Delhi District Court

State vs . Krishna Sharma on 30 January, 2012

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI

State Vs. Krishna Sharma
FIR 211/2011
PS Rani Bagh
30.1.2012
ORDER

This application under
Section 439 (2)
of the Code of
Criminal Procedure has been filed on behalf of the State seeking
cancellation of bail granted to the Krishna Sharma and for setting
aside the order dated 5.11.2011 passed by Ld. Magistrate. Brief facts
of the case are that on 21.7.11 on receiving DD No. 41A, SI Govind
along with PSI Vishal Malik reached at 3445C, Raja Park Delhi
wherein it was learnt that Sangeeta W/o Pushpender was found
hanging and she had been taken to Bhagwan Mahavir Hospital by
PCR Van. IO/SI Govind after leaving PSI Vishal Malik at spot,
reached at Bhagwan Mahavir Hospital where he collected MLC No.
1001/11 of Sangeeta w/o Pushpender upon which doctor had
mentioned alleged history of hanging and declared brought dead. On
enquiry it was revealed that she had married with Pushpender about
5 years ago. I.O. informed to Executive Magistrate Model Town and
dead body was sent to mortuary BJRM Hospital. The spot was
inspected by police as well as by crime team and one chunni of
parrot colour and one blue brown diary of year 2007were recovered
from the spot. In the said diary besides some writing at page 19/20
December, there was one writing with pencil without signatures
wherein it was mentioned about harassment by Susralwalas. Parents
of the deceased were informed and Sh. M.P. Kushwaha, Executive
Magistrate Model Town recorded statements of the father and other
witnesses and gave direction to the police to initiate legal action.
Father of the deceased namely Sh. Madhav Prasad Sharma in his
statement before Executive Magistrate has stated that he married her
daughter with Pushpender Gautam and gave cash and jewellery to
the accused Pushpender and his family members and in all about 12
lacs spent by him in the marriage. The complainant also alleged that
when deceased was brought by him to Bareli i.e. parental house, the
deceased told him about the cruelty and harassment made by her
husband and her in-laws on account of insufficient dowry. The
complainant also stated that her daughter i.e. deceased made
complaints several times to him about their demands and the cruelty
and harassment made by the accused persons on her. He also told in
his statement before Executive Magistrate on 21.7.11 at about 9 PM
deceased Sangeeta made call on mobile of her mother at mobile No.
09411831748, which was attended by him and Sangeeta told him
that "her susralwalas were planning to kill her and that she
apprehended perhaps she was talking to him i.e. Madhav Prasad,
last time" and thereafter she disconnected the phone while telling
him that Puspender has come and thereafter Pushpender made call on
the said mobile phone about 11 PM and told to complainant
"Dekhiye Sangeeta meri baat nahi maan rahi hai aur iska parinam
acha nahi hoga" and when complainant asked Pushpender to get
him to talk with Sangeeta, on this Pushpender disconnected the
phone. Later on complainant and his wife tried to contact the phone
of their daughter Sangeeta but it was switched off and Pushpender
and her mother in law Smt. Krishna (accused before this Court) did
not pick up their phone. Subsequent to that 22.7.11 at 3 AM, the
complainant to come to know the admission of their daughter
Sangeeta at Bhagwan Mahavir Hospital, Delhi in ICU. The
complainant told in his statement to Executive Magistrate he
believed that Pushpender, Krishna Sharma, Usha, Husband of Usha
and Madan had their hands in murder of his daughter Sangeeta.

The impugned order of Ld. Magistrate dated 5.12.2011
has been assailed on the ground that the order dated 5.12.11 passed
by Ld. MM is wrong and against the settled principles of law. It is
further pleaded that the Ld, MM did not grant sufficient
opportunity to the prosecution to argue the matter as the bail
application of accused Krishna Devi Sharma was moved by her
counsel on the same day i.e. 5.12.11 and no report was called from
the Investigating Officer. It is also pleaded that the Ld. MM failed to
consider that accused avoided her arrest intentionally and did not
joine the investigation. It is further pleaded that the bail application
was moved on 5.12.11 and the bail order passed on the same day,
which shows that the order was passed in haste without going
through the record and without seeking report from IO. It is also
pleaded that there were concealment of facts by the accused as
there were NBWs issued against the accused and also proceedings
under
Section 82
Cr.PC initiated against her. It is also pleaded that
the present case pertains to dowry death and exclusively triable by
Session Court therefore, the Court of Ld. Magistrate should refrain
from entertaining bail applications in such cases wherein the
punishment provided is death or life imprisonment. It is also
pleaded that the impugned order of Ld. MM is not speaking order
as it does not shows any grounds or reason for which Ld. MM
granted the bail to the accused and not considered the fact of the
dismissal of bail of accused by the Hon'ble High Court of Delhi as
well by Session Court Rohini and proceedings
u/s 82
Cr.PC against
the accused. It is further pleaded that there was no parity between co-
accused Madan Mohan, Daughter and Son-in-Law of accused as
pleaded by accused and moreover there is no provision in the

