DR NARESH KUMAR MANGLA versus SMT. ANITA AGARWAL & ORS. ETC. on 17 December 2020

294

SUPREME COURT REPORTS

[2020] 14 S.C.R.

ADR NARESH KUMAR MANGLA

v.

SMT. ANITA AGARWAL & ORS. ETC.

(Criminal Appeal Nos. 872-873 of 2020)

BDECEMBER 17, 2020

[DR. DHANANJAYA Y CHANDRACHUD,INDU MALHOTRA AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973 – s.438 – Anticipatory Bail– Cancellation of Anticipatory Bail – Penal Code, 1860 – ss.498-A,C304-B, 323, 506 and 313 – Dowry Prohibition Act, 1961 – ss.3 and4 – Appellant’s daughter died an unnatural death – According tothe respondent-accused persons she committed suicide – However,in the FIR lodged by the appellant it was alleged that his deceaseddaughter was pressurized to bring money and the appellant hadDpaid money on several occasions by cheque to the in-laws(respondent-accused) of the deceased – The Session Judge observedthat an incident took place on 01.10.2017 when deceased wasallegedly assaulted by her mother-in-law, brother-in-law and sister-in-law which led to the filing of a complaint in the police station –The FIR further records that father-in-law of the deceased hadEtelephonically threatened appellant on 03.08.2020 and demandedmoney – The same day appellant’s daughter had informed appellantthat there was threat to her life – However, before appellant couldreach his daughter’s matrimonial house to see her, he was informedthat she was admitted in hospital – After few days in hospital, sheFdied – The applications for anticipatory bail u/s.438 Cr.P.C. wasfiled by parents-in-law, brother-in-law and sister-in-law of thedeceased – Deceased’s husband was in custody – The saidapplications were dismissed by the Sessions Judge referring to themoney transactions – The Single Judge of the High Court grantedthe anticipatory bail to the applicants and held that (a) FIR primaGfacie appears to be engineered to implicate the applicants; (b) thereis no co-relation between the various allegations leveled in the FIR;(c) the allegations ‘are general in nature’ with no specific role beingassigned to the accused – On appeal, held: The FIR contains arecital of allegations bearing on the role of the accused inH

demanding dowry, of the prior incidents of assault and the paymentof moneys by cheque to the in-laws of the deceased – The FIR evenreferred to the telephone calls which were received from the father-in-law of the deceased – In the face of such specific allegations inthe FIR and the reference by the Session Judge to the moneytransaction, the conclusion of the Single Judge of the High Courtthat the FIR prima facie has been ‘engineered to implicate theaccused’ defies reasonable explanation – Similar is the case withthe finding that ‘there is no co-relation between the allegationsleveled in the FIR’ – A reading of the FIR would reveal that thefinding of the Single Judge that the allegations ‘are general withoutassigning a specific role to the accused’ is contrary to the record –The entire approach of the High Court is flawed – The grant ofanticipatory bail in such a serious offence would operate to obstructthe investigation – Therefore, the orders passed by the Single Judgeof the High Court allowing the applications for anticipatory bailare set aside and bail granted to the accused persons is cancelled.

Code of Criminal Procedure, 1973 – Transfer of furtherinvestigation to CBI – Penal Code, 1860 – s.364-B – Dowry death– Appellant’s daughter died an unnatural death – According to therespondent-accused persons, she committed suicide – It was allegedin the FIR that appellant’s daughter-deceased was pressurized tobring money – There were prior allegations of assault against theaccused persons/in-laws of appellant’s daughter – The applicationfor anticipatory bail filed by the in-laws of appellant’s daughterwas rejected by the Session Judge – However, applications wereallowed by the High Court – Thereafter, charge-sheet was submitted– Before the Supreme Court, the State filed counter-affidavit throughDeputy Superintendent of Police and stated that the High Courthas not taken into consideration the prior allegations of assault/injuries sustained by deceased in the year 2017 – It was furtherstated that the medical reports and facts revealed that deceasedwas killed – The State supported the appellant in assailing thecorrectness of the order granting anticipatory bail – According tothe State no investigation on allegation of murder was conducted –Held: The conduct of the investigating authorities from the stage ofarriving at the scene of occurrence to the filing of the charge-sheetdo not inspire confidence – The stance taken by the DeputySuperintendent of Police in the counter-affidavit filed few days after AB

C

D

E

F

G

H

Aforwarding the charge-sheet, travels beyond the scope of theinvestigation recorded in the charge-sheet – The critical facts ofmoney trail between the deceased, her father and the accused; andthe call history of father-in-law of deceased, father of deceasedand the deceased were not explored – No investigation on allegationof murder was conducted – There were glaring deficiencies in theBinvestigation conducted – The status of the accused as propertiedand wealthy persons of influence and the conduct of theinvestigation thus far diminishes the faith of Court in directing afurther investigation by the same authorities – Therefore, it isnecessary to entrust a further investigation of the case to the CBI inCexercise of power u/Art.142 of the Constitution.

Disposing of the appeals, the Court

HELD: 1. There is no cogent basis for the Single Judge ofthe High Court to have arrived at findings that (a) “the FIR primafacie appears to be engineered to implicate the applicants”; (b)D“there is no co-relation in between the various allegations leveledin the FIR”; and (c) the allegations “are general in nature” withno specific role being assigned to the accused. The informanthad suffered a loss of his own daughter due to an unnatural deathin close proximity to the lodging of his complaint. The FIR containsEa reference to the previous incident of October 2017, to thedemands for dowry, payments of money in cheque by the informantto the groom’s family and the telephone calls received by theinformant from the father-in-law of the deceased and later fromthe deceased in close proximity to the incident, on the same daythat she died. The FIR contains specific allegations against theFaccused, commencing with the incident of October 2017. Whethersuch an incident, as reported by the deceased to the police on01 October 2017 did take place, leading to her suffering injurieswhich were examined at the Government Hospital, is a matterfor investigation. How the Single Judge could have concluded –Gin the face of specific allegations in the FIR and the reference bythe Sessions Judge to money transactions - that the FIR primafacie has been “engineered to implicate the accused” defiesreasonable explanation. Similar is the case with the finding that H

H

“there is no co-relation between the allegations leveled in theFIR.” A reading of the FIR would reveal that the finding of theSingle Judge that the allegations “are general without assigninga specific role to the accused” is contrary to the record. TheSingle Judge observed, from the income tax returns of theaccused, that “it cannot be said that they are not of sufficientmeans”. The Single Judge has erred in drawing this inferencewithout a full investigation by the investigating arm of the state.The respondent-accused as sought to rely on the payment ofmonies to the deceased by the two hospital establishments, thetransfer of funds for the purchase of properties and the jointownership of properties. The trail of monies alleged to bereceived by the deceased for her professional work is a matterto be investigated. Similarly, the transfer of monies by thedeceased to her father-in-law and the nexus, if any, with the fundswhich she had received from her parents is a matter for seriousinvestigation. The death was unnatural which took place withinseven years of the marriage. The alleged phone calls receivedby the informant from some of the accused and by the deceasedon the day when she was found to be hanging are matters whichrequired to be probed. The alleged absence of an external injuryon the body of the deceased is a matter for investigation. Theapproach of the High Court is casual. The surmises which arecontained in the reasons recorded by the High Court have nobasis in the materials with which it was confronted. Theobservation of the High Court that no specific role is assigned inthe FIR to the accused is based on a misreading of the FIR. Theentire approach of the High Court is flawed. [Para 14][313-B-H;314-A]

2. Judged in the light of the settled legal principles, thejudgment of the Single Judge of the High Court of Judicature atAllahabad is unsustainable. The FIR contains a recital ofallegations bearing on the role of the accused in demanding dowry,of the prior incidents of assault and the payment of moneys bycheque to the in-laws of the deceased. The FIR has referred tothe telephone calls which were received both from the father-in-law of the deceased on the morning of 03 August 2020 and fromthe deceased on two occasions on the same day- a few hours AB

C

D

EF

G

H

Abefore her body was found. The grant of anticipatory bail in sucha serious offence would operate to obstruct the investigation.The FIR by a father who has suffered the death of his daughter inthese circumstances cannot be regarded as “engineered” tofalsely implicate the spouse of the deceased and his family.

