1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Criminal Application (ABA) No.154/2011 ( Rajani w/o Raju Chavan ..Vs.. The State of Maharashtra, through P.S.O., P.S. Chandur Bazar, Tq. Chandur Bazar, Distt. Amravati ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Sirpurkar, Adv. for applicant. Mr. D.B. Patel, A.P.P. for respondent/State. CORAM : M.N. GILANI J. DATE : 16.6.2011. Heard. The applicant who is named as an accused in Crime No.228/2010, registered at the police station Chandur Bazar, Distt. Amravati, under section 302 read with 34 of the Indian Penal Code, is seeking directions of this Court under section 438 of the Criminal Procedure Code. One Shital had married Ajay resident of Shirajgaon Band, Taluka Chandur Bazar, Distt. Amravati about 9 years ago. During wedlock, she delivered two children. On 14/10/2010, as usual, she woke up and was busy discharging household duties. Her husband had left the house for work. At about 9 a.m. she was cleaning the floor, her in-laws started quarreling with her. The present applicant is her sister-in-law. It is alleged that they poured kerosene oil on 2 her person and set her on fire. Firstly, she was brought to the Primary Health Center, Chandur Bazar and from there she was brought to private hospital of one Dr. Bonde. The police were informed. Police Sub-Inspector Mr. M.P. Bhoyar, attached to police station Chandur Bazar, proceeded to Bonde hospital and recorded dying declaration. The relevant excerpt is reproduced :- “vkt ldkGh 9-00 ok- eh ?kjkrhy Qj’kh iqlr vlrkuk ek>h lklq lkS- js[kk] lkljk lq[knsojko] fnj foykl vkf.k fouksn] u.kn ckyh] jTth ;kuh iwUgk eyk Vkse.ks ekj.ks lq# dsys- vpkud lklq js[kk] lkljk lq[knsojko] u.kn ckyh] fnj fouksn] foykl ;kauh eyk idMys u.kn jTth fgus vaxkoj ?kklysVP;k dWuw/kwu jkWdsy Vkdys vkf.k ekphlus isVowu fnys- R;kuarj fouksn o R;kph iRuh vpZuk fgus eyk nok[kkU;kr mipkjkdjhrk vk.kys-” Learned counsel for the applicant contended that despite the fact that the deceased died on 20/10/2010 the police did not arrange for recording of the dying declaration through Executive Magistrate. He, therefore, contended that there being on corroborative evidence to the dying declaration, recorded by the police, involvement of the present applicant prima facie appears doubtful and therefore, she is entitled for being released on anticipatory bail. The next ground on which the relief is being claimed is the ground of parity. According to him, Sukhdeo and Vinod 3 have been granted anticipatory bail by this Court. The names of these accused are also appearing in the dying declaration. The mother-in-law of the deceased Rekha is released on regular bail. The applicant is the Clerk, there is no likelihood of she absconding, investigation having been completed, this is a fit case to exercise discretion under section 438 of the Criminal Procedure Code, he urged. He placed reliance on the decision in the case of Siddharam Satlingappa Mhetre V/s. State of Maharashtra and others reported in (2011) 1 Supreme Court Cases 694. According to him, an interim protection was granted to her and therefore, she be released on anticipatory bail. The perusal of the orders passed by this Court dated 11/2/2011 and 21/3/2011 in respect of Sukhdeo and Vinod reveal that the role attributed to them by the deceased is not similar to the role attributed to the present applicant. Therefore, the ground of parity is not available to the applicant. In case of Siddharam Mehtre V/s. State of Maharashtra (supra), Supreme Court observed :- “In cases where court is of considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be 4 granted, which after hearing Public Prosecutor, should ordinarily be continued till end of trial – Criminal Procedure Code, 1973, S.438. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to ravel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self- imposed limitations. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative 5 intention the grant or refusal of anticipatory bail should necessarily depend on the facts circumstances of each case.” (Emphasis mine). The dying declaration recorded by M.P. Bhoyar, P.S.I. Chandur Bazar, is perused by me. This was recorded on 14/10/2010 while deceased was in the hospital of Dr. Bonde. In the margin there is an endorsement of the doctor that it was recorded in his presence. The deceased had sustained 98% burns spread all over the body and cause of death is septicemia resulting into cardiac respiratory arrest. Prima facie it is consistent with the allegation that she was doused with the kerosene oil before she was set on fire. It is well settled principle that detailed examination of the evidence and documentation of the merits of the case is to be avoided while dealing with bail application. What prima facie appears is required to be seen. Considering the gravity and nature of the offence prima facie involvement of the accused/applicant is made out. The fact that she is a lady or she is serving cannot be the factors to exercise discretion vested in this Court under section 438 of the Criminal Procedure Code. Application is rejected. JUDGE Tambaskar.