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Madhya Pradesh High Court · body

2019 DIGILAW 129 (MP)

Pushpa Bai v. State of M. P.

2019-02-07

ANAND PATHAK

body2019
ORDER 1. This is first application preferred by the applicant under section 438 of CrPC wherein she is apprehending her arrest in a case registered at Crime No.116/2018 at Police Station Deepnakheda Tehsil, Sironj, District-Vidisha for the offence under sections 306 and 34 of IPC. 2. It is the submission of learned counsel for the applicant that although charge-sheet has been filed against the present applicant under section 299 of CrPC, but still anticipatory bail is maintainable because as per the FIR it appears that deceased Smita (daughter inlaw of applicant) committed suicide by hanging on 3.9.2018 on which marg was registered and enquiry was conducted. Thereupon FIR was registered vide Crime No. 116/2018 on 11.10.2018 only against husband of the deceased Dharmendra Singh Rajput and he was arrested on 12.11. 2018. Marriage was solemnized on 1.6.2009. Initially statements were taken of witnesses, mainly family members (and some other witnesses) of the deceased namely Monika, Monu, Sooraj, Kishore, Sonu, Ajab Singh, Divyansh, Kiran, Nirpat, Chironja, Jaipal, Dhan Bai, Sanjeev, Meera Bai (statements of them are placed with the application), in which they all alleged against Dharmendra, the husband of deceased and no allegations were raised against the present applicant. Allegation against the coaccused Dharmendra was about the fact of beating deceased Smita that too after consuming liquor. The said fact also surfaced specifically in the statements of those witnesses that due to bad conduct of co-accused Dharmendra, his parents (present applicant is Dharmendra’s mother) disowned him and were living separately. 3. On 7.1.2019, supplementary statements of Monu, Kishore Singh, Sarju, Monika were taken in which these family members raised allegation for the first time against father-in-law Bhogiram, Mother-in-law Puspa Bai (present applicant) and brother-in-law Neelesh about the fact regarding physical abuse for fulfillment of dowry demand. On 8.1.2019, statements of Ranjeet and Hakam were recorded and on the same date statements under section 164 of CrPC of witness Kishore Singh, Smt. Sarju and Monu were also recorded before JMFC, Sironj. Interestingly, on 7.1.2019 itself Farari Panchnama was prepared and the process was repeated on 8.1.2019 and thereafter on 9.1.2019. Charge-sheet was filed on 10.1.2019. 4. It appears that meanwhile, bail application under section 438 of CrPC has been preferred by the applicant apprehending her arrest (before supplementary statement) but the same was decided by the trial Court on 4.1.2019 and got rejected. 5. Charge-sheet was filed on 10.1.2019. 4. It appears that meanwhile, bail application under section 438 of CrPC has been preferred by the applicant apprehending her arrest (before supplementary statement) but the same was decided by the trial Court on 4.1.2019 and got rejected. 5. It is the submission of learned counsel appearing for the applicant that on 4.1.2019, name of the present applicant was not even mentioned by any of the witnesses as accused, but the trial Court relying upon some complaint (which is not part of the charge-sheet) made by father of the deceased to higher authorities, rejected the bail application of the present applicant. Since the date of incident is 3.9.2018 and till 7.1.2019, absolutely no allegations against the present applicant were levelled at any stage including the statements of the prosecution witnesses (including the statement under section 161 of CrPC) and no incriminating material was available against her, therefore, it is apparent that on the basis of supplementary statements u/s 161 of CrPC and statements recorded under section 164 of CrPC as referred above that too in undue haste, applicant was implicated and immediately thereafter charge-sheet has been filed on 10.1.2019 under section 299 of CrPC. 6. It is further submitted that conduct of the police authorities indicates nexus with the complainant party and they did not act fairly. No custodial interrogation is required, no new fact is to be discovered and no weapon is to be seized. Reliance is placed on the judgment of the apex Court in the case of Arnesh Kumar v. State of Bihar [ (2014)8 SCC 273 ], as well as judgment rendered by the apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others [ (2011)1 SCC 694 ] to advance argument regarding grant of anticipatory bail. 7. Learned counsel for the applicant also relied upon the judgment rendered by the apex Court in the case of Bharat Chaudhary and another v. State of Bihar and another [ AIR 2003 SC 4662 ] wherein the Hon’ble Apex Court has held that filing of charge-sheet cannot be a bar for the Court to consider grant of anticipatory bail. 8. Learned counsel for the applicant also relied upon the judgment rendered by the apex Court in the case of Bharat Chaudhary and another v. State of Bihar and another [ AIR 2003 SC 4662 ] wherein the Hon’ble Apex Court has held that filing of charge-sheet cannot be a bar for the Court to consider grant of anticipatory bail. 8. It is further submitted that judgment rendered by the apex Court in the case of Lavesh v. State (NCT of Delhi) [ (2012)8 SCC 730 ] and State of M.P. v. Pradeep Sharma [ 2014(1) JLJ 365 = (2014)2 SCC 171 ] are not attracted in the present case as they can be distinguished on facts because in those cases, the seekers of the bail were proclaimed offenders and repeatedly avoided appearance before the Investigating Officer. Here such exigency does not exist. 