[Para 19][320-B-D]B

3. Having regard to the circumstances which have emergedon the record, which have been adverted to in the earlier part ofthe judgment, this Court is of the view that it is necessary toentrust a further investigation of the case to the CBI in exerciseof the powers of this Court under Article 142 of the Constitution.CThe conduct of the investigating authorities from the stage ofarriving at the scene of occurrence to the filing of the charge-sheet do not inspire confidence in the robustness of the process.A perusal of the charge-sheet evinces a perfunctory rendition ofthe investigating authorities’ duty by a bare reference to the factsDand the presumption under Section 304B of the IPC when thedeath occurs within seven years of the marriage. The stance takenby the Deputy Superintendent of Police in the Counter Affidavit,filed a few days after forwarding the charge-sheet, travels beyondthe scope of the investigation recorded in the charge-sheet withrespect to the veracity of the suicide note, medical examinationEof injuries and the past miscarriages of the deceased. Criticalfacts of the money trail between the deceased, her father (theinformant), and the accused; and the call history of A2, theinformant and the deceased are unexplored. No attempt atcustodial interrogation of the applicants was made between theFissuance of non-bailable warrants on 09 September 2020 andinterim protection from arrest by the High Court granted on 22September 2020. As noted above, upon questioning during thehearing, the Counsel for the State answered that no investigationon the allegation of murder had been conducted. It would indeedbe a travesty if this Court were to ignore the glaring deficienciesGin the investigation conducted so far, irrespective of the stage ofthe proceedings or the nature of the question before this Court.The status of the accused as propertied and wealthy persons ofinfluence in Agra and the conduct of the investigation thus far H

DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &ORS. ETC.

A

diminishes this Court’s faith in directing a further investigationby the same authorities. The cause of justice would not be servedif the Court were to confine the scope of its examination to thewisdom of granting anticipatory bail and ignore the possibility ofa trial being concluded on the basis of a deficient investigation atbest or a biased one at worst. [Para 23][325-D-H; 326-A-B]

B

Siddharam Satlingappa Mhetre v. State of Maharashtra(2011) 1 SCC 694 : [2010] 15 SCR 201; Jai PrakashSingh v. State of Bihar (2012) 4 SCC 379 : [2012] 5SCR 1; Sushila Agarwal v. NCT of Delhi (2020) 5 SCC1: [2020] 2 SCR 1; Kanwar Singh Meena v. State ofRajasthan (2012) 12 SCC 180 : [2012] 10 SCR 847;Myakala Dharmarajam v. The State of Telangana(2020) 2 SCC 743; Pokar Ram v.. State ofRajasthan,(1985) 2 SCC 597: [1985] 3 SCR 780;Arnab Goswami v. Union of India WP (Crl) 130 of 2020,decided on 19 May 2020; Vinay Tyagi v. Irshad (2013)5 SCC 762: [2012] 13 SCR 1005; Pooja Pal v. Unionof India (2016) 3 SCC 135: [2016] 11 SCR 560;Dharam Pal v. State of Haryana (2016) 4 SCC160: [2016] 1 SCR 194 – relied on.

C

D

Puran v. Ramvilas (2001) 6 SCC 338; [2001] 3 SCR 432 ; State of U.P. v. Amarmani Tripathi (2005) 8 SCC21: [2005] 3 Suppl. SCR 454; Jaiprakash Singh v.State of Bihar (2012) 4 SCC 379: [2012] 5 SCR 1;Neeru Yadav v. State of U.P. (2016) 15 SCC 422 : [2015]10 SCR 802; State v. Anil Sharma (1997) 7 SCC187: [1997] 3 Suppl. SCR 737; Adri Narayan Das v.State of West Bengal (2005) 4 SCC 303: [2005]2 SCR 188 – referred to.

E

F

H

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 872-73 of 2020DFrom the Judgment and Order dated 29.09.2020 of the High Courtof Judicature at Allahabad in Criminal Misc. Anticipatory Bail ApplicationNo. 5457 of 2020 & Criminal Misc. Anticipatory Bail Application No.5460 of 2020.

K.M. Nataraj, ASG, Shekhar Naphade, Sidharth Luthra, R. Basant,EVimlesh Kumar Shukla, Sr. Advs., Sanjay Kharde, Ms. S. Lakshmi Iyer,Satyajeet Kharde, Ms. Prashi Tyagi, Sunil Kumar Verma, Arvind KumarSharma, Atul Sharma, Nitesh Jain, Abhishek Agarwal, Vishnu ShankarJain, Advs. for the appearing parties.

The Judgment of the Court was delivered byFDR. DHANANJAYA Y CHANDRACHUD, J.

A. Background

B. Submissions of Counsel

C. Cancellation of Anticipatory BailG

D. Transfer of further investigation to the CBI

E. Summation

H

1. Leave granted

A. Background

2. Applications for anticipatory bail under Section 438 of the Codeof Criminal Procedure 1973 (“CrPC”) were filed by four out of fivepersons who have been named as accused in Case Crime No.0623 of2020 registered at Police Station Tajganj, District Agra under Sections498A, 304-B, 323, 506 and 313 of the Indian Penal Code (“IPC”) andSections 3/4 of the Dowry Prohibition Act, 1961.The husband of thedeceased[1] is in custody. The applicants for anticipatory bail are theparents-in-law[2], brother-in-law[3] and sister-in-law[4] of the deceased. ASingle Judge of the High Court of Judicature at Allahabad allowed theapplications and granted them anticipatory bail. The father of thedeceased is in appeal.

3. The marriage between the deceased (Deepti) and SumitAgarwal took place on 3 November 2014. On 7 August 2020, the appellantlodged a complaint which was registered as a First Information Report(“FIR”) under Section 154 of the CrPC. The FIR, inter alia, recordsthat Deepti was a doctor and the appellant spent an amount in excess ofRs.1.50 crores for conducting the marriage. It is alleged that eventhereafter, Sumit, his parents, brother-in-law and sister-in-law misbehavedwith the deceased on account of dowry. The deceased, it is alleged,waspressurized to bring money. The FIR alleges that the appellant had paidmoney on several occasions by cheque to the in-laws of the deceased.On account of the demand for dowry, it was alleged that she was severelyassaulted in 2017 and the injuries were medically examined at theGovernment Hospital in Vrindavan. In the meantime, Deepti sufferedmiscarriages on two occasions and ultimately, adopted a daughter. Asregards the incident which eventually led to the unnatural death by thealleged suicide of Deepti, the FIR records that:

“About 18-19 days ago, all the abovementioned family membersof her in-laws badly beaten up Dipti on account of dowry andthreatened her that if she informed the family of her parents, shewill have to face the consequences. On 03.08.2020, in the morning,Dr S. C. Agarwal telephonically threatened the applicant anddemanded the money, and also threatened that either I shouldfulfill the demand, otherwise, I will be responsible for whatever 1 A-1

