LAVESHversusSTATE (NCT OF DELHI)

                      [2012] 7 S.C.R. 469


                            LAVE SH                                   A
                                V.
                   STATE (NCT OF DELHI)
             (Criminal Appeal No. 1331 of 2012)
                      AUGUST 31, 2012
                                                                      B
       [P. SATHASIVAM AND RANJAN GOGOi, JJ.)

     CODE OF CRIMINAL PROCEDURE, 1973:
      s.438 read with s. 82 - Application for anticipatory bail by
an accused declared as "proclaimed offender" in a case of             C
dowry death - Held: Normally, court should not exercise its
discretion to grant anticipatory bail in disregard of the
magnitude and seriousness of the matter - When a person
against whom a warrant has been issued and is absconding
or concealing himself in order to avoid execution of warrant          D
and has been declared as a ''proclaimed offender·: he is not
entitled to the relief of anticipatory bail - On facts, the FIR and
the statements recorded during investigation indicate that all
the family members of husband of deceased including the
appellant subjected her to cruelty by demanding a sizable             E
amount - Even after the appellant was granted interim
protection, he did not co-operate with the investigating agency
- Considering his conduct not amenable for investigation and
his being declared as an absconder, he is not entitled to
anticipatory bail - Interim protection granted by the Court           F
stands vacated.
    An FIR was registered on the allegations that the
appellant's younger brother's wife, a pregnant woman,
committed suicide in the matrimonial home as she had
been subjected to cruelty by the appellant and his family             G
members with a view to demand dowry since the date of
her marriage, which had taken place 1 year and eight
months prior to the date of occurrence. The husband and
the mother-in-law of the deceased were arrested on the
                               469                                    H
    470      SUPREME COURT REPORTS            [2012] 7 S.C.R.


A date of registration of the FIR. The applicant's
  applications for anticipatory bail having been rejected by
  the Court of Session as also by the High Court, he filed
  the appeal.
          Dismissing the appeal, the Court
B
       HELD: 1.1. While considering the request for
  anticipatory bail in terms of s.438 CrPC, the court has to
  take into consideration the nature and the gravity of the
  accusation, antecedents, possibility of the applicant to
  flee from justice etc. Further, normally, the court should
C not exercise its discretion to grant anticipatory bail in
  disregard of the magnitude and seriousness of the
  matter. [para 6] [474-A-B]
       1.2 In the instant case, the matter regarding the
  unnatural  death of the daughter-in-law at the house of her
0
  in-laws was still under investigation and the appropriate
  course to adopt was to allow the Magistrate concerned
  to deal with the same on the basis of the material before
  the court. The FIR, statements of various persons
  including the father and the mother of the deceased and
E neighbours clearly show that all the family members of
  the husband of the deceased including the appellant,
  who is elder brother of the husband of the deceased,
  subjected her to cruelty by demanding a sizeable amount
  in order to settle the payment of the ODA flat. [para 6 and
F 11] [474-B-C; 475-D-E]
      2.1 When a person against whom a warrant has been
  issued and is absconding or concealing himself in order
  to avoid execution of warrant and has been declared as
G a "proclaimed offender" in terms of s. 82 CrPC, he is not
  entitled the relief of anticipatory bail. The relevant
  materials and two status reports submitted by the police
  and the counter affidavit filed in this Court on 25.06.2012,
  indicate that the appellant has been declared a
  Proclaimed Offender in the case. [para 9-10] [474-G-H;
H 475-A-C]
          LAVESH v. STATE (NCT OF DELHI)                     471


    2.2 Even though this Court on 23.03.2012, while                 A
ordering notice, granted interim protection, namely, not
to arrest the appellant in connection with FIR No. 259/
2011, he is said to have not co-operated in the
investigation. Considering his conduct not amenable for
investigation and, moreover, his being declared as an               B
absconder, he is not entitled to anticipatory bail as
prescribed in s. 438 of the Code. The impugned order
dated 05.12.2011 passed by the High Court is confirmed.
The interim protection granted by this Court on
23.03.2012 stands vacated. [para 12-16) [475-F-G; 476-B-            c
C-E-G-H]

