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2004 DIGILAW 2469 (ALL)

Rajendra v. State of U. P.

2004-12-08

K.K.MISRA, M.C.JAIN

body2004
M. C. JAM, J. ( 1 ) THE petitioners, who are seven in number, have preferred this writ petition for issuance of a writ of certiorari quashing the F. I. R. dated 14. 11. 2004 in Case Crime No. 516 of 2004, under Sections 304-B/307 I. P. C. of Police Station Deoband, District Saharanpur, Annexure No. 1 to the writ petition. Application has also been made to stay the arrest of the petitioners in pursuance of the impugned F. I. R. during the pendency of the writ petition. ( 2 ) THE F. I. R. has been lodged by respondent No. 3-father of the deceased Smt. Reena who was married to petitioner No. 1 Rajendra about 1-1/2 years before the incident. As per the F. I. R. , the informant had performed a decent marriage, meeting the demands of the petitioners by giving double bed, T. V. , furniture, etc. in dowry. Cash had also been given. Even a motor-cycle had been purchased and given on the demand of the bridegroom. After the performance of the marriage, the petitioners harassed and pestered the deceased over further demand of Rs. 51,000/- and started assaulting and treating her with cruelty. A son was born to the deceased. Rs. 50,000/- were demanded by the petitioners as Chhuchhak as per the F. I. R. 8 or 9 days before the lodging of the F. I. R. , the petitioners burnt the victim. She was treated in Meerut Medical College but died on 13. 11. 2004. Without any information to him, the petitioners cremated her also. When he (informant) went to the petitioners with some relatives, the petitioner Nos. I and 7, opened shots and trained firearms on them with threats that he and others on his side would be shot dead, if they dared to go to the police. It is this F. I. R. lodged by the father of the deceased at the. concerned police station on 14. 11. 2004 at 9. 05 P. M. which is in question. The petitioners are the husband, father-in-law and mother-in-law of the deceased including three sisters and one brother of the husband of the deceased. ( 3 ) THE contentions of the peti-tioners, as per the averments made in the writ petition, are that Reena was married to petitioner No. 1 Rajendra on 5. 3. 2003. She allegedly caught fire in the kitchen on 2. 11. ( 3 ) THE contentions of the peti-tioners, as per the averments made in the writ petition, are that Reena was married to petitioner No. 1 Rajendra on 5. 3. 2003. She allegedly caught fire in the kitchen on 2. 11. 2004 at about 9. 00 P. M. , when she had to boil milk for the child on gas stove. For this purpose, she opened the gas without having a match stick or match box in hand to light the gas immediately it was opened by her. The match box was placed at some distance. She went to pick up the match box and after that she rubbed the match stick with the match box, but in the meantime lot of gas had emitted which caught fire of which Reena also became the victim. Immediately after the incident, the husband, mother-in-law and father-in-law of the deceased took her to Muzaffar Nagar, the nearest city from Deoband, to a private hospital of Dr. Pradeep Singhal, who suggested that she should be taken to the Meerut Medical College. She was accordingly taken there, reaching at about 2. 30 A. M. and was admitted in emergency ward. She was treated there. She had suffered 80 per cent bum injuries. Her statement in the evening of 3. 11. 2004 was also recorded by the Magistrate in which she stated as to how she caught fire and got burn injuries. She died in between 12/13. 11. 2004 and the post-mortem was conducted on 13. 11. 2004 at about 5. 00 P. M. The petitioners have been falsely implicated. Generalized allegations have been made in the F. I. R. and all the family members have been roped in. ( 4 ) WE have heard Sri Ravi Kiran Jam, learned Senior Advocate for the petitioners and Sri K. P. Shukla learned counsel from the side of the respondents at length. ( 5 ) THE gist of the arguments of Sri Jam is that in spite of the inapplicability of the provision of anticipatory bail as contained in Section 438 Cr. P. C. in this State, pre-arrest scrutiny is permissible under Article 226 of the Constitution of India, as otherwise it would be violative of Article 21 of the Constitution. It has been urged that the powers conferred on the High Court under Article 226 of the Constitution are of widest amplitude. P. C. in this State, pre-arrest scrutiny is permissible under Article 226 of the Constitution of India, as otherwise it would be