Criminal Procedure Code
for the Magistrate Court to exercise
discretionary Powers as pleaded by the accuse in the said para of bail
application. It is also pleaded that the Ld. MM overlooked the
orders of Hon'ble Delhi High Court and Hon'ble Session Court
as the bail applications of the accused have already been dismissed.

Notice on this application was issued to the accused
Krishna Sharma who has filed a detailed reply wherein the facts
regarding dismissal of her two applications for grant of anticipatory
bail by Ld. Sessions Judges and another application for grant of
anticipatory bail having been dismissed by Hon'ble Delhi High
Court, stands admitted. It is submitted that there is no whisper of
allegations against the present accused Krishna Devi and even to
remotely suggest that she was involved in the matrimonial affairs of
the deceased and therefore
Section 498A
/
304 B
IPC do not attract
against her. It is further submitted that similarly placed co-accused
Madan Mohan Gautam was granted anticipatory bail by the Sessions
Court vide order dated 12.8.2011 and also the daughter and son-in-
law of present accused were granted seven days notice prior to their
arrest vide orders dated 17.8.2011 and 19.8.2011 by Ld. Sessions
Court, and therefore the present case is on parity with the said co-
accused. It is further submitted that there is no likelihood of the
accused absconding nor she is required for any recovery. It is also
pleaded that there is no apprehension of the accused evading her
appearance before the court during trial and under these
circumstances the present application is impermissible.

In the reply on merits, it is also submitted that the Ld.
Magistrate while passing the order dated 5.12.2011 was well within
her power as envisaged in
Code of Criminal Procedure
and has
passed the orders after duly scrutinizing the charge sheet and careful
application of mind. It has been denied that the prosecution was not
granted sufficient opportunity or that the application of bail had been
moved by the counsel on the same day and no report has been called
from the investigating officer. It is argued that the Public Prosecutor
was present in the court and had been granted an opportunity to put
forward the case of the prosecution and even otherwise the
requirement of getting the report from the investigating officer at the
time of bail application is not mandatory. It is also pointed out that
pursuant to the dismissal of the application for grant of anticipatory
bail of the accused, she was summoned by the Ld. Magistrate to
appear and having complied with the said summons, she filed the
application for grant of bail under
Section 439
Cr.PC on 5.11.2011
on which Ld. MM had passed the order. It is denied that there has
been a concealment of facts by the accused as NBWs were issued
against the accused and also process under
Section 82
Cr.PC was
initiated against her. It is submitted that the Ld. Magistrate was fully
within her right to pass her orders in terms of the provisions of
Section 439 Sub Section (1) (i) (ii) Cr.PC.

I have duly considered the rival contentions. During the
course of arguments Ld. Addl. PP for the State has vehemently
argued that the impugned order of the Ld. MM has been improperly
obtained by concealment of material facts regarding denial of relief
of anticipatory bail to her by two Ld. Session Judges and also by the
Hon'ble Delhi High Court. He has also submitted that even
otherwise Krishna Sharma being absconding was not entitled to any
discretionary relief on account of her conduct and the Ld. MM has
seriously faulted by ignoring the said aspect. Ld. Addl. PP has also
pointed out that the one line order passed by the Ld. MM smacks of
arbitrariness reflecting non application of mind being a non-specific
order. He has placed his reliance in the case of
Jayanti Prasad Goel
Vs. Sumitra Jain
reported in 1994 (Vol. 28) DRJ 42: 1993 (Vol. 3)
Apex Decision (Del.) 1001 where in a similar matter the Delhi High
Court had cancelled the bail granted to the accused keeping in view
the gravity of the offence involved.

