Case Note & Summary
The petitioner, Sunil Kumar, filed a criminal petition under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) before the High Court of Karnataka at Bengaluru, seeking cancellation of the orders dated 23.03.2021, 05.04.2021, and 17.04.2021 passed by the V Additional District and Sessions Judge, Mysuru, in Crl.Misc.Nos.464/2021, 576/2021, and 706/2021 respectively. These orders granted anticipatory bail under Section 438 Cr.P.C. and regular bail under Section 439 Cr.P.C. to the respondents (accused) for offences punishable under Sections 498-A (cruelty by husband or relative), 304-B (dowry death) read with Section 34 (common intention) of the Indian Penal Code, 1860 (IPC), and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The factual matrix of the case is that the complainant (petitioner) alleged that his sister, who was married to respondent No.2 (Manju), died under suspicious circumstances within seven years of marriage due to dowry harassment. The respondents were granted bail by the Sessions Court despite the serious nature of the offences. The petitioner contended that the bail orders were perverse and passed without considering the gravity of the offences, the likelihood of the accused tampering with evidence or influencing witnesses, and the fact that the charge sheet had been filed. The respondents argued that the petition under Section 439(2) Cr.P.C. was not maintainable after the filing of the charge sheet. The High Court, after hearing the learned counsel for the petitioner and the learned High Court Government Pleader for the State, and noting that respondents No.2 and 4 were served but unrepresented, and notice to respondent No.3 was held sufficient, examined the legal issue of maintainability. The court held that the petition under Section 439(2) Cr.P.C. is maintainable even after the filing of the charge sheet, as the power to cancel bail is not dependent on the stage of investigation but on the grounds of perversity or illegality in the bail order. On merits, the court found that the Sessions Judge had granted bail without considering the seriousness of the offences under Sections 498-A and 304-B IPC and the Dowry Prohibition Act, and the fact that the deceased died within seven years of marriage under suspicious circumstances, which attracts the presumption under Section 113-B of the Indian Evidence Act, 1872. The court also noted that the bail order did not consider the likelihood of the accused tampering with evidence or influencing witnesses. Consequently, the High Court allowed the petition, set aside the bail orders dated 23.03.2021, 05.04.2021, and 17.04.2021, and directed the respondents to surrender before the trial court forthwith. The court further directed the trial court to proceed with the case in accordance with law and dispose of it expeditiously.
Headnote
A) Criminal Procedure Code - Cancellation of Bail - Section 439(2) Cr.P.C. - Maintainability - Petition under Section 439(2) Cr.P.C. for cancellation of bail is maintainable even after filing of charge sheet, as the power to cancel bail is not dependent on the stage of investigation but on the grounds of perversity or illegality in the bail order. The court held that the filing of charge sheet does not bar the petition under Section 439(2) Cr.P.C. (Paras 6-7) B) Criminal Procedure Code - Cancellation of Bail - Section 439(2) Cr.P.C. - Grounds - Anticipatory bail granted under Section 438 Cr.P.C. and regular bail under Section 439 Cr.P.C. can be cancelled if the order is passed without considering the gravity of the offence, the nature of allegations, and the likelihood of the accused tampering with evidence or influencing witnesses. The court held that the Sessions Judge erred in granting bail without considering the seriousness of offences under Sections 498-A, 304-B IPC and Dowry Prohibition Act, and the fact that the deceased died within 7 years of marriage under suspicious circumstances. (Paras 8-12) C) Indian Penal Code, 1860 - Dowry Death - Section 304-B IPC - Presumption - In a case of dowry death, the presumption under Section 113-B of the Evidence Act applies if the death occurs within 7 years of marriage and there is evidence of cruelty or harassment for dowry. The court held that the bail order was perverse as it ignored the prima facie case and the presumption. (Paras 9-10) D) Dowry Prohibition Act, 1961 - Sections 3 and 4 - Demand of Dowry - The court noted that the allegations of dowry demand and harassment are serious and the bail order failed to consider the same. (Para 11)
Issue of Consideration
Whether the anticipatory bail granted to the accused-respondents under Section 438 Cr.P.C. and regular bail under Section 439 Cr.P.C. should be cancelled under Section 439(2) Cr.P.C. for offences under Sections 498-A, 304-B r/w 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act, and whether the filing of charge sheet bars the petition under Section 439(2) Cr.P.C.
Final Decision
The High Court allowed the petition, set aside the orders dated 23.03.2021, 05.04.2021, and 17.04.2021 passed in Crl.Misc.Nos.464/2021, 576/2021, and 706/2021 by the V Additional Sessions Judge, Mysuru, and directed the respondents to surrender before the trial court forthwith. The trial court was directed to proceed with the case in accordance with law and dispose of it expeditiously.
Law Points
- Cancellation of bail under Section 439(2) Cr.P.C. is permissible even after charge sheet is filed
- if the order granting bail is perverse or based on irrelevant material
- Bail granted without considering the gravity of the offence under Sections 498-A
- 304-B IPC and Dowry Prohibition Act can be cancelled
- The court must consider the nature and gravity of the offence
- the likelihood of the accused tampering with evidence or influencing witnesses
- and the interest of justice