2 A-2 and A-3

3 A-4

4 A-5

A

BC

D

E

F

G

H

Ahappens in future. The same day in the afternoon at 3:09 PM andthereafter at 5:31 PM in the evening, Dipti told the applicant andthe wife of the applicant about beating up done by them about 18-19 days ago and regarding taking advice by all the people andabout threat to her life. At the time, the applicant was in Faridabadand he told her about coming to Agra in the night itself. However,Bbefore the applicant could reach in the evening on the same daythese dowry greedy people killed Dipti in [xxx] for non-receipt ofdowry and non-fulfilment of the demands, and admitted Dipti intheir hospital itself in the almost dead condition, in order to savethemselves, but she was not allowed any treatment with theCintention of killing her. In order to save the life of Dipti, the applicanttook her away to the Sarvodaya hospital Faridabad for treatment,at the earliest, in the morning itself, where Dipti died yesterday on06.08.2020 during treatment. These people have also takenpossession of the entire money which was earned by Dipti. Diptihas been killed by Sumit, S.C. Agarwal, Mrs Anita, Amit and Tulika,Dfor dowry with cruel behavior. We performed the last rites ofDipti in Kosi. Since we were busy in the treatment and performingthe last rites of Dipti, the applicant has come for filing the report.”

4. The spouse of the deceased-who is also a doctor byprofession,was taken into custody on 7 August 2020. On 10 August 2020,Ethe four respondents (A-2 to A-5) sought anticipatory bail before theSessions Court, Agra[5]. By an order dated 21 August 2020,the SessionsJudge, Agra declined anticipatory bail. After adverting to the submissionof the accused that a suicide note which was allegedly left behind by thedeceased did not contain any allegation of harassment for dowry andFthe deceased was a partner and investor in the Agra Medical and CardiacSuper Specialty Hospital set up by her father-in-law, the Sessions Judgeobserved:

“On the other hand, the documents have been filed on behalf ofthe complainant side, in which it has been shown that the moneyGwas transferred to different transactions. The photocopy of theapplication dated 01.10.2017 submitted by the deceased to theSHO, Kosikalan, District Mathura, has also been filed, in which itis mentioned about beating up of the deceased by Dr Amit Agarwal, Tulika Agarwal and Anita Agarwal and pushing her down throughthe stairs with the intention of killing her, and it has been mentionedthat she suffered considerable injuries in it. It has also been statedin it that all this has happened at the instance of her father-in-lawS.C. Agarwal, who has asked her to bring Rs.20 lakhs from thefamily of her parents. In addition, the photocopy of the injury reportof the deceased dated 02.10.2017 of the additional district jointhospital, Brindaban has also been filed.”

5. The Sessions Judge noted that besides naming the accusedspecifically, there were also allegations against the four respondentsinthe FIR of torturing the deceased and of making demands for dowry.On9 September 2020, non-bailable warrants were issued against the fouraccused. Applications for anticipatory bail were filed on their behalfbefore the High Court[6]. On 22 September 2020, a learned Single Judge,after noting the submissions, posted the applications for anticipatory bailfor “further hearing” on 28 September 2020 and protected the accusedagainst arrest in the interim. On 28 September 2020, another Single Judgeof the High Court before whom the application was listed noted the factthat the earlier order dated 22 September 2020 had posted the applicationfor “further hearing” and directed the registry to process the listing ofthe proceedings accordingly. Eventually, anticipatory bail has been grantedby the order of the High Court dated 29 September 2020. The reasonson the basis of which the High Court proceeded to grant anticipatorybail are contained in paragraph 20 of the judgment of the High Courtwhich is extracted below:

“20. Having heard the learned counsel for applicants, learnedA.G.A. and the learned counsel for the informant and theundisputed position which has emerged from the record as notedabove, the fact of the matter is that the applicants are the father-in-law, mother-in-law, Jeth and Jethani of deceased. Secondly,the husband of the deceased is already in jail.Thirdly, the F.I.R. isnot to be treated as an encyclopedia of prosecution case but mustreflect the basic prosecution case. When judged in the light ofabove, the F.I.R. prima facie appears to be engineered to implicatethe applicants.There is no co-relation in between the variousallegations leveled in the F.I.R.The allegations made are general 6 Criminal Misc Anticipatory Bail Application Nos.5457/5460 of 2020

A

B

C

D

E

F

G

H

Ain nature and no specific role has been assigned to any of theabove named applicants regarding the alleged demand of dowry.From the perusal of the material on record, particularly the income-tax returns it cannot be said that the applicants are not of sufficientmeans.The absence of any external injury on the body of thedeceased, clearly denotes the bonafide (sic) of applicants.”B6. Notice was issued on the Special Leave Petitions on 27 October2020. In pursuance of the order, the State of Uttar Pradesh has enteredappearance and is represented by Shri Vimlesh Kumar Shukla, SeniorCounsel and Mr Vishnu Shankar Jain as Counsel. The respondent-accused are represented by Mr Sidharth Luthra and Mr R Basant, SeniorCCounsel. Counter affidavits and written submissions have been filed.

B. Submissions of Counsel

7. Assailing the grant of anticipatory bail, Mr Shekhar Naphade,Senior Counsel representing the Appellant, submitted that:

D

(i) Though specific allegations have been leveled in the FIRthat the deceased has been killed, which indicates thecommission of a cognizable offence, there has been noinvestigation by the police of whether the death washomicidal and she was murdered;

E(ii)The Sessions Judge, while denying anticipatory bail, madea specific reference to the transfer of moneys by thedeceased into the account of her father-in-law. As a matterof fact, between 19 November 2015 and15 December 2018,an amount of Rs.50.53 lacs was transferred by the parentsFof the deceased (of which an amount of Rs.15 lacs hasbeen paid directly by a family friend to the father-in-law ofthe deceased), the rest being transferred into her account.The amount of Rs 15 lakhs was repaid by the informant on17 December 2019 to the person who had lent the moneys.Between 4 December 2015 and 1 March 2017, the deceasedGtransferred an amount of Rs.24 lacs by bank transfer fromher account to the account of her father-in-law. Details ofthese payments are as follows:

H

(iii) The deceased was an anesthetist and was working in thefamily run nursing home of the respondent-accused. Shedied within 5years and 8 months of her marriage. Thereare specific allegations in the FIR of an incident which tookplace on 1 October 2017 when the deceased was assaultedby her mother-in-law and by the elder brother of herhusband(brother-in-law of the deceased) and hisspouse(sister-in-law of the deceased); at the instance ofher father-in-law, which led to the filing of a complaint withthe SHO, Police Station Kosi Kalan, District Mathura on 1October 2017. The medical report of the examination ofthe deceased shows the presence of five injuries whichhave been attributed to be caused by a hard and blunt object;The complaint was not pursued to save the marriage of thedeceased;

(iv) The police were informed of the incident of hanging of thevictim at 1930 hours on 3 August 2020. The investigatingteam however reached the site only on 4 August 2020 at1130and at 1330 hours prepared an inventory of articlesrecovered from the scene. It is alleged that the suicide noteis missing from the list and finds a mention only in a GeneralDiary entry at 2356 hours.In the charge-sheet which haseventually been filed on 5 November 2020, the recoverypanchnama of the suicide note does not find mention. Thesuicide note is not in the handwriting of the deceased; A

