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2022 DIGILAW 168 (UTT)

Govind Haldar v. State of Uttarakhand

2022-06-28

ALOK KUMAR VERMA

body2022
JUDGMENT : This Second Bail Application has been filed in connection with Case Crime No.156 of 2018 (Sessions Trial No.244 of 2018, “State vs. Govind Haldar and Others), registered with Police Station Dineshpur, District Udham Singh Nagar for the offence under Section 304 B of IPC and Section 3/4 of the Dowry Prohibition Act, 1961. 2. After hearing the parties, First Bail Application (No.549 of 2020) was rejected on 07.01.2022 by this Court. 3. Facts, to the limited extent, are that Mr. Sadhan Maitra, the informant/ the father of the deceased Smt. Pallavi, lodged an FIR to the effect that the marriage of his daughter Smt. Pallavi was solemnized with the present applicant on 04.12.2017 as per Hindu rites. After marriage, the present applicant had demanded dowry in the shape of cash and jewellery. The deceased was harassed and tortured by the applicant for the demand of dowry. Smt. Pallavi had died on 06.09.2018. The said First Information Report was registered at 10:30 hours on 07.09.2018. 4. On 07.01.2022, Mr. Sandeep Kothari, the learned counsel for the present applicant, had submitted that the applicant has been implicated in this matter; the death of the deceased was natural; the applicant had not demanded any alleged dowry; the deceased was not harassed or tortured by him; according to the postmortem report, the cause of death could not ascertain and no external injury was found on the body of the deceased; the applicant has no criminal history and he is in custody since 10.09.2018. 5. On 07.01.2022, Mr. Siddhartha Bisht, the learned Brief Holder for the State, had opposed the bail application and submitted that during the investigation, evidence are produced that the deceased was subjected to cruelty for demand of dowry in the shape of Rs,50,000/- and jewellery. According to the viscera report, Organo Chloro Insecticide poison was found in the body of the deceased. 6. On 07.01.2022, after hearing both the parties, this Court had passed following order : “6. Section 439 of the Code of Criminal Procedure confers very wide powers regarding bail. But, while granting bail, the High Court is guided by the same considerations as other court. That is to say, the gravity of the crime, the character of the evidence and such other grounds are required to be taken into consideration. 7. Section 439 of the Code of Criminal Procedure confers very wide powers regarding bail. But, while granting bail, the High Court is guided by the same considerations as other court. That is to say, the gravity of the crime, the character of the evidence and such other grounds are required to be taken into consideration. 7. In the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528 , the Hon’ble Supreme Court has held that the law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. 8. In the case of State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 , the Hon’ble Apex Court has held that it is well settled that the matters to be considered in an application for bail, are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence, (ii) nature and gravity of charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail. 9. In determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie considering why bail is being granted particularly where an accused is charged of having committed a serious offence. Any order dehors reasons suffers from non-application of mind as observed by the Hon’ble Supreme Court in the case of Ram Govind Upadhyay vs. Sudarshan Singh and others, (2002) 3 SCC 598 . 10. Any order dehors reasons suffers from non-application of mind as observed by the Hon’ble Supreme Court in the case of Ram Govind Upadhyay vs. Sudarshan Singh and others, (2002) 3 SCC 598 . 10. A ratio decidendi of the judgment of the Hon’ble Supreme Court in Anil Kumar Yadav vs. State (N.C.T.) of Delhi and another, 2018 (1) CCSC 117 is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail. 11. Undoubtedly, the applicant got married to the deceased on 04.12.2017 and within seven years of the marriage, the deceased died under unnatural circumstances. During the investigation, evidence are produced that the deceased was subjected to cruelty soon before her death for demand of dowry by the applicant. At this stage, the presumption of the provision of Section 113 B of the Indian Evidence Act, 1872 attracts against the applicant. It would be inappropriate to discuss the evidence in depth at this stage. At this stage, detailed appreciation of evidence shall affect the merit of the case. But, from the perusal of the evidence, collected during the investigation, it prima facie appears that the applicant was involved in this crime. No reason is found to implicate the applicant. 12. Therefore, there is no force in the submissions of the learned counsel for the applicant and no good ground has been made out for enlarging the applicant on bail at this stage. The bail application is liable to be rejected. Consequently, the bail application is rejected accordingly. 13. It is clarified that the observations made regarding the bail application are limited to the decision of this bail application, in the light of the facts provided by the parties at this stage, as to whether the bail application should be allowed or not. The said observations shall not effect the trial of the case.” 7. Heard Mr. Sandeep Kothari, the learned counsel for the applicant and Mr. Pratiroop Pandey, the learned A.G.A. assisted by Mr. Pramod Tiwari, the learned Brief Holder for the State. 8. Mr. Sandeep Kothari, the learned counsel for the applicant, submitted that the applicant is in custody since 10.09.2018. The said observations shall not effect the trial of the case.” 7. Heard Mr. Sandeep Kothari, the learned counsel for the applicant and Mr. Pratiroop Pandey, the learned A.G.A. assisted by Mr. Pramod Tiwari, the learned Brief Holder for the State. 8. Mr. Sandeep Kothari, the learned counsel for the applicant, submitted that the applicant is in custody since 10.09.2018. He further submitted that the ingredients of Section 304 B IPC are missing in this matter, because, the main ingredient i.e. “the dowry demand and cruelty soon before the death of the deceased”, are missing. To support the said submission, the learned counsel for the applicant has filed a copy of the statement of father of the deceased, PW-1, recorded on 02.04.2021 and the said witness was cross-examined on 17.08.2021. 9. On the other hand, Mr. Pratiroop Pandey, the learned A.G.A. for the State opposed this bail application and submitted that the father of the deceased, PW-1, has supported the prosecution’s case. He further submitted that the statement of the father of the deceased (PW-1) was recorded before passing the order on the First Bail Application i.e. on 07.01.2022. The learned counsel for the State argued that the Second Bail Application is not maintainable. 10. In State of Madhya Pradesh Vs. Kajad, (2001) 7 SCC 673 , the Hon’ble Supreme Court has held that it is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second bail application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law. 11. In State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 , the Hon’ble Supreme Court has observed, “…..Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ……” 12. The applicant had opportunity to raise all his contentions on the previous occasion. The contention of the learned counsel for the applicant that the applicant is in custody since 10.09.2018 would not amount to substantial change in the circumstances. ……” 12. The applicant had opportunity to raise all his contentions on the previous occasion. The contention of the learned counsel for the applicant that the applicant is in custody since 10.09.2018 would not amount to substantial change in the circumstances. Therefore, it is not open to the applicant to make successive bail applications even on the grounds already rejected by this Court earlier. 13. On overall consideration of the application and also in the fact that any change in circumstances is not established, after rejection of the first bail application on merit, I do not find any change in circumstances to entertain present second bail application. The second bail application does not deserve to be entertained. Consequently, the present Second Bail Application is rejected at the admission stage.