PREET PAL SINGH versus THE STATE OF UTTAR PRADESH & ANR. on 14 August 2020

[2020] 6 S.C.R. 967

PREET PAL SINGH

v.

THE STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 520 of 2020)

AUGUST 14, 2020

[ARUN MISHRA AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973:

s.389 – Grant of bail – Post conviction – Conviction of theappellant-accused for the offences u/ss. 498A, 304B, 406 IPC andu/ss. 3 and 4 of Dowry Prohibition Act and sentenced to lifeimprisonment and sentences of 5 years and 3 years – Duringpendency of appeal before High Court, application u/s. 389 seekinggrant of bail during pendency of appeal – Bail granted by HighCourt – Appeal to Supreme Court – Held: Once there is convictionupon trial, the Court while considering the application forsuspension of sentence and grant of bail, is to consider the primafacie merits of the appeal coupled with other factors – There shouldbe strong and compelling reason for grant of bail and such reasonmust be recorded in writing – Prima facie trial Court had proceededon the basis of evidence and the appellant-accused was not able tomake out a case of any patent infirmity or illegality in the order oftrial Court – High Court casually suspended the execution ofsentence and granted bail to appellant-accused without recordingany 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 essentialingredients for attracting the provision – Discussed.

Words and Phrases:

‘Dowry’ – Meaning of.

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968SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. Section 389 Cr. P.C. provides that pending anyappeal by a convicted person, the Appellate Court may, for reasonsto be recorded by it in writing, order that the execution of thesentence or order appealed against, be suspended and, also, ifBhe is in confinement, that he be released on bail. Of course, inview of the mandate of Section 389(3) of the CrPC, the principlesare different in the case of sentence not exceeding three yearsand/or in the case of bailable offences. In the present case, noneof the offences, for which respondent No. 2 has been convicted,are bailable. Moreover Respondent No.2 has, inter alia, beenCgiven life imprisonment for offence under Section 304B of theIPC and imprisonment for five years for offence under Section 3of the Dowry Prohibition Act. [Para 26][978-A-C]

2. As the discretion under Section 389(1) is to be exercisedjudicially, the Appellate Court is obliged to consider whether anyDcogent ground has been disclosed, giving rise to substantialdoubts about the validity of the conviction and whether there islikelihood of unreasonable delay in disposal of the appeal. [Para27][978-C-D]

Kashmira Singh v. State of Punjab (1977) 4 SCC 291 :E[1978] 1 SCR 385; Babu Singh and Ors. v. State ofU.P. (1978) 1 SCC 579 : [1978] 2 SCR 777 – reliedon.

3. Even though detailed examination of the merits of thecase may not be required by courts while considering anFapplication for bail but, at the same time, exercise of jurisdictionhas to be based on well settled principles and in a judicious mannerand 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. andGAnr. (2004) 7 SCC 525 : [2004] 3 Suppl. SCR 584 –relied on.

4. There is a difference between grant of bail under Section439 of the CrPC in case of pre-trial arrest and suspension of H

sentence under Section 389 of the CrPC and grant of bail, postconviction. In the earlier case there may be presumption ofinnocence, which is a fundamental postulate of criminaljurisprudence, and the courts may be liberal, depending on thefacts and circumstances of the case, on the principle that bail isthe rule and jail is an exception. However, in case of postconviction bail, by suspension of operation of the sentence, thereis a finding of guilt and the question of presumption of innocencedoes not arise. Nor is the principle of bail being the rule and jailan exception attracted, once there is conviction upon trial. Rather,the Court considering an application for suspension of sentenceand grant of bail, is to consider the prima facie merits of theappeal, coupled with other factors. There should be strongcompelling reasons for grant of bail, notwithstanding an order ofconviction, by suspension of sentence, and this strong andcompelling 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) 8SCC 17 : [2019] 10 SCR 321; Ajay Kumar Sharma v.State of U.P. and Ors. (2005) 7 SCC 507; Lokesh Singhv. 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 SinghNegi v. State of Uttar Pradesh and Anr. (2019) 8 SCC13 – relied on.

