Orissa High Court
Keli Chhualsingh And Others vs State Of Odisha on 18 July, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
ABLAPL No. 4192 Of 2017
An application under section 438 of the Code of Criminal
Procedure in connection with Balugaon P.S. Case no. 65 of 2017.
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Keli Chhualsingh
and others ........ Petitioners
-Versus-
State of Odisha ......... Opp. Party
For Petitioners: - Mr. Jyotirmaya Sahoo
S. K. Pattnaik
For Opp. party: - Mr. Chitta Ranjan Swain
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument and order: 18.07.2017
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S. K. SAHOO, J.Heard Mr. Jyotirmaya Sahoo, learned counsel appearing for the petitioners and Mr. Chitta Ranjan Swain, learned Additional Standing counsel appearing for the State.
This is an application under section 438 Cr.P.C. for grant of anticipatory bail to the petitioner in connection with 2 Balugaon P.S. Case No.65 of 2017 arising out of I.C.C. Case No.24 of 2017 pending before the Court of learned J.M.F.C., Banpur for alleged commission of offences under sections 498-A, 304-B, 302 read with section 34 of the Indian Penal Code and section 4 of Dowry Prohibition Act.
Learned counsel for the petitioners submitted that petitioner no.1 is the mother-in-law, petitioner no.3 is the sister- in-law and petitioner no.4 is the husband of the deceased Anjali Chhualsingh respectively and the marriage between the deceased and petitioner no.4 was solemnized on 01.06.2010 and they were blessed with a daughter and the deceased sustained burn injuries on 22.11.2016 while cooking and thereafter she was shifted to Balugaon C.H.C. and then KIIMS Hospital, Bhubaneswar and then to S.C.B. Medical College & Hospital, Cuttack for treatment where she expired on 29.11.2016 and the cause of death was on account of burn injuries. It is contended that even though there is no clinching materials against the petitioners nos. 1, 3 and 4 to have tortured the deceased in connection with demand of dowry but all the same at a belated stage on 13.01.2017 i.e. about two weeks after the death of the deceased, a complaint petition was filed by the brother of the deceased namely Sitakanta Balabantaray containing concocted 3 stories. The learned J.M.F.C., Banpur referred the matter to the Inspector in charge, Balugaon Police Station under section 156(3) of Cr.P.C. to register the case and to take up the investigation and accordingly the case has been registered. Learned counsel further submitted that unless the petitioners nos. 1, 3 and 4 are granted anticipatory bail particularly petitioners nos. 1 and 3 in view of the proviso to section 437(1) of Cr.P.C., they will be seriously prejudiced.
Learned counsel for the State while opposing the prayer for bail placed the statement of the complainant Sitakanta Balabantaray and mother of the deceased namely Pramila Balabantaray. On perusal of the statements of the aforesaid two witnesses, it indicates that there was demand of dowry by the petitioners not only at the time of marriage but also thereafter and the deceased was continuously physically and mentally tortured by her in-laws' family members including the petitioners nos. 1, 3 and 4 in connection with demand of dowry. The witnesses have further stated that due to unbearable torture, the deceased came to her father's place with her baby girl on 03.11.2016 and on 15.11.2016 she was taken back to her in- laws' house by her husband i.e. petitioner no.4 and on 22.11.2016 message was given by the petitioner no.4 regarding 4 the burn injuries sustained by the deceased. The learned counsel for the State further placed the statement of co-villager Nalini Martha who is a neighbour of the petitioners and he has stated about the torture given by the accused persons to the deceased in connection with the demand of dowry and he further stated that on the date of occurrence hearing hullah, he came to the house of the petitioners and found the deceased to have sustained burn injuries so also the petitioner no.4 sustaining burn injuries on his hand. He further stated that the deceased disclosed before him that since she was remaining mentally imbalanced due to continuous torture on her for which she could not know how she caught fire while she was cooking. Similar statements have been given by other co-villagers of the petitioners namely, Arjuna Martha, Sushila Martha, Shantilata Paikarathi and Gaurahari Chhualsingh. He also placed the statements of the other family members of the deceased from her paternal side and all of them have stated about the demand of dowry by the accused persons and torture in connection with such demand. The learned counsel for the State further placed the post-mortem examination report which indicates that the deceased had sustained 35 to 40 per cent burn injuries. It is the contention of the learned counsel for the State that since it is a 5 heinous offence and prima facie materials are available against the petitioners nos. 1, 3 and 4 and the custodial interrogation by the investigating officer is necessary, they should not be released on anticipatory bail.