9. On the other hand, learned counsel for the respondent-State opposed the prayer made by the applicant on the ground of judgment rendered by the Apex Court in the case of Lavesh (supra), and Pradeep Sharma (supra), and prayed for dismissal of the bail application. It is submitted that charge-sheet has already been filed and therefore application be dismissed. 10. Heard the learned counsel for the parties and perused the case diary. 11. Before proceeding with the case, it is apposite to refer section 438 of CrPC, which is reproduced for ready reference as under : “438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.” 3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).” 12. Perusal of the provision itself indicates that four aspects as referred in section 438 (I) of CrPC need to be considered while granting anticipatory bail under section 438 of CrPC. The instant application is to be decided on the anvil of such factors as referred in section 438(I) of CrPC. 13. Here the nature of offence is regarding sections 306 and 34 of IPC. Although deceased was applicant’s daugther-in-law but at the same time, facts indicate that the deceased and her husband i.e. son of present applicant were living separately (and not with applicant) as stated by the independent witnesses as well as family members of the deceased. Coupled with this case, allegations are in respect of abetement and not of homicide or some heinous nature of crime therefore, nature and gravity of the acquisition does not bear heinousness or gory details. Coupled with this case, allegations are in respect of abetement and not of homicide or some heinous nature of crime therefore, nature and gravity of the acquisition does not bear heinousness or gory details. Since the applicant is a lady aged 55 years and she does not bear any criminal antecedents therefore, factor II contained in section 438(I) of CrPC also comes to the rescue of applicant. So far as the factor No. III is concerned, it appears that the said factor wherein apprehension of possibility of the applicant to flee from justice (normally, in majority of anticipatory bail applications) is concerned, the said factor is to be seen alongwith sections 82 and 83 of CrPC which deals in respect of proclamation for person absconding because statutory result of flee from justice or Abscondance is reflected through sections 82 and 83 of CrPC. 14. The word “Abscond” has been explained in the Black’s Law Dictionary 10th Edition as under : “Abscond : 1. To depart secretly or suddenly, esp. to avoid arrest, prosecution, or service of process. 2. To leave a place, usu. Hurriedly, with another’s money or property.” 15. The definition of word “Abscond” innately describes the attitude of a person to depart secretly to avoid arrest or service of process and if it is seen in juxtaposition to sections 82 and 83 along with section 438 (I) (iii) of CrPC then it appears that unless a person against whom warrant has been issued or against whom warrant cannot be executed because of his abscondance or concealment, then he can be proclaimed as Absconder. Here the said process has not given effect to. In undue haste, only Farari Panchnama (arrest panchnama) has been prepared, without making real efforts to arrest the applicant. Therefore, it cannot be said that the applicant was a proclaimed offender or avoiding her arrest. 16. Although as per the submission advanced, on 7.1.2019, supplementary statements of some of the witnesses were recorded under section 161 of CrPC wherein for the first time, name of the present applicant referred by them and on the same day at 5 pm, Farari Panchnama was prepared. Again on 8.1.2019 and 9.1.2019, two different Farari Panchnamas were prepared and immediately thereafter on 10.1.2019, charge-sheet was filed. Again on 8.1.2019 and 9.1.2019, two different Farari Panchnamas were prepared and immediately thereafter on 10.1.2019, charge-sheet was filed. The undue haste shown by the Investigating Officer regarding recording of supplementary statements under section 161 of CrPC and thereafter under section 164 of CrPC (on 8.1.2019) and meanwhile issuance of Farari Panchnama, all cumulatively indicate that in utter haste, investigation was proceeded. Application for bail u/s 438 of CrPC by applicant was filed before the Court of law much before Farari Panchnama was prepared (on 7.1.2019) because vide order dated 4.1.2019, anticipatory bail application was rejected by the trial Court but on some different grounds because at that point of time, no incriminating material existed against the applicant. 