BASANT KUMAR SHUKLA Vs. KOMAL PRASAD

JUDGEMENT

(1.) THIS is an application under Section 439 (2) Cr. P. C. challenging legality of grant anticipatory bail to non-applicants 1 to 6. It is alleged that these non-applicants are not only, prima facie guilty of dowry dealt, but actual murder, and were not entitle to bail, much less, anticipatory bail. It is submitted that grant of anticipatory bail in such a heinous case amounts to misuse of the discretion vested in the Court and should not have been permitted.

(2.) NON-APPLICANT Komal Prasad was married to deceased Rekhabai about two years before. It is alleged that non-applicants 1 to 4 had been insisting that Rekhabai brings dowry from her parents, which she was not willing, as her parents were not in a position to pay the same. On 26. 1. 1991 Rekhabai had gone to Balaghat and stayed in the house of non-applicants 5 and 6 who are her maternal-uncle and aunt for the treatment of her son. She had reported to Police Station that her husband, father-in-law and mother-in-law were conspiring to kill her, as she was unable to bring dowry. On 31. 1. 1991 intimation was received at the Police Station from the hopital that Rekhabai was brought to the hospital in a burn-condition. The police officials reached on the spot and recorded F. I. R. on the basis of which an offence under Sections 307/498-A/34 read with Section 120-B I. P. C, was registered. Rekhabai informed the police that she had come to Balaghat on 26. 1. 91 to get her infant child treated and was staying-in the house of non-applicants 5 and 6 Tekchand and Rekhabai. She alleged that her husband, father-in-law, mother-in-law and husband's younger brother had been beating and torchering her for bringing a swing machine from her parents. All of them had left her and her child in the house of these non-applicants 5 and 6. On 31. 1. 1991 at about 4. 45 P. M. , she had gone to bath-room, when her mother-in-law Munnibai came from behind, poured kerosene oil on her body and lit fire. She shouted for help, but non-applicants 5 and 6 did not help her. Ultimately one Chouhan, the neighbour rushed to the spot, wrapped her body with a blanket and thus saved her. It appears that she was in a critical condition and, therefore, her dying declaration was also recorded. In her dying declaration, she again alleged that she had gone to bathroom, when her mother-in-law came from behind, poured kerosene oil on her and lit fire, using a matchstick. She shouted on heating which Shri K. N. Chouhan, the neighbour came and saved her. She also stated that neither her mother-in-law nor non-applicants 5 and 6 did anything her to save her. She also stated that the non-applicants 1 to 4 had been torchering Rekhabai unfortunately died on 6. 2. 1991 and, therefore, the non-applicants were charged with offence under Section 302 I. P. C. along with others. They applied for anticipatory bail and the learned Sessions Judge by 470 Divorce and Matrimonial Cases 1992 his order dated 20th February, 1991 granted them bail. The order sems to be in two parts, first part deals with non-applicant No. 6 Rekhabai and mentions only that her earlier bail application was rejected because there was no liklihood of her being arrested. Nothing whatsoever against her has been discussed in the order. As regards others, it was stated in the order that since they had also been granted the benefit of anticipatory ball, there is no reason why they should be denied the same only because offence under Section 307 I. P. C. has been converted into Section 302 I. P. C. It is order, which is impugned in the present application.

(3.) SINCE charge-sheet has been filed, it is now possible to state facts constituting allegations against the non-applicants. Deceased Rekhabai had very clearly and specifically stated not only in her F. I. R,, but also in the dying declaration that she was in the house of non-applicants 5 and 6, who were present at the time incident. She had also specifically alleged that her mother-in-law non-applicant No. I had poured kerosene oil on her and lit fire, as a result of which, she was burnt. She had also alleged that her husband, his brother and father, i. e. non-applicants 1, 2 and 4, were not present at the spot, but they had earlier been torchering her and beating her, as she had not brought sufficient dowry. Ramdayal is one of the persons, who had rushed to the spot. According to him, Keshavji Chouhan had reached earlier. At that time the deceased was burning and crying. Keshavji Chouhan had wrapped her with a blanket and rescued. He was one of the persons, who brought her to the hospital. According to him, the deceased had told that her mother-in-law had poured kerosene oil and lit fire. This witness is not related to the deceased Keshavj Chouhan has also deposed that he heard some lady shouting for help and rushed to the house of non-applicant Tekchand. The house was closed. Tekchand opened the door. He saw the lady on fire, and lifted a blanket and wrapped. According to him, though Tekchand, wife and Rekhabai's mother-in-law were in the house, they did not do anything. The deceased had also told him that her mother-in-law had poured kerosene oil. Deceased Rekhabai had again been examined on 31. 3. 1991 and stated that non-applicants 1 to 4 had been demanding dowry which she was unable to bring and therefore, she had been subjected to beating by-all of them. This evidence on record would at least prima facie indicate that the deceased had been burned by pouring kerosene oil on her. This is, therefore, prima facie, not a case of suicide, but a case of murder. Question requiring consideration of this Court is whether such a heinous offence deserves glamorization by granting anticipatory bail ? It is true that the Court have discretion to grant bail and anticipatory bail. Butt it is equally well settled that powers under Section 438 Cr. P. C. are not exercised to provide a shield either to the crime or the criminal. Its purpose is to save innocent person from his victimisation and illegal arrest. Indeed, the Supreme Court in Samunder Singh v. State of Rajasthan, AIR 1987 SC 737) has observed that anticipatory bail in dowry death case should not be granted. The learned Sessions Judge has not considered the afore-said law, while exercising discretion. Indeed, he has not even considered the facts alleged against the non-applicants and has exercised discretion only because he has been approached for the purpose by an application Under Section 438 Cr. P. C. This is not the way in which a serious power under Section 438 Cr. P. C. should be exercised. The impugned-order of the learned Judge, therefore, suffers from a paint illegality and cannot be sustained. In the opinion of this Court, the non-applicants were not entitled to anticipatory bail. Indeed, in the opinion of this Court, they are not entitled to any bail whatsoever.