Mahender Singh vs State & Anr
2011 Latest Caselaw 4977 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CRL.M.C. 1953/2011


                                       Date of Decision : 10.10.2011

         MAHENDER SINGH                    ..... Petitioner
                     Through: Mr.Deepak Anand, Adv.

                       versus

         STATE & ANR                     ..... Respondents

Through: Mr.K.K.Manan, Adv. for the Respondent no.2.

Mr.Navin Sharma, APP

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

V.K. SHALI, J. (oral)

1. This is a petition filed by the petitioner under Section 482 r/w

Sec. 439(2) and Sec. 397(1) Cr.P.C. assailing the order dated

23.3.2011, passed by the learned ASJ, Saket Courts, New Delhi.

2. Briefly stated the controversy which has been raised by the

learned counsel for the petitioner is that by virtue of the

impugned order, the application of the respondent no.2,

Ravinder Singh was dismissed as withdrawn, although the

learned Sessions Judge directed the respondent no.1 to give the

respondent no.2 one week's working notice before arrest and

also directed him to join investigation as and when required by

the IO.

3. The petitioner happens to be the unfortunate father of the

deceased Meena Manpreet Kaur who was married to respondent

no.2 /Ravinder Singh on 21.2.2008 according to Sikh rites and

rituals. On 23.9.2010, the petitioner was informed on

telephone, at about 11.00 am about the death of his daughter at

Safdarjung Hospital, New Delhi. On receiving this information,

the present petitioner lodged a report with P.S. Mehrauli, under

Section 498A/304B IPC vide FIR no.425/2010 as the death had

taken place within 7 years from the date of marriage.

4. The allegations which were made in the FIR were that the

deceased got married with the respondent no.2, R/o D-755/12,

Chattarpur Pahari, Ambedkar Colony, New Delhi as per Sikh

custom and the petitioner had given Television, gold ring, ear

rings, cooler, bed, washing machine, dressing table, mattress,

chairs, utensils and clothes, etc. in the marriage as per his

capacity. Further, one week prior to the death of the deceased,

a demand for `50,000/- was made by the respondent no.2,

which was actually handed over to him in the presence of his

mother Smt. Banso Devi, while another son in law named Karnail

Singh was also present there. It was alleged that the respondent

no.2 and his parents used to subject his daughter to cruelty with

a view to demand dowry.

5. On the basis of the aforesaid allegations, an FIR for an offence

under Section 498A/304B IPC was registered and the police

started the investigation in the matter.

6. The post mortem report given by one Dr.Jatin Bodwal on

24.9.2010 reveals that the death was caused due to hemorrhage

shock consequent upon uterine rupture, however, viscera has

been preserved to rule out any poisoning/intoxication

/medication.

7. The respondent no.2 filed an application for grant of anticipatory

bail which came up for hearing before the learned ASJ, Mr.R.Kiran

Nath, ASJ-01 (South) on 31.12.2010 and it was disposed of with

the observations that the IO is still awaiting the final opinion from

the doctors regarding the post mortem and before the arrest of

the respondent no.2, a 3 days prior notice shall be given to him.

8. The IO had written a letter to Dr.Jatin Bodwal for giving further

information regarding the cause of the death and the nature of

injuries, where upon Dr.Jatin Bodwal gave an opinion that the

rupture of the uterus is suggestive of it being damaged by

introduction and manipulation of a foreign object/instrument in

the uterus. This information was given on 10.2.2011. The

respondent no.2 filed a second bail application which was

disposed of by the learned Sessions Judge (South) on 19.2.2011

by rejecting the prayer for grant of anticipatory bail.

It was observed since the doctors have opined the cause of

death of the deceased due to hemorrhage shock consequent

upon uterine rupture and the viscera has been preserved to rule

out any poisoning/intoxication /medication, therefore, in the

opinion of the learned Sessions Judge, the custodial

interrogation of the respondent no.2/accused will be required for

ascertaining the actual circumstances leading to the death of the

deceased. It seems that the learned Sessions Judge while

dismissing the application for grant of anticipatory bail was

influenced by the fact that the opinion of the doctor is that there

was external manipulation/intervention with human anatomy

which resulted in the death of the deceased. The IO, without

there being any specific order from the Court seems to have

carried an impression that the learned Sessions Judge had orally

sought a further clarification from the doctor who had conducted

the post mortem, and therefore, the IO approached Dr.Jatin

Bodwal who gave another opinion on 11.3.2011 reiterating his

earlier opinion but at the same time, adding couple of sentences

to observe that though the injury which is purported to have

been suffered by the deceased was sufficient to cause death in

the ordinary course of nature but in such cases generally, the

cause of death is accidental.

