1. The present petition has been filed under Section 439(2) Cr.P.C. read with Sections 482/397 Cr.P.C. on behalf of the petitioner seeking setting aside of the order dated 05.12.2020 passed by the learned Addl. Sessions Judge-04 (North), Rohini Courts, Delhi in FIR No. 449/2018 at P.S. Bawana, Delhi vide which respondent No. 2 was granted regular bail.

2. Learned counsel for the petitioner submits that in the present case, initially the FIR came to be registered on 19.11.2018 under Sections 498A/304-B/34 IPC whereafter on receipt of medical opinions of the deceased, Section 302 IPC was added. The Trial Court vide order dated 13.09.2019 framed charge under Section 302 IPC and in the alternative under Sections 304B/498A IPC read with Section 34 IPC.

3. Learned counsel for the petitioner submits that vide the impugned order, respondent No. 2 (husband of the deceased) was granted regular bail on extraneous reasons. In this regard, learned counsel for the petitioner has drawn attention of the Court to the portion of the impugned order where observations were made with respect to the subsequent medical opinion dated 19.06.2019 and the Trial Court also observed that CT Scan of the injured was not carried out. It is submitted that while passing the impugned order, the Trial Court neither took into account the gravity of the offence inasmuch as charge under Section 302 IPC has been upheld by this Court vide order dated 30.01.2020 passed in CRL.REV.PET. 82/2020. It is further submitted that there were enough allegations even under Section 304B IPC on record as the incident in the present case has occurred within four months of the marriage between the parties.

Learned counsel for petitioner has also drawn attention of the Court to the WhatsApp messages stated to have been exchanged between the deceased and her sister, which have been verified and form part of the record. It was further alleged that the deceased had visited her parental home on bhai dhuj, on which occasion, she conveyed the demand of Rs.6,00,000/- and also expressed her fear that in case of non-fulfilment of the demand, the family members including respondent No. 2 would kill her.

4. Learned counsel for respondent No. 2, on the other hand, has supported the impugned order. It is submitted that respondent No. 2 came to be arrested on 20.11.2018 and only after suffering custody for more than two years, he was released on bail vide the impugned order dated 05.12.2020. It is submitted that in the present case, there are five medical opinions, and it is only the last medical opinion dated 19.06.2019, which resulted in addition of Section 302 IPC in the charge sheet. It is also submitted that there are no allegations against respondent No. 2 either of influencing the prosecution witnesses or tampering with the evidence. Lastly, it is submitted that though this Court vide order dated 30.01.2020 directed the Trial Court to complete the trial expeditiously, however, as on date, only two witnesses have been examined and the trial is not likely to be concluded in near future.

5. Learned APP for the State has supported the submissions made on behalf of petitioner and submitted that the offence being serious in nature, the impugned order suffers from illegality.

She, on instructions, submits that the statement of the brother of the deceased, namely, Shakti Singh is cumulative to the statement made by his father, inasmuch as he has mentioned all the demands were raised by respondent No. 2. He further stated that respondent No. 2 was openly demanding money from the complainant.

6. I have heard learned counsels for the parties and have also gone through the entire material placed on record.

7. Before proceeding to analyze the facts of the present case, it is deemed apposite to recapitulate the legal position on principles that must weigh with a Court while determining whether or not bail should be granted to an accused.

8. In Mahipal v. Rajesh Kumar alias Polia and Another reported as (2020) 2 SCC 118 , [LQ/SC/2019/1829] the Supreme Court has highlighted the difference between principles that shall be borne in mind while determining the correctness of an order granting bail vis-à-vis the principles that shall apply to cases where cancellation is sought of bail already granted. Relevant extract from the judgment is reproduced hereunder:-

“13. The principles that guide this Court in assessing the correctness of an order passed by the High Court granting bail were succinctly laid down by this Court in Prasanta Kumar Sarkar v Ashis Chatterjee. In that case, the accused was facing trial for an offence punishable under Section 302 of the Penal Code. Several bail applications filed by the accused were dismissed by the Additional Chief Judicial Magistrate. The High Court in turn allowed the bail application filed by the accused. Setting aside the order of the High Court, D.K. Jain, J., speaking for a two-Judge Bench of this Court, held : (SCC pp. 499- 500, paras 9-10)

“9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal.”

