DEVENDRAKUMAR BABULAL AGARWAL v. STATE — 1998 DIGILAW 153 (GUJ)

S. K. KESHOTE, J. ( 1 ) HEARD the learned Counsels for the parties at length. The learned Counsel for the petitioner submits that in case this Court is not inclined to grant the bail to the petitioner then all the contentions raised by him may be referred and a reasoned order may be passed as the petitioner intends to take up the matter before Honble Supreme Court. ( 2 ) IN the matter of bail applications filed either under Sec. 439 or 438 of the criminal Procedure Code, 1973, as far as possible, the Court may not touch the merits of the matter otherwise it may prejudice the case of either side. Moreover, such matters normally come before the Court at the stage of investigation or at the stage where the challan has been submitted in the Court and the trial has not commenced. In the case of Kashi Nath Roy v. State of Bihar, reported in AIR 1996 SC 3240 their lordships of the Honble Supreme Court in para 6 observed :"6. As embedded in the criminal jurisprudence obtaining in this country, Courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardised and the structural principle of "not guilty till proved guilty" gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed. "there is yet another aspect in this case. I had the advantage of having three reasoned orders passed in the matter in connection with the cancellation of bail granted to the petitioner, declining to grant the bail to the petitioner again after charge-sheet by the learned Court below and declining to grant the bail to the father and mother of the petitioner by this Court. I had the advantage of having three reasoned orders passed in the matter in connection with the cancellation of bail granted to the petitioner, declining to grant the bail to the petitioner again after charge-sheet by the learned Court below and declining to grant the bail to the father and mother of the petitioner by this Court. Apart from this, where the matter comes up before this Court under Sec. 439 of the Criminal Procedure Code, 1973 for grant of bail to the accused petitioner where under the very provision, the learned Court below has rejected his application by a reasoned order, this Court is not under an obligation or it is not incumbent upon or necessary for it to give a reasoned order where it is in agreement with the order of the learned Court below declining to grant the bail to the accused petitioner. It is a case of affirmation of the order of the learned Court below where by passing of a reasoned order, the bail has been declined to accused and as such it is not in the larger interest also to repeat those very grounds in the order by this Court declining to grant the bail to the accused in the same matter. In the present case, in addition to a reasoned order by the learned court below declining to grant the bail to the petitioner, two reasoned orders of this Court are also before this Court and as such insistence of the learned Counsel for the petitioner for a reasoned order in this case seems to be not well-founded. ( 3 ) THE facts of the case are that the marriage of the petitioner was solemnized with deceased Mamta just one and half years back and out of this wedlock they had a male child who is aged about six months. Mamta, wife of the petitioner has not died of the natural death. In this case the petitioner contended that she has committed suicide but that is the matter which has to be undergone by the trial Court. However, the fact is that it was not a natural death. It is also a fact that Mamta died at the house of the petitioner. The petitioner is accused of the offences under S. 498a, 304b, 306 and 114 of the I. P. C. Along with the petitioner his parents as well as sisters etc. However, the fact is that it was not a natural death. It is also a fact that Mamta died at the house of the petitioner. The petitioner is accused of the offences under S. 498a, 304b, 306 and 114 of the I. P. C. Along with the petitioner his parents as well as sisters etc. are also accused in the case. The petitioner has been enlarged on bail under Sec. 439 of the Cr. P. C. 1973 by the learned lower Court whereas other accused were granted anticipatory bail under Sec. 438 of the Cr. P. C. by the Court below. On an application by the complainant filed for cancellation of bail granted to the petitioner and his relations before this Court, this Court on 4th December, 1997 cancelled the bail granted to the petitioner and his relations by the learned Court below. ( 4 ) THE petitioner after submission of the charge-sheet filed fresh application under Sec. 439 of Cr. P. C. for grant of regular bail and the learned trial Court after considering the submissions made by the Counsel for the petitioner and considering the record of the case, under its order dated 10th February, 1998 declined to grant the bail to the petitioner. The learned A. P. P. has brought to the notice of this Court another fact that after cancellation of bail, the father and mother of the petitioner instead of surrendering themselves got admitted in the Hospital and thereafter they moved Misc. Criminal Application No. 710 of 1998 on 27th February, 1998 before this Court for grant of bail. That application has been considered by this Court and the same has been rejected on merits on 3-3-1998. ( 5 ) THOUGH I am of the considered opinion that in such matters the Court should refrain itself from minutely going in the merits of the matter and examining the case as if it is hearing the petition for quashing of the charge-sheet or for discharging the petitioner as if it is holding trial of the case or as a appellate Court over the investigation, but as the matter has been argued at length and the learned Counsel for the petitioner insisted for a reasoned order, I consider it to be appropriate to briefly give the reasons in support of this order. ( 6 ) THE learned Counsel for the petitioner contended that while dealing with the applications for cancellation of bail granted earlier to the petitioner and his relations, this Court has not placed reliance on that letter (chit) of deceased Mamta and it was of the opinion that whether the said letter (chit) is in the handwriting of the deceased or not, but now in the investigation, it is proved that the said letter (chit) was in the handwriting of deceased Mamta. So the consideration which prevailed with this court at the time of cancellation of bail may not now exist. The letter (chit) is in the handwriting of the deceased Mamta and it has to be accepted and the petitioner should be enlarged on bail. ( 7 ) I have considered this contention of the learned Counsel for the petitioner. This Court, while dealing with the application for cancellation of bail of the petitioner, has observed :". . . . . . IF the chit is actually in the handwriting of the deceased and it is written without any threat, which is still matter of investigation, says that she has no complaint to anybody. She is dying because she has become tired of her life. She has asked her husband to take care of