BHAWANI SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an application for cancellation of bail under Section 439 (2) Cr. P. C, which was granted by the learned Sessions Judge under his order dated August 3. 1988 in a case under Sec. 304-B IPC. allegedly a case of dowry death. It is contended by learned counsel for the petitioner that in such cases of dowry deaths during the investigation of the case it will not be prudent even for this Court to grant anticipatory bail and the learned Sessions Judge should not have granted anticipatory bail to the accused-petitioner in this case. Learned counsel for the petitioner in support of his contention has cited a case of Samunder Singh V. State of Rajasthan (1 ). It cannot be known from the aforesaid order of the Supreme Court as to what were the facts of that case. The Supreme Court has no doubt said in the aforesaid case of Samunder Singh (supra) that the widespread belief that dowry deaths are even now treated with some causalness at all levels seems to be well grounded. The Supreme Court further said that the High Court should not have exercised its jurisdiction to release the accused on anticipatory bail in disregard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of the daughter-in-law at the house of her father-in-law was still under investigation and the appropriate course to adopt was allowed the concerned Magistrate to deal with the same on the basis of the material before the court at the point of time of their arrest in case they were arrested. It was neither prudent nor proper for the High court to have granted anticipatory bail which order was very likely to occasion prejudice by its very nature and timing. The Supreme Court further said : "we therefore consider it essential to sound a serious note of caution for future. The High Court is under no compulsion to exercise its jurisdiction to grant anticipatory bail in a matter of this nature. " There can be no doubt that in a case of dowry death, looking to the ever-increasing number of dowry deaths, even this Court should refrain from exercising the power of anticipatory bail. But the learned Sessions Judge, who has concurrent jurisdiction under Sec. 438 Cr. P. C, though it cannot be laid down as a general rule that in no case of dowry death anticipatory bail can be granted, and the Supreme Court also has not said so. It is common knowledge that the members of the entire family are involved including teenagers and the courts must guard against it in order to avoid unnecessary harassment of such persons.

(2.) EVEN in this case it appears from the order of the learned Sessions Judge granting anticipatory bail that the deceased no doubt died within two years of her marriage, she did not die a natural death, she died in the house of her in-laws. As a caution the learned Sessions Judge should have refrained from exercising his jurisdiction under Sec. 438 Cr. P. C. Moreso a bare reading of Section 304 B IPC which provides that where the death of a woman is caused by any burns or bodily injury or occurs for otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called 'dowry death', more so further in view of Section 113-B of the Indian Evidence Act, but as stated earlier, it will depend on the facts of a particular case and in case there is material to the contrary, it is not likely to be a case of dowry death, and the courts having jurisdiction, could exercise its powers under Sec. 438 Cr. P. C. in such cases.