Criminal Misc. No. M-25747 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-25747 of 2009 Date of Decision:14.10.2009 Naresh .....Petitioner Vs. State of Haryana .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. J.S. Bedi, Advocate for the petitioner. Mr. Amit Kaushik, Assistant Advocate General, Haryana. **** HARBANS LAL, J. This petition has been moved by Naresh under Section 438 of the Code of Criminal Procedure seeking his regular bail in case FIR No.238 dated 10.7.2009 registered under Sections 498A, 304-B, 406, 506, 323, 34 IPC at Police Station Sohna, District Gurgaon. The facts in brief are that Pat Ram, father of the deceased made a statement before the police in the terms that “The marriage of my daughter Santosh was solemnised in 2005 with Naresh (referring to the petitioner). I had spent more than my capacity on dowry etc., on the wedding of my daughter whose husband Naresh, Kela Devi mother-in-law used to beat and trouble since her marriage for getting less dowry. The above said persons have beaten up my daughter mercilessly on 9.7.2009. She has bruises on her body. Now they have got my daughter admitted in Pushpanjali Hospital in Gurgaon. My daughter is struggling for her life. The chances of survival Criminal Misc. No. M-25747 of 2009 -2- of my daughter are very remote. Husband Naresh and mother-in-law Kela Devi have absconded and they are saying that there are influential people and I can do nothing to them.” I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner strenuously urged that in the post mortem report, it has been mentioned that “In our opinion, cause of death may be due to brain hemorrhage possibly secondary to some pathology in the brain. Brain in full is sent for Histo Pathological examination. Final report will be given after histo pathological examination.” That this opinion leave no scope for doubt that indeed the death has resulted due to brain hemorrhage. The petitioner and other members of his family took special care of the deceased when she remained hospitalised. He further puts that the photostat copies of the bills/ cash memos Annexure P.4 would reveal that the entire treatment expenses of the deceased were borne by the petitioner. If the petitioner or his mother had given beatings to her with a view to put an end to her life, they would have not spent even a single penny on her treatment. Furthermore, there is nothing on the record to show that the external injuries were found on the body of the deceased. On account of there being brain hemorrhage, no prima-facie offence under Section 304-B IPC is made out. To overcome these submissions, the learned State Counsel maintained that there being specific allegations against the petitioners, no case is made out for grant of bail. Furthermore, as per Annexure P.3, the post mortem report, histo pathological examination report is still awaited. Criminal Misc. No. M-25747 of 2009 -3- I have well considered the rival contentions. As is borne out from medico legal report of the deceased Santosh, there was difficulty in her breathing (gasping stage). Besides this, on medico-legal examination, bruises were found over her upper arm. The Casualty Medical Officer has mentioned that foul play cannot be ruled out. True that as per the same, she was brought to Pushpanjali Hospital, Gurgaon by her husband Naresh (petitioner). It is apt to be borne in mind that as per allegations in the FIR, the petitioner along with his mother Kela Devi used to beat and trouble the deceased since her marriage for her having brought inadequate dowry and that on 9.7.2009, she was given merciless beatings by the petitioner as well as his mother and that she had bruises on her body. This fact is corroborated by the above referred medical evidence. Learned counsel for the petitioner had been emphatic in the course of arguments that this being a case of brain hemorrhage regarding which histo pathological examination report is awaited, no dowry death case is made out. To the utter dismay of the petitioner, there is nothing on the record to reveal as to under what circumstances, the deceased sustained bruises on her upper arm if she was not given beatings by the petitioner. This medical evidence affirms the fact that she had been given beatings. May be that when the petitioner felt that the deceased was gasping for breath and she is not likely to survive, he removed her to the hospital and got her admitted there to claim later on, that if he as well as his mother had been bent upon to take her life, they would have not got her hospitalised at their own expenses. Of course, as per the post mortem report, the full brain of the deceased has been sent to pathalogical examination and the report in Criminal Misc. No. M-25747 of 2009 -4- this behalf has not been received as yet, but there being no explanation with regards to the presence of bruises on the upper arum of the deceased, it is very difficult to believe the story put forth by the petitioner. It is such a case in which the custodial interrogation of the accused is quint essential. In re: State Represented By the C.B.I v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as Criminal Misc. No. M-25747 of 2009 -5- offenders.” The provisions of Section 438 ibid cannot be invoked where custodial interrogation is necessary or may hamper proper investigation. A Court considering an application under this Section must strike a balance between the rights of an accused and the duties and obligation conferred upon an investigating agency. Considering the facts of the present case in the light of the provisions of Section 438 ibid, I am of the considered opinion that the present petition merits dismissal. Thus, this petition is dismissed. October , 2009 ( HARBANS LAL ) renu JUDGE