TMI Blog2020 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... ries which were examined at the Government Hospital, is a matter for investigation. The trail of monies alleged to be received by the deceased for her professional work is a matter to be investigated. Similarly, the transfer of monies by the deceased to her father-in-law and the nexus, if any, with the funds which she had received from her parents is a matter for serious investigation. The death was unnatural which took place within seven years of the marriage. The alleged phone calls received by the informant from some of the accused and by the deceased on the day when she was found to be hanging are matters which required to be probed. The alleged absence of an external injury on the body of the deceased is a matter for investigation. The approach of the High Court is casual - The observation of the High Court that no specific role is assigned in the FIR to the accused is based on a misreading of the FIR. The entire approach of the High Court is flawed. It is contrary to the record and, as we shall now explain, contrary to settled principles of law governing the exercise of discretion on the grant of anticipatory bail in a case involving the alleged commission of a serious off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances - the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication in the news media, is rejected. The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition. The apprehension of the appellant that A-2 and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified - The CBI is directed to conduct a further investigation of the case arising out of case Crime No. 0623 of 2020 registered at Police Station Tajganj, District Agra, dated 7 August 2020. Appeal disposed off. - Criminal Appeal Nos.872-873 of 2020 Arising out of SLP (Crl.) Nos. 4935-4936 of 2020 - - - Dated:- 17-12-2020 - [Dr Dhananjaya Y Chandrachud], [Indu Malhotra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged suicide of Deepti, the FIR records that: About 18-19 days ago, all the abovementioned family members of her in-laws badly beaten up Dipti on account of dowry and threatened her that if she informed the family of her parents, she will have to face the consequences. On 03.08.2020, in the morning, Dr S. C. Agarwal telephonically threatened the applicant and demanded the money, and also threatened that either I should fulfill the demand, otherwise, I will be responsible for whatever happens in future. The same day in the afternoon at 3:09 PM and thereafter at 5:31 PM in the evening, Dipti told the applicant and the wife of the applicant about beating up done by them about 18-19 days ago and regarding taking advice by all the people and about threat to her life. At the time, the applicant was in Faridabad and he told her about coming to Agra in the night itself. However, before the applicant could reach in the evening on the same day these dowry greedy people killed Dipti in [xxx] for non-receipt of dowry and non-fulfilment of the demands, and admitted Dipti in their hospital itself in the almost dead condition, in order to save themselves, but she was not allowed any treatme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds for dowry. On 9 September 2020, non-bailable warrants were issued against the four accused. Applications for anticipatory bail were filed on their behalf before the High Court [Criminal Misc Anticipatory Bail Application Nos. 5457/5460 of 2020] . On 22 September 2020, a learned Single Judge, after noting the submissions, posted the applications for anticipatory bail for further hearing on 28 September 2020 and protected the accused against arrest in the interim. On 28 September 2020, another Single Judge of the High Court before whom the application was listed noted the fact that the earlier order dated 22 September 2020 had posted the application for further hearing and directed the registry to process the listing of the proceedings accordingly. Eventually, anticipatory bail has been granted by the order of the High Court dated 29 September 2020. The reasons on the basis of which the High Court proceeded to grant anticipatory bail are contained in paragraph 20 of the judgment of the High Court which is extracted below: 20. Having heard the learned counsel for applicants, learned A.G.A. and the learned counsel for the informant and the undisputed position which has emer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased transferred an amount of Rs.24 lacs by bank transfer from her account to the account of her father-in-law. Details of these payments are as follows: C. AMOUNT TRANSFERRED FROM DECEASED TO R-5 FOR INVESTMENT [PG. K, SLP] S. No Date Amount Purpose Pages (Counter) Corresponding same entry in A2 s Balance Sheet @ Pg (Counter) 1. 04.12.2015 2,00,000 Building Construction Investment 274 180 2. 02.06.2016 2,00,000 Building Construction Investment 275 183 (Received next day i.e 03.06.2016) 3. 30.06.2016 5,00,000 Building Construction Investment 275 184 4. 