Karnataka High Court
Prakash S/O Bharamappa Ballari vs State Of Karnataka on 28 January, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.P No. 103709 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL PETITION NO.103709 OF 2024
[438(CR.PC)/482(BNSS)]
BETWEEN:
1. PRAKASH S/O. BHARAMAPPA BALLARI,
AGED ABOUT 34 YEARS, OCC. COOLIE,
2. SMT. CHANDRAMMA W/O. BHARAMAPPA BALLARI,
AGED ABOUT 55 YEARS, OCC. HOUSEHOLD,
3. BHARAMAPPA S/O. BHARAMAPPA BALLARI,
AGED ABOUT 65 YEARS, OCC. HOUSEHOLD,
ALL ARE R/O ANAJI VILLAGE,
RATTIHALLI TALUK. DISTRICT: HAVERI-581116.
... PETITIONERS
(BY SMT.SARVAMANGALA B.C., ADVOCATE FOR
SRI M.R. HIREMATHAD, ADVOCATE)
AND:
Digitally
signed by
MANJANNA
MANJANNA E
E Date:
2025.01.29
STATE OF KARNATAKA
09:57:52
+0530 BY PSI RATTIHALLI POLICE STATION,
HANGAL TALUK, DIST. HAVERI-581116.
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS, DHARWAD-580011.
... RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.438 OF CR.P.C.
(U/SEC.482 OF BNSS, 2023) SEEKING TO ALLOW THE PETITION AND
GRANT THE ANTICIPATORY BAIL TO THE PETITIONERS 1 TO
3/ACCUSED NO.1 TO 3 IN RATTIHALLI P.S. FIR CRIME NO.
0132/2024, FOR THE OFFENCES P/U/SEC.108, 3(5) AND 85 OF BNS
PENDING ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN) AND
JMFC HIREKERUR, HAVERI DIST. ON SUCH TERMS AND
CONDITIONS.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.01.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE
FOLLOWING:
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
This petition under Section 482 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (for short 'BNSS') is filed seeking for
grant of anticipatory bail in Crime no.132/2024 of Rattihalli
Police Station for offences punishable under Sections 85 and
108 read with Section 3 (5) of Bharatiya Nyaya Sanhita, 2023
('BNS', for short) is filed by accused no.1 to 3 (petitioners).
2. Smt.Sarvamangala B.C., learned counsel for
Sri M.R. Hiremathad, advocate for petitioners submitted
petitioners were innocent law abiding citizens, without criminal
antecedents and permanent residents of Anaji village, Rattihalli
Taluka. They were however, apprehending arrest in pursuance
of a false complaint filed on 11.11.2024 by Smt.Girijamma
(complainant) stating about eight years earlier her daughter
Sharadha (victim) married Prakash Ballari (accused no.1). As
told by victim, though they led happy married life initially, later
accused no.1 along with his parents (accused no.2 and 3)
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began torturing her and quarreling frequently sending her to
maternal home, with demands for dowry and by stating in case
she failed, they would get accused no.1 married to another.
However, victim was consoled and sent back. It was further
stated that victim had come back once again for about one
month during October previous year and returned to Anaji
village on 06.11.2024. But at about 4:00 p.m. on 10.11.2024,
complainant received call from one Shivanagouda resident of
Meduru village informing that her daughter had committed
suicide. On seeing victim's body kept in hospital and finding
ligature mark on her neck she suspected same was due to
dowry harassment by petitioners and sought action. Based on
above, Crime no.132/2024 was registered by Rattihalli Police
Station for aforesaid offences.
3. It was submitted, offences alleged were under
Sections 85 and 108 read with 3 (5) of BNS. It was submitted,
maximum punishment for offence under Section 85 i.e. cruelty
against married women was 3 years, while in case of offence of
abetment of suicide was imprisonment of upto 10 years.
However, except making general allegations about harassment
with demand for dowry, there were no specific overt acts
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alleged against petitioners individually. It was further
submitted, marriage of victim and petitioner no.1 was
solemnized more than eight years earlier and couple had two
sons born to them. There was no assertion about any act which
could be stated to be grave enough to have lead victim to
commit suicide. It was submitted, complaint was lacking in
specific material to constitute 'abetment', except blanket
allegations against all petitioners. It was submitted, learned
District Judge rejected bail petition by relying on decision in
case of Daxaben v. State of Gujarat, reported in (2022) 16
SCC 117, which would in fact favor petitioners herein.
