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Monday, November 26, 2012

question of Cancellation of anticipatory bail., According to the complainant the deceased had committed suicide because Baban Devlate had not returned the amount given to him by the deceased for the purpose of securing job for his brother -Vijay and also because of the harassment caused to him by the appellants, accused 6 and 7 respectively and accused-5. Pursuant to the complaint Crime No. 3/2012 was registered against accused 5, 6, 7 and other accused under Sections 306, 420 read with Section 34 of the IPC. =complainant preferred an application before the High Court for cancellation of anticipatory bail. By the impugned order learned Single Judge cancelled the bail order, hence, these appeals by special leave.- At this stage, we do not want to express any final opinion on the merits of the case. Truth will surface only when the evidence is adduced. Prima facie, however, we find it difficult to comprehend why the alleged causes of suicide are not stated in one suicide note. So far as accused 5, 6 and 7 are concerned contents of the suicide notes prima facie appear to be unnatural. There is no reference to them in the FIR. Assuming, the suicide notes to be genuine, we find it prima facie difficult to believe that accused 6 and 7 would threaten their son-in-law that they would ask their daughter to set herself on fire and then lodge a complaint against him, particularly, when admittedly at the relevant time their daughter was pregnant.The present accused who are aged and rustic are not influential persons holding high office who can bring pressure on the investigating agency. It is unlikely that the police would find it difficult to interrogate them because they are protected by an order granting anticipatory bail to them. We are unable to concur with learned Single Judge in the facts of this case that it would not be possible to investigate allegation regarding theft of gold ornaments because of the anticipatory bail order. we quash and set aside the impugned orders. Anticipatory bail granted to the appellants-accused 6 and 7 by learned Additional Sessions Judge by order dated 23/01/2012 is hereby confirmed. The appellants-accused 6 and 7 shall cooperate with the investigating agency and abide by the conditions imposed on them.


                                                              NON-REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL Nos.1859-1860 OF 2012
     (Arising out of Special Leave Petition (Crl.) Nos. 4435-36 of 2012)



PADMAKAR TUKARAM BHAVNAGARE
AND ANR.                                                 …APPELLANTS

                                   Versus


THE STATE OF MAHARASHTRA
AND ANR.                                     .…RESPONDENTS




                                  JUDGMENT



(SMT.) RANJANA PRAKASH DESAI, J.



1.    Leave granted.


2.    These appeals, by special leave, are directed against the order  dated
27/03/2012 passed on  Criminal  Application  No.  15/2012  and  order  dated
04/05/2012 passed on Criminal Application (App.) No.  533/2012  in  Criminal
Application No. 15/2012 by the Nagpur Bench of the Bombay High Court.


3.    The appellants are original accused 6 and 7 respectively  (“accused  6
and 7”, for brevity).
Accused-6 is the husband of accused-7  and  accused-5
is their daughter.  
The case of the complainant-Ashok Jairam  Bhojane  (for
short “the complainant”),  as  evident  from  the  F.I.R.  dated  10/01/2012
lodged at Police Station, Jaulka,  is that his son Nitin (the deceased)  was
married to accused-5 at Murtizapur in March, 2011.
The deceased  had  given
an amount  of  Rs.71,500/-  to  Baban  Devlate  because  Baban  Devlate  had
promised to give job to  his  brother-Vijay.
  Baban  Devlate  had  given  a
cheque of Rs.50,000/- to the deceased and told him that if the  job  is  not
given, he may deposit the cheque and get the money.
As Vijay  did  not  get
the job as promised, the deceased deposited the cheque  in  the  bank.   The
cheque was dishonoured.  Baban Devlate, his wife  and  children  refused  to
give back the amount.  
The  deceased  was,  therefore,  disturbed.   It  is
further stated by the complainant in the complaint  that  accused-5  Sadhya-
wife of the deceased did not want to stay in  the  matrimonial  house.   She
wanted the deceased to separate from his parents.
Accused 6 and 7  used  to
threaten him and tell him that they would ask their daughter to set  herself
on fire and then lodge a false complaint against  him  and  members  of  his
family under Section 498-A of the Indian Penal Code (for short, “the  IPC”).
 According to the complainant,
 on  31/12/2011  the  deceased  had  gone  to
Jaulka for duty.
No one was in the house except his  son  Vijay.  
Accused-5
told him that she was unwell  and,  therefore,  she  wanted  to  go  to  the
hospital.  She requested  Vijay  to  drop  her  at  her  parent’s  place  at
Murtizapur.  Accordingly, Vijay dropped her at her parent’s place  and  came
back.
 On 04/01/2012 the deceased came back from his duty.   He  found  that
accused-5 had taken away the entire jewellery with  her.
 Due  to  this  the
deceased was extremely disturbed.
On 05/01/2012 he left for Jaulka to  join
his duty, however, he did not return. He could not be  contacted  on  phone.
Therefore, the complainant went to Jaulka Police Station on 08/01/2012.
 At
the Police Station he came to know that  at  Chala,  which  is  adjacent  to
Davha Nalah, the deceased had hanged  himself  on  a  tree  after  consuming
poison.
According to the complainant  the  deceased  had  committed  suicide
because Baban Devlate had not returned  the  amount  given  to  him  by  the
deceased for the purpose of securing job for his  brother  -Vijay  and  also
because of the harassment caused to him by the appellants, accused 6  and  7
respectively and accused-5.
 Pursuant to the complaint Crime No.  3/2012  was
registered against accused 5, 6, 7 and other  accused  under  Sections  306,
420 read with Section 34 of the IPC.