B

C

D

E

F

G

H

A(v)The FIR contains a specific allegation that on 3 August2020 the informant had received a telephone call from thefather-in-law of the deceased demanding money and thaton the same day in the afternoon at 3:09 pm and 5:31 pmthe deceased spoke to the informant and his wife andinformed them that she had been assaulted about 18 or 19Bdays earlier and of the threat to her life. The appellant toldhis daughter that he was in Faridabad and would reach Agraon the same night but before he could do so the deceasedhad allegedly been killed. The FIR alleges that the in-lawsof the deceased had taken away the entire money whichCwas earned by her as a doctor;

(vi) The applications for anticipatory bail filed by the respondent-accused were dismissed by the Sessions Judge on 21August 2020. A non-bailable warrant was issued on 9September 2020. In spite of the dismissal of the applicationsDfor anticipatory bail and the specific allegation that Deeptihad been killed, only her spouse was taken in for custodialinterrogation and the alleged murder has not beeninvestigated. Though until 22 September 2020, the otheraccused were not protected from arrest, no effort was madeby the police to trace them in the interim;E

(vii) A charge-sheet dated 24 October 2020 was submitted tothe competent court on 5 November 2020 hastily, withoutproper investigation of the crime;

(viii) The order of the High Court cannot pass muster on theFbasis of the law which has been laid down by this Court inthe following decisions:

(i) (2001) 6 SCC 338;Puran vs Ramvilas

(ii) (2005) 8 SCC 21;State of U.P. vs AmarmaniTripathi G

(iii) (2012) 4 SCC 379;Jaiprakash Singh vs State ofBihar

(iv) (2016) 15 SCC 422; Neeru Yadav vs State ofU.P.

H

DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &

(v) (2020) 5 SCC 1; Sushila Agarwal vs NCT ofADelhi

(vi) (1997) 7 SCC 187; State vs Anil Sharma and

(vii) (2005) 4 SCC 303; Adri Narayan Das vs Stateof West Bengal B

8. Opposing the above submissions, Mr Sidharth Luthra, SeniorCounsel submitted that:

(i) The deceased and her husband commenced living separatelyfrom 12 October 2018; C

(ii) The post mortem report indicates that the death occurredas a result of suicide by hanging. The absence of bodilyinjuries would displace the allegation that the in-laws areinvolved in the murder of the deceased;

(iii) An amount of Rs.16.01 lacs received by the deceased inher bank account from the family of the informant betweenD4 December 2015 and 25 March 2017, has been convertedinto fixed deposit receipts in the State Bank of India. Whilethe deceased has transferred an amount of Rs.24 lacs fromher account to her father-in-law between 4 December 2015and 1 March 2017, this was as a part of the investmentEtowards the construction of a hospital. As a part of thefamily understanding, the father-in-law intended to set upaseparate hospital for the deceased and her husband andto give the management of the earlier hospital to both ofthem. Hence, in order to set up Sapphire Hospital, a limitedliability partnership by the name of M/s Agra Medical andFCardiac Super Specialty, LLP was formed on 28 December2016 with five partners including the deceased and herspouse who had a share each of 35%. Investments werebeing made by all partners to establish Sapphire Hospitaland the total investment by the father-in-law was in theGamount of Rs.1.12 crores; and G

(iv) Several transfers of funds have been made to the deceasedfrom the two hospitals, besides which amounts have beenpaid by the father-in-law to the deceased and her spousefor the purchase of property in their joint names. Details ofthese transactions have been furnished in the following terms:

H

A(a)Rs.27.25 lacs paid to the deceased by M/s AgraMedical and Cardiac Research Centre between 2015-16 and 2017-18; (b)Rs.61.79 lacs paid to the deceased bySapphireHospital (M/s Agra Medical and CardiacBSuper Specialty LLP) between 2017-18 and 2019-20;

(c) Rs.66.73 lacs paid by the father-in-law to thedeceased and her spouse on 9 September 2019 and21 September 2019 for the purchase of property; and C

(d) Rs.15 lacs paid to the deceased from the account ofthe LLP for the purchase of two plots.

(v) An amount of Rs.30.80 lacs is invested in the name of thedeceased inter alia in the form of FDRs, bank balances,PPF and in an RD account.

D

(vi) Three immovable properties valued at about Rs.1.4 croresare jointly owned by the deceased and her spouse;

(vii) The alleged incident on 1 October 2017 is a fabrication sincethe brother-in-law and sister-in-law of the deceased hadtravelled to Mumbai on those days;E

(viii) The suicide note, which has been forwarded to the forensicscience laboratory, indicates that the deceased was in adepressed mental state due to her miscarriages;

(ix) The recovery of the suicide note is evidenced by theFrecovery memos drawn up by the police; and

(x) The applicants have co-operated in the course of theinvestigation and their statements have been recorded beforethe charge-sheet was filed on 5 November 2020.

9. Supporting the above submissions, Mr R Basant, Senior CounselGsubmits that Dr SC Agarwal (A-2) is a senior medical practitioner basedin Agra. He and his spouse (A-3) have two sons who are doctors byprofession, namely A-1 and A-4. A-1 was the spouse of the deceasedwhile A-4 and A-5 are spouses. Two hospitals were set up by A-2 withthe object of ensuring separate establishments for his sons, A-1 and H

DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]

A-4.Supporting the grant of anticipatory bail by the High Court, Mr Basantsubmitted that:

A

(i) The tenor of the suicide note indicates that the deceasedwas suffering from mental depressionas a result ofsuccessive miscarriages and she had, in fact, adopted a girlchild in June 2018; B

(ii) On 12 October 2018, the deceased and her spouse set up aseparate residence for themselves;

(iii) The deceased had drawn salary from both the hospitalswhich have been set up by her father-in-law. A-2 hadCtransferred money to A-1 and the deceased to enable themto buy immovable property in their joint names; and

(iv) After the deceased attempted to commit suicide on 3 August2020, she was rushed to the family run nursing home runby her father-in-law. The police reached the scene of theincident on the evening of 3 August 2020,though no FIRDwas registered until 7 August 2020. Articles were recoveredon 3 and 4 August 2020. The suicide note was recoveredon 3 August 2020. It was deposited in the malkhana on 4August 2020, as reflected in Entry 85 of the GeneralDiary.The deceased was subsequently removed to anotherEhospital by her father, the appellant. On 5 August 2020, thesuicide note was extensively published in the localnewspapers in spite of which the complaint does not indicatethat it is fabricated. The suicide note,it has been submitted,contains no reference to harassment on account of dowry.

F

10. The State of Uttar Pradesh has filed a counter affidavit inthese proceedings through Harish Chandra Tamta working in the CircleOffice (Deputy Superintendent of Police),District Agra. The CounterAffidavit contains the following statements:

“9. It is relevant to mention that High Court has not taken intoconsideration the bodily injury sustained by deceased Dipti in theyear 2017 and the contents of FIR lodged by her with the policestation.

G

10. It is relevant to mention that on 2.8.2020 Sumit Agarwal(husband) and Anita Agarwal (mother-in-law) of the deceased H

Athrough mobile call made at 9.30 a.m demanded dowry and hadasked that serious consequences will follow if money was notpaid.

10. Dr. Dipti suffered two (sic) abortions due to the ill-treatmentgiven by her husband and in-laws.

B11. There is no explanation for the injuries found on the body ofdeceased.

12. The medical report and the facts revealed that deceasedhasbeen killed.

C13. It is the case of continuous demand of dowry, causing tortureand victimization of the deceased and the deceased has herselfstated in the FIR lodged in the year 2017 aboutthe demand ofdowry by her husband and in-laws.

