basis of the allegations that she is the mother of the deceased is itself in doubt. He further submitted that in the FIR itself, it is recorded that the deceased "either got burnt or was burnt". He also pointed out that although the complainant is said to have got the knowledge of the alleged harassment and torture from the deceased in February, 2003, she did not come forward with the complaint till 3rd April, 2003. In fact, he pointed out that even after the death of the deceased on 6th March, 2003, the complainant did not come forward at all for almost a month thereafter and, therefore, in his view, this casts a shadow on the allegations made in the complaint. In this respect, he submitted that the petitioner ought to be granted anticipatory bail.

The learned counsel for the State opposed the grant of anticipatory bail on several grounds and mainly on the ground that this is the second anticipatory bail application on behalf of the petitioners 1 and 2 and the third in respect of the petitioner No. 3. He submitted that earlier bail applications were not allowed by this Court and, therefore, this Court ought not to entertain this application. In response to this the learned counsel for the petitioners pointed out that the first anticipatory bail application on behalf of the petitioners came up for hearing on 7.11.2003 along with the anticipatory bail application of the sister-in-law and the husband of the deceased who were granted anticipatory bail by this Court on the same date i.e. on 7.11.2003. The petitioners had withdrawn their petitions and had submitted before the Court that they should be "allowed to withdraw the petition to seek other appropriate remedy." With this liberty, this Court permitted the petitioners to withdraw the first application for anticipatory bail. It is pointed out that the petitioner No. 3, within a week thereafter, filed another application for anticipatory bail which was withdrawn at the first instance and the present application was filed once again by the three petitioners on 3rd January, 2004 It is clear that in view of the statement of the learned counsel for the petitioners on 7.11.2003, the petition was withdrawn to seek other appropriate remedy and filing of a subsequent application before this Court would not fall within this category.

Since the petitioners have been enjoying interim protection since 8.1.2004 and since they have joined investigation as and when directed by the Investigating Agency, this application is disposed of with the direction that in the event the petitioners are arrested, they shall be released on bail on furnishing personal bonds in the sum of Rs 20,000/- each with one surety each of the like amount to the satisfaction of the arresting officer. This order shall operate for a period of fifteen days within which period of time the petitioners shall approach the concerned Court for regular bail.

These observations are only for the stage of grant of bail and shall not be utilised at the time of trial of the case.

The application stands disposed of.

dusty."

Thereafter, the petitioners approached the Sessions Court for the grant of regular bail. The Sessions Court, it appears, did not consider the submissions made by the petitioner before this Court and the observations of this Court while the aforesaid or (sic)er dated 9.5.2005 was passed. The Sessions Court embarked upon, an entirely different inquiry which was not at all placed before this Court. Insofar as the letter is concerned, that had been argued at length as indicated by the counsel for the parties.

The very material aspect in this matter is that the complainant who states that she is the mother of the deceased was not in the picture earlier at all and these factors have been noticed in the aforesaid order dated 9.5.2005. The learned Sessions Judge while considering the application for regular bail ought to have taken note and given due weightage to these considerations. Unfortunately, he did not. However, looking at the totality of the circumstances, submissions made by the counsel for the parties and the arguments advanced I direct that the petitioners be released on bail, on his furnishing personal bonds in the sum of Rs 20,000/- each with one surety each of the like amount to the satisfaction of the concerned Court.

The application stands disposed of.

dusty.