4.     On  12/01/2012  accused  5,  6  and  7  filed  an   application   for
anticipatory bail under Section 438 of the Code of Criminal  Procedure  (for
short, “the code”) in  the  court  of  Additional  Sessions  Judge,  Washim.
Learned Additional Sessions Judge granted ad-interim anticipatory  bail  and
made notice returnable on 21/01/2012. On 23/01/2012 ad-interim  anticipatory
bail  order  was  confirmed.
 Being  aggrieved  by  the  said   order,   the
complainant preferred an application before the High Court for  cancellation
of anticipatory bail.  
By the impugned order learned Single Judge  cancelled
the bail order, hence, these appeals by special leave.


5.    From the perusal of the impugned order it appears that learned  Single
Judge inter alia  was  of  the  view  that  it  was  obligatory  on  learned
Additional Sessions Judge to hear  the  Public  Prosecutor  before  granting
bail as per Section 438(2) of  the  Code  read  with  the  State  amendment.
Learned Single Judge was of the opinion that the objections  raised  by  the
investigating agency were not  considered  by  learned  Additional  Sessions
Judge.  In his view, learned Additional Sessions Judge  did  not  focus  his
attention on the fact that the complainant was being forced to withdraw  the
complaint and that he was being threatened by the accused.  He  was  further
of the view that since there was an allegation  that  gold  ornaments  worth
Rs.2,50,000/- were stolen by the accused and that the  investigation  as  at
nascent stage, the custodial interrogation of  the  accused  was  necessary.
Learned Single Judge felt that grant of anticipatory bail  was  an  improper
exercise  of  discretion.   In  the  circumstances,  he  quashed  the   said
anticipatory bail order.


6.    We have heard, at some length, Ms. Anagha  S  Desai,  learned  counsel
appearing for the appellants-accused and learned counsel appearing  for  the
State.   Counsel for the appellants submitted that the  complaint  does  not
specifically state that the alleged harassment caused by the appellants  was
the cause of suicide.  The deceased was also stated to be disturbed  because
Baban Devlate had not returned Rs.71,500/-.  The allegations that  accused-5
had taken away gold ornaments, that accused 5, 6 and 7 caused harassment  to
the  deceased  and  that  the  accused  had  threatened  the  deceased   are
farfetched.   Anticipatory  bail  once  granted  ought  not  to  have   been
cancelled in such light manner.  Counsel for the State  on  the  other  hand
supported the impugned order.




7.    At this stage, we do not want to express  any  final  opinion  on  the
merits of the case.
Truth will surface only when the  evidence  is  adduced.
Prima facie, however, we find it difficult to  comprehend  why  the  alleged
causes of suicide are not stated in one suicide note. 
So far as  accused  5,
6 and 7 are concerned contents of the suicide notes prima  facie  appear  to
be unnatural.  
There is no reference to  them  in  the  FIR.  Assuming,  the
suicide notes to be genuine, we find it prima facie  difficult   to  believe
that accused 6 and 7 would threaten their son-in-law  that  they  would  ask
their daughter to set herself on fire and then  lodge  a  complaint  against
him, particularly, when admittedly at the relevant time their  daughter  was
pregnant.