After having perused the detailed record placed before
me, I may observe that Firstly after the committal of the case,
charges against accused have already been framed and the present
accused has been duly charged under
Section 498A
/
304B
/
Indian
Penal Code and also under
Section 302
Indian Penal Code (in
terms of the directions of Hon'ble Supreme Court, in Crl. MP No.
23051/2010 decided on 22.11.2010.)
Secondly, it is an admitted case of both the prosecution
and the accused that the first application for grant of anticipatory bail
was dismissed by Sh. S. K. Sarvaria, ASJ on 20.8.2011 and after
which second application for grant of anticipatory bail was
dismissed by the court of Sh. Vinod Kumar, ASJ on 27.9.2011.
During this period, the accused Krishna Sharma absconded and
NBWs had been issued which could not be executed upon her and
therefore the IO had initiated the process under
Section 82
Cr.PC
seeking to declare her an absconder. Further, the accused again took
a chance before the Hon'ble Delhi High Court by moving third
application for grant of anticipatory bail which was dismissed by
Hon'ble Mr. Justice M. L. Mehta on 21.11.2011.

Thirdly it is evident that in the meanwhile, the charge
sheet being filed against the accused, the Ld. Magistrate issued
summons for 22.11.2011 but the accused Krishna Sharma filed an
application for exemption before Ld. Magistrate on 22.11.2011 by
concealing this fact regarding dismissal of her anticipatory bail
application by the Hon'ble High Court due to which she was
exempted from personal appearance on 22.11.2011 and the Ld.
Magistrate was pleased to fix the case for 5.12.2011.

Fourthly when the accused Krishna Sharma appeared
before Ld. Magistrate on 5.12.2011 along with other co-accused she
moved an application for grant of bail under
Section 437
Cr.PC and
in the said application though she had in a cursory manner mentioned
the fact of her third application for grant of anticipatory bail
dismissed by Delhi High Court on 16.11.2011 (wrong date was
mentioned in the application by the accused because the said
application was dismissed on 21.11.2011) but no such copy of the
order of Hon'ble High Court was attached along with her application
and it is on this application that the Ld. Magistrate passed a two
sentence order as under:

"Heard. Application stands allowed subject to
furnishing PB/SB in sum of Rs.35,000/- with one
surety of like amount."

Fifthly anticipatory bail had been granted to the other co-
accused except the accused Pushpender who was the husband of the
deceased and the present accused Krishna. Ld. Sessions Judge,
while dismissing the application for grant of anticipatory bail of the
accused Krishna on 20.8.2011 had made specific observations that
the case of the mother in law (i.e. accused Krishna Devi) was
different to the case of the other accused who had applied for
anticipatory bail as they had not been residing with her.

Sixthly the accused Pushpender and Krishna had been
residing with the deceased at the time of her death and there were
direct demand of money and even prior to her death there was a
recent demand of Rs. Five lacs upon the victim by the accused which
would attract the offence of dowry death. On 27.9.2011, Ld.
Sessions Judge while dismissing the application of anticipatory bail
filed by the present accused had also observed that the suicide note
of the deceased was very clear wherein the deceased had mentioned
that the accused had married to her only for the service of his mother,
cleaning and cooking and treating her like a maid. It was further
observed that even if it is presumed that the deceased herself had
written the said suicide note, it cannot be said that it only implicates
the husband as it refers to other persons also has her tormentors. It
was further observed by Ld. Session Judge that the mother-in-law
(Sas) is the person residing in the matrimonial home of the
deceased and the said note also alludes to her as well as the other
relatives and therefore it was not a fit case to grant of
anticipatory bail. Again, the Delhi High Court while considering
the allegations made against the accused and while dismissing the
said application, had specifically noted that earlier two applications
for grant of anticipatory bail had been dismissed by the Ld. Sessions
Judges vide detailed reasoned orders and therefore filing the petition
against the order of Ld. ASJ was nothing but an abuse to the
process of law. The Hon'ble High Court was also of the similar
view that keeping in view the seriousness of the offence
committed by the petitioner, no anticipatory bail is granted. This
being the background with three successive bail applications
(anticipatory) filed by this absconding where then was the question
for the Ld. MM to have even considered her application on merits
and that too without passing a speaking order unless the above facts
had been concealed.

Lastly it is writ large that while granting bail to the
present accused/ an absconder against whom allegations were of
offences punishable with maximum punishment extending up to life
or life, no speaking/ reasoned order was passed by the Ld. Magistrate
nor the order reflects a notice to the public prosecutor or an effective
hearing been given to the Public Prosecutor which was mandatory.

