TaxTMI 
TaxTMI 
TaxTMI 
2020 (12) TMI 1376
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....the Indian Penal Code ("IPC") and Sections 3/4 of the Dowry Prohibition Act, 1961. The husband of the deceased [A-1] is in custody. The applicants for anticipatory bail are the parents-in-law [A-2 and A-3] , brother-in-law [A-4] and sister-in-law [A-5] of the deceased. A Single Judge of the High Court of Judicature at Allahabad allowed the applications and granted them anticipatory bail. The father of the deceased is in appeal. 3 The marriage between the deceased (Deepti) and Sumit Agarwal took place on 3 November 2014. On 7 August 2020, the appellant lodged a complaint which was registered as a First Information Report ("FIR") under Section 154 of the CrPC. The FIR, inter alia, records that Deepti was a doctor and the appellant spent an amount in excess of Rs.1.50 crores for conducting the marriage. It is alleged that even thereafter, Sumit, his parents, brother-in-law and sister-in-law misbehaved with the deceased on account of dowry. The deceased, it is alleged, was pressurized to bring money. The FIR alleges that the appellant had paid money on several occasions by cheque to the in-laws of the deceased. On account of the demand for dowry, it was alleged that she was severely a....
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....ons Judge, Agra declined anticipatory bail. After adverting to the submission of the accused that a suicide note which was allegedly left behind by the deceased did not contain any allegation of harassment for dowry and the deceased was a partner and investor in the Agra Medical and Cardiac Super Specialty Hospital set up by her father-in-law, the Sessions Judge observed: "On the other hand, the documents have been filed on behalf of the complainant side, in which it has been shown that the money was transferred to different transactions. The photocopy of the application dated 01.10.2017 submitted by the deceased to the SHO, Kosikalan, District Mathura, has also been filed, in which it is mentioned about beating up of the deceased by Dr Amit Agarwal, Tulika Agarwal and Anita Agarwal and pushing her down through the stairs with the intention of killing her, and it has been mentioned that she suffered considerable injuries in it. It has also been stated in it that all this has happened at the instance of her father-inlaw S.C. Agarwal, who has asked her to bring Rs. 20 lakhs from the family of her parents. In addition, the photocopy of the injury report of the deceased dated 02.10.2....
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....icants." 6 Notice was issued on the Special Leave Petitions on 27 October 2020. In pursuance of the order, the State of Uttar Pradesh has entered appearance and is represented by Shri Vimlesh Kumar Shukla, Senior Counsel and Mr Vishnu Shankar Jain as Counsel. The respondent-accused are represented by Mr Sidharth Luthra and Mr R Basant, Senior Counsel. Counter affidavits and written submissions have been filed. B Submissions of Counsel 7 Assailing the grant of anticipatory bail, Mr Shekhar Naphade, Senior Counsel representing the Appellant, submitted that: (i) Though specific allegations have been leveled in the FIR that the deceased has been killed, which indicates the commission of a cognizable offence, there has been no investigation by the police of whether the death was homicidal and she was murdered; (ii) The Sessions Judge, while denying anticipatory bail, made a specific reference to the transfer of moneys by the deceased into the account of her father-in-law. As a matter of fact, between 19 November 2015 and 15 December 2018, an amount of Rs.50.53 lacs was transferred by the parents of the deceased (of which an amount of Rs.15 lacs has been paid directly by a family....
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.... 3 August 2020 the informant had received a telephone call from the father-in-law of the deceased demanding money and that on the same day in the afternoon at 3:09 pm and 5:31 pm the deceased spoke to the informant and his wife and informed them that she had been assaulted about 18 or 19 days earlier and of the threat to her life. The appellant told his daughter that he was in Faridabad and would reach Agra on the same night but before he could do so the deceased had allegedly been killed. The FIR alleges that the inlaws of the deceased had taken away the entire money which was earned by her as a doctor; (vi) The applications for anticipatory bail filed by the respondent-accused were dismissed by the Sessions Judge on 21 August 2020. A non-bailable warrant was issued on 9 September 2020. In spite of the dismissal of the applications for anticipatory bail and the specific allegation that Deepti had been killed, only her spouse was taken in for custodial interrogation and the alleged murder has not been investigated. Though until 22 September 2020, the other accused were not protected from arrest, no effort was made by the police to trace them in the interim; (vii) A charge-sheet....