5. In considering an application for suspension of sentence,the Appellate Court is only to examine if there is such patentinfirmity in the order of conviction that renders the order ofconviction prima facie erroneous. Where there is evidence thathas been considered by the Trial Court, it is not open to a Courtconsidering application under Section 389 to re-assess and/orre-analyze the same evidence and take a different view, to suspendthe 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 wasaccidental or natural. There is evidence of demand of dowry, whichthe Trial Court has considered. The death took place within 7 or AB

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A8 months and there is oral evidence of the parents of cruelty andtorture immediately preceding the death. There is also evidenceof payment of Rs.2,50,000/- to the Respondent-Accused by thevictim’s brother. The Respondent No.2 has not been able todemonstrate any apparent and/or obvious illegality or error inthe judgment of the Sessions Court, to call for suspension ofBexecution of the sentence. From the evidence of the Prosecutionwitnesses, it transpires that the Appellant had spent money beyondhis financial capacity, at the wedding of the victim and had evengifted an I-10 car. The hapless parents were hoping against hopethat there would be an amicable settlement. Even as late as onC17.6.2010 the brother of the victim paid Rs.2,50,000/- to theRespondent No.2. The failure to lodge an FIR complaining ofdowry and harassment before the death of the victim, isinconsequential. The parents and other family members of thevictim obviously would not want to precipitate a complete breakdown of the marriage by lodging an FIR against Respondent No.2Dand his parents, while the victim was alive. [Paras 38 and 42][980-G; 981-A-B, G-H; 982-A-B]

7. Section 304B was incorporated in the IPC by the DowryProhibition (Amendment) Act, 1986 (Act 43 of 1986). The objectof the amendment was to curb dowry death. Section 304B doesEnot categorize death, it covers every kind of death that occursotherwise than in normal circumstances. Where the otheringredients of Section 304B of IPC are satisfied, the deemingfiction of Section 304B would be attracted and the husband orthe relatives shall be deemed to have caused the death of theFbride. The essential ingredients for attraction of Section 304Bare: (i) the death of woman must have been caused in unnaturalcircumstances (ii) the death should have occurred within 7 yearsof marriage (iii) Soon before her death the woman must havebeen subjected to cruelty or harassment by her husband or hisrelatives and such cruelty or harassment must be for or inGconnection with the demand for dowry, and such cruelty orharassment is shown to have been meted out to the woman soonbefore her death. Once there is material to show that the victimwas subjected to cruelty or harassment before death, there is apresumption of dowry death and the onus is on the accused in-Hlaws to show otherwise. The death in this case took place within 8½ months of marriage. There is apparently evidence ofharassment 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 monthsbefore 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 couldcasually have suspended the execution of the sentence andgranted bail to respondent No.2 without recording any reasons.In effect, at the stage of an application under Section 389 of theCrPC, the High Court found merit in the submission that thebrother of the victim not having been examined, the contentionthat the amount of Rs.2,50,000/- was taken as a loan was notrefuted, ignoring the evidence relied upon by the Sessions Court,including the oral evidence of the victim’s parents. [Para 41][981-E-G]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 520 of 2020.

From the Judgment and Order dated 21.01.2019 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Crl. Misc.Application No. 129789 of 2018 in Criminal Appeal No. 1594 of 2018.

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AV. K. Shukla, Sr. Adv., Vishwajit Singh, Ms. Ridhima Singh,Ms. Veera Kaul Singh, Pankaj Singh, Vignesh Singh, P. B. Suresh, VipinNair, Karthik Jayashankar, Adarsh Upadhyay, Abhitosh Pratap Singh,Advs. for the appearing parties.

The Judgment of the Court was delivered byBINDIRA BANERJEE, J.