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1331 of 2012.
    From the Judgment & Order dated 05.12.2011 of the High          D
Court of Delhi at New Delhi in Anticipatory Bail Application No.
1602 of2011.
    Dr. Sarbjit Sharma, Sumit Sharma, S.K. Verma for the
Appellant.
                                                                    E
    Sidharth Luthra, ASG, Ranjana Narain, Gargi Khanna, Shiv
Pandey, Aditya Singla, B.V. Balaram Das for the Respondent.
    The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. Leave granted.                            F
     2. This appeal is filed against the final order dated
05.12.2011 passed by the High Court of Delhi at New Delhi in
Anticipatory Bail Application No. 1602 of 2011 whereby the
High Court dismissed the application filed by the appellant
herein.                                                             G
    3. Brief facts:
     (a) The appellant herein is the elder brother of the husband
of the deceased - Vibha. The appellant is engaged in the
                                                                    H
    472      SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A business of cutting of diamonds and getting them manufactured
  as per the specifications of his clients. He is married for the
  last seven years and has two children. According to him, he
  resides with his wife and children in the separate portion of the
  house in Paschim Puri, New Delhi whereas one portion is
B occupied by his parents and one by his younger brother.
       (b) On 19.01.2010, younger brother of the appellant got
  married to Vibha (since deceased). He lived with his wife on
  the first floor of the same house. On 01.09.2011, Vibha,
  committed suicide. On the same day, the mother of the
C deceased lodged a complaint against the family members of
  the husband of the deceased with the Police Station at Punjabi
  Bagh, New Delhi.
       (c) On the basis of the complaint, an FIR was registered
D vide No. 259/11 at Punjabi Bagh Police Station. On the same
  day, the husband and mother-in-law of the deceased were
  arrested. The appellant herein moved an application for
  anticipatory bail. The Additional Sessions Judge, Delhi, by
  order dated 05.11.2011, dismissed the said application.
E      (d) Against the said order, the appellant moved an
  application for anticipatory bail before the High Court. By the
  impugned order dated 05.12.2011, the High Court dismissed
  the said application. Aggrieved by the said order of the High
  Court, the appellant preferred this appeal by way of special
F leave petition.
        4. Heard Dr. Sarbjit Sharma, learned counsel for the
    appellant and Mr. Sidharth Luthra, learned Additional Solicitor
    General for the respondent-State.
G        5. The only point for consideration in this appeal is whether
    the appellant, who is elder brother of the husband of the
    deceased, has made out a case for anticipatory bail in terms
    of Section 438 of the Criminal Procedure Code, 1973
    (hereinafter referred to as "the Code")?
          LAVESH v. STATE (NCT OF DELHI)                         473
                [P. SATHASIVAM, J.)
     6. Before considering the claim of the appellant, it is useful     A
to refer Section 438 of the Code relating to grant of bail to a
person who is apprehending arrest which reads as under:

     "438. Direction for grant of bail to person apprehending
     arrest - (1) Where any person has reason to believe that
                                                                        8
     he may be arrested on accusation of having committed a
     non-bailable offence, he may apply to the High Court or
     the Court of Session for a direction under this section that
     in the event of such arrest he shall be released on bail; and
     that Court may, after taking into consideration, inter alia,
     the following factors, namely:-                                    C

     (i) the nature and gravity of the accusation;

    (ii) the antecedents of the applicant including the fact as
    to whether he has previously undergone imprisonment on
    conviction by a Court in respect of any cognizable offence;         D

     (iii) the possibility of the applicant to flee from justice; and

    (iv) where the accusation has been made with the object
    of injuring or humiliating the applicant by having him so
    arrested,                                                           E

    either reject the application forthwith or issue an interim
    order for the grant of anticipatory bail:

          Provided that, where the High Court or, as the case
    may be, the Court of Session, has not passed any interim            F
    order under this sub-section or has rejected the application
    for grant of anticipatory bail, it shall be open to an officer
    in-charge of a police station to arrest, without warrant the
    applicant on the basis of the accusation apprehended in
    such application ........ "                                         G
It makes it clear that in a non-bailable offence if a person has
reason to believe that he may be arrested, he is free to apply
to the High Court or the Court of Session praying that in the
event of such arrest, he shall be released on bail. The belief          H
    474     SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A that the applicant may be arrested must be founded on
  reasonable grounds. While considering such a request, the
  Court has to take into consideration the nature and the gravity
  of the accusation, antecedents, possibility of the applicant to
  flee from justice etc. Further, normally, the Court should not
B exercise its discretion to grant anticipatory bail in disregard of
  the magnitude and seriousness of the matter. The matter
  regarding the unnatural death of the daughter-in-law at the
  house of her in-laws was still under investigation and the
  appropriate course to adopt was to allow the concerned
c Magistrate to deal with the same on the basis of the material
  before the Court.

       7. It is seen that the deceased had allegedly committed
  suicide after one year and eight months of marriage and further
  she was pregnant at the time when she had taken her life. On
D the basis of the complaint filed by the mother of the deceased,
  an FIR was registered and during the course of the
  investigation, the police recorded the supplementary statements
  of Hira Lal, father of the deceased, the neighbour of the
  deceased near the matrimonial home as well as the
E complainant -mother of the deceased.