Hon'ble Supreme Court in the case of
State (Delhi)
Administration Vs. Sanjay Gandhi
, (1978), Vol.
II, SCC 411 and
in the case of Gurucharan Singh Vs. State (Delhi Administration)
AIR 1978 SC 179, has specifically observed that that while
considering the question of cancellation of bail, the higher court can
always examine the propriety and legality of the orders passed by
the court of Sessions. In the case of Smt. Rajani Rani Kar & Anr.
Vs. Goli Pradhan @ Ors. 1992 (Vol. 3) Crimes, 181, the Orissa
High Court has specifically observed that if it is found that the bail
to the accused had been granted improperly and arbitrarily the
same can be cancelled by the High Court.
A similar view was taken
by Delhi High Court in the case of
Jayanti Prasad Goel Vs.
Sumitra Jain
reported in 1994 (Vol. 28) DRJ 42: 1993 (Vol. 3)
Apex Decision (Del.) 1001.
Applying the above settled principles of law to the facts
of present case, I may observe that as per the provisions of
Section
Cr.P.C. Ld. Magistrate has no jurisdiction to consider the
application for bail of any offender who is accused of an offence
punishable more than seven years with an exception provided in case
of a woman in which case an effective hearing to the Public
Prosecutor is mandatory. In the present case charges have already
been framed against the accused Krishna Sharma under
Section
/
304B
/
/
Indian Penal Code providing for a maximum
punishment for life or with death and therefore under these
circumstances it was mandatory for the Ld. Metropolitan Magistrate
to have passed a speaking order after an effective hearing to the
Public Prosecutor and after due application of mind. The law as
laid
down by
the Hon'ble Dehi High Court in the case of
Jayanti
Prasad Goel Vs. Sumitra Jain
, is succinctly clear wherein it had
been observed that where a lady is involved in crime of heinous
nature, the benefit provided under the proviso to
Section 439 (i)

and (ii) of the
Code of Criminal Procedure
, does not warrants
extending the benefit of said provision to her. (Ref.
:
Jayanti
Prasad Goel Vs. Sumitra Jain, Para
23). Ld. Sessions Judges and
the Hon'ble Delhi High Court having already considered the
aforesaid facts and having dismissed the applications for grant of
anticipatory bail to the accused, I hereby hold that the manner in
which the accused Krishna Devi was able to procure bail was
improper and the order of the Ld. Magistrate does not even reflect
any application of mind or the fact that the Ld. Magistrate had
resorted to the application of the proviso to
Section 1
of
Section 437

and Sub Section (iv) of
Code of Criminal Procedure
. It is also
evident that the application has been filed on the same day as soon as
the accused were produced in the court without any opportunity to
the Addl. PP as contemplated in the proviso to
Section 439 (iv)

Cr.P.C. which proviso was substituted in the year 1990 providing
that in case where the Ld. Magistrate seeks recourse involves Proviso

(i) of releasing a person on bail and opportunity to hearing the Addl.
PP is mandatory which hearing is not mere formality but an effective
hearing, which does not appears to have been given.

It has been observed that recently there is an increasing
trend of condemning Judges rather than the judgments and the level
of ethics not being what it should be or as expected. The interference
of the higher courts in the orders of the subordinate courts can only
be under two circumstances. Firstly when the order of the
subordinate court is per-se illegal, irregular, improper or causes
grave injustice and secondly when a view different to the one taken
by the subordinate court is possible. Further, each Court is entitled
to an opinion on the basis of the material before it which may of
course not always be accepted view and hence it is always open for
the Higher Courts to take a view different from the one taken by the
lower court. We in India have a beautiful system of hierarchy where
every order of the Court, lower in hierarchy is subjected to judicial
review and corrections. However, not every order which is set aside
by the Courts higher in hierarchy is erroneous or illegal and in many
cases the difference being only of perception or opinion. I may also
observe that Judges being Human Beings may falter and this Court is
conscious of the pressure of work and the charged atmosphere in
which the lower courts normally function. Even if the the order of
Ld. Metropolitan Magistrate is erroneous or improper or may even
reflect an element of arbitrariness despite which no malafidies can be
attributed and it is open to the higher court to correct the same.

In the present case, the order may not per-se be illegal but
is certainly improper the Ld. MM not having taken into consideration
two successive orders of the Ld. Session Courts and also the order of
the Hon'ble Delhi High Court and the impugned order being a non
speaking order not reflecting proper application of mind or an
effective hearing given to the prosecution but I may add that no
malafidies can be attribute to the Judge though the Ld. Subordinate
Court ought to be much more vigilant.

The order of the Ld. Metropolitan Magistrate dated
5.12.2011 is hereby set aside being an abuse of process of law. I
hereby allow the application and direct that the accused Krishna
Sharma be taken into custody forthwith.

Announced in the open court (Dr. KAMINI LAU)
Dated: 30.01.2012 ASJ (NW)-II: ROHINI