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2005 DIGILAW 1017 (PNJ)

Sadhu Ram v. Satish Kumar

2005-09-22

SURYA KANT

body2005
Judgment Surya Kant, J. 1. In this petition under Section 439(2) read with Section 482 Cr.P.C., the petitioner has prayed for quashing of the order dated 12.8.2004 (Annexure P-6) thereby granting bail to respondent No. 1 in the case FIR No. 106 dated 28.6.2004 under Sections 304-B and 498-A IPC, registered at PS Uchana, District Jind, as well as the order dated 25.8.2004 (Annexure P-7), declining cancellation of the aforesaid bail order, both passed by the learned Additional Sessions Judge-I, Jind. Facts :- 2. Respondent No. 1 Satish Kumar son of Ram Phal was married to the deceased daughter of the complainant, namely, Neelam Kumari on 29.6.2004. within four months of the marriage, said Neelam Kumar died an unnatural death on 27.6.2004. According to her post-mortem report dated 28.6.2004 (Annexure P- 1), the cause of her death was "asphyxia due to strangulation which is ante mortem in nature and sufficient to cause death in the due course of time". FIR No. 106 dated 28.6.2004 under Sections 304-B and 498-A/34 IPC was got registered by the petitioner - i.e. father of the deceased (Neelam Kumari) on 28.6.2004. As per the allegations contained therein his deceased daughter was being harassed for bringing insufficient dowry by her husband and her mother- in-law and was given beatings in that regard; that a demand for a car along with cash amount of Rs. 2 lacs was raised by respondent No. 1 and his family members; the daughter of the complainant was thrown out of the matrimonial home in three clothes; the complainant along with his brother Ram Kala took his daughter to her parental village in the month of April 2004 and thereafter respondent No. 1 was called and advised not to demand dowry as Rs. 5 lacs had already been given to him and his family; the complainant also paid Rs. 25,000/- to him, however, respondent No. 1 and his family members kept on persisting for their demand of Rs. 2 lacs in cash upon which the complainant took a panchayat on 21.6.2004 to the village of respondent No. 1 where, in the presence of everyone, a sum of Rs. 25,000/- to him, however, respondent No. 1 and his family members kept on persisting for their demand of Rs. 2 lacs in cash upon which the complainant took a panchayat on 21.6.2004 to the village of respondent No. 1 where, in the presence of everyone, a sum of Rs. 51,000/- was more paid to respondent No. 1; that on 27.6.2004 i.e., the date of occurrence, the petitioners nephew Pardeep had gone to the village of respondent No. 1 where he was allegedly threatened by respondent No. 1 and his family members that they would kill Neelam Kumari if their demand for dowry was not met. Thereafter, said Pardeep came crying to the petitioners village at about 10 p.m., on that very day and informed that Neelam Kumari had been killed by respondent No. 1 and his family members. 3. It is not disputed that respondent No. 1 and his mother both were arrested. Thereafter respondent No. 1 moved an application dated 11.8.2004 to release him on regular bail on the ground that he was a `juvenile being hardly 17 years of age at the time of solemnization of the marriage on 29.2.2004. Various other pleas have also been raised on merits but the learned Additional Sessions Judge, vide his order dated 12.8.2004 (Annexure P-6), and after taking notice of the fact that a separate challan was presented against respondent No. 1 before the Juvenile Justice Court, directed his release on bail on that account. It was, however, specifically mentioned in the order that other issues on merits were not dealt with at that stage. 4. Immediately thereafter, the petitioner moved an application for cancellation of the above mentioned bail order dated 12.8.2004. In support of the said application, the petitioner relying upon the `birth certificate purported to be that of respondent No. 1 and some more documents contended that he was not a juvenile on the date of occurrence, therefore no bail ought to have been granted to him on this account. The learned Additional Sessions Judge, however, vide order dated 25.8.2004 (Annexure P7) dismissed the application on the premise that respondent No. 1 had neither attempted to tamper with the evidence nor has mis-used the concession of bail in any manner, therefore, no ground for cancellation of bail was made out. 5. The learned Additional Sessions Judge, however, vide order dated 25.8.2004 (Annexure P7) dismissed the application on the premise that respondent No. 1 had neither attempted to tamper with the evidence nor has mis-used the concession of bail in any manner, therefore, no ground for cancellation of bail was made out. 5. Aggrieved at these orders that the petitioner i.e. the father of the deceased (Neelam Kumari) has approached this Court by invoking its powers under Section 439(2) read with Section 482 Cr.P.C. 6. Learned counsel for the petitioner has vehemently contended that at the time of framing of charges by the learned Additional Sessions Judge, and upon