1. Leave granted.

2. This appeal, filed by the father of the deceased victim, is againstthe order dated 21.01.2019 passed by the Allahabad High Court, LucknowCBench in Criminal Misc. Application No. 129789 of 2018, in CriminalAppeal No. 1594 of 2018, whereby the High Court granted bail to theRespondent No.2, Sandeep Singh Hora, husband of the deceased victim,convicted by a judgment dated 23.7.2018 of the Additional District andSessions Judge/Special Judge (EC Act), Lucknow, hereinafter referredto as the “Sessions Court” in Sessions Trial No.1385 of 2010, for offencesDunder Sections 304B, 498A and 406 of the Indian Penal Code (IPC) andSections 3 and 4 of the Dowry Prohibition Act, 1961 by staying executionof the sentences of imprisonment.

3. By an order dated 23.7.2018 in Sessions Trial No.1385 of 2010the Sessions Court sentenced the Respondent No.2 to SimpleEImprisonment of 3 years and fine of Rs.10,000/- under Section 498A ofthe IPC and in default of payment of fine to further Simple Imprisonmentof 3 months; Life Imprisonment for offence under Section 304B of theIPC; Simple Imprisonment for 3 years and fine of Rs.5,000/- for offenceunder Section 406 of the IPC and in default of payment of fine, furthersimple imprisonment of 2 months; Simple Imprisonment for 5 years andFfine of Rs.15,000/- under Section 3 of the Dowry Prohibition Act and indefault of payment of fine, further Simple Imprisonment of 3 monthsand Simple Imprisonment of one year and fine of Rs.5,000/- under Section4 of the Dowry Prohibition Act and, in default of payment of fine, furtherSimple Imprisonment of 3 months. All the sentences were to runGconcurrently.

4. Being aggrieved by the conviction and sentence, the RespondentNo.2 filed an appeal in the High Court which was numbered CriminalAppeal No.9514 of 2018. After filing the appeal, the Respondent No.2filed Criminal Misc. Application No.129789 of 2018 inter alia prayingHthat he be enlarged on bail, during the pendency of the aforesaid appeal.

The said application has been allowed by the order dated 21.1.2019under appeal.

5. The High Court recorded the submission made on behalf of theRespondent No.2 that (i) No FIR in relation to demand for dowry orharassment had been filed before the death of the victim; (ii) theRespondent No.2 had taken Rs. 2,50,000/- as loan from the brother ofthe victim and not as dowry, which was established because the brotherof the victim had not been produced as a witness; and (iii) that thedeceased had committed suicide which was evident from the post mortemreport. The cause of death as shown in the post mortem report was“asphyxia as a result of ante mortem hanging”.

6. The High Court briefly recorded the submission on behalf ofthe State and on behalf of the Appellant and then the submission onbehalf of the Respondent No.2, in rebuttal, that the Respondent No.2had been framed.

7. After recording the submissions of the respective parties, theHigh Court passed a short, cryptic, non speaking order, under appealbefore this Court, which is set out hereinbelow for convenience:- “After hearing learned counsel for the parties and goingthrough the record, we find force in the arguments raised bylearned counsel for the accused-appellant. Keeping in viewthe facts and circumstances of the case, without commentinganything on merits of the case, we are of the considered opinionthat accused-appellant is entitled to be released on bail.

Let accused-appellant, namely Sandeep Singh Hora convictedin aforesaid Sessions Trial No. 1385 of 2010 be enlarged onbail during pendency of appeal subject to his furnishing apersonal bond and two sureties each in the like amount to thesatisfaction of court concerned.

It is clarified that no stay order has been passed in respect offine imposed on the accused appellant and the same shall bedeposited within four weeks from today and in default, theaccused-appellant shall be deprived from the benefit of thebail order passed today.

The bail bonds after being accepted, shall be transmitted tothis Court for being kept on record of this appeal.”

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A8. It is not in dispute that the victim died in circumstances whichwere not natural, on the night of 24/25.8.2010, within about 8½ monthsof her marriage with the Respondent No.2 on 12.12.2009.

9. On 25.8.2010, at about 3.05 a.m., a First Information ReportNo.352/2010 was registered on the complaint of the Appellant, pursuantBto which, a criminal case being Crime No.480 of 2010 was initiatedagainst Respondent No.2, his parents and his sister Sonia @ DishaChhugani under Sections 498A, 304B, 406 and 411 of the IPC and Sections3 and 4 of the Dowry Prohibition Act.

