Allahabad High Court

Smt. Anita Agarwal And 2 Others vs State Of U.P. And Another on 29 September, 2020

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 59

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5457 of 2020

Applicant :- Smt. Anita Agarwal And 2 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Ajay Kumar Pandey,Gopal Swarup Chaturvedi(Senior Adv.),Vinod Prakash Srivastava (Senior Adv.)

Counsel for Opposite Party :- G.A.,Deepak Dubey,Pavan Kumar,Pulak Ganguly,Rajesh Pachauri

and

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5460 of 2020

Applicant :- S.C. Agarwal

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Ajay Kumar Pandey,Gopal Swarup Chaturvedi(Senior Adv.),Satish Trivedi (Senior Adv.),Vinod Prakash Srivastava (Senior Adv.)

Counsel for Opposite Party :- G.A.,Deepak Dubey,Pavan Kumar,Pulak Ganguly,Rajesh Pachauri

Hon'ble Rajeev Misra,J.

1. Heard Mr. V.P. Srivastava, Mr. Satish Trivedi and Mr. Gopal Swarup Chaturvedi, learned Senior Advocates assisted by Mr. Ajay Kumar Pandey, learned counsel for applicants, learned A.G.A. for State and Mr. Pulak Ganguly alongwith Deepak Dubey, learned counsel for informant.

2. This application for anticipatory bail has been filed by applicants Smt. Anita Agarwal, Dr. Amit Agarwal and Dr. Tulika Agarwal in connection with Case Crime No. 623 of 2020,  under
Sections 498-A
,
304-B
,
,
and
IPC and
Section 3
/
D.P. Act at Police Station Tajganj, District - Agar.

3. Rejoinder affidavit to short counter affidavit on behalf of informant, filed by learned counsel for applicants, in Court today, is taken on record.

4. Before proceeding to hear the present applications for anticipatory, Court raised a query to Mr. Ganguly, learned counsel for informant as to whether he wishes to file a detailed counter affidavit to the application for anticipatory bail or he confines himself to short counter affidavit. Mr. Ganguly, learned counsel for informant contends that he does not want to file any counter affidavit. Therefore, matter may be heard and dispose of finally on the material as available before the Court.

5. As both the above mentioned application for anticipatory bail arise out of the same case crime number, they are being decided by a common order.

6. It transpires from record that marriage of the son of applicant no.1- Smt. Anita Agarwal, namely, Dr. Amit Agarwal was solemnized on 03.11.2014 with Deepti Agarwal. Just after the expiry of a period of 5 years and 8 months from the date of marriage, an unfortunate incident occurred on 03.08.2020 in which the daughter-in-law of applicant no.1 made an attempt to commit suicide. Immediately, thereafter, the daughter-in-law of the applicant no.1 was taken to the nursing home run by the husband of the applicant no.1. She was taken by her father and admitted to another hospital at Fariadabad for treatment where ultimately, she died on 06.08.2020. Inquest of the deceased was conducted on 06.08.2020. In the opinion of panch witnesses, the nature of the death was categorized as homicidal. The first information report dated 07.08.2020 was not lodged by any of the applicants or by any of the family members of applicant no.1, but by Mr. Naresh Kumar Mangala (father of the deceased), which was registered as Case Crime No.623 of 2020, under Sections- 498A, 304B, 323, 506 and 313
I.P.C
. and
Section 3
/
D.P. Act at Police Station- Tajganj, District- Agra. In the aforesaid F.I.R., five persons, namely, Sumit (husband of the deceased), S. C. Agarwal (father-in-law of the deceased), Smt. Anita (mother-in-law of the deceased), Amit (jeth of the deceased) and Tulika (jethani of the deceased) were nominated as named accused. The post-morterm of the body of the deceased was conducted on the same day of death, i.e., on 06.08.2020. In the opinion of Autopsy Surgeon, the cause of death of the deceased is shock and septicemia which are sequelae of complication due to hypoxic encephalopathy due to asphyxia due to antemorterm hanging which is sufficient to cause death in ordinary course of nature. Police proceeded with the investigation of above mentioned case crime number. The Investigating Officer recovered the suicide note of the deceased.

7. Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel leading the arguments for applicants contends that the applicant no.1- Smt. Anita Agarwal is the mother-in-law of deceased. She is aged about 62 years. The applicant no.2- Dr. Amit Agarwal is the jeth of the deceased and applicant no.3- Dr. Tulika Agarwal is jethani of the deceased. Applicant nos. 2 and 3 are Doctor by profession. S.C. Agarwal the applicant in Criminal Misc. Anticipatory Bail Application U/S 438
Cr.P.C
. No. 5460 of 2020 is the father-in-law of the deceased and is running a nursing home. He is aged about 75 years.

8. It is next submitted that in the year 2017, some dispute arose between the deceased and the applicants herein. Consequently, the deceased along with her husband Dr. Amit Agarwal started residing separately from 12.10.2018 as is evident from the rent agreement, copy of which is on record as Annexure-13 to the affidavit.