14. It is also clear that the story of suicidedue to frustration andDadopting a child by the deceased are fictitious andbaseless. Thealleged suicide note is not in the handwriting of (sic) Dr. Dipti.The said document is false, fabricated and has been prepared bythe accused persons and they are guilty of committing of offenceu/s 468 & 471 of IPC.

15. That Respondent-State is also relying upon the law laid downEby this Hon’ble ·Court. In case of Lavesh vs State (NCT of Delhi)reported in 2012(8) SCC 730, particularly in paragraphs 8,12 and18 of this judgment.”

11. On the basis of the above averments, the State has supportedthe appellant in assailing the correctness of the order granting anticipatoryFbail. Significantly, on the specific query of the Court as to whether anyinvestigation has been carried out on the allegation that Deepti wasmurdered, Mr Vimlesh Kumar Shukla, learned Senior Counsel hasanswered in the negative. On the alleged suicide note, learned SeniorCounsel submitted that it was initially returned back by the FSL in theGabsence of adequate material for comparing the hand writing and it hasnow been re-submitted by the Investigating Officer with necessarysupporting material to the FSL, whose report is awaited.

C. Cancellation of Anticipatory Bail

12. The rival submissions will now be considered. The appellant,Hwho is the father of the deceased, lodged a complaint on 7 August 2020

on the basis of which FIR No. 0623 of 2020 was registered at PoliceStation Tajganj in the District of Agra. The FIR contains the followingallegations:

A

(i) The marriage of the deceased to A-1, the son of A-2 tookplace on 3 November 2014; B

(ii) The deceased was a qualified doctor by profession;

(iii) An amount of Rs.1.5 crores was spent on the occasion ofher marriage;

(iv) A-1 to A-5 were dissatisfied with the moneys brought bythe bride and she was pressurized to bring an amount ofRs. 1 crore; C

(v) The appellant paid money by cheque to the groom’s familyin the interest of the domestic happiness of his daughter;

(vi) There was an incident in 2017 when the deceased wasassaulted by her in-laws. Injuries were suffered by her, asDrevealed during the course of a medical examination at theGovernment Hospital in Vrindavan;

(vii) The deceased suffered two miscarriages and had adopteda girl child;(viii) There was continued harassment of the deceased and ofthe child whom she had adopted; E

(ix) About 18 or 19 days before the incident on 3 August 2020,the deceased had been assaulted by the accused personson account of dowry and threatened with consequences ifshe informed her family; F

(x) There was a telephone call on 3 August 2020 by A-2 to theappellant-complainant for demanding money and threateninghim with consequences;

(xi) The deceased made telephone callsat3:09 PM and at 5:31PM on 3 August 2020 to her parents when she revealedbeing assaulted in the recent past and of the threat to herlife; G

(xii) By the time the appellant travelled from Faridabad to Agrahe found that his daughter had been killed for non-fulfillmentof the demand for dowry; H

A(xiii) The appellant removed the deceased to Sarvodaya hospitalat Faridabad for treatment where she died on 6 August2020;

(xiv) The FIR was lodged after the last rites were performed;

(xv) The accused had taken possession of the moneys whichBwere earned by the deceased; and

(xvi) The daughter of the appellant had been killed for dowry.

13. The police were informed of the commission of cognizableoffences. They were duty bound to investigate. One of the principalCaspects which weighed with the Sessions Judge while denying anticipatorybail on 21 August 2020 was the fact that the informant’s sidehad fileddocuments indicating the transfer of moneys under different transactions.Besides this, the Sessions Judge also relied on the letter dated 1 October2017 addressed by the deceased to the SHO, Kosi Kalan, DistrictMathura, specifically complaining that she had been assaulted by A-3,DA-4 and A-5 as a consequence of which she had suffered injuries.TheSessions Judge noted that it has been alleged that thishad happened atthe behest of her father-in-law, A-2. Besides the contents of the FIR,the Single Judge of the High Court was duly apprised of the fact thatthough the deceased had been assaulted in 2017, the informant had notEproceeded against the spouse of the deceased and the other membersof his family, simply to save the marriage. The Single Judge, whileanalyzing the rival submissions, noted that

(i) The applicants for bail are the father-in-law, mother-in-law,brother-in-law and sister-in-law; F(ii)The spouse of the deceased is in custody; and

(iii) The FIR is not to be treated as “an encyclopedia of theprosecution’s case but must reflect the basic prosecutioncase.”

Having recorded the above premises, the Single Judge held thatG(a) “the FIR prima facie appears to be engineered to implicate theapplicants”; (b) “there is no co-relation in between the various allegationsleveled in the FIR”; and(c) the allegations “are general in nature” withno specific role being assigned to the accused.

H

14. We have prefaced this analysis by a reference to the FIR.There is no cogent basis for the Single Judge to have arrived at any ofthe three prima facie findings. The informant had suffered a loss of hisown daughter due to an unnatural death in close proximity to the lodgingof his complaint. The FIR contains a reference to the previous incidentof October 2017,to the demands for dowry, payments of money in chequeby the informant to the groom’s family and the telephone calls receivedby the informant from the father-in-law of the deceased and later fromthe deceased in close proximity to the incident, on the same day that shedied. The FIR contains specific allegations against the accused,commencing with the incident of October 2017. Whether such an incident,as reported by the deceased to the police on 1 October 2017 did takeplace, leading to her suffering injuries which were examined at theGovernment Hospital, is a matter for investigation. How the learnedSingle Judge could have concluded – in the face of specific allegationsin the FIR and the reference by the Sessions Judge to money transactions- that the FIR prima facie has been “engineered to implicate the accused”defies reasonable explanation. Similar is the case with the finding that“there is no co-relation between the allegations leveled in the FIR.”Areading of the FIR would reveal that the finding of the Single Judge thatthe allegations “are general without assigning a specific role to theaccused”is contrary to the record.The Single Judge observed, from theincome tax returns of the accused, that “it cannot be said that they arenot of sufficient means”.The Single Judge has erred in drawing thisinference without a full investigation by the investigating arm of the state.Mr Luthra has sought to rely on the payment of monies to the deceasedby the two hospital establishments, the transfer of funds for the purchaseof properties and the joint ownership of properties. The trail of moniesalleged to be received by the deceased for her professional work is amatter to be investigated. Similarly, the transfer of monies by the deceasedto her father-in-law and the nexus, if any, with the funds which she hadreceived from her parents is a matter for serious investigation. The deathwas unnatural which took place within seven years of the marriage. Thealleged phone calls received by the informant from some of the accusedand by the deceased on the day when she was found to be hanging arematters which required to be probed. The alleged absence of an externalinjury on the body of the deceased is a matter for investigation. Theapproach of the High Court is casual. The surmises which are containedin the reasons recorded by the High Court have no basis in the materials AB

C

D

EF

G

H

Awith which it was confronted. The observation of the High Court that nospecific role is assigned in the FIR to the accused is based on a misreadingof the FIR. The entire approach of the High Court is flawed. It is contraryto the record and, as we shall now explain, contrary to settled principlesof law governing the exercise of discretion on the grant of anticipatorybail in a case involving the alleged commission of a serious offence.B

15. It is a well settled principle of law that the setting aside of an“unjustified, illegal or perverse order” granting bail is distinct from thecancellation of bail on the ground of the supervening misconduct of theaccused or because some new facts have emerged, requiring cancellation.In Puran vs. Ramvilas[7], this Court has held that where an order grantingCbail ignores material on record or if a perverse order granting bail ispassed in a heinous crime without furnishing reasons, the interests ofjustice may require that the order be set aside and bail be cancelled. Therecording of no reasons is one end of the spectrum. The other end of thedomain for interference with an order granting anticipatory bail (intoDwhich the present case settles) is where the reasons are contrary to thematerial on record and hence found to suffer from perversity.