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....d in the following terms: (a) Rs.27.25 lacs paid to the deceased by M/s Agra Medical and Cardiac Research Centre between 2015-16 and 2017-18; (b) Rs.61.79 lacs paid to the deceased by Sapphire Hospital (M/s Agra Medical and Cardiac Super Specialty LLP) between 2017-18 and 2019- 20; (c) Rs.66.73 lacs paid by the father-in-law to the deceased and her spouse on 9 September 2019 and 21 September 2019 for the purchase of property; and (d) Rs.15 lacs paid to the deceased from the account of the LLP for the purchase of two plots. (v) An amount of Rs.30.80 lacs is invested in the name of the deceased inter alia in the form of FDRs, bank balances, PPF and in an RD account. (vi) Three immovable properties valued at about Rs.1.4 crores are jointly owned by the deceased and her spouse; (vii) The alleged incident on 1 October 2017 is a fabrication since the brotherin-law and sister-in-law of the deceased had travelled to Mumbai on those days; (viii) The suicide note, which has been forwarded to the forensic science laboratory, indicates that the deceased was in a depressed mental state due to her miscarriages; (ix) The recovery of the suicide note is evidenced by the recovery ....
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....ipti in the year 2017 and the contents of FIR lodged by her with the police station. 10. It is relevant to mention that on 2.8.2020 Sumit Agarwal (husband) and Anita Agarwal (mother-in-law) of the deceased through mobile call made at 9.30 a.m demanded dowry and had asked that serious consequences will follow if money was not paid. 10. Dr. Dipti suffered two (sic) abortions due to the illtreatment given by her husband and in-laws. 11. There is no explanation for the injuries found on the body of deceased. 12. The medical report and the facts revealed that deceased has been killed. 13. It is the case of continuous demand of dowry, causing torture and victimization of the deceased and the deceased has herself stated in the FIR lodged in the year 2017 about the demand of dowry by her husband and in-laws. 14. It is also clear that the story of suicide due to frustration and adopting a child by the deceased are fictitious and baseless. The alleged suicide note is not in the handwriting of(sic) Dr. Dipti. The said document is false, fabricated and has been prepared by the accused persons and they are guilty of committing of offence u/s 468 & 471 of IPC. 15. That Respondent-S....
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....ing him with consequences; (xi) The deceased made telephone calls at 3:09 PM and at 5:31 PM on 3 August 2020 to her parents when she revealed being assaulted in the recent past and of the threat to her life; (xii) By the time the appellant travelled from Faridabad to Agra he found that his daughter had been killed for non-fulfillment of the demand for dowry; (xiii) The appellant removed the deceased to Sarvodaya hospital at Faridabad for treatment where she died on 6 August 2020; (xiv) The FIR was lodged after the last rites were performed; (xv) The accused had taken possession of the moneys which were earned by the deceased; and (xvi) The daughter of the appellant had been killed for dowry. 13 The police were informed of the commission of cognizable offences. They were duty bound to investigate. One of the principal aspects which weighed with the Sessions Judge while denying anticipatory bail on 21 August 2020 was the fact that the informant‟s side had filed documents indicating the transfer of moneys under different transactions. Besides this, the Sessions Judge also relied on the letter dated 1 October 2017 addressed by the deceased to the SHO, Kosi Kalan, Dis....