9. According to Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel, the son the applicant no.1 Smt. Anita Agarwal, was married to deepti Agarwal (deceased) 3.11.2014. However, from the aforesaid wedlock, no child was born. Accordingly, deceased along with her husband adopted a girl child, who was christened as Inaya. It is then contended that after adoption of aforesaid child, the deceased conceived but she could not continue with the pregnancy on account of medical reasons. It was on account of aforesaid that the deceased felt frusted and as such committed suicide. The same is clearly reflected from the suicide note of the deceased which has been recovered by Police itself during the course of Investigation. He further contends that there is no reason to doubt the suicide note, at this stage.

10. Placing reliance upon suicide note, it is then urged by learned Senior Counsel that the suicide note of deceased does not contain any indicator to show that there was any demand of dowry by above named applicants or the deceased was tortured by above named applicants for fulfilment of the demand of dowry Further there is nothing on record to show that above named applicants ever demanded dowry from informant and his family members or ever tortured the deceased on account of non fulfilment of dowry. He, therefore, contends that irrespective of fact that the death of deceased has occurred within seven years from the date of marriage, it would not be prudent to classify the death of the deceased as a dowry death.

11. In continuation of his submission Mr. G.S. Chaturvedi, then submits that applicants are well to be persons and could not have demanded dowry as alleged in the F.I.R. To lend support to his submission, he has invited the attention of Court to the Income-Tax Returns of the applicant, upon which assessment orders have also been passed. The same have been brought on record along with the rejoinder affidavit. On the basis thereof, it is sought to be urged that once applicants themselves are well to do persons and have sufficient means, same is ample proof of their innocence. Therefore, the burden which is cast upon the applicants by virtue of
Section 113 (B)
of Evidence Act, stands discharged.

12. Learned Senior Counel for applicants further contends that the death of deceased is suicidal and not homicidal. On account of the fact that the deceased felt frustrated from her life as she could not achieve motherhood, she has taken the extreme step of committing suicide by attempting to hang herself. The incident occurred on 3.8.2020. Immediately thereafter, the victim (deceased) was rushed to the nursing home run by S.C. Agarwal (father-in-law). She was thereafter got discharged by her family members on 4.8.2020 and ultimately she succumbed to the injuries sustained by her on 6.8.2020at Faridabad. The post-mortem of the deceased, clearly reveals the ante mortem injuries found on the body of deceased as well as the cause of death. He has therefore referred to the post-mortem report of the deceased which is on record at page 93 of the paper book. Following has been observed by Autopsy Surgeon who conducted the autopsy of the body of deceased.

Injury No.1- INTERCOASTAL TUBE DRAINAGE WOUND OF SIZE 0.5CM X 0.5CM PRESENT ON MID AXILLARY LINE ON FIFTH INTERCOASTAL SPACE.

Injury No.2- ONE BANDAGE OF SIZE 3 INCH X 4 INCH PRESENT OVER RIGHT INGUINAL AREA ON FURTHER REMOVAL OF BANDAGE REVEALS NEEDLE WOUND.

Injury No.3- ONE BANDAGE OF SIZE 3 INCH X 4 INCH PRESENT OVER RIGHT ANTERIOR PART OF SHOULDER 2CM MEDIAL TO LATERAL SIDE OF CLAVICLE, ON FURTHER REMOVAL OF BANDAGE REVEALS NEEDLE WOUND.

Cause of Death - IN MY OPINION THE CAUSE OF DEATH IS SHOCK AND SEPTICEMIA WHICH ARE SEQUELAE OF COMPLICATION DUE TO HYPOXIC ENCEPHALOPATHY DUE TO ASPHYXIA DUE TO ANTEMORTEM HANGING WHICH IS SUFFICIENT TO CAUSE DEATH IN ORDINARY COURSE OF NATURE.

According to Mr. Chaturvedi, learned Senior Counel, the absence of any examined ante-mortem injury on the body of deceased, clearly reflects the bonafide of present applicants. He, thus contends that the applicants are innocent and have not committed any act which can be directly attributed as the cause of death of deceased.

13. Referring to the application for anticipatory bail filed by S.C. Agarwal, father-in-law of deceased, he submits that this applicant has been diagnosed as a Corona Positive patient and his condition is precarious. He has invited the attention of Court to the averments made in paragraphs 29 and 30 of the affidavit filed in support of application for anticipatory bail filed by S.C. Agarwal.

14. Mr. Chaturvedi, learned Senior Counsel has then invited the attention of the Court to the F.I.R. giving rise to these applications for anticipatory bail. He submits that the allegations made in F.I.R. are general in nature. No specific role has been assigned to any of the applicants. The allegations made in the F.I.R. have not been substantiated even in minute form. He therefore contends that the F.I.R. is wholly concocted and has been engineered to maliciously prosecute the present applicants.