4. It was submitted, Hon'ble Supreme Court had in
case of Mahendra Awase v. State of Madhya Pradesh,
reported in 2025 SCC OnLine SC 107, held every hyperboles
employed in exchanges could not be considered as instigation
to commit suicide and cautioned against registration of
complaints for offence of abetment of suicide, only to assuage
sentiments of distraught family of deceased. Reiterating that
there was no direct evidence or nexus between acts alleged and
commission of suicide, learned counsel prayed for grant of bail
on any conditions undertaking to comply with same.
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5. On other hand, Smt.Girija S. Hiremath, learned
HCGP for respondent - State opposed petition. It was
submitted, complaint contained allegations about persistent
demand for dowry apart from physical and mental harassment
by all petitioners. Said allegations would indicate petitioners
being involved in commission of heinous offences. It was
further submitted, investigation was not yet completed and
material collected namely statements of various persons
recorded during investigation would corroborate and
substantiate complaint allegations. It was submitted,
admittedly victim had committed suicide in matrimonial home,
which she shared with petitioners. Therefore, present case was
not fit for grant of anticipatory bail.
6. Heard learned counsel and perused material on
record.
7. From above, point that arises for consideration is:
"Whether petitioners are entitled for
anticipatory bail on conditions?"
8. As noted above, this petition for anticipatory bail. In
view of registration of Crime no.132/2024 of Rattihalli Police
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Station for offences punishable under Sections 85 and 108 read
with Section 3 (5) of BNS, implicating petitioners, their
apprehension of arrest for non-bailable offences stands
substantiated.
9. Petitioners are husband and parents-in-law of
victim, who died by hanging herself (suicide) on 10.11.2024 in
their house at Anaji village. There is no dispute that said
incident occurred after seven years of marriage (about eight
years as stated in complaint). Offences alleged against
petitioners are cruelty against women by husband or relative
under Section 85 of BNS punishable with imprisonment for upto
3 years and abetment of suicide under Section 108 of BNS
punishable with imprisonment for upto 10 years.
10. As per allegations in complaint, sometime after
marriage, petitioners began harassing victim with demand for
dowry which led to frequent quarrels and victim being sent to
her parents and returning back on intervention by complainant
and elders. As victim had borne two children, she was also
advised to adjust and carry on in interest of children. It is
specifically stated that due to quarrel, victim had come to
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complainant's house during October and stayed with her
parents for about a month and returned back to Anaji village
few days prior to incident.
11. Thereafter, complainant received intimation about
death of her daughter by suicide. Prima facie reading of Post
Mortem Examination Report does not show of any other injury
sustained by victim other than ligature mark on her neck and
thereby suggesting absence of physical violence. And except,
allegation of petitioners subjecting her to physical and mental
torture, there would appear no material that would directly
implicate any of petitioners. Indeed, statements of various
persons knowing both families are recorded, same would at
best be circumstantial and not direct.
12. At same time, it would not be appropriate to
expect direct evidence about everything that happens between
husband and wife. Petitioners claim to be innocent law abiding
citizens without any criminal antecedents, which is not
disputed. Observations of Hon'ble Supreme Court in Daxaben's
case (supra) were in context of scope for interference with
proceedings initiated against accused for offences under
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Section 306 of IPC (similar to Section 85 of BNS), wherein it
held as follows:
"15. It is not necessary for this Court to go into
the question of whether there was any direct or
indirect act of incitement to the offence of
abetment of suicide, since the High Court has
not gone into that question. Suffice it to
mention that even an indirect act of
incitement to the commission of suicide
would constitute the offence of abetment
of suicide under Section 306 IPC."
13. And in Mahendra Awase's case (supra), Hon'ble
Supreme Court held :
"11. Section 306 of the IPC reads as under:--
"306. Abetment of suicide. If any person
commits suicide, whoever abets the
commission of such suicide, shall be
punished with imprisonment of either
description for a term which may extend
to ten years, and shall also be liable to
fine."
12. Section 107 of the IPC reads as under:--
"107. Abetment of a thing.- A person
abets the doing of a thing, who-
First. - Instigates any person to do that
thing; or
Secondly. - Engages with one or more
other person or persons in any
conspiracy for the doing of that thing, if
an act or illegal omission takes place in
pursuance of that conspiracy, and in
order to the doing of that thing; or
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Thirdly. - Intentionally aids, by any act
or illegal omission, the doing of that
thing."
