1. The petitioner has filed this application under section 439 (2) of the Code of Criminal Procedure for cancellation of the bail granted under section 438 of the Code of Criminal Procedure commonly known as anticipatory bail, by the learned Additional Sessions Judge, Court No. 16, Ahmedabad City vide order dated 21.7.2011 to respondents No.2 to 6. The bail is granted in connection with CR No.I-140/2011 registered with Madhupura Police Station on 14.5.2011 under section 498-A, 304-B, 306 and 114 of the Indian Penal Code. The allegation in the said FIR, in brief, is to the effect that the victim was the daughter of the informant-complainant and she was being harassed by her in-laws-respondents no.2 to 6. She was made to commit suicide. It appears that during the course of investigation, the Police got report of FSL stating therein that there was no presence of poison found from the body of the victim and death had resulted because of cardiac failure (heart attack). Of course, in the FSL Report, it is also stated that the further circumstances are to be considered. The respondents No.2 to 6 since apprehended their arrest on the basis of the above stated FIR, moved an application under section 438 of the Code of Criminal Procedure seeking their release in case of their arrest on the basis of the FIR by the police. The learned Judge has exercised discretion in favour of respondents no.2 to 6 by recording prima facie conclusion to the effect that the victim had not died because of any poisonous substance but her death was because of heart attack. The learned Judge has also considered report of FSL and on the basis of such material available with the learned Judge, the learned Judge was of the opinion that the respondents NO.2 to 6 were entitled to be released on bail in case of their arrest on certain terms and conditions. Accordingly, the learned Judge has released respondents no.2 to 6 on anticipatory bail by exercising his discretion available to him under sec. 438 of the Code of Criminal Procedure. While releasing respondents no.2 to 6 on anticipatory bail, the learned Judge has also imposed various conditions. I have heard learned Advocates. Learned advocate for the petitioner has submitted that the learned Judge has proceeded on the footing that the accused were charged for the offences only under section 498-A and 114 of the Indian Penal Code read with section 3 and 7 of the Dowry Prohibition Act. Learned Advocate for the petitioner submitted that it were respondents no.2 to 6 who misguided the learned Judge to consider FIR as if it was filed only for the offences under section 498-A and 114 of the Indian Penal Code read with section 3 and 7 of the Dowry Prohibition Act. Learned Advocate for the petitioner pointed out that in fact, original FIR was filed for the offences also under section 306 and 304-B of the Indian Penal Code. He further pointed out that the offences under section 306 and 304-B are serious offences and if the respondents No.2 to 6 were responsible to misguide the learned Judge, such bail which was granted of such misrepresentation made by respondents No.2 to 6 cannot stand scrutiny of law and the bail granted to respondents No.2 to 6 is required to be cancelled. Learned Advocate further submitted that in fact, though the police had filed report for deletion of section 306 and 304-B, the learned Magistrate has not accepted the report and in fact, the learned Magistrate has issued notice to the complainant vide order dated 8.9.2011 before accepting the report of the police. He, therefore, submitted that the learned Judge granted anticipatory bail to respondents no.2 to 6 purely on an assumption to the effect that the offences were only under section 498-A and 114 of the Indian Penal Code read with section 3 and 7 of the Dowry Prohibition Act. He, therefore, submitted that the learned Judge has committed gross error in granting such bail to respondents no.2 to 6 and it cannot be said that there was sound exercise of discretion by the learned Judge while considering application of respondents no.2 to 6 for anticipatory bail.
2. I have heard the learned APP for the State. I have also heard the learned Advocate for respondents no.2 to 6. Learned Advocate for respondents No.2 to 6 has argued that there was no misrepresentation made by respondents No.2 to 6 before the learned Judge. In fact, respondents No. 2 to 6 have placed on record the report submitted by the police for deletion of section 306 and 304-B of the Indian Penal Code. Therefore, so far as the respondents no.2 to 6 are concerned, they have not misrepresented any fact before the learned Judge. He, therefore, pointed out that after the FSL Report, police has further investigated and has completed the investigation and even filed the charge sheet. He, therefore, urged that since the investigation is already over and since the charge sheet is filed and since the order of anticipatory bail is already implemented, there is no ground for cancellation of the anticipatory bail granted in favour of respondents no. 2 to 6. He, therefore, urged that this court may not exercise the power under sec. 439(2) of the Code of Criminal Procedure to cancel the anticipatory bail granted in favour of respondents no.2 to 6.
3. I find that the learned Judge has not committed any error in granting anticipatory bail to respondents no. 2 to 6. I find that the learned Judge has granted anticipatory bail to respondents no.2 to 6 on sound exercise of discretion under sec. 438 of the Code of Criminal Procedure. It is required to be noted that the police had filed report for deletion of section 306 and 304-B of the Indian Penal Code on the basis of the FSL Report which clearly reveals that the victim had not died of any poisonous substance but has died by heart attack. At this stage, said report of FSL is relevant material which was required to be considered by the learned Judge. Simply because it is stated in the said report that some other circumstances are to be considered, that, by itself, is no ground to cancel the anticipatory bail granted to respondents no.2 to 6 by the learned Judge while exercising powers under section 438 of the Code of Criminal Procedure. It is required to be noted that the PM Report clearly states that the cause of death is cardiac failure. If such is the cause of death stated in the PM Report and if the police has already thought it fit for deletion of section 306 and 304-B of the Indian Penal Code from the FIR, it cannot be said that the police had exercised its authority for deletion because police has simply made report on the basis of FSL Report. Apart from this, if the order of anticipatory bail is read as a whole, it is clearly found that the learned Judge has considered the relevant material available for exercising his sound discretion while granting anticipatory bail in favour of respondents No.2 to 6 and he has also imposed various conditions so as to safe-guard the interest of prosecution witnesses. I, therefore, do not find any reason to cancel the bail granted in favour of respondents No.2 to 6 while exercising the powers under section 439(2) of the Code of Criminal Procedure. Therefore, this petition is rejected.
(C.L.
Soni,J.) an vyas Top