Agarwal Vs. State of Orissa and Anr  Insc 393 (12 April 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
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.
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 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
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 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.
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 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 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
(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 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
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, 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.