15. Mr. Gopal Chaturvedi, lastly submits that Doctor Amit Agarwal, husband of deceased has already been taken into custody and he is in jail. The custodial arrest of all the applicants is not necessary. The Investigation is still going and applicants undertake to co-operate with investigation.

16. On the cumulative strength of aforesaid submission, Mr. Gopal Chaturvedi, learned Senior Counsel concludes that liberty of present applicants be protected by extending the benefit of anticipatory bail to them.

17. Per-contra, the learned A.G.A. and Mr. Pulak Ganguli along with Mr. Deepak Dubey, learned counsel for informant have vehemently opposed the present application for anticipatory bail. They jointly submit that the death of the deceased has taken place within seven years from the date of marriage of applicant. As such, the same is dowry death by virtue of law. The applicants have failed to discharge the burden up to this stage. It is next submitted that since there is no document on record to show the adoption of the girl child, the plea of adoption raised by learned Senior Counsel is unsustainable. They further contend that any adoption contrary to the provisions of Hindu Adoption and Maintenance Act is void. As no adoption deed of the alleged adopted child has been filed, the suicide note of the deceased becomes doubtful. Reference was also made to page 58, 102 and 104 of paper book pertaining to Smt. Anita Agarwal and two others and on basis thereof, it is sought to be urged that the death of deceased is highly unnatural. The deceased has died an unnatural death. It is further submitted that the dispute between the deceased and applicants which took place in the year 2017 was account of demand of dowry but simply to save the marriage of her daughter, the informant did not proceed against the husband and other family members of the deceased. They further submit that F.I.R. is not the encyclopedia of the prosecution case. The only requirement of law is that the F.I.R. must disclose the basis of prosecution case, which admittedly is reflected from the F.I.R. The allegations made in the F.I.R. are still subject to investigation which is a statutory investigation to be conducted by a superior Police Officer in terms of Chapter XII
Cr.P.C
. It is lastly urged that non bailable warrants have already been issued against the applicants as they have failed to co-operate with the investigation. As the applicants have failed to co-operate with investigation and have not surrendered to the process of law, no indulgence is liable to be shown by this Court in their favour. Accordingly the application for anticipatory bail are liable to be rejected.

18. After hearing the counsel for parties at length, the undisputed position which emerges is that the deceased is the daughter-in-law of applicant no.1 Anita Agarwal and the applicant S.C. Agarwal. It is further evident from record that the marriage of Dr. Amit Agarwal, son of applicant no.1 Smt. Anita Agarwal was solemnized with Deepti Agarwal on 3.11.2014. However, the daughter-in-law of applicant no.1 made an attempt to commit suicide on 3.8.2020. She was immediately admitted to nursing home of S.C. Agarwal (father-in-law) of deceased. However parents of deceased got her discharged from the nursing home of S.C. Agarwal and took her to Faridabad and ultimately, she succumbed to her injuries on 6.8.2020. The F.I.R. in respect of aforesaid was lodged promptly on 7.8.2020 against above named applicants. The post-mortem report prepared by autopsy surgeon clearly denotes the cause of death of deceased and also the ante-mortem injuries sustained by her.

19. The issues which arise before this Court and is required to be dealt with is:- (I) whether on the basis of the allegations made in the F.I.R. the liberty of applicants is liable to be protected or not.

20. Having heard the learned counsel for applicants, learned A.G.A. and the learned counsel for informant and the undisputed position which has emerged from the record as noted above, the fact of the matter is that the applicants are the father-in-law, mother-in-law, Jeth and Jethani of deceased. Secondly, the husband of the deceased is already in jail. Thirdly, the F.I.R. is not to be treated as an encyclopedia of prosecution case but must reflect the basic prosecution case. When judged in the light of above, the F.I.R. prima facie appears to be engineered to implicate the applicants. There is no co-relation in between the various allegations levelled in the F.I.R. The allegations made are general in nature and no specific role has been assigned to any of the above named applicants regarding the alleged demand of dowry. From the perusal of the material on record, particularly the income-tax returns it cannot be said that applicants are not of sufficient means. The absence of any external injury on the body of deceased, clearly denotes the bonafide of applicants.

21. For all the reasons noted herein above, the applicants have made out a case. Accordingly both the applications are allowed. The applicants shall remain enlarged on bail in Case Crime No. 623 of 2020,  under
Sections 498-A
,
304-B
,
,
and
IPC and
Section 3
/
D.P. Act at Police Station Tajganj, District - Agra till the conclusion of trial. However, the applicants are directed to appear before the Court below and submit their bail bonds and two heavy sureties of like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

(i) The applicant will not tamper with prosecution evidence.

(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant will not indulge in any unlawful activities.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.

22. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail.

23. Accordingly, the instant bail application is allowed.

Order Date :- 29.9.2020

Monika