Dhirubhai Kastrubhai Dantani vs State Of Gujarat
2023 Latest Caselaw 1668 Guj

     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
==========================================================

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.

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

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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

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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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