IN THE HIGH COURT OF DELHI: NEW DELHI SUBJECT : CODE OF CRIMINAL PROCEDURE Order decided on: 22.06.2012 BAIL APPL. No.880/2012 DR. MOHD. SOHAIL FAZAL ..... Petitioner Through Mr. Mukesh Kalia, Adv. with Ms. Madhu Kalia, Adv. Versus STATE (GOVT. OF NCT OF DELHI) ..... Respondent Through Mr. Mukesh Gupta, APP for the State. Mr. Samar Vijay Singh, Adv. for the complainant. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. The present application has been filed by Dr. Mohd. Sohail Fazal under Section 438 read with Section 482 Cr.P.C. for grant of anticipatory bail in case of FIR No.127/2012, under Sections 306/498-A IPC registered at Police Station Seema Puri, Delhi. 2. The learned counsel for the petitioner contends that the petitioner had no role to play in the suicide of his wife, namely, Dr. Smitha Rani on 22.04.2012 at House No.822, Pocket-D, Dilshad Garden, Delhi. According to the petitioner, he has been falsely implicated in the above said case and is totally innocent. 3. Admittedly, the marriage of the petitioner with the deceased, Dr. Smitha Rani was solemnized on 06.04.2010 at Delhi as per Section 13 of the Special Marriage Act, 1954. The deceased, Dr. Smitha Rani was Hindu by birth, whereas the petitioner is a Muslim. They both married due to love and affection. No child was born out of the said wedlock. The petitioner’s counsel submits that as some temperamental differences arose in the marital life, both the parties, i.e. the petitioner and the deceased decided to live separately and mutually, they filed a petition for dissolution of their
marriage by a decree of divorce by mutual consent, under Section 28 of the Special Marriage Act, 1954, on 06.08.2011. In that petition which was duly signed by the parties and is also supported by their affidavits, it was clearly admitted that they have been living separately from each other since 30.06.2010 and there is no possibility of the parties for living together despite of the best efforts made by the relations. Though, as per the petitioner, he had great love for the deceased and he was very caring for her. The petitioner has also filed some documentary proof to show that even after filing of the divorce petition and recording their statement, he used to give money to the deceased for her personal expenses, and he never stopped her from meeting her parents. 4. According to Mr. Kalia, learned counsel appearing on behalf of the petitioner, no offence of abetment is made out against the petitioner, as the petitioner never instigated or abetted the deceased to commit suicide. There is no intention of the petitioner to aid or abet the deceased to commit suicide. The prayer is made in the application to release the petitioner on anticipatory bail in the event of his arrest. 5. The learned counsel has also stated that the petitioner is a doctor by profession. He is a respectable person of the society and has never been involved in any kind of criminal activities. 6. The counsel further stated that the petitioner undertakes to join the investigation by appearing before the Investigating Agency as and when he is required to do so, and shall not misuse the liberty of bail. Since his custody is not required for the purpose of investigation, thus, he is entitled for the relief claimed in the present application. He also submits that the petitioner would be taking the necessary steps to initiate the proceedings for quashing the FIR in due course. 7. The case of the prosecution is that on 22.04.2012, a PCR call was received at Police Station Seema Puri, Delhi, upon which the ASI reached the spot where the dead body of the deceased Dr. Smitha Rani, wife of the petitioner, was found lying. Prerna, sister of the deceased, and Lalit Kumar, the brother of the deceased were present at the spot. The statement of Prerna was recorded who stated that on 22.04.2012 at about 5.15 p.m. she received a telephonic call from her sister, i.e. the deceased Dr. Smitha Rani, in which, she stated, “I AM GOING, SAY GOOD-BYE TO ALL”, and thereafter, she disconnected the phone. Prerna along with her brother went to the house of
their sister at House No.822, Pocket-D, Dilshad Garden, Delhi. The gate of the house was bolted from inside. Her brother brought a screw driver from the market and cut the jali of the gate and opened the same. They saw that the deceased was hanging from the fan. They pulled down the body of the deceased and tried to revive, however, they found her dead. Thereafter, they informed the police by dialing 100 number. 8. According to her statement, the petitioner used to pressurize the deceased to change her religion, and also to file the petition for divorce. He also used to say to the deceased that she belonged to a chamar caste, so his parents could not accept her. The petitioner used to take her salary and he did not want her to help her parents in any manner. According to the complainant, due to the mental pressure, harassment caused by the petitioner upon her sister, the deceased committed suicide. 