As is clear from the plain language of
the Sections to attract the ingredient of
Section 306, the accused should have
abetted the commission of a suicide. A
person abets the doing of a thing
who Firstly - instigates any person to do
that thing or Secondly - engages with
one or more other person or persons in
any conspiracy for the doing of that
thing, if an act or illegal omission takes
place in pursuance of that conspiracy,
and in order to the doing of that thing
or Thirdly - intentionally aids, by any act
or illegal omission, the doing of that
thing.
13. In Swamy Prahaladdas v. State of M.P.,
[1995 Supp (3) SCC 438], the appellant
remarked to the deceased that 'go and die' and
the deceased thereafter, committed suicide.
This Court held that:--
"3. ...Those words are casual nature
which are often employed in the heat of
the moment between quarrelling people.
Nothing serious is expected to follow
thereafter. The said act does not reflect
the requisite 'mens rea' on the
assumption that these words would be
carried out in all events. ..."
14. In Madan Mohan Singh v. State of
Gujarat, (2010) 8 SCC 628, this Court held that
in order to bring out an offence under
Section 306 IPC specific abetment as
contemplated by Section 107 IPC on the part of
the accused with an intention to bring about the
suicide of the person concerned as a result of
that abetment is required. It was further held
that the intention of the accused to aid or to
instigate or to abet the deceased to commit
suicide is a must for attracting Section 306.
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15. In Amalendu Pal v. State of W.B., (2010) 1
SCC 707, this Court held as under:--
"12. Thus, this Court has consistently
taken the view that before holding an
accused guilty of an offence under
Section 306 IPC, the court must
scrupulously examine the facts and
circumstances of the case and also
assess the evidence adduced before it in
order to find out whether the cruelty
and harassment meted out to the victim
had left the victim with no other
alternative but to put an end to her life.
It is also to be borne in mind that in
cases of alleged abetment of suicide
there must be proof of direct or indirect
acts of incitement to the commission of
suicide. Merely on the allegation of
harassment without there being any
positive action proximate to the time of
occurrence on the part of the accused
which led or compelled the person to
commit suicide, conviction in terms of
Section 306 IPC is not sustainable.
[Emphasis supplied]
16. In order to bring a case within the purview
of Section 306 IPC there must be a case of
suicide and in the commission of the said
offence, the person who is said to have abetted
the commission of suicide must have played an
active role by an act of instigation or by doing
certain act to facilitate the commission of
suicide. Therefore, the act of abetment by the
person charged with the said offence must be
proved and established by the prosecution
before he could be convicted under
Section 306 IPC.
17. M. Mohan v. State, (2011) 3 SCC 626
followed Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618, wherein it was
held as under:--
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41. This Court in SCC para 20 of Ramesh Kumar
has examined different shades of the meaning
of "instigation". Para 20 reads as under: (SCC
p. 629)
"20. Instigation is to goad, urge
forward, provoke, incite or encourage to
do 'an act'. To satisfy the requirement of
instigation though it is not necessary
that actual words must be used to that
effect or what constitutes instigation
must necessarily and specifically be
suggestive of the consequence. Yet a
reasonable certainty to incite the
consequence must be capable of being
spelt out. The present one is not a case
where the accused had by his acts or
omission or by a continued course of
conduct created such circumstances that
the deceased was left with no other
option except to commit suicide in which
case an instigation may have been
inferred. A word uttered in the fit of
anger or emotion without intending the
consequences to actually follow cannot
be said to be instigation."
In the said case this Court came to the
conclusion that there is no evidence and
material available on record wherefrom an
inference of the appellant-accused having
abetted commission of suicide by Seema (the
appellant's wife therein) may necessarily be
drawn."
Thereafter, this Court in Mohan (supra) held:--
45. The intention of the legislature and
the ratio of the cases decided by this
Court are clear that in order to convict a
person under Section 306 IPC there has
to be a clear mens rea to commit the
offence. It also requires an active act or
direct act which led the deceased to
commit suicide seeing no option and this
act must have been intended to push
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the deceased into such a position that
he/she committed suicide."
(emphasis supplied)
18. As has been held hereinabove, to satisfy the
requirement of instigation the accused by his
act or omission or by a continued course of
conduct should have created such
circumstances that the deceased was left with
no other option except to commit suicide. It was
also held that a word uttered in a fit of anger
and emotion without intending the
consequences to actually follow cannot be said
to be instigation."