17. In the case of Lavesh (supra), the facts were such wherein definite allegations existed against the husband of the deceased from the very beginning and then appellant was a proclaimed offender in that case and even when interim protection was granted, he did not visit the Investigating Officer and misused the liberty. Therefore, his conduct and declaration of status as absconder were the relevant factors for dismissal of his application by the Hon’ble apex Court. Similarly, in the case of Pradeep Sharma (supra), also, accused was a proclaimed offender under section 82 of CrPC and did not cooperate in the investigation. Here, the applicant came into the list of accused on 7.1.2019 for the first time, whereas the incident took place on 3.9.2018, marg inquiry was conducted and thereafter, FIR was registered on 11.10.2018. Statements of witnesses, including family members of the deceased were taken by the police, they all nowhere referred the role of the applicant in any manner. They only alleged against the husband of the deceased Dharmendra and specifically mentioned the fact that applicant and her husband separated her son from them because of his bad habit (consuming liquor) but on 7.1.2019 things changed drastically and supplementary statements and undue haste shown by the police resulted into filing of charge-sheet and before that Farari Panchnama was prepared. Police Officer may resort to section 41 of CrPC if they have suspicion against a person regarding commission of offence but same has never been resorted to because applicant never implicated or referred as an accused prior to 7.1.2019. Before that, she already preferred anticipatory bail before the trial Court. 18. Police Officer may resort to section 41 of CrPC if they have suspicion against a person regarding commission of offence but same has never been resorted to because applicant never implicated or referred as an accused prior to 7.1.2019. Before that, she already preferred anticipatory bail before the trial Court. 18. Scope of section 438 of CrPC has been dealt with by the Hon’ble apex Court in the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab [ (1980)2 SCC 565 ] and thereafter reiterated in the case of Siddharam Satlingappa Mhetre (supra). In both the judgments, concept and contours of personal liberty were explained in detail. 19. In Bharat Chaudhary (supra), the apex Court has delineated the law in following words : “7. From the perusal of this part of section 438 of the CrPC. We, find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions High Court or this Court even when cognizance is taken or charge-sheet is filed. The object of S.438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself. In our opinion, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge-sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the Courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in nonbailable offences under S. 438 of the CrPC even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so.” 20. In our opinion, the Courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in nonbailable offences under S. 438 of the CrPC even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so.” 20. Considering the fact situation as well as nature of allegations, it appears that undue haste has been shown by the Investigating Officer to prepare Farari Panchnama and to prepare the charge-sheet prima facie, ignoring the fact that offence alleged is not heinous and applicant without criminal antecedents, has no chance to flee from justice, therefore, personal liberty of the applicant cannot lie at the mercy of such disposition of investigation. 21. Here it appears that acquisition has been made with object of injecting and humiliating the applicant by having her so arrested therefore, factor No.IV enumerated in section 438 of CrPC and the law laid down by the Apex Court as referred above furthers the cause of applicant for grant of anticipatory bail under section 438 of CrPC. 22. Anticipatory bail u/s 438 of CrPC is available to an accused even after filing of charge-sheet if he/ she is not a proclaimed offender or if he/ she is not deliberately avoiding his arrest and if factors as enumerated in section 438 (I) of CrPC, are satisfied. In the present case, said factors are satisfied. 23. Resultantly, application for anticipatory bail is allowed. It is hereby directed that in the event of arrest, the applicant shall be released on bail on his furnishing a bail bond of Rs. 50,000/- with two solvent sureties each of 50,000/- of the like amount to the satisfaction of Arresting Authority. 24. This order will remain operative subject to compliance of the following conditions by the applicant : 1. The applicant will comply with all the terms and conditions of the bond executed by her; 2. The applicant will participate and cooperate in the investigation/trial, as the case may be as and when required; 3. The applicant will not indulge herself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4. The applicant will not indulge herself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4. The applicant shall not commit an offence similar to the offence of which she is accused; 5. The applicant will not seek unnecessary adjournments during the trial; 6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be. 7. The bail is provided only for a period of 45 days from today to the applicant, meanwhile, she can approach the trial Court for regular bail in accordance with law. 25. A copy of this order be sent to the Court concerned for compliance.