10. After investigation into the case, the Investigating OfficerCsubmitted a chargesheet against the Respondent No.2, his father BalvirSingh, his mother Manjeet Kaur and his sister Sonia @ Disha Chhugani.

11. The case was committed to the Sessions Court, after whichcharges were framed against the accused under Sections 498A, 304Band 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, toDwhich the accused pleaded not guilty and claimed trial. The accusedwere absolved of the charge under Section 411 of the IPC.

12. In Sessions Trial No.1385 of 2010, the Prosecution examinedeight witnesses, including the Appellant, being the complainant in theFIR, his wife, being the mother of the victim and his sister Rajendra PalEKaur, being the paternal aunt of the victim. The defence also examinedfive witnesses. The Respondent No.2 and the other accused wereexamined under Section 313 of the Criminal Procedure Code (CrPC).

13. The evidence adduced before the Sessions Court, hasmeticulously been recorded in the judgment and order dated 23.7.2018,under appeal before the High Court. The family members of the victim,Fwho deposed before the Sessions Court, have given oral evidence thatthe Appellant had spent money beyond his financial capacity, for thewedding of his daughter, that is, the victim. However, soon after themarriage of the victim to the Respondent No.2 on 12.12.2009, the victim’sin-laws as well as the Respondent No.2, her husband, harassed herGmentally and physically for more dowry.

14. From the oral evidence of the victim’s parents, and other familymembers, it transpires that the victim used to make phone calls to hermother, maternal grandmother and her aunt, complaining of harassmentmeted out to her by the members of her matrimonial family. There isH

oral evidence that the Appellant’s wife used to console her by sayingthat things would settle down in due course.

15. From the oral evidence it also transpires that the in-laws ofthe victim used to pressurize the victim to bring cash from her parents.On 17.6.2010, the Respondent No.2 along with his father Balvir Singhcame to Sitapur and took cash of Rs.2,50,000/- from the victim’s brother,Pritam Singh. From the oral evidence of the Appellant, it transpires thaton the evening of 24.8.2010, the victim rang up the Appellant twice,complaining of atrocities. She was frightened and expressed fear forher life. On the same night at 12.15 a.m. the Appellant was informedthat his daughter had died.

16. The 2[nd] Prosecution Witness, being the mother of the victim,stated that the family had spent approximately Rs.21 lacs for the marriageof the victim. They had gifted I-10 car, which they had purchased, afterobtaining loan against insurance policy. However, after marriage, the in-laws of the victim started harassing the victim, demanding cash of Rs.15to 20 lacs, alleged to have been promised by her parents and alsodemanding a Pajero car in place of the I-10 car.

17. The post mortem report reveals the following ante-morteminjuries:- “Oblique ligature mark 30 cm x 1.5 cm on front and aroundthe neck just above thyroid cartilage; both lungs andmembranes congested; right heart chamber full and left empty;there was some semi-digested food material available instomach; liver, spleen, both kidneys congested; uterus emptyand normal; the death had possibly taken place half daybefore post-mortem. As per the opinion of the witness, thedeceased had died due to asphyxia as a result of ante mortemhanging.”

18. The Respondent No. 2 and his parents were examined underSection 313 of the Cr.PC. They denied practically everything, exceptthe fact that the Respondent No.2 had married the victim on 12.12.2009.They emphasized on the fact that the victim had committed suicide, andcontended that the entire investigation had been conducted under thesupervision and instructions of a motivated IPS officer, who was a friendof the Appellant.

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A19. The Respondent No.2 and/or his parents have, in theirexamination under Section 313 of the CrPC, suggested that the deceasedvictim had wanted to marry some other boy, but had been compelled byher parents to marry the Respondent No.2 and that she frequently usedto talk with and exchange messages with that boy. There is also asuggestion that the victim had committed suicide because of mental illness.BSignificantly, on the one hand it is insinuated that her involvement withanother boy led to the suicide and on the other hand it is suggested thatshe committed suicide due to mental illness. The suggestions are somewhatcontradictory and in any case the suggestion of mental illness isunsupported by any evidence whatsoever.

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20. Through three of the witnesses examined by the defence,namely, one Shri K.K. Pandey, Sub-Divisional Engineer, Mobile Services(Security) who deposed as the 1[st] Defence Witness, Shri Madhu Balusu,Nodal Officer, Reliance Communications, Gomti Nagar, Lucknow whodeposed as 2[nd] Defence Witness, and Shri Prashant Mishra who deposedDas 3[rd] Defence Witness, the defence made an attempt to establish thevictim’s involvement with the said Prashant Mishra. The evidence ofthe aforesaid three witnesses evinces calls from the victim’s phone tothe phone in the name of Prashant Mishra, and from the said phone tothe phone of the victim and also exchange of some messages betweenthe two phones. However, the said Prashant Mishra, who deposed asEDefence witness said, that the phone in his name was always kept athome and used by his parents and sister. The victim was a class friendof his sister, Prachi. He did not know the mobile number of the victim.The victim used to talk to his sister Prachi. This witness deposed that heknew that the victim had married the Respondent No.2. He said that hisFsister Prachi and his mother had attended the wedding. This witnesscategorically asserted that phone calls to and from the victim from thisphone number were not made in his presence, nor were the messagesexchanged in his presence.

21. The 4[th] Defence Witness, Smt. Lajwanti Chugani (mother-in-Glaw of Sonia @ Disha Chhugani) and the 5[th] Defence Witness ShriBhagwan Das Chugani (father-in-law of Sonia alias Disha Chhugani)deposed that their daughter in law Sonia did not have good relations withher parents as she had left her first husband and remarried their sonagainst the wishes of her parents.

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22. The Sessions Court considered the evidence adduced on behalfof the Prosecution, including the oral evidence of the family members ofthe victim, the evidence of the defence witnesses and the defence of theRespondent No.2, his parents and his sister under Section 313 of theCrPC and thereafter convicted the Respondent No.2 as also his parentsBalvir Singh and Manjeet Kaur under Sections 498A, 304B and 406 ofthe IPC and under Sections 3 and 4 of the Dowry Prohibition Act. TheRespondent No.2’s sister Sonia @ Disha Chugani was acquitted of allthe charges against her.

23. The judgment and order of the Sessions Court, under appealin the High Court is based on evidence. The oral evidence adducedbefore the Sessions Court, which has meticulously been recorded in thejudgment and order dated 23.7.2008, under appeal before the High Court,reveals that there is evidence of torture and harassment of the victim, bythe Respondent No. 2 and his parents, for more dowry, soon after marriage,which continued till her death. The victims husband (Respondent No. 2)and her in laws pressurized the victim to bring cash from her parentsand also pressurized her for a Pajero car in place of the I-10 car giftedby her parents at the time of marriage. The Respondent No. 2 came toSitapur along with his father, Balvir Singh on 17.6.2010 and took cash ofRs.2,50,000/- from the victim’s brother, Pritam Singh. Even as late as onthe evening of 24.8.2010, the Respondent No.2 went to the residence ofthe victim’s aunt and threatened to put an end to the marriage. On24.8.2010, the victim had made frantic calls complaining of torture, andexpressing fear for her life. From the oral evidence, it may be reasonablyinferred that she was traumatized. The same night, she died in unnaturalcircumstances.

24. It is not for this Court to go into the merits of the appealpending before the High Court. Suffice it to mention that prima faciethe Sessions Court has proceeded on the basis of evidence and theRespondent No.2 has not been able to make out a case of any patentinfirmity and/or illegality in the judgment and order of the Sessions Court.

25. The Short question that arises for consideration in this appealis, whether the High Court was justified in directing release of theRespondent No.2 on bail, during the pendency of his appeal before theHigh Court.

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A26. Section 389 provides that, pending any appeal by a convictedperson, the Appellate Court may, for reasons to be recorded by it inwriting, order that the execution of the sentence or order appealed against,be suspended and, also, if he is in confinement, that he be released onbail. 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 threeByears and/or in the case of bailable offences. In this case, of course,none of the offences for which the Respondent No. 2 has been convictedare bailable. Moreover the Respondent No.2 has, inter alia, been givenlife imprisonment for offence under Section 304B of the IPC andimprisonment for five years for offence under Section 3 of the DowryCProhibition Act.

27. As the discretion under Section 389(1) is to be exercisedjudicially, the Appellate Court is obliged to consider whether any cogentground has been disclosed, giving rise to substantial doubts about thevalidity of the conviction and whether there is likelihood of unreasonableDdelay in disposal of the appeal, as held by this Court in Kashmira Singh

v. State of Punjab[1 ]and Babu Singh and Ors. v. State of U.P.[2]

28. Section 304B was incorporated in the Indian Penal Code bythe Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). Theobject of the amendment was to curb dowry death. Section 304B doesEnot categorize death, it covers every kind of death that occurs otherwisethan in normal circumstances. Where the other ingredients of Section304B of the Code are satisfied, the deeming fiction of Section 304Bwould be attracted and the husband or the relatives shall be deemed tohave caused the death of the bride.F29. The essential ingredients for attraction of Section 304B are:(i) the death of woman must have been caused in unnaturalcircumstances.

(ii) the death should have occurred within 7 years of marriage

(iii) Soon before her death the woman must have been subjectedGto cruelty or harassment by her husband or his relatives and such crueltyor harassment must be for or in connection with the demand for dowry,and such cruelty or harassment is shown to havebeen meted out to thewoman soon before her death.

1 (1977) 4 SCC 291H2 (1978) 1 SCC 579

30. As observed by this Court in State of Punjab v. Iqbal Singh& Ors.[3], the legislative intent of incorporating Section 304B was to curbthe menace of dowry death with a firm hand. In dealing with casesunder Section 304B, this legislative intent has to be kept in mind. Oncethere is material to show that the victim was subjected to cruelty orharassment before death, there is a presumption of dowry death and theonus is on the accused in-laws to show otherwise. At the cost of repetition,it is reiterated that the death in this case took place within 8½ months ofmarriage. There is apparently evidence of harassment of the victim fordowry even on the day of her death, and there is also evidence of paymentof a sum of Rs.2,50,000/- to the Respondent-Accused by the victim’sbrother, two months before her death.

31. In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr.[4], thisCourt held:- “11. The law in regard to grant or refusal of bail is very wellsettled. The Court granting bail should exercise its discretionin a judicious manner and not as a matter of course. Thoughat the stage of granting bail a detailed examination ofevidence and elaborate documentation of the merits of thecase need not be undertaken, there is a need to indicate insuch orders reasons for prima facie concluding why bail wasbeing granted particularly where the accused is charged ofhaving committed a serious offence. Any order devoid of suchreasons would suffer from non-application of mind.”

32. Even though detailed examination of the merits of the casemay not be required by courts while considering an application for bailbut, at the same time, exercise of jurisdiction has to be based on wellsettled principles and in a judicious manner and not as a matter of courseas held by this Court inChaman Lal v. State of U.P. and Anr.[5].

33. In Mauji Ram v. State of Uttar Pradesh and Anr.[6], thisCourt referred to Ajay Kumar Sharma v. State of U.P. and Ors.[7],Lokesh Singh v. State of U.P. and Anr.[8 ]and Dataram Singh v. State 3 (1991) 3 SCC 14 (2004) 7 SCC 528

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8 (2008) 16 SCC 753

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Aof U.P. and Anr.[9 ]and stated categorically that this Court had time andagain emphasised the need for assigning reasons while granting bail.

34. In Lokesh Singh v. State of U.P. and Anr. (supra), this Courtreferred to Kalyan Chadra Sarkar v. Rajesh Ranjan (supra) and setaside the impugned order of the High Court granting bail.B

35. In Ajay Kumar Sharma (supra), a three-Judge Bench of thisCourt relied on Chaman Lal v. State of U.P. (supra) and set aside orderof bail granted by the High Court holding, that it was well settled thateven though detailed examination of the merits of the case may not berequired by the courts while considering an application for bail, at theCsame time exercise of discretion has to be based on well settled principlesand in a judicious manner and not as a matter of course.

