CRLMB/6200/2004 of BHAGWAN SAHAI Vs STATE on 21 December 2004

S.B. CRIMINAL MISC.IInd BAIL APPLICATION NO.6200/2004.

Bhagwan SahaiVs.State.

Date of order :

21/12/2004.

HON'BLE MR.JUSTICE HARBANS LAL

Mr. Pankaj Gupta for the petitioner.

Mr. Arun Sharma PP for the State.

This second bail application under Section 439 Cr.P.Chas been filed on behalf of petitioner Bhagwan Sahai whose firstbail application was rejected vide order dated 3/11/2004 in FIRNo.355/2004 PS Bandikui District Dausa for offences underSections 498-A, 306 and 304-B IPC.

The main contention of the learned counsel for thepetitioner is that he was arrested on 4/10/2004 whereas thecharge-sheet for the offences under Sections 498-A and 304-B IPCwas filed on 15/12/2004. It is contended by his learned counselthat though the case was initially registered for the offencesunder Sections 498-A, 406 and 304-B IPC but while his first bailapplication was rejected the case was found to be under Section306 IPC and not under Section 304-B IPC and, thereafter, nosubstantial investigation has been made so as to bring theoffence within the ambit of Section 304-B IPC. Thus, since thecharge-sheet has been filed after the expiry of 60 days i.e.after about 72 days the petitioner is entitled to be released onbail under proviso (a)(ii) of Section 167(2) of the Code ofCriminal Procedure, 1973 as has been done in the case of Hari Kishen Vs. State of Rajasthanin SB Cr. Misc.Bail ApplicationNo.3714/2004. He has also submitted that the challan has beenfiled for the offence under Section 304-B IPC in order to escapefrom the departmental action and this should not be given seriousconsideration so far as the nature of offence is concerned.

Learned PP has opposed the bail application. He hassubmitted that the case was initially registered for the offencesincluding offence under Section 304-B IPC and FIR also containsallegation with regard to the offence under Section 304-B IPC. He has also submitted that except in the statements of some of thewitnesses 6200/2004. ( 2 )

examined during investigation the allegation of demand of dowryand perpetuality of cruelty in connection with the demand ofdowry is supported by all other witnesses during investigationand it can not be said that no offence under Section 304-B IPC ismade out and only an offence under Section 306 IPC is made out.

I have carefully considered the rival submissions madeat the bar and have gone through the entire case diary.

It is obvious from a perusal of the case diary thatsince the inception of the case till the filing of charge-sheet,the allegation of torture in connection with the demand of dowryis supported and at no point of time and stage of investigationit has been observed that the offence under Section 304-B IPC isnot made out. Simply because in some of the remand papers theoffence under Section 304-B IPC has not been mentioned, it doesnot take out from the ambit of Section 304-B IPC so as to entitlethe petitioner for grant of bail under the mandatory proviso (a)(ii) of Section 167(2) Cr.P.C. So far as the case referred tohereinabove is concerned, the facts of that case were clearlydistinguishable from this case. So, it does not help thepetitioner in any way. This apart, the orders with regard togrant of bail do not form binding precedents; they simply can belooked into as guidelines. In the instant case, the case isclearly falls within the ambit of Section 304-B IPC which ispunishable with imprisonment for a term which shall not be lessthan 7 years but which may be extended to imprisonment for lifeand, therefore, the proviso (a)(i) of Section 167(2) Cr.P.C. isapplicable to the instant case and in this view of the mattertherefore, no case for grant of bail on the stated ground to thepetitioner is made out.

Accordingly, this application deserves to be and ishereby dismissed.

(HARBANS LAL), J.