REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
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2 CRIMINAL APPEAL NO. 1331 OF 2012
3 (Arising out of SLP (Crl.) No. 1961 of 2012
Lavesh .... Appellant(s)
Versus
State (NCT of Delhi) .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is filed against the final order dated 05.12.2011 passed
by the High Court of Delhi at New Delhi in Anticipatory Bail Application
No. 1602 of 2011 whereby the High Court dismissed the application filed by
the appellant herein.
3) Brief facts:
(a) The appellant herein is the elder brother of the husband of the
deceased - Vibha. The appellant is engaged in the business of cutting of
diamonds and getting them manufactured as per the specifications of his
clients. He is married for the last seven years and has two children.
According to him, he resides with his wife and children in the separate
portion of the house in Paschim Puri, New Delhi whereas one portion is
occupied by his parents and one by his younger brother.
(b) On 19.01.2010, younger brother of the appellant got married to Vibha
(since deceased). He lived with his wife on the first floor of the same
house. On 01.09.2011, Vibha, committed suicide. On the same day, the
mother of the deceased lodged a complaint against the family members of the
husband of the deceased with the Police Station at Punjabi Bagh, New Delhi.
(c) On the basis of the complaint, an FIR was registered vide No. 259/11
at Punjabi Bagh Police Station. On the same day, the husband and mother-in-
law of the deceased were arrested. The appellant herein moved an
application for anticipatory bail. The Additional Sessions Judge, Delhi,
by order dated 05.11.2011, dismissed the said application.
(d) Against the said order, the appellant moved an application for
anticipatory bail before the High Court. By the impugned order dated
05.12.2011, the High Court dismissed the said application. Aggrieved by
the said order of the High Court, the appellant preferred this appeal by
way of special leave petition.
4) Heard Dr. Sarbjit Sharma, learned counsel for the appellant and Mr.
Sidharth Luthra, learned Additional Solicitor General for the respondent-
State.
5) The only point for consideration in this appeal is whether the
appellant, who is elder brother of the husband of the deceased, has made
out a case for anticipatory bail in terms of Section 438 of the Criminal
Procedure Code, 1973 (hereinafter referred to as “the Code”)?
6) Before considering the claim of the appellant, it is useful to refer
Section 438 of the Code relating to grant of bail to a person who is
apprehending arrest which reads as under:
“438. Direction for grant of bail to person apprehending arrest – (1)
Where any person has reason to believe that he may be arrested on
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 that in the event of such arrest he shall be released on bail;
and that Court may, after taking into consideration, inter alia, the
following factors, namely:-
i) the nature and gravity of the accusation;
ii) the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on conviction
by a Court in respect of any cognizable offence;
iii) the possibility of the applicant to flee from justice; and
iv) where the accusation has been made with the object of injuring
or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for
the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the
Court of Session, has not passed any interim order under this sub-
section or has rejected the application for grant of anticipatory
bail, it shall be open to an officer in-charge of a police station to
arrest, without warrant the applicant on the basis of the accusation
apprehended in such application. …….”
It makes it clear that in a non-bailable offence if a person has reason to
believe that he may be arrested, he is free to apply to the High Court or
the Court of Session praying that in the event of such arrest, he shall be
released on bail. The belief that the applicant may be arrested must be
founded on reasonable grounds. While considering such a request, the Court
has to take into consideration the nature and the gravity of the
accusation, antecedents, possibility of the applicant to flee from justice
etc. Further, normally, the Court should not exercise its discretion to
grant anticipatory bail in disregard of the magnitude and seriousness of
the matter. The matter regarding the unnatural death of the daughter-in-
law at the house of her in-laws was still under investigation and the
appropriate course to adopt was to allow the concerned Magistrate to deal
with the same on the basis of the material before the Court.
7) It is seen that the deceased had allegedly committed suicide after
one year and eight months of marriage and further she was pregnant at the
time when she had taken her life. On the basis of the complaint filed by
the mother of the deceased, an FIR was registered and during the course of
the investigation, the police recorded the supplementary statements of Hira
Lal, father of the deceased, the neighbour of the deceased near the
matrimonial home as well as the complainant -mother of the deceased.