36. There is a difference between grant of bail under Section 439of the CrPC in case of pre-trial arrest and suspension of sentence underSection 389 of the CrPC and grant of bail, post conviction. In the earlierDcase there may be presumption of innocence, which is a fundamentalpostulate of criminal jurisprudence, and the courts may be liberal,depending on the facts and circumstances of the case, on the principlethat bail is the rule and jail is an exception, as held by this Court inDataram Singh v. State of U.P. and Anr. (supra). However, in case ofpost conviction bail, by suspension of operation of the sentence, there isEa finding of guilt and the question of presumption of innocence does notarise. Nor is the principle of bail being the rule and jail an exceptionattracted, once there is conviction upon trial. Rather, the Court consideringan application for suspension of sentence and grant of bail, is to considerthe prima facie merits of the appeal, coupled with other factors. ThereFshould be strong compelling reasons for grant of bail, notwithstanding anorder of conviction, by suspension of sentence, and this strong andcompelling reason must be recorded in the order granting bail, asmandated in Section 389(1) of the Cr.P.C.

37. In Vinod Singh Negi v. State of Uttar Pradesh and Anr.[10],Gthis Court set aside the impugned order of suspension of sentence andgrant of appeal as the order was devoid of reasons.

38. It is nobody’s case that the death of the victim was accidentalor natural. There is evidence of demand of dowry, which the Trial Court 9 (2018) 3 SCC 22H10 (2019) 8 SCC 13

has considered. The death took place within 7 or 8 months and there isoral evidence of the parents of cruelty and torture immediately precedingthe death. There is also evidence of payment of Rs.2,50,000/- to theRespondent-Accused by the victim’s brother. The Respondent No.2 hasnot been able to demonstrate any apparent and/or obvious illegality orerror in the judgment of the Sessions Court, to call for suspension ofexecution of the sentence.

39. In considering an application for suspension of sentence, theAppellate Court is only to examine if there is such patent infirmity in theorder of conviction that renders the order of conviction prima facieerroneous. Where there is evidence that has been considered by theTrial Court, it is not open to a Court considering application under Section389 to re-assess and/or re-analyze the same evidence and take a differentview, to suspend the execution of the sentence and release the convicton bail.

40. Even though the term ‘dowry’ is not defined in the IndianPenal Code, it is defined in the Dowry Prohibition Act, 1961 as anyvaluable security given or agreed to be given either directly or indirectlyby one party to the marriage to the other party to the marriage, or by anyperson at or before or any time after the marriage, in connection withthe marriage of the parties.

41. It is difficult to appreciate how the High Court could casuallyhave suspended the execution of the sentence and granted bail to theRespondent No.2 without recording any reasons, with the casualobservation of force in the argument made on behalf of the Appellantbefore the High Court, that is, the Respondent No.2 herein. In effect, atthe stage of an application under Section 389 of the CrPC, the HighCourt found merit in the submission that the brother of the victim nothaving been examined, the contention of the Respondent No.2, beingthe Appellant before the High Court, that the amount of Rs.2,50,000/-was taken as a loan was not refuted, ignoring the evidence relied uponby the Sessions Court, including the oral evidence of the victim’s parents.

42. From the evidence of the Prosecution witnesses, it transpiresthat the Appellant had spent money beyond his financial capacity, at thewedding of the victim and had even gifted an I-10 car. The haplessparents were hoping against hope that there would be an amicablesettlement. Even as late as on 17.6.2010 the brother of the victim paid AB

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ARs.2,50,000/- to the Respondent No.2. The failure to lodge an FIRcomplaining of dowry and harassment before the death of the victim, isin our considered view, inconsequential. The parents and other familymembers of the victim obviously would not want to precipitate a completebreak down of the marriage by lodging an FIR against the RespondentNo.2 and his parents, while the victim was alive.B

43. For the reasons discussed above, the appeal is allowed. Theimpugned order of the High Court is set aside and the Respondent No.2is directed to surrender for being taken into custody. The bail bonds shallstand cancelled.

C

Kalpana K. Tripathy

Appeal allowed.

D

E

F

G

H