01.03.2017 15,00,000 Building Construction Investment 277 187 Total 24,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific allegation that Deepti had been killed, only her spouse was taken in for custodial interrogation and the alleged murder has not been investigated. Though until 22 September 2020, the other accused were not protected from arrest, no effort was made by the police to trace them in the interim; (vii) A charge-sheet dated 24 October 2020 was submitted to the competent court on 5 November 2020 hastily, without proper investigation of the crime; (viii) The order of the High Court cannot pass muster on the basis of the law which has been laid down by this Court in the following decisions: (i) (2001) 6 SCC 338; Puran vs Ramvilas (ii) (2005) 8 SCC 21; State of U.P. vs Amarmani Tripathi (iii) (2012) 4 SCC 379; Jaiprakash Singh vs State of Bihar (iv) (2016) 15 SCC 422; Neeru Yadav vs State of U.P. (v) (2020) 5 SCC 1; Sushila Agarwal vs NCT of Delhi (vi) (1997) 7 SCC 187; State vs Anil Sharma and (vii) (2005) 4 SCC 303; Adri Narayan Das vs State of West Bengal 8 Opposing the above submissions, Mr Sidharth Luthra, Senior Counsel submitted that: (i) The deceased and her husband commenced living separately from 12 October 2018; (ii) The post mortem report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion since the brotherin-law and sister-in-law of the deceased had travelled to Mumbai on those days; (viii) The suicide note, which has been forwarded to the forensic science laboratory, indicates that the deceased was in a depressed mental state due to her miscarriages; (ix) The recovery of the suicide note is evidenced by the recovery memos drawn up by the police; and (x) The applicants have co-operated in the course of the investigation and their statements have been recorded before the charge-sheet was filed on 5 November 2020. 9 Supporting the above submissions, Mr R Basant, Senior Counsel submits that Dr SC Agarwal (A-2) is a senior medical practitioner based in Agra. He and his spouse (A-3) have two sons who are doctors by profession, namely A-1 and A-4. A1 was the spouse of the deceased while A-4 and A-5 are spouses. Two hospitals were set up by A-2 with the object of ensuring separate establishments for his sons, A-1 and A-4. Supporting the grant of anticipatory bail by the High Court, Mr Basant submitted that: (i) The tenor of the suicide note indicates that the deceased was suffering from mental depression as a result of successive miscarriages and she had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the story of suicide due to frustration and adopting a child by the deceased are fictitious and baseless. The alleged suicide note is not in the handwriting of(sic) Dr. Dipti. The said document is false, fabricated and has been prepared by the accused persons and they are guilty of committing of offence u/s 468 471 of IPC. 15. That Respondent-State is also relying upon the law laid down by this Hon'ble Court. In case of Lavesh vs State (NCT of Delhi) reported in 2012 (8) SCC 730, particularly in paragraphs 8,12 and 18 of this judgment. 11 On the basis of the above averments, the State has supported the appellant in assailing the correctness of the order granting anticipatory bail. Significantly, on the specific query of the Court as to whether any investigation has been carried out on the allegation that Deepti was murdered, Mr Vimlesh Kumar Shukla, learned Senior Counsel has answered in the negative. On the alleged suicide note, learned Senior Counsel submitted that it was initially returned back by the FSL in the absence of adequate material for comparing the hand writing and it has now been re-submitted by the Investigating Officer with necessary support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigate. One of the principal aspects which weighed with the Sessions Judge while denying anticipatory bail on 21 August 2020 was the fact that the informant‟s side had filed documents indicating the transfer of moneys under different transactions. Besides this, the Sessions Judge also relied on the letter dated 1 October 2017 addressed by the deceased to the SHO, Kosi Kalan, District Mathura, specifically complaining that she had been assaulted by A-3, A-4 and A-5 as a consequence of which she had suffered injuries. The Sessions Judge noted that it has been alleged that this had happened at the behest of her father-in-law, A2. Besides the contents of the FIR, the Single Judge of the High Court was duly apprised of the fact that though the deceased had been assaulted in 2017, the informant had not proceeded against the spouse of the deceased and the other members of his family, simply to save the marriage. The Single Judge, while analyzing the rival submissions, noted that (i) The applicants for bail are the father-in-law, mother-in-law, brother-in-law and sister-in-law; (ii) The spouse of the deceased is in custody; and (iii) The FIR is not to be treated as an ency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The trail of monies alleged to be received by the deceased for her professional work is a matter to be investigated. Similarly, the transfer of monies by the deceased to her father-in-law and the nexus, if any, with the funds which she had received from her parents is a matter for serious investigation. The death was unnatural which