9. Admittedly, there was no suicide note left by the deceased. There is no complaint against the petitioner by the deceased or any of her family members prior to her death. It is also not denied by the prosecution nor the complainant that the joint petition for divorce by mutual consent was filed by the petitioner and the deceased under Section 28 of the Special Marriage Act, 1954. In that petition which is signed by both the parties, i.e. the petitioner and the deceased, it was admitted that they were living separately from each other since 30.06.2010, as they have not been able to live together and there was also no possibility for the same due to temperamental differences. As per the status report, the deceased started residing at the place on rent where she committed the suicide. Earlier, she used to reside at Doctor’s Hostel, Lady Hardinge Medical College, New Delhi from 19.09.2008 to September, 2011. 10. It is also the admitted position that as per the statement of Prerna recorded by the police, she has only mentioned therein that the deceased called her and said “I AM GOING, SAY GOOD-BYE TO ALL”. There is not even a whisper against the petitioner in the last telephonic call made by the deceased to the complainant, i.e. her sister. It is also the admitted position that the petitioner was not at the spot where the suicide was committed by the deceased. 11. The law of anticipatory bail has been discussed in the case of Roop Kishore Madan vs. State, reported in 2001 Crl.LJ 1219, the relevant paras of which read as under:-
“It was held by the Supreme Court in Gurbax Singh Sibbia v. State of Punjab, AIR 1986 SC 1632 that an order of anticipatory bail does not take away from the police their right to investigate into the charges made or to be made against the person released on bail. The following observations' of the Supreme Court will be helpful for true interpretation of Section 438 of the Code. "We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restriction on the scope of Section 438, especially when no such restriction in the terms of that Section 438, is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, (1978) 1 SCC 248; AIR 1978 SC 597 that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by a legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein." Power under Section 438 of the Code to grant a bail is of an extra ordinary character as anticipatory bail is to be granted only before arrest whereas bail is granted after arrest Police custody is an inevitable concomitant of arrest for non-balance offences. An order of anticipatory bail constitutes, so to say, an issuance against police custody following upon arrest for offence in respect of which the order is issued. Law Commission of India in its 41st report recommended the necessity of introducing a provision in the code enabling the High Court and the Court of Sessions to grant anticipatory bail. It was observed by the Law Commission that necessity of granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for
other purposes by getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse the liberty while on bail, there seems no justification to require him first to submit to custody, remain imprisoned for some days and then apply for bail. x x x x x As held by the Supreme Court in Gurbax Singh v. State (surpa), there are several considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to plead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with the "larger interest of the public or the State" are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is of the egoistic purposes for the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” 12. Taking only prima-facie view, it appears to me that case is made out to grant benefit of pre-arrest bail to the petitioner, for the reasons that there is no suicidal note; there was no complaint or any action by the deceased or any of her relatives against the petitioner for the alleged harassment or abetment prior to her death. The statement of the complainant, i.e. sister of the deceased indicates at this stage that it was merely harassment. There is no material available of any instigation and engagement of conspiracy for doing of a thing which results in commission of an offence. Assuming, there is harassment and as a result of harassment, the person harassed commits suicide, mere harassment by itself would not amount to an offence under Section 306 IPC. 13. In Swamy Prahaladdas vs. State of M.P. and Anr., reported in 1995 Supp (3) SCC 438, the appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked the deceased ‘to go and die’. The Supreme Court was of the view
that mere words uttered by the accused to the deceased ‘to go and die’ were not even prima-facie enough to instigate the deceased to commit suicide. 14. Without going into merits of the case at present, I am of the view that the allegations made by the complainant, Prerna will have to be proved during the trial. But, at this stage, I deem it fit to grant the anticipatory bail to the petitioner, in view of the reasons stated earlier. 15. It is, therefore, directed that in the event of arrest, the petitioner, Dr. Mohd. Sohail Fazal be released on bail on his furnishing personal bond in the sum of Rs.50,000/- with two sureties of the like amount, subject to the satisfaction of the Arresting Officer/SHO concerned, and further subject to the condition that the petitioner shall join the investigation as and when directed by the Investigating Officer. 16. The application is disposed of. Dasti.
(MANMOHAN SINGH) VACATION JUDGE
JUNE 22, 2012