violative of Article 21 of the Constitution. It has been urged that the powers conferred on the High Court under Article 226 of the Constitution are of widest amplitude. Making reference to the decision of the Supreme Court in the case of Joginder Singh v. State of it has been urged that the police cannot resort to indiscriminate arrest. Power to arrest is one thing whereas justification to do it is another. No. arrest can be made because it is lawful for the police to do so. It has been argued that the circumstances where the police may be justified to arrest the accused in a cognizable offence when he is likely to abscond or his interrogation is required or where some recovery is to be made. It has also been submitted by the learned counsel for the petitioners that they are entitled to the order of stay of arrest on the analogy of the law laid down in the case of Gurbaksh v. State of Punjab1. He heavily relied on this ruling, copiously readinci out paraqraph Nos. 7, 10, 11, 12, 13, 14, 15, 17, 18, 19 and 26. ( 6 ) SUPPLEMENTARY affidavit has been put in from the side of the petitioners making reference to the judgement of the Supreme Court in the case of Kartar Singh v. State of Punjab and citing paragraph 46 of 7 Judges decision of this Court in the case of Smt. Amarawati v. Stale of UP. decided on 15/10/2004. Citation of the case of DK. Basu v. State of West Bengal, has also been made. ( 7 ) ON the other hand, the learned A. G. A. has submitted that it is a case of brides death by burning within two years of her marriage regarding which the F. I. R. has been lodged by her father residing in another district. According to him, the lodging of the F. I. R. , the next day of the death of the deceased cannot be deemed to be delayed, warranting its quashing or stay of arrest of the petitioners. ( 8 ) WE have considered the arguments of the learned counsel for the parties as also the relevant case law. According to him, the lodging of the F. I. R. , the next day of the death of the deceased cannot be deemed to be delayed, warranting its quashing or stay of arrest of the petitioners. ( 8 ) WE have considered the arguments of the learned counsel for the parties as also the relevant case law. In Joginder Kumars case referred to above, the guidelines have been issued for the Investigating Officer on the aspect of the arrest when cognizable offence is disclosed in the F. I. R. or complaint. It has been ruled that arrest of a person by police should not be merely on suspicion about his complicity in the crime. The reasons for arrest must be recorded by the police officer in his diary. Arrest should normally be avoided except in heinous crimes. ( 9 ) IN Gurbaksh Singhs case (supra), the Supreme Court dealt with the distinction between ordinary bail and anticipatory bail and the conditions to be satisfied for the grant of anticipatory bail by the High Court or the Sessions Court. There can be no quarrel with the proposition that inspite of the deletion of the provision of anticipatory bail in this province, pre-arrest scrutiny is permissi-ble while exercising writ jurisdiction under Article 226 of the Constitution of India. There is no manner of doubt that power of High Court to issue prerogative writs under Article 226 of the Consti-tution of India is plenary in nature. This power can be exercised by High Court to prevent the abuse of process of law or to further the cause of justice. It is, however, to be kept in mind that ordinarily the criminal proceedings which are instituted against accused must be tried and taken to logical conclusion under the Code of Criminal Procedure and the High Court would be reluctant to interfere with proceedings at an interlocutory stage. The writ jurisdiction would not ordinarily be exercised to interfere during the course of investigation which would mean from the time of the lodging of the F. I. R. till the submission of the report by the Investigating Officer under Section 173 (2) of the Cr. P. C. ( 10 ) EACH case has to be judged on its own facts. P. C. ( 10 ) EACH case has to be judged on its own facts. It cannot possibly be accepted, as argued by learned counsel for the petitioners, that in a cognizable offence the police is justified to arrest only when the accused is likely to abscond or when he is to be interrogated or when recovery is to be made. The commission of a crime, particularly of heinous nature, generates a sense of abhorrence in the society and the arrest of the accused is necessary to assuage the shocked conscience of the people so as to sustain confidence