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....ered to implicate the accused" defies reasonable explanation. Similar is the case with the finding that "there is no co-relation between the allegations leveled in the FIR." A reading of the FIR would reveal that the finding of the Single Judge that the allegations "are general without assigning a specific role to the accused" is contrary to the record. The Single Judge observed, from the income tax returns of the accused, that "it cannot be said that they are not of sufficient means". The Single Judge has erred in drawing this inference without a full investigation by the investigating arm of the state. Mr Luthra has sought to rely on the payment of monies to the deceased by the two hospital establishments, the transfer of funds for the purchase of properties and the joint ownership of properties. The trail of monies alleged to be received by the deceased for her professional work is a matter to be investigated. Similarly, the transfer of monies by the deceased to her father-in-law and the nexus, if any, with the funds which she had received from her parents is a matter for serious investigation. The death was unnatural which took place within seven years of the marriage. The alle....
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....of the accused repeating similar or other offences; (v) whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting them; (vi) the impact of the grant of anticipatory bail particularly in cases of magnitude affecting a large number of people; (vii) The court must carefully evaluate the entire material against the accused. The court must also clearly comprehend the exact role of the accused in the case. Cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should be considered with even greater care and caution because overimplication in such cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) the reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; (x) frivolity in prosecution should always be considered and it is only t....
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....g intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court." 18 The Constitution Bench has reiterated that the correctness of an order granting bail is subject to assessment by an appellate or superior court and it may be set aside on the ground that the Court granting bail did not consider material facts or crucial circumstances. A two judge Bench of this Court, in Kanwar Singh Meena vs. State of Rajasthan [(2012) 12 SCC 180] , noted that: "10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to sa....
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....lation of bail." (emphasis supplied) Recently, this Court in Myakala Dharmarajam vs. The State of Telangana [(2020) 2 SCC 743] reiterated the above principles and stated: "9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the Accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the Accused, the High Court or the Sessions Court would be justified in cancelling the bail." 19 It is apposite to mention here the distinction between the considerations which guide the grant of anticipatory bail and regular bail. In Pokar Ram vs. State of Rajasthan [(1985) 2 SCC 597] , while setting aside an order granting anticipatory bail, this Court observed: "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 app....
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....the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and „the larger interests of the public or the State‟, are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail". A caution was voiced that "in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it." Judged in the light of the above principles, the judgment of the Single Judge of the High Court of Judicature at Allahabad is unsustainable. The FIR contains a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws ....
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.... media affect the rights of the accused in some cases and the rights of victims‟ families in others. The media does have a legitimate stake in fair reporting. But events such as what has happened in this case show how the selective divulging of information, including the disclosure of material which may eventually form a crucial part of the evidentiary record at the criminal trial, can be used to derail the administration of criminal justice. The investigating officer has a duty to investigate when information about the commission of a cognizable offence is brought to their attention. Unfortunately, this role is being compromised by the manner in which selective leaks take place in the public realm. This is not fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances. Having said this, we prima facie reject the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication....
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....lines are laid down, the notion that such a transfer is an "extraordinary power" to be used "sparingly" and "in exceptional circumstances" comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation. Having balanced and considered the material on record as well as the averments of and submissions urged by the petitioner, we find that no case of the nature which falls within the ambit of the tests enunciated in the precedents of this Court has been established for the transfer of the investigation." (emphasis supplied) 22 Second, in the facts of this case, the charge-sheet which is dated 24 October 2020 has been submitted to the competent court on 5 November 2020. The submission of the charge-sheet does not oust the jurisdiction of a superior court, when as in the present case, the investigation is tainted and there is a real likelihood of justice being deflected. In Vinay Tyagi vs Irshad [(2013) 5 SCC 762] , a two judge Bench of this Court, speaking through Justice Swatanter Kumar, has held: "43. At th....
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....nt and upright mechanism of justice dispensation without fear or favour, by treating all alike..... 81. The judicially propounded propositions on the aspects of essentiality and justifiability for assignment of further investigation or reinvestigation to an independent investigating agency like CBI, whether or not the probe into a criminal offence by the local/State Police is pending or completed, irrespective of as well, the pendency of the resultant trial have concretised over the years, applicability whereof, however, is contingent on the factual setting involved and the desideratum for vigilant, sensitised and even-handed justice to the parties. 83....... Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the chargesheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete....