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CASE NO.: Appeal (crl.)  543 of 2007

PETITIONER: Gajanand Agarwal

RESPONDENT: State of Orissa and Anr

DATE OF JUDGMENT: 12/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T CRIMINAL  APPEAL NO.  543    OF 2007 (Arising out of S.L.P. (Crl.) No. 49 of 2007)  With CRIMINAL  APPEAL NO.  544    OF 2007 (Arising out of S.L.P. (Crl.) No. 50 of 2007)  

Dr. ARIJIT PASAYAT, J.

                Leave granted.           This is a second journey of the appellant to this Court.  Earlier the appellant had questioned grant of bail to the  respondent no.2 in each case by learned Single Judge of the  Orissa High Court. This Court held the impugned orders to be  indefensible by the judgment dated 18.9.2006 in Gajanand  Agarwal v. State of Orissa and Ors. (AIR 2006 SC 3248) and   the orders were nullified.  The High Court again considered the  bail applications and passed the impugned order in each case  reiterating its view that the respondent no.2 in each case was  entitled to grant of bail.

       Background facts in a nutshell are as follows:

       Bimal (respondent No.2 in appeal relating to SLP (Crl.)  No.49 of 2007)  was married to the daughter of the appellant- accused i.e. Manisha (hereinafter referred to as ’deceased’).  The marriage between the deceased and the said accused took  place on 9.5.2005. Within five months of marriage, the  deceased was found dead on 1.10.2005. The appellant lodged  FIR at the Jharsuguda police station and on that basis a case  was registered and investigation was undertaken. The offences  indicated were punishable under Sections 498A, 304B, 302,  406  read with Section 34 of the Indian Penal Code, 1860 (in  short the ’IPC’) and Section 4 of the Dowry Prohibition Act,  1961, (in short ’the Act’)  Respondent no.2 was arrested on  3.10.2005. Rest of the accused persons were found to be  absconding and police having failed to arrest them in spite of  issuance of non-bailable warrants of arrest. An application in  terms of Sections 82 and 83 of the Code of Criminal  Procedure, 1973 (in short ’Cr.P.C.’) was filed. On 16.12.2005  father-in-law of the deceased Kailash Khetan and mother-in- law Kanta Khetan filed application in terms of Section 438  Cr.P.C. before the High Court which was rejected.  Process  under Section 82 of the Cr.P.C. was issued by the learned  ADJM on 19.12.2005.  On 16.1.2006 respondent no.2 filed

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application for bail which was rejected on the ground that  investigation was still in progress.  Liberty was granted to the  accused to move the Sessions Judge for bail after completion  of investigation and submission of final form.  On 24.1.2006  application in terms of Section 438 was filed by Sunil Kumar  (respondent no.2 in the connected appeal) and Sujata Khetan.   The same was rejected by order dated 24.1.2006.  An  application under Section 438 Cr.P.C. was filed by Kailash and  Kanta.  The same was again rejected by the High Court.  On  27.1.2006 the Trial Court issued orders in terms of Section 83  Cr.P.C. to attach the moveable properties of the accused.  On  30.1.2006 the investigating officer submitted the charge- sheet/final report before the learned SDJM indicating that a  prima facie case has been made against the respondent No.2,  Kailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil  (brother-in-law) the respondent no.2 in the connected appeal  under Sections 498A, 304B, 302, 406 read with Section 34  IPC and Section 4 of the Act. The prosecution made a further  prayer to permit investigation in terms of Section 173(8)  Cr.P.C. since some of the accused persons were still  absconding and were not arrested. After surrendering, Kanta  Khetan and Sujata Devi filed application for bail.  The same  was rejected by learned SDJM. The applications filed by  Kailashnath and Sunil were also subsequently rejected.  On  13.2.2006, respondent no.2 filed fresh bail application before  the Sessions Court, which was rejected. The learned  Additional Sessions Judge took note of factual position which  according to him was relevant for the purpose of rejecting the  bail application. It was noted that strong case under Sections  302/304B IPC is made out. Sujata Devi filed bail petition  before the High Court after rejection of bail application by the  Sessions Judge.  The High Court by order dated 6.3.2006  granted bail to her. Interestingly, it was noted that the order  was not to be treated as a precedent so far as other accused  persons are concerned.  It is to be noted that on 22.3.2006  Kanta Devi moved the High Court for bail.  The High Court  granted the bail imposing conditions similar to those which  were stipulated in case of Sujata Devi.  Accused Sunil Kumar  moved the High Court for regular bail. By order dated  7.4.2006 the prayer was rejected but liberty was granted to  renew his prayer for bail after the case was committed to the  Court of Sessions.  On 21.4.2006 the High Court granted bail  to Kailashnath on the ground that he was aged and sick.  Here  again, the High Court passed an order to the effect that same  was not to be treated as a precedent so far as other accused  persons are concerned. On 3.5.2006 accused Sunil Kumar  moved the Sessions Court for bail on the ground that his  father requires further treatment at Apollo Hospital and there  was no male member to accompany him.  The learned  Sessions Judge rejected the prayer of bail by order dated  3.5.2006 suspecting genuineness of the documents filed.  It  was noted that report was dated 30.6.2006 i.e. date put on the  advisory report, while the application was made earlier.   Because of this suspicious document, the application for bail  was rejected.

       The date for framing of charges was fixed on 6.6.2002.  Accused Bimal filed bail application before the High Court. By  order dated 22.6.2006 bail was granted.  The same was the  subject matter of challenge in the earlier matter. This Court  set aside the order on several grounds as noted in the order.  

       The High Court has reconsidered the matter after the  earlier orders were set aside and by the impugned orders the  prayer for bail has been accepted.

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       In support of the appeals, learned counsel for the  appellant submitted that basic ground on which the earlier  orders granting of bail were set aside were (a) since earlier  orders rejecting prayer have not taken into consideration (b) in  case of accused Sunil lack of genuineness of documents as  noted by the Additional Sessions Judge were not considered (c)  the orders were practically non-reasoned.  The High Court has  not only tried to justify the grant of bail on the earlier  occasion, but also has practically recorded order of acquittal to  the accused respondent no.2 in each case.  While dealing with  the bail application, final view is not to be expressed.  It was  only necessary to indicate reasons for grant of bail and not  detailed analysis of the evidence on record, with regard to the  nature of the offence and the evidentiary value of the materials  on record.

       The High Court lost sight of the fact that it was not  dealing with any appeal on merits. It was considering bail  application.  Even otherwise several irrelevant aspects have  been taken into consideration and this Court’s view regarding   use of non-genuine documents by respondent Sunil have been  lightly brushed aside. Curiously, the High Court has treated  the documents which were treated non-genuine by this Court  to be minor circumstances.  It is also pointed out that  factually certain conclusions recorded are contrary to the  evidence on record.  Merely because the relatives of the  deceased spoke out about the dowry demand that cannot be a  ground to come to the conclusion that the allegations relating  to dowry demand are prima facie untenable and "prima facie  throws doubt about the alleged torture".  Learned Single Judge  has also put great emphasis on the alleged non mention of any  person other than family members regarding alleged torture. It  is pointed out that the same is also factually incorrect.  Merely  because the doctor who conducted the post mortem  examination has not been examined by the investigating  agency and statement has not been recorded under Section  161 of the Cr.P.C., that cannot be a ground to grant bail to the  accused persons. It has been held by the learned Single Judge  that the accused persons were permanent residents and there  was no question of their absconding or there being problem in  ensuring their presence.  It is submitted that at least accused  Sunil had absconded for a long time, more than once his  application in terms of Section 438 Cr.P.C. was rejected by the  High Court. He was absconding and, therefore, action of  attachment property in terms of Sections 82 and 83 of the  Cr.P.C. were taken.   It is stated that charges have  not been  framed as yet because proceedings have been stayed by the  High Court at the instance of the respondents-accused  persons.  

       Learned counsel for the State submitted that the High  Court not only acted on erroneous premises but completely  overlooked the fact that undisputedly accused Bimal and  deceased went to the bed together, the latter died under  suspicious circumstances. Charge sheet has been filed  therefore, the grant of bail is not proper. Reliance was placed  on a decision of this Court in Gajanand Agarwal’s case (supra)  more particularly what is stated in para 19.  

       In response, learned counsel for the respondent no. 2-  accused submitted that the accused persons are unnecessarily  being hounded by the complainant. Though the High Court  need not have gone beyond giving reasons and should not  have recorded findings which are matters of trial, that cannot

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be a ground to deny bail to the accused (Respondent no.2 in  each case). The unnecessary findings may be set aside.  But  the order granting bail should not be interfered with as that  was perfectly legitimate.  The Court may have exceeded what  was required to be done while dealing with the bail  application. But that is no ground to cancel the bail. On  reading of the inquest report, the post-mortem report and FSL  report one thing is clear that the death was natural and was  certainly not homicidal as is being presented by the  prosecution and the complainant.  On the earlier occasion the  High Court had not considered the effect of the FSL report.   The report clearly rules out homicidal angle and, therefore, the  presence of blood in the mouth cannot be attributed to any  homicidal action.  Because of the informant’s interference the  investigation has not been done in a fair manner, and the  whole family of the husband’s family has been roped in. The  damage already done to their reputation and dignity cannot be  adequately compensated even if in trial the accused persons  are acquitted.  In view of the strong possibility of death being  natural, the High Court has rightly granted bail.  It is not a  case as if accused Sunil was absconding.  He was running  from pillar to post to prove his innocence for grant of bail.  The  mere fact that there has been some mistake in the date of the  certificate, that cannot be considered to be vital.  It appears to  be a genuine and bona fide mistake. The reports clearly  establish  that the death was natural.    Since the complainant  has acted with motives to unleash personal vendetta that  should not be permitted.   

At this juncture, it would be appropriate to take note of a  decision of this Court in Omar Usman Chamadia v. Abdul and  Anr. (JT 2004 (2) SC 176). In para 10, it was observed as  follows:

"However, before concluding, we must advert  to another aspect of this case which has  caused some concern to us. In the recent past,  we had several occasions to notice that the  High Courts by recording the concessions  shown by the counsel in the criminal  proceedings refrain from assigning any reason  even in orders by which it reverses the orders  of the lower courts. In our opinion, this is not  proper if such orders are appealable, be it on  the ground of concession shown by learned  counsel appearing for the parties or on the  ground that assigning of elaborate reasons  might prejudice the future trial before the  lower courts. The High Court should not,  unless for very good reasons desist from  indicating the grounds on which their orders  are based because when the matters are  brought up in appeal, the court of appeal has  every reason  to know the basis on which the  impugned order has been made. It may be that  while concurring with the lower court’s order,  it may not be necessary for the said appellate  court to assign reasons but that is not so while  reversing such orders of the lower courts. It  may be convenient for the said court to pass  orders without indicating the grounds or basis  but it certainly is not convenient for the court  of appeal while considering the correctness of  such impugned orders. The reasons need not  be very detailed or elaborate, lest it may cause

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prejudice to the case of the parties, but must  be sufficiently indicative of the process of  reasoning leading to the passing of the  impugned order. The need for delivering a  reasoned order is a requirement of law which  has to be complied with in all appealable  orders. This Court in a somewhat similar  situation has deprecated the practice of non- speaking orders in the case of State of Punjab  and Ors. v. Jagdev Singh Talwandi  (AIR 1984  SC 444)".                         (underlined for emphasis)

       These aspects were recently highlighted in V.D.  Chaudhary v. State of Uttar Pradesh and Anr. (2005 (7) SCALE  68).      

Even on a cursory perusal the High Court’s order shows  complete non-application of mind. Though detailed  examination of the evidence and elaborate documentation of  the merits of the case is to be avoided by the Court while  passing orders on bail applications, yet a court dealing with  the bail application should be satisfied as to whether there is a  prima facie case, but exhaustive exploration of the merits of  the case is not necessary.  The court dealing with the  application for bail is required to exercise its discretion in a  judicious manner and not as a matter of course.