14. …The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a caseby-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

xxx xxx xxx

16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v. State of U.P., the accused was granted bail by the High Court. In an appeal against the order of the High Court, a twoJudge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Dipak Misra, J. (as the learned Chief Justice then was) held : (Neeru Yadav case, SCC p. 513, para 12)

“12. …It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of bail, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court.”

17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a nonapplication of mind or is not borne out from a prima facie view of the evidence on record.”

9. While alluding to the decision in Anil Kumar Yadav v. State (NCT of Delhi) and Another reported as (2018) 12 SCC 129 , [LQ/SC/2017/1664] the view taken in Mahipal (Supra) has been reiterated by the Supreme Court in Bhoopendra Singh v. State of Rajasthan and Another reported as 2021 SCC OnLine SC 1020.

10. While adverting to the facts of the present case, a bare reading of the record would show that the marriage between respondent No. 2 and the deceased was solemnized on 25.06.2018 whereafter on 19.11.2018 the deceased committed suicide. It has come in the post-mortem report that the deceased was one and half months pregnant.

11. A reading of the FIR would show that the same came to be registered on the complaint of the petitioner (father of the deceased), wherein it was alleged that besides the demands raised by other family members, respondent No. 2 had demanded a Baleno car (Auto). It was also stated that despite meeting the demands, the in-laws continued to harass the deceased. It is alleged that three months prior to the incident, respondent No. 2 had demanded Rs.1,00,000/-, which was given. A further demand of Rs.10,00,000/- was made, which was partially met by paying a sum of Rs.4,00,000/- by sale of agricultural grains. Thereafter, after receipt of money, respondent No. 2 had again demanded remaining Rs.6,00,000/- failing which, the aforesaid Baleno Car (Auto) would be sold. It was also alleged that the deceased had visited the parental home on bhai dhuj, on which occasion, she conveyed the demand of Rs.6,00,000/- and also expressed her fear that in case of non-fulfilment of the demand, the family members including respondent No. 2 would kill her.

12. During investigation, post receipt of post-mortem examination report dated 20.11.2018, during internal examination, it was noted that “old subdural haematoma in form of thin membrane that was difficult to distinguish with dura was present at the right parietal region”. Two medical opinions were taken on 01.02.2019 and 11.04.2019. Subsequent opinions were also taken on 06.05.2019 and 19.06.2019 from the Deen Dayal Hospital, Delhi. Relevant excerpt of the medical opinion dated 19.06.2019 reads as follows:-

“Considering the aforementioned facts, best of my knowledge and experience, I am in the opinion of that there is nothing to suggest that the death could not be occurred due to sustained head injuries irrespective of fresh (Hours to days) or old (in weeks) in duration as same were sufficient to cause death in ordinary course of nature.”

13. It is submitted that subsequent to the aforesaid opinion, Section 302 IPC was added and the WhatsApp chat messages placed on record also show that the deceased had scare of her life on account of demand of money at the hands of the in-laws. In this regard, reliance is made to the chat message dated 11.11.2018, where name of respondent No. 2 is disclosed.

14. Coming now to the impugned order, it is noted that the same was passed ignoring the well settled principles of bail. At the time of passing of the impugned order, learned Judge has failed to appreciate the gravity and seriousness of the offence and the same came to be passed on erroneous and extraneous reasons. Though the trial has not proceeded expeditiously and there are no allegations against respondent No. 2 of tampering with the evidence, however the Trial Court ought not have lost sight of the enshrined principles of bail including the gravity and seriousness of offence.

15. Keeping in view the aforesaid and the totality of the facts and circumstances of the case, the impugned order is set aside and respondent No. 2 is directed to surrender before the concerned jail authorities forthwith.

16. With the above directions, the petition is disposed of alongwith pending application.

17. A copy of this order be communicated electronically forthwith to the concerned Jail Superintendent for information.

18. A copy of this order be also uploaded forthwith on the website.

19. Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case.