Dr Naresh Kumar Mangla v. Smt. Anita Agarwal & Ors. Etc.
DR. DHANANJAYA Y CHANDRACHUD, J.
A. Background
B. Submissions of Counsel
C. Cancellation of Anticipatory Bail
D. Transfer of further investigation to the CBI
E. Summation
301
1. Leave granted
A. Background
2. Applications for anticipatory bail under Section 438 of the Code
of Criminal Procedure 1973 ( “CrPC”) were filed by four out of five
persons who have been named as accused in Case Crime No.0623 of
2020 registered at Police Station Tajganj, District Agra under Sections
498A, 304-B, 323, 506 and 313 of the Indian Penal Code (“IPC”) and
Sections 3/4 of the Dowry Prohibition Act, 1961.The husband of the
deceased1 is in custody. The applicants for anticipatory bail are the
parents-in-law2, brother-in-law3 and sister-in-law 4 of the deceased. A
Single Judge of the High Court of Judicature at Allahabad allowed the
applications and granted them anticipatory bail. The father of the
deceased is in appeal.
3. The marriage between the deceased (Deepti) and S umit
Agarwal took place on 3 November 2014. On 7 August 2020, the appellant
lodged a complaint which was registered as a First Information Report
(“FIR”) under Section 154 of the CrPC. The FIR, inter alia, records
that Deepti was a doctor and the appellant spent an amount in excess of
Rs.1.50 crores for conducting the marriage. It is allege d that even
thereafter, Sumit, his parents, brother-in-law and sister-in-law misbehaved
with the deceased on account of dowry. The deceased, it is alleged,was
pressurized to bring money. The FIR alleges that the appellant had paid
money on several occasions by cheque to the in-laws of the d eceased.
On account of the demand for dowry, it was alleged that she was severely
assaulted in 2017 and the injuries were medically exam ined at the
Government Hospital in Vrindavan. In the meantime, Deepti s uffered
miscarriages on two occasions and ultimately, adopted a da ughter. As
regards the incident which eventually led to the unnatural death by the
alleged suicide of Deepti, the FIR records that:
“About 18-19 days ago, all the abovementioned family members
of her in-laws badly beaten up Dipti on account of dowry and
threatened her that if she informed the family of her parents, she
will have to face the consequences. On 03.08.2020, in the morning,
Dr S. C. Agarwal telephonically threatened the applicant and
demanded the money, and also threatened that either I should
fulfill the demand, otherwise, I will be responsible for whatever
1 A-1
2 A-2 and A-3
3 A-4
4 A-5
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
happens in future. The same day in the afternoon at 3:09 PM and
thereafter at 5:31 PM in the evening, Dipti told the applicant and
the wife of the applicant about beating up done by them about 18-
19 days ago and regarding taking advice by all the people an d
about threat to her life. At the time, the applicant was in Faridabad
and he told her about coming to Agra in the night itself. However,
before the applicant could reach in the evening on the same day
these dowry greedy people killed Dipti in [xxx] for non-receipt of
dowry and non-fulfilment of the demands, and admitted Dipti in
their hospital itself in the almost dead condition, in order to save
themselves, but she was not allowed any treatment wit h the
intention of killing her. In order to save the life of Dipti, the applicant
took her away to the Sarvodaya hospital Faridabad for treatment,
at the earliest, in the morning itself, where Dipti died yesterday on
06.08.2020 during treatment. These people have also taken
possession of the entire money which was earned by Dipti. Dipti
has been killed by Sumit, S.C. Agarwal, Mrs Anita, Amit and Tulika,
for dowry with cruel behavior. We performed the last rites of
Dipti in Kosi. Since we were busy in the treatment and performing
the last rites of Dipti, the applicant has come for filing the report.”
