1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No.58/2011 ( Bhagvan S/o Rajaram Kate ..Vs.. State of Maharashtra, through P.S.O., P.S. Washim and others ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Amol Deshpande, Adv. for applicant. Mrs. B.P. Maldhure, APP for State/respondent no.1. Mr. A.P. Tathod, Adv. for respondent nos.2 to 4. CORAM : M.N. GILANI, J. DATED : 28.11.2011. 1. This is an application, by the father of the deceased Deepali, under section 439(2) of the Criminal Procedure Code for cancellation of order dated 19/9/2011 passed by learned Additional Sessions Judge, Washim thereby directing release of the respondents 2 to 4 on bail in the event of their arrest in Crime No.323/2011 registered with police station Washim for the offence punishable under sections 498-A, 304-B read with 34 of the Indian Penal Code. 2. On 1/4/2010 Deepali (since deceased) married with one Amol Gote resident of the same village i.e. Tondgaon. The respondent no.2 is father and respondents 3 and 4 are brothers of said Amol. 3. On 23/8/2011 the deceased consumed poison. After 2 receiving this information, her parents reached to her house, which is in the same village. Firstly, she was carried to local doctor and from there was removed to hospital at Akola. After struggling for life, on the intervening night of 25th and 26th of August 2011 she died. Bhagwan Kate, the father of Deepali, lodged F.I.R on 27/8/2011 alleging that Deepali was subjected to ill-treatment on account of giving insufficient dowry and further not satisfying demand of Rs.three lakh. On that basis, the offence came to be registered as Crime No.323/2011. On 29/8/2011 Amol Gote was arrested. 4. Learned Additional Sessions Judge dealing with an application under section 438 of the Criminal Procedure Code filed by the respondents 2 herein and another in para 6 observed as follows : “Perusal of the report which is the basis of crime registered against applicant disclose that the allegations leveled against applicant is quite general in nature. It does not suggest that any custodial interrogation of applicant is necessary. No doubt after arresting accused No.1 on 29.08.2011 though his police custody remand was sought, but learned JMFC, Washim had rejected prayer of prosecution/IO and remanded said arrested accused to magisterial custody. Therefore, it is suggesting that there are no grounds for custodial interrogation of applicant. No doubt, offence is anti social in nature, but on that count alone, I find it difficult to deny protection of liberty of applicants. Apart from it, the relationship of applicant with deceased is also a material aspect. Thus, considering all the facts on record, I find that applicant is entitled for pre-arrest bail.” 5. It is the contention of learned counsel for the applicant 3 that a young lady, who had married in April 2010, was constrained to die an unnatural death while in the matrimonial house. This incident is preceded by the allegations of demand of dowry. The allegations levelled in the F.I.R., according to him, are not artificial but depict real story. He placed reliance upon decisions in cases of (1) Puran V/s. Rambilas and another reported in (2001) 6 Supreme Court Cases 338, (2) Dinesh M.N. (S.P.) V/s. State of Gujarat reported in 2008 CRI.L.J. 3008(1), (3) Khimiben V/s. State of Gujarat and another reported in 1992 CRI.L.J. 1994 31 and (4) Single Bench decision of this Court in case of State of Maharashtra V/s. Santosh Hiraman Urankar and others reported in 2005(1) Bom. C.R. (Cri.) 513. 6. The respondents 2 to 4 did not file any reply however, the State – respondent no.1 has filed reply supporting the application. 7. Learned counsel for the respondents 2 to 4 contended that considerations for grant of bail and the considerations for cancelling the bail are different. Only in exceptional and supervening circumstances the discretion exercised by the Court in granting bail can be interfered with. It is further submitted that the reasons recorded by learned Additional Sessions Judge cannot be said to be irrelevant nor they are perverse or contrary to the principles of law. There being no arbitrary or wrong exercise of discretion by learned Additional Sessions Judge, this Court may not interfere with the order impugned, he urged. 4 8. It is discernible from the averments in the application for anticipatory bail presented before learned Additional Sessions Judge by the respondents 2 to 4 that the respondent no.3 is elder brother of Amol Gote and married on 5/5/2011 and staying with his wife. He is a Teacher by profession and posted at Asola Jahangir which is about 15 to 20 kilometers from Tondgaon. As regards the applicant no.4 Deepak who is younger brother of Amol Gote, he is prosecuting his studies in the college at Washim. 9. In the F.I.R. it is mentioned “frpk e`R;w fo”kkjh vkS”k/kkeqGs >kyk vkgs o rhyk fo”k ?ks.;kl frps lkljps oj ueqn yksdkauh ck/; dsys vlkos v'kh ek>h o ek>s dqVwafc;kph [kk=h vkgs-” 10. After considering the pros and cons of the material placed on record, it appears that the respondents 3 and 4 had a little role to play in the matrimonial affairs of the deceased. In that light of the matter, the order of learned Additional Sessions Judge exercising discretion under section 438 of the Criminal Procedure Code in their favour cannot be faulted with. 11. However, fact remains that a young lady, who had married just about one year prior of the incident, met with an unnatural death. She was staying in a matrimonial house where the respondent no.2 herein is the Karta of the family. Soon after the death of the deceased, the F.I.R. was lodged. The allegations that 5 there used to be demand of Rs.three lakh do not appear to be ill-founded. The oral dying declaration made by the deceased before her parents when she had visited at the time of Rakhi Pornima which was on 13/08/2011 and in turn the father of the deceased reproducing the same in the F.I.R. cannot be brushed aside at the very threshold. The custodial interrogation of the person, who was present in the house or in the village at the time of incident, is must to unfold the true story. The reasons recorded by learned Additional Sessions Judge that Amol Gote was not granted police custody by learned Magistrate is irrelevant. Further, his presumption that there are no grounds for custodial interrogation is also ill-founded. This is, according to me, is arbitrary and wrong exercise of discretion by learned Additional Sessions Judge in granting anticipatory bail to respondent no.2. I am in agreement with the observations made by learned Single Judge of the Gujarat High Court in case of Khimben, cited supra, wherein it was observed that : “Where the serious allegation of dowry death was made and anticipatory bail was granted even though investigation was in progress, bail was liable to be cancelled.” 12. In that light of the matter, the application so far it relates to the respondent no.2 - Atmaram s/o Nivrutti Gote, is allowed. The pre-arrest bail granted vide order dated 19/9/2011 to Atmaram s/o Nivrutti Gote, is cancelled. 6 13. The application, so far as it relates to respondent no.3 - Pravin S/o Atmaram Gote and respondent no.4 - Deepak S/o Atmaram Gote, is rejected. 14. In case the respondent no.2 - Atmaram s/o Nivrutti Gote moves an application before the learned Additional Sessions Judge for grant of regular bail, the Court shall decide the same on merits without being influenced by the observations made in this order. JUDGE Tambaskar.