14. But these observations were made by considering
prosecution material after filing of charge sheet. Admittedly,
investigation is not yet completed. Hon'ble Supreme Court
while considering petition for anticipatory bail in case of dowry
death in Samunder Singh v. State of Rajasthan, reported in
(1987) 1 SCC 466, held as follows:
"The widespread belief that dowry deaths are
even now treated with some casualness at all
levels seems to be well grounded. The High
Court has granted anticipatory bail in such a
matter. We are of the opinion that the High
Court should not have exercised its
jurisdiction to release the accused on
anticipatory bail in disregard of the
magnitude and seriousness of the matter.
The matter regarding the unnatural death
of the daughter-in-law at the house of her
father-in-law was still under investigation
and the appropriate course to adopt was to
allow the concerned Magistrate to deal
with the same on the basis of the material
before the court at the point of time of
their arrest in case they were arrested. It
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was neither prudent nor proper for the
High Court to have granted anticipatory
bail which order was very likely to
occasion prejudice by its very nature and
timing. We therefore consider it essential
to sound a serious note of caution for
future. The High Court is under no compulsion
to exercise its jurisdiction to grant anticipatory
bail in a matter of this nature. So far as the
present matter is concerned, since it has
become infructuous, we do not propose to pass
any order. Subject to these observations, the
appeal is dismissed."
(emphasis supplied)
15. In same context recently, High Court of Delhi in
case of Sushma v. State (NCT of Delhi), reported in 2024
SCC OnLine Del 6750, held:
"10. The learned counsel for the applicant
submits that the applicant along with her
husband was residing on the first floor of the
house while the rest of the family including
the deceased resided on the second floor of
the house.
11. He submits that the applicant, being a senior
citizen aged 60 years, is suffering from
various old age diseases including acute
arthritis in her knees. He submits that it is
very difficult for her to climb stairs to the
second floor of the house and had no
concern in the day today personal affairs of
the deceased and his son.
12. He submits that the sister-in-law and brother-
in-law of the victim have already been
granted pre-arrest bail by the learned Trial
Court vide order dated 21.06.2024 wherein it
was noted that no specific allegations of
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demand of dowry or causing harassment to
the deceased had been levelled against
them.
13. The learned Additional Public Prosecutor for
the State vehemently opposes the grant of
any relief to the applicant. He submits that
specific allegations have been levelled
against the applicant whereby he cannot
claim parity with the co-accused persons who
have been granted pre-arrest bail.
14. He submits that the PCR call regarding the
death of the victim was made by her friend
who had informed that the victim had died
an unnatural death. He submits that the
accused persons made no attempt to
intimate the police authority on their own.
15. The considerations governing the grant of
pre-arrest bail are materially different than
those to be considered while adjudicating
application for grant of regular bail, as in the
latter case, the accused is already under
arrest and substantial investigation has been
carried out by the investigating agency.
16. It is trite law that the power to grant a pre-
arrest bail under Section 438 of the CrPC is
extraordinary in nature and is to be
exercised sparingly. Thus, pre-arrest bail
cannot be granted in a routine manner. The
Hon'ble Apex Court, adverting to its previous
precedents, has discussed the parameters to
be considered while considering pre-arrest
bail applications, in the case of State of
A.P. v. Bimal Krishna Kundu, (1997) 8 SCC
104, has held as under:
"8. A three-Judge Bench of this Court
has stated in Pokar Ram v. State of
Rajasthan [(1985) 2 SCC 597 : 1985
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SCC (Cri) 297 : AIR 1985 SC 969] :
(SCC p. 600, para 5)
"5. Relevant considerations
governing the court's decision in
granting anticipatory bail under
Section 438 are materially
different from those when an
application for bail by a person
who is arrested in the course of
investigation as also by a person
who is convicted and his appeal is
pending before the higher court
and bail is sought during the
pendency of the appeal."