9. The main grievance which has now been raised by the learned

counsel for the petitioner is twofold. The first objection is that

the learned Sessions Judge had directed the IO to give one

week's notice to the respondent no.2/accused with the direction

that he shall join investigation as and when required by the IO

while as the application was dismissed as withdrawn. This

shows that a contradictory order was passed by the learned

Sessions Judge. On one hand, the application was dismissed as

withdrawn, yet the benefit of grant of interim bail against the

arrest and joining investigation has been passed. A subsidiary

argument raised is that there is no provision of law which

authorizes the learned Sessions Judge to curtail the power of the

police in arresting the accused in a cognizable offence where he

has the power to arrest without warrant. The learned counsel

has relied upon the judgment of the learned Single Judge of this

Court in case titled Department of Customs Vs. Arvinder

Singh in Crl.M.(M) No.1710/2002, wherein the learned Single

Judge has placed reliance on the two orders passed by the

Supreme Court in Crl.A. No.555/2000 against an order passed

by Punjab and Haryana High Court requiring service of 7 days

notice before effecting arrest of the respondent which was set

aside and by another order dated 18.11.2003 in Crl.A.

No.1399/2003, the Supreme Court, against a similar order

observing that notice before effecting arrest was not warranted

in law and accordingly, the said condition was set aside.

10. As against this, the learned counsel for the respondent no.2 has

justified the service of 7 days notice by referring to various

orders passed by the learned Single Judge of this Court in cases

under Section 498A/406 IPC and it is contended that this is a

normal practice that a reasonable notice which varies from 7 to

10 days is being given by the High Court as well as by the Court

of Sessions before the arrest of an accused is carried out.

Reliance in this regard is placed on two orders of this Court in

case titled Prem Wati Vs. State (NCT of Delhi) 93 (2001)

DLT 646 and Sanjiv Kohli & Ors. Vs. State 2005 (1) JCC 510.

11. It has been contended by the learned counsel for the respondent

no.2 that in case titled CBI Vs. Chandraswami @ Nemi Chand

Jain, CBI Vs. K.N.Aggrawal @ Mamaji and CBI Vs. Vikram

Singh (1997) 3 SCC 214, all the 3 connected Criminal appeals

which came to be decided by a common order, the apex Court

while considering the question of grant of bail by the High Court

to the respondents in the said cases had not set aside the order

passed by the High Court regarding grant of 3 days notice prior

to the date of arrest of the respective respondents in those

cases. Thus it was contended that there was nothing improper

much less illegal in giving a reasonable notice to the accused

before the arrest of the accused is considered as an imperative

by the IO.

12. The second submission made by the learned counsel for the

petitioner is that the impugned order which was assailed by the

present petitioner was passed on the third bail application for the

grant of anticipatory bail while as the second bail application was

rejected by a speaking order and the respondent no.2 could not

have filed the third bail application without there being any

change in circumstances. Therefore, the impugned order dated

23.3.2011 which was passed on the third bail application was not

proper more so when there was accusations against the

respondent no.2 of having caused the death of his wife and the

daughter of the present petitioner.

13. The learned counsel has referred to the judgment of the Division

Bench of Calcutta High Court in case titled Kalidas Mitra Vs.

The State XII-1989 (3) Crimes wherein a distinction has been

drawn between the provisions of Sections 439 and 438 Cr.P.C.

and the Division Bench has expressed serious reservations

regarding the grant of anticipatory bail in the cases of dowry

deaths by placing reliance on the judgment of the Apex Court in

Samunder Singh Vs. State of Rajasthan, 1987 Cri L.J.705

observing that the grant of anticipatory bail in such like cases

causes obstruction in the investigation.

14. So far as the learned APP is concerned, he has also supported

the submissions that there is no provision which requires the

grant of advance notice before any arrest in a cognizable

offence.