In the case of Raghuvir Saran Agarwal -Vrs.-
State of U.P. and Ors. reported in (1998) 8 Supreme Court Cases 617, it is held as follows:-
"2.....We are surprised, not a little, that anticipatory bail has been granted in a matter where dowry death is alleged to have taken place and the investigation is in progress without assigning any reason whatsoever. If the provision in regard to grant of anticipatory bail is invoked at a stage when the investigation is in progress and the Court is unaware of the seriousness of the matter, it would hamper the investigation itself. In any case, if the High Court felt inclined to grant anticipatory bail, it should have stated the reasons for exercising that jurisdiction. Otherwise every person against whom a first information report is lodged alleging a serious crime will rush to the High Court or the Sessions Court that the case may be considered and obtain anticipatory bail rendering the provisions of the Criminal Procedure Code in the matter of arrest, etc. redundant. If the High Court is inclined to grant 6 anticipatory bail, it should indicate the reasons why it has exercised power in cases where if the allegations are true, some serious crime could be stated to have been committed."
In the case of Samunder Singh vs. State of Rajasthan and Ors. reported in A.I.R. 1987 S.C. 737, it is 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 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 7 compulsion to exercise its jurisdiction to grant anticipatory bail in a matter of this nature."
In the case of Balchand Jain -Vrs.- State of M.P. reported in (1977) 2 SCR 52, it is held that `anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent Court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. The Court went on to observe that the power of granting `anticipatory bail' is somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power may be exercised. The power being rather unusual in nature, it is entrusted only to the higher echelons of judicial service, i.e. a 8 Court of Session and the High Court. Thus, the ambit of power conferred by Section 438 of the Code was held to be limited.
Therefore, normally, the Court should not exercise its discretion to grant anticipatory bail in disregard of the magnitude and seriousness of the matter. The nature and the gravity of the accusation, antecedents, possibility of the applicant to flee away from justice etc. are to be taken into consideration while adjudicating an application for anticipatory bail in a case of unnatural death of the daughter-in-law at the house of her in- laws while the case is still under investigation.
In the case of Preeti Bhatia -Vrs.- Republic of India reported in (2015) 61 Orissa Criminal Reports 131 while considering the application of the proviso to section 437(1) of Cr.P.C., it was held as follows:-
"11.....Though the beneficial provision relating to release of an accused under the age of sixteen years or on the ground of being a woman or sick or infirm has to be kept in mind while considering his/her bail in spite of his/her involvement in an offence punishable with death or imprisonment for life but at the same time the Court should also give due weight to the other aspects like nature and gravity of the offence etc. and also the adverse impact of the offence committed on the society."9
Considering the submissions made by the respective parties, the nature and gravity of the accusation against the petitioners nos. 1, 3 and 4, the statements of the family members of the deceased from her father's side as well as the statements of the neighbours of the petitioners relating to the demand of dowry and continuous physical and mental torture to the deceased in connection with such demand, the dying declaration of the deceased immediately after the occurrence before the neighbours, the manner in which a young bride lost her precious life fighting with death for a week and the necessity of custodial interrogation of the petitioners nos. 1, 3 and 4 by the investigating officer, I am not inclined to release the petitioners on anticipatory bail.
Accordingly, the ABLAPL application stands rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 18th July, 2017/Sisir