9. Similar observations have been
made by us in a recent judgment
in State v. Anil Sharma [(1997) 7 SCC
187 : 1997 SCC (Cri) 1039 : JT (1997)
7 SC 651] : (SCC pp. 189-90, para 8)
"The consideration which should
weigh with the Court while
dealing with a request for
anticipatory bail need not be the
same as for an application to
release on bail after arrest."
xxxx xxxx xxxx
12. We are strongly of the opinion that
this is not a case for exercising the
discretion under Section 438 in favour
of granting anticipatory bail to the
respondents. It is disquieting that
implications of arming the respondents,
when they are pitted against this sort
of allegations involving well-
orchestrated conspiracy, with a pre-
arrest bail order, though subject to
some conditions, have not been taken
into account by the learned Single
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Judge. We have absolutely no doubt
that if the respondents are equipped
with such an order before they are
interrogated by the police it would
greatly harm the investigation and
would impede the prospects of
unearthing all the ramifications
involved in the conspiracy. Public
interest also would suffer as a
consequence. Having apprised himself
of the nature and seriousness of the
criminal conspiracy and the adverse
impact of it on "the career of millions of
students", learned Single Judge should
not have persuaded himself to exercise
the discretion which Parliament had
very thoughtfully conferred on the
Sessions Judges and the High Courts
through Section 438 of the Code, by
favouring the respondents with such a
pre-arrest bail order."
17. This Court, while dismissing the bail
application of the applicant's husband, who is
a co-accused in the present case, observed
that the victim died under unnatural
circumstances within three years of her
marriage to the applicant's son. This fact
raises a statutory presumption under
Section 113B of the Indian Evidence Act,
1872. Furthermore, the applicant has been
specifically accused of harassing the
deceased soon after her marriage, allegedly
in connection with dowry demands, which
eventually led to her tragic death.
18. This Court relied upon the judgment passed
by the Hon'ble Apex Court in the case
of Samunder Singh v. State of
Rajasthan, (1987) 1 SCC 466, wherein it was
held that in cases involving dowry death, the
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High Court should exercise caution and
refrain from granting pre-arrest bail, given
the gravity and seriousness of such offences.
19. It was further noted by this Court that,
although there was a delay in the statement
regarding the cruelty inflicted upon the
deceased, such delay cannot, at this stage,
be considered detrimental to the
prosecution's case. The merit of this aspect
will be evaluated during the trial, and it does
not warrant the granting of pre-arrest bail at
this juncture.
20. It cannot be held, at this stage, that the
investigation is being carried out with the
intention to injure or humiliate the
applicants. The nature and the gravity of the
allegations are serious. It is settled law that
custodial interrogation is qualitatively more
elicitation oriented than questioning a
suspect who is well ensconced with a
favourable order under Section 438 of
the CrPC [Ref. State v. Anil Sharma, (1997)
7 SCC 187].
21. The investigating agency needs to be given a
fair play in the joints to investigate the
matter in the manner they feel appropriate.
22. The relief of pre-arrest bail is a legal
safeguard intended to protect individuals
from potential misuse of power of arrest. It
plays a crucial tool in preventing harassment
and unjust detention of innocent persons.
However, the court must carefully balance
the individual's right to liberty with the
interests of justice. While the presumption of
innocence and the right to liberty are
fundamental principles of law, they must be
considered in conjunction with the gravity of
the offence, its societal impact, and the need
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for a comprehensive and unobstructed
investigation.
23. While the benefit of proviso to Section 437 of
the CrPC, which allows for leniency in
granting bail to a woman, sick, or infirm, is
recognized under certain circumstances, this
benefit cannot be extended at the stage of
pre-arrest bail. The applicant is accused of
having a role similar to that of her
husband/co-accused, whose pre-arrest bail
has already been dismissed by the Hon'ble
Apex Court.
24. Even otherwise, the protection under
Section 437 of the CrPC is not absolute and
is subject to the nature and gravity of the
offence. In this case, where the applicant is
alleged to be directly involved in the
incessant demands of dowry and harassment
of the deceased, the mere fact of being an
elderly woman or infirm does not
automatically entitle her to pre-arrest bail.
The allegations must be scrutinized based on
the merits of the case, and the severity of
the crime takes precedence over any
personal exemptions under Section 437 of
the CrPC.
25. In view of the above, in the present
circumstances, this Court is of the opinion
that custodial interrogation of the applicants
ought not to be denied to the investigating
authority.
26. Considering the aforesaid discussion, this
Court is of the opinion that the applicant has
not made out a prima facie case for grant of
pre-arrest bail.
27. The present application is accordingly
dismissed."
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16. For aforesaid reasons, point for consideration is
answered in negative. Hence, following:
ORDER
Petition is dismissed. However with
clarification that observations made herein are
on prima facie consideration for purposes of this
order and shall not influence final judgment of
trial Court.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD
CT:PA