15. I have carefully considered the submissions made by the

respective sides and gone through the record.

16. There is no dispute about the fact that the grant of anticipatory

bail in cases under Section 304B IPC, as has been observed by

the Division Bench of Calcutta High Court, may cause a serious

impediment in the fair and proper investigation of the matter but

one does not have to loose sight of the fact that merely because

the death has taken place within 7 years of marriage is not

sufficient to deprive the exercise of discretion in appropriate

cases where the prosecution has failed to show to the Court that

there was proximate nexus between the demand made by the

accused and the date of death.

17. I do not subscribe to the view of the learned counsel for the

petitioner that the accused person cannot file more than one

application for grant of anticipatory bail in a given factual matrix

if there is a change in the circumstances.

18. The contention of the learned counsel for the petitioner in the

present case is that after the second bail application of the

respondent no.2/accused was rejected on merits, the respondent

no.2 was not entitled to file the third bail application as there

was no change in circumstances.

19. The learned counsel for the respondent no.2 has drawn the

attention of the Court to para 10 of the second bail application,

wherein it was averred that the second bail application was

taken up by the Court inadvertently and the order of rejection of

the bail was passed despite the IO seeking an adjournment on

the ground that in the meantime, he will get the Viscera report.

Copy of the bail order passed on 19.2.2011 was annexed along

with the application.

20. It is contended since the order dated 19.2.2011 was attached

along with the application and the said order was passed despite

the IO seeking time to obtain Viscera report, therefore, this was

not an order which would have come in the way of the

respondent no.2 to have a fresh consideration by the learned

Sessions Court of his third application.

21. I have seen the application as well as the order dated 19.2.2011,

I do not agree with the contention of the learned counsel for the

respondent no.2 that a request for adjournment was made by

the IO and yet the learned Sessions Judge rejected such request

and proceeded ahead to decide the application. Moreover, the

order dated 19.2.2011 specifically show the presence of the

learned counsel for the respondent no.2, therefore, I tend to

agree and accept the contention of the learned counsel for the

petitioner that there was no change in circumstances of the

respondent no.2 to have filed the third application for grant of

anticipatory bail, but this point as on date has lost its

significance in the light of the fact that the doctor who had

conducted the post mortem has given 3 different reports, each

subsequent reports improving over other & thereby adding to

the confusion. This is more so, as no Viscera report from FSL,

Rohini has been received, despite the sample having been send

long back. No serious efforts seem to have been made by the IO

in procuring the Viscera report by personally approaching the

concerned officials.

22. The question of filing of successive bail applications has been

settled not in one, but in catena of cases, wherein it has been

laid down that successive bail applications are maintainable by

an accused provided that there is a change in circumstance

(Refer to Kalyan Chandra Sarkar Vs. Rajesh Ranjan @

Pappu Yadav AIR 2005 SC 921). Since in the instant case, the

second bail application was rejected by the learned Sessions

Court on merits and the third one was also filed before the same

Court without there being any change in circumstances, I feel

that it was not proper for the respondent no.2 to have filed such

an application much less for the learned Sessions Judge to have

passed the direction that one week's working notice be given to

the applicant/accused when the application for grant of

anticipatory bail was being withdrawn. To that extent, the order

does not seem to sustainable in law. This deals with the second

submission of the petitioner.

23. The first submission which has been raised by the learned

counsel for the petitioner with regard to the grant of notice, I

feel that there is a considerable merit in the same. The power of

grant of anticipatory bail is a concurrent power, which has been

conferred on the Court of Sessions as well as the High Court.

24. The registration of an FIR is not a sine qua non for grant of

anticipatory bail and if there is a reasonable apprehension in the

mind of a person that he will be falsely implicated in a cognizable

offence, the Court will be well within its power to enlarge the

accused on anticipatory bail. (Refer to Shri Gurbaksh Singh

Sibbia & Ors. Vs. State of Punjab AIR 1980 SC 1632 and

Siddharam Satlingappa Mhetre Vs. State of Maharashtra &

Ors. AIR 2011 SC 312).