4. The spouse of the deceased-who is also a doctor by
profession,was taken into custody on 7 August 2020. On 10 August 2020,
the four respondents (A-2 to A-5) sought anticipatory bail befo re the
Sessions Court, Agra5. By an order dated 21 August 2020,the Sessions
Judge, Agra declined anticipatory bail. After adverting to the submission
of the accused that a suicide note which was allegedly left behind by the
deceased did not contain any allegation of harassment for dowry a nd
the deceased was a partner and investor in the Agra Medical and Cardiac
Super Specialty Hospital set up by her father-in-law, the Sessions Judge
observed:
“On the other hand, the documents have been filed on behalf of
the complainant side, in which it has been shown that the money
was transferred to different transactions. The photocopy of the
application dated 01.10.2017 submitted by the deceased to the
SHO, Kosikalan, District Mathura, has also been filed, in which it
is mentioned about beating up of the deceased by Dr Amit Agarwal,
5 Anticipatory bail application nos. 241/242 of 2020
303
Tulika Agarwal and Anita Agarwal and pushing her down through
the stairs with the intention of killing her, and it has been mentioned
that she suffered considerable injuries in it. It has also been stated
in it that all this has happened at the instance of her father-in-law
S.C. Agarwal, who has asked her to bring Rs.20 lakhs from the
family of her parents. In addition, the photocopy of the injury report
of the deceased dated 02.10.2017 of the additional district joint
hospital, Brindaban has also been filed.”
5. The Sessions Judge noted that besides naming the accused
specifically, there were also allegations against the four respondentsin
the FIR of torturing the deceased and of making demands for dowry.On
9 September 2020, non-bailable warrants were issued against t he four
accused. Applications for anticipatory bail were filed on t heir behalf
before the High Court6. On 22 September 2020, a learned Single Judge,
after noting the submissions, posted the applications for anticipatory bail
for “further hearing” on 28 September 2020 and protected the accused
against arrest in the interim. On 28 September 2020, another Single Judge
of the High Court before whom the application was listed noted the fact
that the earlier order dated 22 September 2020 had posted the application
for “further hearing” and directed the registry to process t he listing of
the proceedings accordingly. Eventually, anticipatory bail has been granted
by the order of the High Court dated 29 September 2020. The reasons
on the basis of which the High Court proceeded to grant antic ipatory
bail are contained in paragraph 20 of the judgment of the High Court
which is extracted below:
“20. Having heard the learned counsel for applicants, learne d
A.G.A. and the learned counsel for the informant an d the
undisputed position which has emerged from the record as noted
above, 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. is
not to be treated as an encyclopedia of prosecution case but must
reflect the basic prosecution case. When judged in the li ght of
above, the F.I.R. prima facie appears to be engineered to implicate
the applicants.There is no co-relation in between the var ious
allegations leveled in the F.I.R.The allegations made are general
6 Criminal Misc Anticipatory Bail Application Nos.54 57/5460 of 2020
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
in nature and no specific role has been assigned to any of the
above 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 sufficient
means.The absence of any external injury on the body of the
deceased, clearly denotes the bonafide (sic) of applicants.”
6. Notice was issued on the Special Leave Petitions on 27 October
2020. In pursuance of the order, the State of Uttar Pradesh has entered
appearance and is represented by Shri Vimlesh Kumar Shukla, Senior
Counsel and Mr Vishnu Shankar Jain as Counsel. The respo ndent-
accused are represented by Mr Sidharth Luthra and Mr R Basant, Senior
Counsel. 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:
(i) Though specific allegations have been leveled in the FIR
that the deceased has been killed, which indicates th e
commission of a cognizable offence, there has been no
investigation by the police of whether the death wa s
homicidal and she was murdered;
(ii) The Sessions Judge, while denying anticipatory bail, made
a specific reference to the transfer of moneys by t he
deceased into the account of her father-in-law. As a matter
of fact, between 19 November 2015 and15 December 2018,
an amount of Rs.50.53 lacs was transferred by the parents
of the deceased (of which an amount of Rs.15 lacs has
been paid directly by a family friend to the father-in-law of
the deceased), the rest being transferred into her account.