took place within seven years of the marriage. The alleged phone calls received by the informant from some of the accused and by the deceased on the day when she was found to be hanging are matters which required to be probed. The alleged absence of an external injury on the body of the deceased is a matter for investigation. The approach of the High Court is casual. The surmises which are contained in the reasons recorded by the High Court have no basis in the materials with which it was confronted. The observation of the High Court that no specific role is assigned in the FIR to the accused is based on a misreading of the FIR. The entire approach of the High Court is flawed. It is contrary to the record and, as we shall now explain, contrary to settled principles of law governing the exercise of discretion on the grant of anticipatory bail in a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) the reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; (x) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. Adverting to the above observations, in Jai Prakash Singh vs State of Bihar [(2012) 4 SCC 379] , this Court held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not consider material facts or crucial circumstances. A two judge Bench of this Court, in Kanwar Singh Meena vs. State of Rajasthan [(2012) 12 SCC 180] , noted that: 10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd regular bail. In Pokar Ram vs. State of Rajasthan [(1985) 2 SCC 597] , while setting aside an order granting anticipatory bail, this Court observed: 5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation. 6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 561] clearly lays down that the distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. Judged in the light of the above principles, the judgment of the Single Judge of the High Court of Judicature at Allahabad is unsustainable. The FIR contains a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. The FIR has referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was found. The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as engineered to falsely implicate the spouse of the deceased and his family. We hasten to add that our observations at this stage are prima facie in nature, and nothing that we have said should be construed as a determination on the merits of the case which will be adjudicated at the trial. D Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances. Having said this, we prima facie reject the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication in the news media. The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition. The apprehension of the appellant that A-2 and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified. 21 In the backdrop of what has been stated above and the serious deficiencies in the investigation, we have during the hearing, made all the counsel aware of the possibility of this court referring the case for further investigation to the CBI. The court must ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he charge-sheet which is dated 24 October 2020 has been submitted to the competent court on 5 November 2020. The submission of the charge-sheet does not oust the jurisdiction of a superior court, when as in the present case, the investigation is tainted and there is a real likelihood of justice being deflected. In Vinay Tyagi vs Irshad [(2013) 5 SCC 762] , a two judge Bench of this Court, speaking through Justice Swatanter Kumar, has held: 43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct further investigation , fresh or de novo and even reinvestigation . Fresh , de novo and reinvestigation are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection. (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the chargesheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. Similarly, in Dharam Pal vs State of Haryana [17 (2016) 4 SCC 160] , a two judge Bench of this Court, speaking through Justice Dipak Mishra (as the learned Chief Justice then was), upheld the power of this Court to transfer an investigation to the CBI, irrespective of the stage of the trial. It held: 24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very spa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een conducted. It would indeed be a travesty if this Court were to ignore the glaring deficiencies in the investigation conducted so far, irrespective of the stage of the proceedings or the nature of the question before this Court. The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminishes this Court‟s faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst. 24 Mr K M Nataraj, Additional Solicitor General of India has appeared in these proceedings with Mr Arvind Kumar Sharma, and stated that the CBI would abide by the orders of this Court. E Summation 25 We accordingly allow the appeal and issue the following directions: (i) The order passed by the Single Judge of the High Court of Judicature at Allahabad allowing the applications for anticipatory bail by the respondents-accused shall stand set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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