16. The facts which must be borne in mind while considering anapplication for the grant of anticipatory bail have been elucidated in thedecision of this Court in Siddharam Satlingappa Mhetre vs. State ofEMaharashtra[8 ]and several other decisions. The factors to be consideredinclude:

“112. […]

(i) the nature and gravity of the accusation and the exact roleof the accused; F

(ii) the antecedents of the applicant including whether theaccused has previously undergone imprisonment on aconviction by a court in respect of a cognizable offence;

(iii) the possibility of the applicant fleeing from justice;

(iv) the likelihood of the accused repeating similar or otheroffences; G

(v) whether the accusations have been made only with the objectof injuring or humiliating the applicant by arresting them; 7 (2001) 6 SCC 338H8 (2011) 1 SCC 694

DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]

(vi) the impact of the grant of anticipatory bail particularly inAcases of magnitude affecting a large number of people;

(vii) The court must carefully evaluate the entire material againstthe accused. The court must also clearly comprehend theexact role of the accused in the case. Cases in which theaccused is implicated with the help of Sections 34 and 149Bof the Penal Code, 1860 the court should be consideredwith even greater care and caution because overimplicationin such cases is a matter of common knowledge andconcern;

(viii) While considering the prayer for grant of anticipatory bail,a balance has to be struck between two factors, namely, noprejudice should be caused to the free, fair and fullinvestigation and there should be prevention of harassment,humiliation and unjustified detention of the accused; C

(ix) the reasonable apprehension of tampering of the witnessesor apprehension of threat to the complainant; D

(x) frivolity in prosecution should always be considered and itis only the element of genuineness that shall have to beconsidered in the matter of grant of bail and in the event ofthere being some doubt as to the genuineness of theprosecution, in the normal course of events, the accused isentitled to an order of bail.

E

113. Arrest should be the last option and it should be restrictedto those exceptional cases where arresting the accused isimperative in the facts and circumstances of that case. Thecourt must carefully examine the entire available recordand particularly the allegations which have been directlyattributed to the accused and these allegations arecorroborated by other material and circumstances onrecord.”

F

G

Adverting to the above observations, in Jai Prakash Singh vsState of Bihar[9],this Court held:

“19. Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, H

Athe court must record the reasons... Anticipatory bail can be grantedonly in exceptional circumstances where the court is prima facieof the view that the applicant has falsely been roped in the crimeand would not misuse his liberty. (See D.K. Ganesh Babu v. P.T.Manokaran [(2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345] , Stateof Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008)B1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. PadamNarain Aggarwal [(2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)”

17. In the recent decision of the Constitution Benchin SushilaAggarwal vs State (NCT of Delhi),[10] the considerations which oughtto weigh with the Court in deciding an application for the grant ofCanticipatory bail have been reiterated. The final conclusions of the Courtindicate that:

“92.1…The application seeking anticipatory bail should containbare essential facts relating to the offence, and why the applicantreasonably apprehends arrest, as well as his side of the story.DThese are essential for the court which should consider hisapplication, to evaluate the threat or apprehension, its gravity orseriousness and the appropriateness of any condition that mayhave to be imposed.

92.3…While considering an application (for grant of anticipatoryEbail) the court has to consider the nature of the offence, the roleof the person, the likelihood of his influencing the course ofinvestigation, or tampering with evidence (including intimidatingwitnesses), likelihood of fleeing justice (such as leaving thecountry), etc.

F92.4. Courts ought to be generally guided by considerations suchas the nature and gravity of the offences, the role attributed to theapplicant, and the facts of the case, while considering whether togrant anticipatory bail, or refuse it. Whether to grant or not is amatter of discretion; equally whether and if so, what kind of specialGconditions are to be imposed (or not imposed) are dependent onfacts of the case, and subject to the discretion of the court.”

18. The Constitution Bench has reiterated that the correctness ofan order granting bail is subject to assessment by anappellate or superiorcourt and it may be set aside on the ground that the Court granting bailH10(2020) 5 SCC 1

did not consider material facts or crucial circumstances. A two judgeBench of this Court, in Kanwar Singh Meena vs. State ofRajasthan[11],noted that:

“10. Thus, Section 439 of the Code confers very wide powers onthe High Court and the Court of Session regarding bail. But, whilegranting bail, the High Court and the Sessions Court are guidedby the same considerations as other courts. That is to say, thegravity of the crime, the character of the evidence, position andstatus of the accused with reference to the victim and witnesses,the likelihood of the accused fleeing from justice and repeatingthe offence, the possibility of his tampering with the witnessesand obstructing the course of justice and such other grounds arerequired to be taken into consideration. Each criminal casepresents its own peculiar factual scenario and, therefore,certain grounds peculiar to a particular case may have tobe taken into account by the court. The court has to onlyopine as to whether there is prima facie case against theaccused. The court must not undertake meticulousexamination of the evidence collected by the police andcomment on the same. Such assessment of evidence andpremature comments are likely to deprive the accused of afair trial. While cancelling the bail under Section 439(2) of theCode, the primary considerations which weigh with the court arewhether the accused is likely to tamper with the evidence orinterfere or attempt to interfere with the due course of justice orevade the due course of justice. But, that is not all. The HighCourt or the Sessions Court can cancel the bail even in caseswhere the order granting bail suffers from serious infirmitiesresulting in miscarriage of justice. If the court granting bailignores relevant materials indicating prima facieinvolvement of the accused or takes into account irrelevantmaterial, which has no relevance to the question of grant ofbail to the accused, the High Court or the Sessions Courtwould be justified in cancelling the bail. Such orders are againstthe well-recognised principles underlying the power to grant bail.Such orders are legally infirm and vulnerable leading to miscarriageof justice and absence of supervening circumstances such as the A

B

C

D

E

F

G

Apropensity of the accused to tamper with the evidence, to fleefrom justice, etc. would not deter the court from cancelling thebail. The High Court or the Sessions Court is bound to cancelsuch bail orders particularly when they are passed releasing theaccused involved in heinous crimes because they ultimately resultin weakening the prosecution case and have adverse impact onBthe society. Needless to say that though the powers of this Courtare much wider, this Court is equally guided by the above principlesin the matter of grant or cancellation of bail.”

CRecently, this Court in Myakala Dharmarajam vs. The State ofTelangana[12 ]reiterated the above principles and stated:

“9. It is trite law that cancellation of bail can be done in caseswhere the order granting bail suffers from serious infirmitiesresulting in miscarriage of justice. If the court granting bail ignoresDrelevant material indicating prima facie involvement of the Accusedor takes into account irrelevant material, which has no relevanceto the question of grant of bail to the Accused, the High Court orthe Sessions Court would be justified in cancelling the bail.”

19. It is apposite to mention here the distinction between theEconsiderations which guide the grant of anticipatory bail and regularbail. In Pokar Ram vs. State of Rajasthan[13], while setting aside anorder granting anticipatory bail, this Court observed:

“5. Relevant considerations governing the court’s decision ingranting anticipatory bail under Section 438 are materially differentFfrom those when an application for bail by a person who is arrestedin the course of investigation as also by a person who is convictedand his appeal is pending before the higher court and bail is soughtduring the pendency of the appeal. Three situations in which thequestion of granting or refusing to grant bail would arise, materiallyand substantially differ from each other and the relevantGconsiderations on which the courts would exercise its discretion,one way or the other, are substantially different from each other.This is necessary to be stated because the learned Judge in theHigh Court unfortunately fell into an error in mixing up all the 12(2020) 2 SCC 743H13(1985) 2 SCC 597

considerations, as if all the three become relevant in the presentsituation.