8.    In our opinion, reliance placed  by  learned  Single  Judge  on  State
Representated by the C.B.I. v. Anil Sharma[1]  is  totally  misplaced.  
 In
that case the respondent-accused was a  former  Minister  of  the  State  of
Himachal Pradesh.
 The C.B.I. was investigating the  F.I.R.  lodged  against
him alleging that he had amassed wealth far in excess of his  known  sources
of income.
He was alleged to have committed offence under Section 13(2)  of
the Prevention of Corruption Act, 1988.  
While  the  investigation  was  in
progress, overruling all  the  objections  raised  by  the  C.B.I.,  learned
Single  Judge  of  the  Himachal  Pradesh  High  Court   released   him   on
anticipatory  bail.  
When  the  C.B.I.  approached  the  High   Court   for
cancellation of bail, it was submitted that considering the responsible  and
high office which the accused therein held and the wide influence  which  he
could wield and the great hardship which the investigating agency  would  be
subjected  to  while  interrogating  a  person  armed  with  an   order   of
anticipatory bail, the discretion under Section 438 should never  have  been
exercised in his favour.
 In the facts of the case  before  it  this  Court
accepted this submission of counsel for the  C.B.I.  and  observed  that  in
such a case effective interrogation of a suspected person is  of  tremendous
advantage in disinterring many useful informations and also materials  which
would have been concealed.  Success in such  interrogation  would  elude  if
the suspected person knows that he is well protected and insulated by a pre-
arrest bail order during the  time  he  is  interrogated.   It  was  further
observed that very often interrogation in such a condition would be  reduced
to a mere ritual.

9.    Facts of that case cannot be compared to  the  facts  of  the  instant
case.
 The present accused who are  aged  and  rustic  are  not  influential
persons holding high office who can  bring  pressure  on  the  investigating
agency. 
 It  is  unlikely  that  the  police  would  find  it  difficult  to
interrogate  them  because  they  are  protected  by   an   order   granting
anticipatory bail to them.
We are  unable  to  concur  with  learned  Single
Judge in  the  facts  of  this  case  that  it  would  not  be  possible  to
investigate allegation regarding theft of  gold  ornaments  because  of  the
anticipatory  bail  order. 
 Learned  Single  Judge  was,  however,   rightly
concerned about the fact that the Public Prosecutor  was  not  heard  before
passing the orders.  We have,  therefore,  heard  learned  counsel  for  the
State at length.  He has vehemently supported the impugned orders but he  is
unable to persuade us  to  confirm  them.
 No  concrete  material  has  been
produced before us to show that the accused had interfered with  the  course
of investigation by threatening the  complainant  and  the  members  of  his
family.
 It is true that this Court has held  that  generally  speaking  the
grounds for cancellation of bail broadly  are  interference  or  attempt  to
interfere with the due course of justice or abuse of the concession  granted
to the accused in any manner.
 This Court has clarified that these  instances
are illustrative and bail can be  cancelled  where  the  order  of  bail  is
perverse because it is passed ignoring evidence on  record  or  taking  into
consideration irrelevant  material.  
Such  vulnerable  bail  order  must  be
quashed in the interest of justice. (See: Dolat Ram v. State  of  Haryana[2]
& Dinesh M.N. (S.P.) v. State of Gujarat[3]).
No  such  case,  however,  was
made out to persuade learned Single Judge to  quash  the  anticipatory  bail
order passed in favour of accused 6 & 7.
Order granting  anticipatory  bail
to them,  therefore,  deserves  to  be  confirmed.   We  feel  that  if  the
conditions imposed by learned Sessions Judge  are  confirmed,  it  would  be
possible  for  the  investigating  agency   to   interrogate   the   accused
effectively.


10.   In the circumstances
we quash and  set  aside  the  impugned  orders.
Anticipatory bail granted to the  appellants-accused  6  and  7  by  learned
Additional Sessions Judge by order dated  23/01/2012  is  hereby  confirmed.
The appellants-accused 6  and  7  shall  cooperate  with  the  investigating
agency and abide by the conditions imposed on them. 
 Needless  to  say  that
it will be open to learned Additional Sessions Judge seized of the  case  to
vary the conditions if necessary in accordance with law.   Needless  to  say
further that all observations made by us touching the  merits  of  the  case
are prima facie observations and the  trial  court  shall  decide  the  case
without being influenced by them.

11.   The appeals are disposed of in the aforestated terms.

                                                            ………………………………….J.
                                                                (AFTAB ALAM)


                                                            ………………………………….J.
                                                     (RANJANA PRAKASH DESAI)
NEW DELHI,
NOVEMBER 26, 2012

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[1]    (1997) 7 SCC 187
[2]    (1995) 1 SCC 349
[3]    (2008) 5 SCC 66

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