an objection taken by respondent No. 1 that he was a juvenile and his case be sent to the Juvenile Court, the same was turned down by the learned Additional Sessions Judge vide order dated 15.1.2005 with the following observations :- "3. AW-1 Rajpal has stated that Satish accused is his nephew who was born on 10.5.1987 and he is the only son of his father, Rampal, AW-2 Smt. Shanti Devi is the Headmistress of Govt. Primary School, Uchana/Karsindhu. She has proved the certificate Ex. P1 issued by her. It is clear from the statement of this witness that Satish was not admitted by her in the school. The admission form of Satish has not been brought by her nor she was posted in that school when Satish was admitted there. Moreover, there is no documentary proof to show that she got any documentary proof regarding the date of birth of Satish. I do not hesitate in holding that Satish was admitted in the school without any documentary proof. Moreover, as per Ex. R1 birth certificate, accused Satish was more than 18 years of age. Ex. R1 voter list also shows that he was more than eighteen years of age as he is a voter in the village. It is also clear from the statement of Rajpal AW-1 that Satish is the only son of Ramphal and Ex. R1 shows that was born to Rampal on 22.12.1985 and thus he was above eighteen years on the date of occurrence. As per voter list Ex. R2 the age of Satish has been recorded as 20 years. It is also clear from the statement of Rajpal AW-1 that Satish is the only son of Ramphal and Ex. R1 shows that was born to Rampal on 22.12.1985 and thus he was above eighteen years on the date of occurrence. As per voter list Ex. R2 the age of Satish has been recorded as 20 years. Moreover, I do not hesitate in holding that the accused Satish was not a juvenile as per the birth certificate issued by the Chief Medical Officer and the voter list. In view of the dictum laid down in Ram Deo Chauhan alias Rajnath Chauhan v. State of Assam, 2001(2) RCR(Crl.) 702 (SC) : AIR 2001 Supreme Court 2231, the object raised by accused Satish that he was a juvenile at the time of occurrence is hereby declined." 7. Undisputedly, charges under Section 304-B read with Section 34 IPC have been framed against respondent No. 1 and his mother. It is contended that despite the gravity of the offence and severability (severity ?) of punishment, respondent No. 1 has been able to secure the concession of bail, by misleading the learned Additional Sessions Judge on the basis of a school leaving certificate (Annexure P-2) in which his date of birth is shown to be 10.5.1987. Referring to the statement of one Shanti Devi, who was produced by respondent No. 1 as witness to prove the said certificate (Annexure P-2), it is further contended that said Shanti Devi did not bring any record on the basis of which the date of birth of the accused was entered in the school register. Learned counsel has referred to the Birth Certificate (Annexure P- 3) issued by Registrar, Births and Deaths, Jind in which the accused- respondent No. 1 is shown to have born on 22.12.1985. It is thus contended that respondent No. 1 in order to claim protection as a juvenile, concealed material piece of evidence and thus has not approached the Court with clean hands, therefore, the order granting him bail is liable to be set aside. It is thus contended that respondent No. 1 in order to claim protection as a juvenile, concealed material piece of evidence and thus has not approached the Court with clean hands, therefore, the order granting him bail is liable to be set aside. Reliance has been placed upon judgment of the Apex Court in Ram Deo Chauhan @ Raj Nath v. State of Assam, 2001(2) RCR(Criminal) 702 to contend that entries with regard to age made in a school register cannot be relied upon if the author of said entry/school register is not produced and when the register is not maintained as per statutory requirements. The judgment of the Honble Supreme Court in the case of Puran v. Rambilas and another, 2001(2) RCR (Crl.) 801 (SC) : AIR 2001 SC 2023, has also been referred to further contend that where the material on record showing the gravity of offence did not justify the grant of bail, the cancellation thereof by the High Court was justified. Learned counsel has relied upon a judgment of this Court in the case Gurmej Singh v. State of Punjab, 1996(2) Recent Criminal Reports 388, in which it was held that where the accused was granted bail by treating him to be a juvenile and upon evidence when it was found that he was not a juvenile at the time of commission of offence, cancellation of bail was justified. 8. On the other hand, Dr. Surya Parkash, learned counsel for the respondent No. 1 vehemently argued that the order dated 15.1.2005, passed by the learned Additional Sessions Judge, Jind, whereby the plea taken by respondent No. 1 that he was a juvenile has been turned down is already under challenge in a Criminal Revision which is pending in this Court. Relying upon a judgment of this Court in the case of Om Parkash v. Puneet Kumar Sharma @ Raja, 1998(4) RCR(Criminal) 164, he contends that once the bail has been granted by treating respondent No. 1 to be a juvenile on the basis of school leaving certificate, the same cannot be cancelled unless it is proved that he has attempted to tamper with the prosecution evidence and/or misused the concession of bail in any manner. 