8) According to the prosecution, if we look into all the above
particulars coupled with the supplementary statements, it has been clearly
made out, particularly, insofar as the appellant is concerned, that there
was a definite allegation against him. Further, the appellant and other
family members subjected the deceased to cruelty with a view to demand
dowry, right from the date of marriage and also immediately before the date
of her death.
9) By placing the relevant materials and two status reports submitted by
the police, Mr. Sidharth Luthra, learned ASG submitted that the appellant
was a Proclaimed Offender. To this effect, Mr. V. Ranganathan, Additional
Commissioner of Police, West District, New Delhi, in his counter affidavit,
filed in this Court on 25.06.2012, has stated that, “Efforts were made to
arrest the petitioner but he absconded as such he was got declared a
Proclaimed Offender. The case is pending trial.” The same has been
reiterated in the status report filed by Mr. Virender Dalal, Station House
Officer, P.S. Punjabi Bagh, New Delhi, before the High Court.
10) From these materials and information, it is clear that the present
appellant was not available for interrogation and investigation and
declared as “absconder”. Normally, when the accused is “absconding” and
declared as a “proclaimed offender”, there is no question of granting
anticipatory bail. We reiterate that when a person against whom a warrant
had been issued and is absconding or concealing himself in order to avoid
execution of warrant and declared as a proclaimed offender in terms of
Section 82 of the Code is not entitled the relief of anticipatory bail.
11) On reading the FIR, statements of various persons including father
and mother of the deceased, neighbours and supplementary statement of
mother of the deceased clearly show that all the family members of the
husband of the deceased including the appellant, who is elder brother of
the husband of the deceased, subjected her to cruelty by demanding sizeable
amount in order to settle the payment of Rs.5 lakhs of the allotted DDA
flat.
12) Another circumstance against the appellant is that even though this
Court on 23.03.2012, while ordering notice, granted interim protection,
namely, not to arrest the appellant in connection with FIR No. 259/2011
registered at Police Station, Punjabi Bagh, New Delhi, it is the claim of
the respondent-State that the appellant did not cooperate and visit the
said police station. Though Dr. Sarbjit Sharma, learned counsel for the
appellant, submitted that the appellant visited the police station on
23.03.2012, 20.07.2012, 24.07.2012 and 27.07.2012, it is brought to our
notice that at the relevant period, viz., 07.04.2012, 01.05.2012 and
18.06.2012, he neither visited the police station nor contacted Mr.
Narender Khatri, Inspector – Investigation, Punjabi Bagh Police Station.
The last three dates are relevant since after getting the interim
protection granted by this Court on 23.03.2012, the appellant did not care
either to visit the police station or to the Investigation Officer
concerned. The claim of his visit on later dates, particularly, in the
month of July, 2012 have no relevance. Considering his conduct, not
amenable for investigation and, moreover, declaring him as an absconder,
there is no question of granting anticipatory bail. Thus, the conduct of
the appellant does not entitle him to anticipatory bail as prescribed in
Section 438 of the Code.
13) Taking note of all these aspects, in the light of the conditions
prescribed in Section 438 of the Code and conduct of the appellant
immediately after the incident as well as after the interim protection
granted by this Court on 23.03.2012, we are of the view that the
appellant has not made out a case for anticipatory bail. Unless free hand
is given to the investigating agency, particularly, in the light of the
allegations made against the appellant and his family members, the truth
will not surface.
14) Under these circumstances, we are unable to accept the claim of the
appellant. On the other hand, we agree with the contentions raised by the
learned ASG and confirm the impugned order dated 05.12.2011 passed by the
High Court in Bail Application No.1602/2011.
15) We make it clear that while upholding the rejection of the
anticipatory bail, we have not expressed any opinion on the merits of the
case. We also clarify that after surrender, the appellant is free to move
bail application before the Court concerned which may be disposed of in
accordance with law.
16) With the above observation, the appeal is dismissed and the interim
protection granted by this Court on 23.03.2012 stands vacated. The
appellant is directed to surrender within a period of one week from today.
...…………….…………………………J.
(P. SATHASIVAM)
..…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
AUGUST 31, 2012.
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