The amount of Rs 15 lakhs was repaid by the informant on
17 December 2019 to the person who had lent the moneys.
Between 4 December 2015 and 1 March 2017, the deceased
transferred an amount of Rs.24 lacs by bank transfer from
her account to the account of her father-in-law. Details of
these payments are as follows:
305
(iii) The deceased was an anesthetist and was working in the
family run nursing home of the respondent-accused. She
died within 5years and 8 months of her marriage. There
are specific allegations in the FIR of an incident which took
place on 1 October 2017 when the deceased was assaulted
by her mother-in-law and by the elder brother of he r
husband(brother-in-law of the deceased) and his
spouse(sister-in-law of the deceased); at the instance of
her father-in-law, which led to the filing of a complaint with
the SHO, Police Station Kosi Kalan, District Mathura on 1
October 2017. The medical report of the examination of
the deceased shows the presence of five injuries which
have been attributed to be caused by a hard and blunt object;
The complaint was not pursued to save the marriage of the
deceased;
(iv) The police were informed of the incident of hanging of the
victim at 1930 hours on 3 August 2020. The investigating
team however reached the site only on 4 August 2020 at
1130and at 1330 hours prepared an inventory of articles
recovered from the scene. It is alleged that the suicide note
is missing from the list and finds a mention only in a General
Diary entry at 2356 hours.In the charge-sheet which has
eventually been filed on 5 November 2020, the recovery
panchnama of the suicide note does not find mention. The
suicide note is not in the handwriting of the deceased;
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
(v) The FIR contains a specific allegation that on 3 Augu st
2020 the informant had received a telephone call from the
father-in-law of the deceased demanding money and that
on the same day in the afternoon at 3:09 pm and 5:31 pm
the deceased spoke to the informant and his wife and
informed them that she had been assaulted about 18 or 19
days earlier and of the threat to her life. The appellant told
his daughter that he was in Faridabad and would reach Agra
on the same night but before he could do so the deceased
had allegedly been killed. The FIR alleges that the in-laws
of the deceased had taken away the entire money which
was earned by her as a doctor;
(vi) The applications for anticipatory bail filed by the respondent-
accused were dismissed by the Sessions Judge on 21
August 2020. A non-bailable warrant was issued on 9
September 2020. In spite of the dismissal of the applications
for anticipatory bail and the specific allegation that Deepti
had been killed, only her spouse was taken in for custodial
interrogation and the alleged murder has not been
investigated. Though until 22 September 2020, the other
accused were not protected from arrest, no effort was made
by the police to trace them in the interim;
(vii) A charge-sheet dated 24 October 2020 was submitted to
the competent court on 5 November 2020 hastily, without
proper investigation of the crime;
(viii) The order of the High Court cannot pass muster on the
basis of the law which has been laid down by this Court in
the following decisions:
(i) (2001) 6 SCC 338;Puran vs Ramvilas
(ii) (2005) 8 SCC 21;State of U.P. vs Amarmani
Tripathi
(iii) (2012) 4 SCC 379;Jaiprakash Singh vs State of
Bihar
(iv) (2016) 15 SCC 422; Neeru Yadav vs State of
U.P.
307
(v) (2020) 5 SCC 1; Sushila Agarwal vs NCT of
Delhi
(vi) (1997) 7 SCC 187; State vs Anil Sharma and
(vii) (2005) 4 SCC 303; Adri Narayan Das vs State
of West Bengal
8. Opposing the above submissions, Mr Sidharth Luthra, Senior
Counsel submitted that:
(i) The deceased and her husband commenced living se parately
from 12 October 2018;
(ii) The post mortem report indicates that the death occurre d
as a result of suicide by hanging. The absence of bodily
injuries would displace the allegation that the in-laws are
involved in the murder of the deceased;
(iii) An amount of Rs.16.01 lacs received by the deceased in
her bank account from the family of the informant between
4 December 2015 and 25 March 2017, has been converted
into fixed deposit receipts in the State Bank of India. While
the deceased has transferred an amount of Rs.24 lacs from
her account to her father-in-law between 4 December 2015
and 1 March 2017, this was as a part of the investment
towards the construction of a hospital. As a part of the
family understanding, the father-in-law intended to set up
aseparate hospital for the deceased and her husband and
to give the management of the earlier hospital to both of
them. Hence, in order to set up Sapphire Hospital, a limited
liability partnership by the name of M/s Agra Medical and
Cardiac Super Specialty, LLP was formed on 28 December
2016 with five partners including the deceased and her
spouse who had a share each of 35%. Investments were
being made by all partners to establish Sapphire Hospital
and the total investment by the father-in-law was in the
amount of Rs.1.12 crores; and
(iv) Several transfers of funds have been made to the dece ased
from the two hospitals, besides which amounts have been
paid by the father-in-law to the deceased and her spouse
for the purchase of property in their joint names. Details of
these transactions have been furnished in the following terms:
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
(a) Rs.27.25 lacs paid to the deceased by M/s Agra
Medical and Cardiac Research Centre between 2015-
16 and 2017-18;
(b) Rs.61.79 lacs paid to the deceased by
SapphireHospital (M/s Agra Medical and Cardiac
Super Specialty LLP) between 2017-18 and 2019-
20;
(c) Rs.66.73 lacs paid by the father-in-law to the
deceased and her spouse on 9 September 2019 and
21 September 2019 for the purchase of property; and
(d) Rs.15 lacs paid to the deceased from the account of
the LLP for the purchase of two plots.