There is a need to indicate in the order, reasons for prima  facie concluding why bail was being granted particularly where  an accused was charged of having committed a serious  offence.  It is necessary for the courts dealing with application  for bail to consider among other circumstances, the following  factors also before granting bail, they are:

1.      The nature of accusation and the severity  of punishment in case of conviction and the  nature of supporting evidence; 2.      Reasonable apprehension of tampering of  the witness or apprehension of threat to the  complainant; 3.      Prima facie satisfaction of the Court in  support of the charge.

Any order dehors of such reasons suffers from non- application of mind as was noted by this Court, in Ram  Govind Upadhyay  v. Sudarshan Singh and Ors.  [(2002) 3  SCC 598], Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC  338)] and in Kalyan Chandra Sarkar  v.  Rajesh Ranjan alias  Pappu Yadav & Anr. [JT 2004 (3) SC 442].

The above position was highlighted by this Court in  Chaman Lal v. State of U.P. and Anr. (JT 2004 (6) SC 540), and in Kamaljit Singh v. State of Punjab and Anr. (2005 (7) SCC  326).                              As has been rightly contended by learned counsel for the  appellant, the High Court has given findings which could have  been given at the trial.  In fact, some of the conclusions are  contradictory. In para 9 of the judgment the High Court has  noted as follows:  

"Be that as it may, the post-mortem report is a

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prima facie piece of material the evidentiary  value can be considered at the time of trial."      But indicating "peculiar features of the case", the High Court  has observed that "the post-mortem report coupled with  chemical examination report prima facie reveals that the death  of Manisha was neither homicidal nor suicidal". Interestingly,  earlier the same learned Judge concluded as follows about the  blood stains on the pillow by order dated 24.1.2006 in Crl.MC  No.25 of 2006:         "xx             xx              xx              xx

        I have heard learned counsel for the parties at  length and have perused the materials available in  the Case Diary. The post-mortem report reveals that  blood mixed with fluid was detected from both the  nostrils and mouth of the deceased. It is also  submitted by the learned counsel for the State that  a pillow cover stained with blood has also been  recovered by police. All these facts prima facie  reveal that the death in question might have been  homicidal."   

       The reasoning given by the High Court that only the  family members earlier did not lodge reports and, therefore,    prima facie throws doubt about alleged torture, is another  conclusion which was not required to be given while dealing  with the bail application.  The High Court was factually wrong  in saying that the persons of the locality had not alleged  regarding torture meted out on account of dowry. Even  otherwise merely because the family members of the deceased  spoke about the alleged dowry demand and not others that  cannot be certainly a ground to conclude that same throws  doubt on the alleged torture.

       The High Court was also not correct in saying that there  was no likelihood of the accused persons absconding in view of  what has been pointed out by learned counsel for the  appellant about his not surrendering requiring issuance notice  in terms of Sections 82 and 83 of the Act.

       The High Court has virtually written an order of acquittal  by commenting on the evidentiary value of evidence on record.  This is impermissible. Only broad features of the case are to  be noted.  Elaborate analysis of the evidence is to be avoided.  

       In Imran Ali v. Habibullah and Anr. (SLP (Crl.) 3986 of  2006) disposed of on 19th March, 2007 it has been held as  follows:

       "It is no doubt true that the High Court felt  persuaded to grant bail to the respondents in the  pending appeal before it. The High Court however,  went on to record a very detailed reasoned order  virtually holding that the prosecution case has no  merit. Such observations either for or against the  prosecution, made in orders disposing of bail  applications may prejudicially affect the interests of  the parties because in case a trial is pending before  the Sessions Court, the trial Judge may consider  itself bound by the observations made in such an  order. In any event, such observations are bound to  influence its mind. It is no doubt true that in  appropriate cases particularly in serious matters,

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the High Court may record reasons, but the High  Court while recording reasons must take care to  safeguard against prejudicing the case of the  parties. The recording of reasons, wherever   necessary, is only to indicate the considerations  that may have weighed with the Court in passing  the order and the Court must do so in a manner  that may not prejudice the case of the parties.  The  trend recently noticed, to virtually write a judgment  while disposing of an application for grant of bail  must be discouraged."           Looked from any angle the impugned orders of the High  Court are indefensible and are set aside. The appeals are  allowed.