6. The decision of the Constitution Bench in Gurbaksh SinghSibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri)561] clearly lays down that “the distinction between an ordinaryorder of bail and an order of anticipatory bail is that whereas theformer is granted after arrest and therefore means release fromthe custody of the police, the latter is granted in anticipation ofarrest and is therefore effective at the very moment of arrest”.Unlike a post-arrest order of bail, it is a pre-arrest legal processwhich directs that if the person in whose favour it is issued isthereafter arrested on the accusation in respect of which thedirection is issued, he shall be released on bail. A direction underSection 438 is intended to confer conditional immunity from thetouch as envisaged by Section 46(1) or confinement. In para 31,Chandrachud, C.J. clearly demarcated the distinction betweenthe relevant considerations while examining an application foranticipatory bail and an application for bail after arrest in the courseof investigation. Says the learned Chief Justice that in regard toanticipatory bail, if the proposed accusation appears to stem notfrom motives of furthering the ends of justice but from some ulteriormotive, the object being to injure and humiliate the applicant byhaving him arrested, a direction for the release of the applicant onbail in the event of his arrest would generally be made. It wasobserved that “it cannot be laid down as an inexorable rule thatanticipatory bail cannot be granted unless the proposed accusationappears to be actuated by mala fides; and, equally, that anticipatorybail must be granted if there is no fear that the applicant willabscond”. Some of the relevant considerations which govern thediscretion, noticed therein are “the nature and seriousness of theproposed charges, the context of the events likely to lead to themaking of the charges, a reasonable possibility of the applicant’spresence not being secured at the trial, a reasonable apprehensionthat witnesses will be tampered with and ‘the larger interests ofthe public or the State’, are some of the considerations which thecourt has to keep in mind while deciding an application foranticipatory bail”. A caution was voiced that “in the evaluation ofthe consideration whether the applicant is likely to abscond, therecan be no presumption that the wealthy and the mighty will submit AB

C

D

E

F

G

H

Athemselves to trial and that the humble and the poor will run awayfrom the course of justice, any more than there can be apresumption that the former are not likely to commit a crime andthe latter are more likely to commit it.”

Judged in the light of the above principles, the judgment of theBSingle Judge of the High Court of Judicature at Allahabad is unsustainable.The FIR contains a recital of allegations bearing on the role of the accusedin demanding dowry, of the prior incidents of assault and the payment ofmoneys by cheque to the in-laws of the deceased. The FIR has referredto the telephone calls which were received both from the father-in-lawof the deceased on the morning of 3 August 2020 and from the deceasedCon two occasions on the same day- a few hours before her body wasfound. The grant of anticipatory bail in such a serious offence wouldoperate to obstruct the investigation. The FIR by a father who hassuffered the death of his daughter in these circumstances cannot beregarded as “engineered” to falsely implicate the spouse of the deceasedDand his family. We hasten to add that our observations at this stage areprima facie in nature, and nothing that we have said should be construedas a determination on the merits of the case which will be adjudicated atthe trial.

D. Transfer of further investigation to the CBIE20. The investigation by the UP Police in the present case leavesmuch to be desired. We have already extracted in the earlier part of thisjudgment, the contents of the counter affidavit which have been filed onbehalf of the Deputy Superintendent of Police, Agra. The contents ofthe counter affidavit are at a material divergence with the contents ofFthe charge-sheet filed on 5 November 2020. During the course of thehearing, this Court has been specifically informed by learned SeniorCounsel appearing on behalf of the State of Uttar Pradesh, that noinvestigation was conducted into the allegationin the FIR that thedeceased had been murdered. Though much was sought to be made outof the alleged suicide note, at this stage it needs to be emphasised that itsGauthenticity has been seriously disputed by the appellant. As the learnedSenior Counsel for the State of Uttar Pradesh informed the Court, theforensic science laboratory referred the matter back in the absence ofadequate material to assess the genuineness of the suicide note andupon re-submission, a report is awaited.

H

H

Within a couple of days of the death of Deepti, the alleged suicidenote found its way into the newspapers in Agra. This is in fact acircumstance relied upon by the learned Counsel for the accused whenthey submit that despite the publicity given to the suicide note, the FIRdoes not impugn its authenticity. The sequence in this case appears tofollow familiar patterns. Immediate publicity was given to the allegedsuicide note. These examples are now becoming familiar. Selectivedisclosures to the media affect the rights of the accused in some casesand the rights of victims’ families in others. The media does have alegitimate stake in fair reporting. But events such as what has happenedin this case show how the selective divulging of information, includingthe disclosure of material which may eventually form a crucial part ofthe evidentiary record at the criminal trial, can be used to derail theadministration of criminal justice. The investigating officer has a duty toinvestigate when information about the commission of a cognizableoffence is brought to their attention. Unfortunately, this role is beingcompromised by the manner in which selective leaks take place in thepublic realm. This is not fair to the accused because it pulls the rugbelow the presumption of innocence. It is not fair to the victims of crime,if they have survived the crime, and where they have not, to theirfamilies. Neither the victims nor their families have a platform to answerthe publication of lurid details about their lives and circumstances. Havingsaid this, we prima facie reject the insinuation that the FIR had notdoubted or referenced the suicide note, despite its publication in the newsmedia. The daughter of the appellant had died in mysteriouscircumstances. The family had completed the last rites.To expect thatthey should be scouring the pages of the print and electronic media beforereporting the crime is a mockery of the human condition. Theapprehension of the appellant that A-2 and his family have a prominentsocial status in Agra and may have used their position in society to thwarta proper investigation cannot be regarded to be unjustified.

21. In the backdrop of what has been stated above and the seriousdeficiencies in the investigation, we have during the hearing, made allthe counsel aware of the possibility of this court referring the case forfurther investigation to the CBI. The court must enter upon the prospectof such a course of action with circumspection for two reasons. First,this court has repeatedly observed that the power which is vested in asuperior court to transfer the investigation to another agency, such as AB

C

DE

F

G

H

Athe CBI, must be wielded with caution. In a recent judgement of thisCourt, Arnab Goswami vs. Union of India[14],one of us (Dr. Justice DYChandrachud) had interpreted the rationale underpinning thecircumspection in the following terms:

“44. In assessing the contention for the transfer of the investigationBto the CBI, we have factored into the decision-making calculusthe averments on the record and submissions urged on behalf ofthe petitioner. We are unable to find any reason that warrants atransfer of the investigation to the CBI. In holding thus, we haveapplied the tests spelt out in the consistent line of precedent ofthis Court. They have not been fulfilled. An individual underCinvestigation has a legitimate expectation of a fair processwhich accords with law. The displeasure of an accusedperson about the manner in which the investigationproceeds or an unsubstantiated allegation (as in the presentcase) of a conflict of interest against the police conductingDthe investigation must not derail the legitimate course oflaw and warrant the invocation of the extraordinary powerof this Court to transfer an investigation to the CBI. Courtsassume the extraordinary jurisdiction to transfer aninvestigation in exceptional situations to ensure that thesanctity of the administration of criminal justice is preserved.EWhile no inflexible guidelines are laid down, the notion thatsuch a transfer is an “extraordinary power” to be used“sparingly” and “in exceptional circumstances” comportswith the idea that routine transfers would belie not justpublic confidence in the normal course of law but also renderFmeaningless the extraordinary situations that warrant theexercise of the power to transfer the investigation. Havingbalanced and considered the material on record as well as theaverments of and submissions urged by the petitioner, we findthat no case of the nature which falls within the ambit of the testsenunciated in the precedents of this Court has been establishedGfor the transfer of the investigation.”