       8. According to the prosecution, if we look into all the
  above particulars coupled with the supplementary statements,
  it has been clearly made out, particularly, insofar as the
F appellant is concerned, that there was a definite allegation
  against him. Further, the appellant and other family members
  subjected the deceased to cruelty with a view to demand dowry,
  right from the date of marriage and also immediately before
  the date of her death.
G      9. By placing the relevant materials and two status reports
  submitted by the police, Mr. Sidharth Luthra, learned ASG
  submitted that the appellant was a Proclaimed Offender. To this
  effect, Mr. V. Ranganathan, Additional Commissioner of Police,
  West District, New Delhi, in his counter affidavit, filed in this
H Court on 25.06.2012, has stated that, "Efforts were made to
          LAVESH v. STATE (NCT OF DELHI)                      475
                [P. SATHASIVAM, J.]

arrest the petitioner but he absconded as such he was got            A
declared a Proclaimed Offender. The case is pending trial." The
same has been reiterated in the status report filed by Mr.
Virender Dalal, Station House Officer, P.S. Punjabi Bagh, New
Delhi, before the High Court.
                                                                     8
      10. From these materials and information, it is clear that
the present appellant was not available for interrogation and
investigation and declared as "absconder". Normally, when the
accused is "absconding" and declared as a "proclaimed
offender'', there is no question of granting anticipatory bail. We
reiterate that when a person against whom a warrant had been         C
issued and is absconding or concealing himself in order to
avoid execution of warrant and declared as a proclaimed
offender in terms of Section 82 of the Code is not entitled the
relief of anticipatory bail.
                                                                     D
     11. On reading the FIR, statements of various persons
including father and mother of the deceased, neighbours and
supplementary statement of mother of the deceased clearly
show that all the family members of the husband of the
deceased including the appellant, who is elder brother of the        E
husband of the deceased, subjected her to cruelty by
demanding sizeable amount in order to settle the payment of
Rs.5 lakhs of the allotted ODA flat.

      12. Another circumstance against the appellant is that even
though this Court on 23.03.2012, while ordering notice, granted      F
interim protection, namely, not to arrest the appellant in
connection with FIR No. 259/2011 registered at Police Station,
Punjabi Bagh, New Delhi, it is the claim of the respondent-State
that the appellant did not cooperate and visit the said police
station. Though Dr. Sarbjit Sharma, learned counsel for the          G
appellant, submitted that the appellant visited the police station
on 23.03.2012, 20.07.2012, 24.07.2012 and 27.07.2012, it is
brought to our notice that at the relevant period, viz.,
07.04.2012, 01.05.2012 and 18.06.2012, he neither visited the
police station nor contacted Mr. Narender Khatri, Inspector -        H
    476      SUPREME COURT REPORTS                 (2012) 7 S.C.R.


A Investigation, Punjabi Bagh Police Station. The last three dates
  are relevant since after getting the interim protection granted
  by this Court on 23.03.2012, the appellant did not care either
  to visit the police station or to the Investigation Officer
  concerned. The claim of his visit on later dates, particularly, in
B the month of July, 2012 have no relevance. Considering his
  conduct, not amenable for investigation and, moreover,
  declaring him as an absconder, there is no question of granting
  anticipatory bail. Thus, the conduct of the appellant does not
  entitle him to anticipatory bail as prescribed in Section 438 of
c the Code.
       13. Taking note of all these aspects, in the light of the
  conditions prescribed in Section 438 of the Code and conduct
  of the appellant immediately after the incident as well as after
  the interim protection granted by this Court on 23.03.2012, we
D are of the view that the appellant has not made out a case for
  anticipatory bail. Unless free hand is given to the investigating
  agency, particularly, in the light of the allegations made against
  the appellant and his family members, the truth will not surface.

E        14. Under these circumstances, we are unable to accept
    the claim of the appellant. On the other hand, we agree with
    the contentions raised by the learned ASG and confirm the
    impugned order dated 05.12.2011 passed by the High Court
    in Bail Application No.1602/2011.

F        15. We make it clear that while upholding the rejection of
    the anticipatory bail, we have not expressed any opinion on the
    merits of the case. We also clarify that after surrender, the
    appellant is free to move bail application before the Court
    concerned which may be disposed of in accordance with law.
G        16. With the above observation, the appeal is dismissed
    and the interim protection granted by this Court on 23.03.2012
    stands vac:ated. The appellant is directed to surrender within a
    period of one week from today.

H R.P.                                         Appeal dismissed.