in the efficacy of law. The arrest may also be necessary to guard against the tampering of evidence by the accused or otherwise attempting to win over the witnesses by threats or manipulation. It is not possible to precisely catalogue the situations justifying the arrest of an accused involved in a cognizable offence. The instances may only be illustrative. ( 11 ) NO interference would be justified if on consideration of the alle-gations made in the F. I. R. , ingredients of the complained offence are disclosed and there is no material to show that the F. I. R. is mala fide, frivolous or vexatious. The High Court would be entitled to examine the allegations made in the F. I. R. and would not embark upon an inquiry as to the ultimate success or otherwise of the accusation made in the F. I. R. ( 12 ) THE above settled parameters may be applied to the present case. It is a case of brides death by burning in her Sasural within two years of her marriage. The petitioners are nominated in the F. I. R. who are her husband and other immediate family members of her in-laws. The F. I. R. has been lodged the day following the death. The informant is her father. The allegations of demand of dowry, torture, assault, etc. are there. It is well settled that an informant may allege about the commission of an offence, though he may not necessarily be an eyewitness so as to be able to disclose in great deal all aspects of the offence committed. ( 13 ) IT may also be stated as a passing reference that Section 113-B of the Evidence Act has been brought on the statute book which relates to presumption as to the dowry death. ( 13 ) IT may also be stated as a passing reference that Section 113-B of the Evidence Act has been brought on the statute book which relates to presumption as to the dowry death. It reads as under:113-B Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death ( 14 ) THE main attempt of the petitioners is to hold trial as to the veracity of the accusations made in the F. I. R. by entering into their defence. The writ jurisdiction under Article 226 of the Constitution can not be exercised for this purpose. Amongst others, it would be a matter in the domain of investigation as to what actual injuries were found on the person of the victim at the time of her first medical examination and the details recorded in the post mortem report (which has not been annexed to the writ petition ). It is also to be found out as to in whose control she was, when she allegedly made statement to the Magistrate. It may be necessary to find out the topography of the place of incident; who other family members were near her; whether any one attempted to extinguish the fire and sustained defensive burn injuries; whether simply a false show was enacted to admit her in Medical College so as to make use of it as defence at a later stage. All such and other important aspects are to surface by investigation. ( 15 ) IT goes without saying that High Court does not ordinarily enter into the factual controversy in the exercise of writ jurisdiction under Article 226 of the Constitution of India. Since the F. I. R. is disclosing the cognizable offence of brides death, there is no ground for interference to prevent the abuse of the process of law or otherwise to secure the ends of justice. The ordinary system of law must take its own course. ( 16 ) IT is, however, noted that the petitioners No. 3, 4 and 5, namely, Beena, Sudesh and Brajesh are unmarried sisters of the husband of the deceased. The ordinary system of law must take its own course. ( 16 ) IT is, however, noted that the petitioners No. 3, 4 and 5, namely, Beena, Sudesh and Brajesh are unmarried sisters of the husband of the deceased. Their future may be blackened with inculcable harm, if ultimately they are found by investigation to be having no role in the commission of the offence. Therefore, the larger interest of justice demands that their arrest should be stayed pending conclusion of the investigation. ( 17 ) IN the result, in view of the discussion made hereinabove, we provide that the petitioners No. 3, 4 and 5, namely, Beena, Sudesh and Brajesh, who are unmarried sisters of the husband of the deceased, shall not be arrested in Case Crime No. 516 of 2004, under Sections 304-B/307 I. P. C. , Police Station Deoband, District Saharanpur till conclusion of the investigation. ( 18 ) THE prayer to quash the F. I. R. or to stay the arrest of the other petitioners is declined. The writ petition is finally disposed of with the above direction. Petition disposed of . .