9. 9. Learned State counsel comes up with the stand that charge-sheet against respondent No. 1 was filed before the juvenile Court for the reason that the only evidence with the prosecuting agency regarding the date of birth of respondent No. 1 was his school leaving certificate, due to which he was treated to be a juvenile. 10. The following parameters to be observed by a Court while granting bail to an accused were illustratively laid down by the Apex Court in Ram Govind Upadhyay v. Sudarshan Singh, 2002(2) RCR(Crl.) 250 (SC) : 2002(3) SCC 598 :- "(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the servity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail". 11. It can, thus, be seen that the nature of accusations and the severity of punishment are also of paramount consideration and deserve weightage while considering a bail application. 12. In the case in hand, the alleged offence is under Section 304-B and 498-A IPC. It is the conceded position that that the marriage had taken place on 29.2.2004 and the wife of respondent No. 1, namely, Neelam Kumari died an unnatural death on 27.6.2004, i.e. within four months of the marriage. The post-mortem report also suggests it to be a case of unnatural death. Both the ingredients to bring the case within the four-walls of "dowry death" as laid in Section 304-B IPC thus stand satisfied. The rigors of Section 113-B of the evidence Act would also tighten their grip. The post-mortem report also suggests it to be a case of unnatural death. Both the ingredients to bring the case within the four-walls of "dowry death" as laid in Section 304-B IPC thus stand satisfied. The rigors of Section 113-B of the evidence Act would also tighten their grip. Respondent No. 1 is, therefore, under heavy onus to prove that the "unnatural death" with which the deceased Neelam Kumari met was not a "dowry death". 13. A bare perusal of the impugned order dated 12.8.2004 (Annexure P6) leaves no manner of doubt that the only consideration which weighed with the learned Additional Sessions Judge to grant bail to respondent No. 1 was that he was a `juvenile. The factual foundation of this plea, however, stands demolished by a subsequent order dated 15.1.2005, passed by the learned Additional Sessions Judge, whereby on an appreciation of the evidence led by respondent No. 1 in support of his plea of being a juvenile, it has been categorically held that respondent No. 1 was above 18 years of age on the date of occurrence i.e. 27.6.2004. Thus, the very basis of the order dated 12.8.2004 (Annexure P-6) has disappeared as a result of which it cannot sustain and has to be set aside. 14. Coming to the second order dated 25.8.2004 (Annexure P-7), suffice it to say that the learned Additional Sessions Judge declined the cancellation of bail on the ground that respondent No. 1 had not misused the said concession. However, the fact remains that the order dated 25.8.2004 came to be passed within less than two weeks of the grant of bail and that too when respondent No. 1 was assumed to be a juvenile. 15. It is true that once bail has been granted, the cancellation thereof is permissible only on limited grounds like interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice, i.e. misuse of the concession of bail. However, in Puran v. Rambilas (supra) the Apex Court has held that such grounds upon which bail can be cancelled are illustrative and not exhaustive. However, in Puran v. Rambilas (supra) the Apex Court has held that such grounds upon which bail can be cancelled are illustrative and not exhaustive. The Apex Court held that where in a case of heinous crime like bride burning if bail has been granted by the trial Court either without giving any reason or for reasons which are contrary to the material and evidence on record and are thus perverse in nature, the setting aside of such an order and consequential cancellation of bail by the High Court is permissible and justified. 16. The plea regarding pendency of revision petition of respondent No. 1 against the order dated 15.1.2005 also does not help him for the reason that as of now, he is not found to be a Juvenile. If any such finding is returned in his favour in future, necessary consequences shall follow. 17. For the reasons aforementioned, both the orders dated 12.8.2004 (Annexure P-6) and 25.8.2004 (Annexure P-7) are set aside. Respondent No. 1 is accordingly directed to surrender before the trial Court forthwith for being taken into judicial custody. 18. It is, however, made clear that it will be open for respondent No. 1 to seek regular bail on merits. If any such application is moved by him, the trial Court without being influenced by the observations made hereinabove, shall considered and decide the same in accordance with law within 15 days of its prevention.