22. Second, in the facts of this case, the charge-sheet which isdated 24 October 2020 has been submitted to the competent court on 5H14 WP (Crl) 130 of 2020, decided on 19 May 2020

November 2020. The submission of the charge-sheet does not oust thejurisdiction of a superior court, when as in the present case, theinvestigation is tainted and there is a real likelihood of justice beingdeflected. In Vinay Tyagi vs Irshad[15], a two judge Bench of this Court,speaking through Justice Swatanter Kumar, has held:

“43. At this stage, we may also state another well-settled canonof the criminal jurisprudence that the superior courts have thejurisdiction under Section 482 of the Code or even Article 226 ofthe Constitution of India to direct “further investigation”, “fresh”or “de novo” and even “reinvestigation”. “Fresh”, “de novo” and“reinvestigation” are synonymous expressions and their result inlaw would be the same. The superior courts are even vestedwith the power of transferring investigation from one agencyto another, provided the ends of justice so demand suchaction. Of course, it is also a settled principle that this powerhas to be exercised by the superior courts very sparinglyand with great circumspection.”

The court held that wherever a charge-sheet has been submittedto the court, even this Court would not ordinarily reopen the investigationespecially by entrusting it to aspecialized agency. However, in a propercase, when the Court feels that the investigation by the police has notbeen in the proper perspective and that in order to do complete justice,where the facts of the case demand that the investigation be handedoverto a specialized agency, a superior court is not bereft of the authority todo so. (Disha v. State of Gujarat [(2011) 13 SCC 337: (2012) 2 SCC(Cri) 628] and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC200: (2010) 2 SCC (Cri) 1006])

In Pooja Pal vs Union of India[16], a two judge Bench of thisCourt, speaking through Justice Amitava Roy, observed that there wasno embargo on this Court to transfer an investigation to the CBI aftersubmission of the charge-sheet in the following terms- “79. The precedential ordainment against absolute prohibition forassignment of investigation to any impartial agency like CBI,submission of the charge-sheet by the normal investigating agency 15 (2013) 5 SCC 762

16 (2016) 3 SCC 135

A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

Ain law notwithstanding, albeit in an exceptional fact situationwarranting such initiative, in order to secure a fair, honest andcomplete investigation and to consolidate the confidence of thevictim(s) and the public in general in the justice administeringmechanism, is thus unquestionably absolute and hallowed by time.Such a measure, however, can by no means be a matter of courseBor routine but has to be essentially adopted in order to live up toand effectuate the salutary objective of guaranteeing anindependent and upright mechanism of justice dispensation withoutfear or favour, by treating all alike…..

81. The judicially propounded propositions on the aspects ofCessentiality and justifiability for assignment of further investigationor reinvestigation to an independent investigating agency like CBI,whether or not the probe into a criminal offence by the local/StatePolice is pending or completed, irrespective of as well, thependency of the resultant trial have concretised over the years,Dapplicability whereof, however, is contingent on the factual settinginvolved and the desideratum for vigilant, sensitised and even-handed justice to the parties.

83……. Though a court’s satisfaction of want of proper, fair,impartial and effective investigation eroding its credence andEreliability is the precondition for a direction for further investigationor reinvestigation, submission of the charge-sheet ipso facto orthe pendency of the trial can by no means be a prohibitiveimpediment. The contextual facts and the attendant circumstanceshave to be singularly evaluated and analysed to decide theneedfulness of further investigation or reinvestigation to unravelFthe truth and mete out justice to the parties.”

Similarly, in Dharam Pal vs State of Haryana[17], a two judgeBench of this Court, speaking through Justice Dipak Mishra (as thelearned Chief Justice then was), upheld the power of this Court to transferan investigation to the CBI, irrespective of the stage of the trial. It held:G

“24. Be it noted here that the constitutional courts can direct forfurther investigation or investigation by some other investigatingagency. The purpose is, there has to be a fair investigation and afair trial. The fair trial may be quite difficult unless there is a fair H17 (2016) 4 SCC 160

investigation. We are absolutely conscious that direction for furtherinvestigation by another agency has to be very sparingly issuedbut the facts depicted in this case compel us to exercise the saidpower. We are disposed to think that purpose of justice commandsthat the cause of the victim, the husband of the deceased, deservesto be answered so that miscarriage of justice is avoided. Therefore,in this case the stage of the case cannot be the governing factor.

25. ….If a grave suspicion arises with regard to the investigation,should a constitutional court close its hands and accept theproposition that as the trial has commenced, the matter is beyondit? That is the “tour de force” of the prosecution and if we allowourselves to say so it has become “idée fixe” but in our view theimperium of the constitutional courts cannot be stifled or smotheredby bon mot or polemic….”

23. Having regard to the circumstances which have emerged onthe record, which have been adverted to in the earlier part of thejudgment, we are of the view that it is necessary to entrust a furtherinvestigation of the case to the CBI in exercise of the powers of thisCourt under Article 142 of the Constitution. The conduct of theinvestigating authorities from the stage of arriving at the scene ofoccurrence to the filing of the charge-sheet do not inspire confidence inthe robustness of the process. A perusal of the charge-sheet evinces aperfunctory rendition of the investigating authorities’ duty by a barereference to the facts and the presumption under Section 304B of theIPC when the death occurs within seven years of the marriage. Thestance taken by the Deputy Superintendent of Police in the CounterAffidavit, filed a few days after forwarding the charge-sheet, travelsbeyond the scope of the investigation recorded in the charge-sheet withrespect to the veracity of the suicide note, medical examination of injuriesand the past miscarriages of the deceased. Critical facts of the moneytrail between the deceased, her father (the informant), and the accused;and the call history of A2, the informant and the deceased are unexplored.No attempt at custodial interrogation of the applicants was made betweenthe issuance of non-bailable warrants on 09 September 2020 and interimprotection from arrest by the High Court granted on 22 September 2020.As noted above, upon questioning during the hearing, the Counsel forthe State answered thatno investigation on the allegation of murder hadbeen conducted. It would indeed be a travesty if this Court were to A

C

D

E

F

G

H

Aignore the glaring deficiencies in the investigation conducted so far,irrespective of the stage of the proceedings or the nature of the questionbefore this Court. The status of the accused as propertied and wealthypersons of influence in Agra and the conduct of the investigation thusfar diminishes this Court’s faith in directing a further investigation by thesame authorities. The cause of justice would not be served if the CourtBwere to confine the scope of its examination to the wisdom of grantinganticipatory bail and ignore the possibility of a trial being concluded onthe basis of adeficient investigation at best or a biased one at worst.

24. Mr K M Nataraj, Additional Solicitor General of India hasappeared in these proceedings with Mr Arvind Kumar Sharma, and statedCthat the CBI would abide by the orders of this Court.

E. Summation

25. We accordingly allow the appeal and issue the followingdirections:

D(i)The order passed by the Single Judge of the High Court ofJudicature at Allahabad allowing the applications foranticipatory bail by the respondents-accused shall stand setaside and the bail granted to them shall stand cancelled;and E(ii)The CBI is directed to conduct a further investigation ofthe case arising out of case Crime No.0623 of 2020registered at Police Station Tajganj, District Agra, dated 7August 2020.

26. The appeals are disposed of in the above terms.F27. Pending application(s), if any, stand disposed of.

Ankit Gyan

Appeals disposed of

G

H