Code of Criminal Procedure, 1973:
s.389 – Grant of bail – Post conviction – Conviction of the appellant-accused for the offences u/ss. 498A, 304B, 406 IPC and u/ss. 3 and 4 of Dowry Prohibition Act and sentenced to life imprisonment and sentences of 5 years and 3 years – During pendency of appeal before High Court, application u/s. 389 seeking grant of bail during pendency of appeal – Bail granted by High Court – Appeal to Supreme Court – Held: Once there is conviction upon trial, the Court while considering the application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal coupled with other factors – There should be strong and compelling reason for grant of bail and such reason must be recorded in writing – Prima facie trial Court had proceeded on the basis of evidence and the appellant-accused was not able to make out a case of any patent infirmity or illegality in the order of trial Court – High Court casually suspended the execution of sentence and granted bail to appellant-accused without recording any reason, ignoring the evidence relied upon by the trial Court. ss. 389 and 439 – Grant of bail under – Distinction between – Discussed.
Penal Code, 1860:
s.304B – Offence under – Object, nature and essential ingredients for attracting the provision – Discussed.
Words and Phrases:
‘Dowry’ – Meaning of.
Allowing the appeal, the Court
HELD: 1. Section 389 Cr. P.C. provides that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against, be suspended and, also, if he is in confinement, that he be released on bail. Of course, in view of the mandate of Section 389(3) of the CrPC, the principles are different in the case of sentence not exceeding three years and/or in the case of bailable offences. In the present case, none of the offences, for which respondent No. 2 has been convicted, are bailable. Moreover Respondent No.2 has, inter alia, been given life imprisonment for offence under Section 304B of the IPC and imprisonment for five years for offence under Section 3 of the Dowry Prohibition Act. [Para 26][978-A-C]
2. As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal. [Para 27][978-C-D]
Kashmira Singh v. State of Punjab (1977) 4 SCC 291 : [1978] 1 SCR 385; Babu Singh and Ors. v. State of U.P. (1978) 1 SCC 579 : [1978] 2 SCR 777 – relied on.
3. Even though detailed examination of the merits of the case may not be required by courts while considering an application for bail but, at the same time, exercise of jurisdiction has to be based on well settled principles and in a judicious manner and not as a matter of course. [Para 32][979-F]
Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr. (2004) 7 SCC 528; Chaman Lal v. State of U.P. and Anr. (2004) 7 SCC 525 : [2004] 3 Suppl. SCR 584 – relied on.
4. There is a difference between grant of bail under Section
439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception. However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C. [Para 36][980-D-F]
Mauji Ram v. State of Uttar Pradesh and Anr. (2019) 8 SCC 17 : [2019] 10 SCR 321; Ajay Kumar Sharma v. State of U.P. and Ors. (2005) 7 SCC 507; Lokesh Singh v. State of U.P. and Anr. (2008) 16 SCC 753 : [2008]
14 SCR 980; Dataram Singh v. State of U.P. and Anr. (2018) 3 SCC 22 : [2018] 1 SCR 882; Vinod Singh Negi v. State of Uttar Pradesh and Anr. (2019) 8 SCC
13 – relied on.
5. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail. [Para 39][981-C]
6. It is nobody’s case that the death of the victim was accidental or natural. There is evidence of demand of dowry, which the Trial Court has considered. The death took place within 7 or
8 months and there is oral evidence of the parents of cruelty and torture immediately preceding the death. There is also evidence of payment of Rs.2,50,000/- to the Respondent-Accused by the victim’s brother. The Respondent No.2 has not been able to demonstrate any apparent and/or obvious illegality or error in the judgment of the Sessions Court, to call for suspension of execution of the sentence. From the evidence of the Prosecution witnesses, it transpires that the Appellant had spent money beyond his financial capacity, at the wedding of the victim and had even gifted an I-10 car. The hapless parents were hoping against hope that there would be an amicable settlement. Even as late as on 17.6.2010 the brother of the victim paid Rs.2,50,000/- to the Respondent No.2. The failure to lodge an FIR complaining of dowry and harassment before the death of the victim, is inconsequential. The parents and other family members of the victim obviously would not want to precipitate a complete break down of the marriage by lodging an FIR against Respondent No.2 and his parents, while the victim was alive. [Paras 38 and 42][980G; 981-A-B, G-H; 982-A-B]
7. Section 304B was incorporated in the IPC by the Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). The object of the amendment was to curb dowry death. Section 304B does not categorize death, it covers every kind of death that occurs otherwise than in normal circumstances. Where the other ingredients of Section 304B of IPC are satisfied, the deeming fiction of Section 304B would be attracted and the husband or the relatives shall be deemed to have caused the death of the bride. The essential ingredients for attraction of Section 304B are: (i) the death of woman must have been caused in unnatural circumstances (ii) the death should have occurred within 7 years of marriage (iii) Soon before her death the woman must have been subjected to cruelty or harassment by her husband or his relatives and such cruelty or harassment must be for or in connection with the demand for dowry, and such cruelty or harassment is shown to have been meted out to the woman soon before her death. Once there is material to show that the victim was subjected to cruelty or harassment before death, there is a presumption of dowry death and the onus is on the accused inlaws to show otherwise. The death in this case took place within 8½ months of marriage. There is apparently evidence of harassment of the victim for dowry even on the day of her death, and there is also evidence of payment of a sum of Rs.2,50,000/to the respondent-accused by the victim’s brother, two months before her death. [Paras 28-30][978-E-G; 979-A-C]
State of Punjab v. Iqbal Singh & Ors. (1991) 3 SCC 1 : [1991] 2 SCR 790 – relied on.
8. It is difficult to appreciate how the High Court could casually have suspended the execution of the sentence and granted bail to respondent No.2 without recording any reasons. In effect, at the stage of an application under Section 389 of the CrPC, the High Court found merit in the submission that the brother of the victim not having been examined, the contention that the amount of Rs.2,50,000/- was taken as a loan was not refuted, ignoring the evidence relied upon by the Sessions Court, including the oral evidence of the victim’s parents. [Para 41] [981-E-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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