his child. He should be admitted in hostel. Her ornaments of gold worth 65 tolas may be deposited in locker or money equivalent to its value be deposited in bank. The chit has many facets which can be examined at the stage of trial. At this stage, if it does not implicate accused persons it also does not give clean chit to all the accused persons as the learned Judge thought, by saying that it is of decisive character. . . . . "so it is true that this Court has taken into consideration that at that stage, it was not certain whether the letter (chit) is in the handwriting of deceased Mamta or not. This Court has further said that whether this letter (chit) is written without any threat is still a matter of investigation. It is not the case of the learned counsel for the petitioner that in the investigation, it has also been found that the said letter (chit) has been written by the deceased Mamta without any threat, fear or compulsion. This letter (chit) nowhere bears any date. It is not the case of the learned counsel for the petitioner that in the investigation, it has also been found that the said letter (chit) has been written by the deceased Mamta without any threat, fear or compulsion. This letter (chit) nowhere bears any date. Further, reading as a whole this letter (chit), I have my own reservation at this stage whether it is a letter (chit), which in fact has been written by deceased Mamta without any threat, fear or coercion or compulsion. It is also a matter of investigation whether it was a free and willing letter (chit) written by deceased Mamta. The Court has, while dealing with the application for cancellation of bail of the petitioner, in detail considered this aspect and after considering the same it has reached to the conclusion that if this letter (chit) does not implicate the petitioner, it also does not give clean chit to the petitioner. I am in full agreement with the aforesaid observations made by this Court. This letter (chit) on which heavily reliance has been placed by learned Counsel for the petitioner, if read as a whole, will not give a clean chit to the petitioner. Apart from this, there are evidence on record of unlawful demand of dowry by the petitioner. Just three days prior to the incident, i. e. , on 30th September 1997, when the father met deceased Mamta, she complained of unbearable torture. So in the presence of this evidence on record, it cannot be said that the petitioner has been falsely implicated in the case, or prima facie there is no material against him to connect him in this case. ( 8 ) THIS Court has rejected the bail application of the father and mother of the petitioner and the case of the petitioner does not stand at a higher pedestal than the case of those two persons. ( 9 ) MUCH emphasis has been laid by the learned Counsel for the petitioner on the letter (chit) of deceased Mamta and contended that this letter (chit) in fact gives a clean chit of the innocence of the petitioner in the matter. ( 9 ) MUCH emphasis has been laid by the learned Counsel for the petitioner on the letter (chit) of deceased Mamta and contended that this letter (chit) in fact gives a clean chit of the innocence of the petitioner in the matter. The learned Counsel for the petitioner in extenso read this letter (chit) of deceased Mamta and tried to persuade the Court to read the letter as if Mamta had no complaint or grievance about the character or habits of the petitioner and further she had utmost confidence, faith and belief in the petitioner. Emphasis has been laid on the recital in the letter that the deceased had entrusted faith in the petitioner for her son and her property and further gave advice to the petitioner to marry again. Further emphasis has been put on the recital that she had no complaint whatsoever against anybody and from that the learned Counsel for the petitioner contended that it should be accepted that it is not a case of any dowry demand or cruelty or harassment from the side of the petitioner to her wife, deceased Mamta. The letter (chit) has to be read as a whole. This is not a stage in my opinion where the dissection of this letter (chit) has to be made in the manner and fashion in which the learned Counsel for the petitioner has tried to make out before this Court. If the letter is read as a whole, I find that deceased Mamta has mentioned also - "bik yvle rslode mu kdyt fe Emrjyu bh hne nwp t" ( 10 ) THE young lady who married just one and a half years back and having a male kid of six months old, it is difficult to accept, though I am not expressing any final opinion, would have fed up of her life to the extent where she decided to finish it. The learned Counsel for the petitioner despite of putting time and again by the court is unable to throw any light what were the compelling circumstances or reasons for which the young lady who was just married 11/2 years back and having a kid of six months was fed up of her life to the extent where she decided to finish the same. If we read these lines in the letter of the deceased herself coupled with the other circumstances that she died of unnatural death, she died at the residence of the petitioner, and there are allegations of dowry demand against the petitioner and his relatives, I do not consider it to be a fit case where the petitioner should be enlarged on bail. The learned Counsel for the petitioner in fact made an attempt to read the letter of the deceased, by this Court, ignoring that part of the letter, which cannot be done. ( 11 ) ANOTHER submission made by the learned Counsel for the petitioner, by making reference to the decision of the Honble Supreme Court in the case of Sharad v. State of Maharashtra, reported in AIR 1984 SC 1622 and as it also transpires from "the point in appeal to the High Court", that deceased Mamta had a suicidal tendency, but I do not find any material on the record of this Misc. Criminal Application in support of this contention and further the learned Counsel for the petitioner is also unable to satisfy this Court that deceased Mamta was having the suicidal tendency, this contention cannot be accepted. ( 12 ) THE learned Counsel for the petitioner then by referring to the letter of the brother of the deceased contended that the deceased never made any complaint of dowry demand or the cruelty or harassment of which she was subjected to by the petitioner or his relatives. Only on the basis of this letter, it is not a stage where the allegations made of dowry demand against the petitioner and his relatives are to be ruled out. ( 13 ) TAKING into consideration the totality of the facts of this case, it is case where there are allegations of serious offences made against the petitioner and further the fact that the deceased herself has mentioned in her letter that she is finishing her life as she is fed up of her life when she was having hardly one and a half years marital life and having a kid of six months, I do not find any ground to enlarge the petitioner on bail. In the result, this Misc. Criminal Application is dismissed. .