25. In the instant case, the FIR was registered by the petitioner for

an offence under Section 304B/498A IPC. The word 'cognizable

offence' has been defined in Section 2(c) Cr.P.C. as an offence

where the police has the power to arrest without warrant,

therefore, the question which arises is that in a case where the

police has the power to arrest the accused without warrant, can

the Court place an impediment on the power of the police

without there being any legislative sanction, by directing the IO

or the arresting officer that it must give 3 days or 7 days or 10

days notice before arresting the person.

26. I am cognizant of the fact that such practice has been prevalent

both in the learned Sessions Court as well as in this Court. But I

do not subscribe to the view that such an impediment should be

placed on the power of the IO or the Arresting Officer which in

my view does not have any, prima facie, legislative sanction, as

it means that the Courts are imposing restriction on the powers

of the investigating agency to arrest an accused where it has to

be given a free hand to arrest and to investigate into the offence

which is cognizable. This is only subject to the controls which

are prescribed under Chapter XII Cr.P.C., dealing with the

investigation or subject to the provisions of bail as enunciated in

Chapter XXXIII. The Court, instead of directing the giving of a

notice, will be well within its power to insulate the liberty of a

person by passing appropriate orders other than giving notice, if

it feels that he is sought to be falsely implicated. To direct the

IO or the Arresting Officer to give notice of arrest to the

accused, in my view will not be in accordance with the provisions

of law. I find support, to this view, in the order of the learned

Single Judge of this Court in case titled Department of

Customs Vs. Arvinder Singh (supra), wherein two orders of

the Apex Court have been referred to, where the condition of 7

days notice in the facts of those cases, which were somewhat

similar to the present one, was not approved of by the Apex

Court. I am cognizant of the fact that there are some orders

passed by this Court as well as the observations passed by the

Apex Court in Chandra Swami's case (supra), to which the

learned counsel for the respondent no.2 has referred to convass

a point to the contrary and justify the giving of a notice before

arrest. So far as the Chandra Swami's case is concerned, there

was no issue involved directly with regard to the question as to

whether the grant of 3 or 7 days notice was valid or not.

Therefore, the facts of that case are slightly distinguishable from

the facts of the present case wherein the petitioner has raised

the question of legality of the service of seven days notice itself,

before effecting arrest and more so when the bail application

was being withdrawn. This leaves us only with number of orders

of the learned Single Judge of this Court where prior notice have

been given for carrying out arrest in an appropriate case. The

learned counsel for the respondent no.2 has submitted, since

this Court has taken a view different than the one which has

been taken in the number of other cases, it would be better if

this matter is referred to a Larger Bench for adjudication.

27. I have considered the submissions of the learned counsel. I feel

that in an appropriate case, this may be done but in the present

case as the issue before this Court is limited only with regard to

the grant of prior notice before arrest and the learned counsel

for the petitioner has persisted with early disposal of the petition

which has also been supported by the learned counsel for the

respondent because of the stay operating against them, I feel

that no useful purpose would be served by referring the said

issue in the present case to the Hon'ble the Chief Justice for

consideration of the issue by a Larger Bench. This may be done

in an appropriate case where a conflicting stand is taken.

28. For the reasons mentioned above, I feel that the order dated

23.3.2011, so far as the grant of 7 days prior notice to the

respondent by the IO before carrying out his arrest is concerned,

that is totally unjustified and illegal and does not have the

legislative sanctions, more so when the petition itself was

withdrawn. However, in order to balance the equities, as the

petitioner has not only invoked Section 482 but also Section 397

(1) Cr.P.C., keeping in view the fact that the doctor has given 3

different opinions from time to time including an opinion wherein

he has stated that the death is on account of hemorrhage in

such cases is generally because of accident also, I feel, it will be

meeting the ends of justice in case the respondent no.2 is

permitted one final opportunity to file a fresh bail application

before the Court of Sessions to consider the entire matter in

totality and take a view as to whether the petitioner is entitled to

grant of anticipatory bail in the facts and circumstances of the

present case or not. This shall be done by the learned Sessions

Court without being influenced by any of the observations

passed hereinbefore.

29. With these directions, the petition stands allowed and the

application for grant of anticipatory bail shall be filed by the

respondent no.2 within ten days from today. In the meantime,

the petitioner may not be arrested.

30. The IO is directed to visit FSL personally and collect the Viscera

report within a week from today.

31. Dasti.

                                                            V.K. SHALI, J
OCTOBER                10, 2011
RN