(v) An amount of Rs.30.80 lacs is invested in the name of the
deceased inter alia in the form of FDRs, bank balances,
PPF and in an RD account.
(vi) Three immovable properties valued at about Rs.1.4 crores
are jointly owned by the deceased and her spouse;
(vii) The alleged incident on 1 October 2017 is a fabrication since
the brother-in-law and sister-in-law of the deceased had
travelled to Mumbai on those days;
(viii) The suicide note, which has been forwarded to the forensic
science laboratory, indicates that the deceased was in a
depressed mental state due to her miscarriages;
(ix) The recovery of the suicide note is evidenced b y the
recovery memos drawn up by the police; and
(x) The applicants have co-operated in the course of the
investigation and their statements have been recorded before
the charge-sheet was filed on 5 November 2020.
9. Supporting the above submissions, Mr R Basant, Senior Counsel
submits that Dr SC Agarwal (A-2) is a senior medical practitioner based
in Agra. He and his spouse (A-3) have two sons who are doct ors by
profession, namely A-1 and A-4. A-1 was the spouse of the dece ased
while A-4 and A-5 are spouses. Two hospitals were set up by A-2 with
the object of ensuring separate establishments for his son s, A-1 and
309
A-4.Supporting the grant of anticipatory bail by the High Court, Mr Basant
submitted that:
(i) The tenor of the suicide note indicates that the deceased
was suffering from mental depressionas a result of
successive miscarriages and she had, in fact, adopted a girl
child in June 2018;
(ii) On 12 October 2018, the deceased and her spouse set up a
separate residence for themselves;
(iii) The deceased had drawn salary from both the hospitals
which have been set up by her father-in-law. A-2 had
transferred money to A-1 and the deceased to enable them
to buy immovable property in their joint names; and
(iv) After the deceased attempted to commit suicide on 3 August
2020, she was rushed to the family run nursing home run
by her father-in-law. The police reached the scene of the
incident on the evening of 3 August 2020,though no FIR
was registered until 7 August 2020. Articles were recovered
on 3 and 4 August 2020. The suicide note was recovered
on 3 August 2020. It was deposited in the malkhana on 4
August 2020, as reflected in Entry 85 of the Genera l
Diary.The deceased was subsequently removed to another
hospital by her father, the appellant. On 5 August 2020, the
suicide note was extensively published in the local
newspapers in spite of which the complaint does not indicate
that it is fabricated. The suicide note,it has been submitted,
contains no reference to harassment on account of dowry.
10. The State of Uttar Pradesh has filed a counter affidavi t in
these proceedings through Harish Chandra Tamta working in the Circle
Office (Deputy Superintendent of Police),District Agra. T he Counter
Affidavit contains the following statements:
“9. It is relevant to mention that High Court has not take n into
consideration the bodily injury sustained by deceased Dipti in the
year 2017 and the contents of FIR lodged by her with the police
station.
10. It is relevant to mention that on 2.8.2020 Sumit Agarwal
(husband) and Anita Agarwal (mother-in-law) of the deceased
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
through mobile call made at 9.30 a.m demanded dowry and had
asked that serious consequences will follow if money was n ot
paid.
10. Dr. Dipti suffered two (sic) abortions due to the ill-treatment
given by her husband and in-laws.
11. There is no explanation for the injuries found on the body of
deceased.
12. The medical report and the facts revealed that d eceased
hasbeen killed.
13. It is the case of continuous demand of dowry, causing torture
and victimization of the deceased and the deceased has herself
stated in the FIR lodged in the year 2017 aboutthe demand of
dowry by her husband and in-laws.
14. It is also clear that the story of suicidedue to frustrat ion and
adopting a child by the deceased are fictitious andbasele ss. The
alleged suicide note is not in the handwriting of (sic) Dr. Di pti.
The said document is false, fabricated and has been prepared by
the accused persons and they are guilty of committing of offence
u/s 468 & 471 of IPC.
15. That Respondent-State is also relying upon the law laid down
by this Hon’ble ·Court. In case of Lavesh vs State (NCT of Delhi)
reported in 2012(8) SCC 730, particularly in paragraphs 8,12 and
18 of this judgment.”
11. On the basis of the above averments, the State has supported
the appellant in assailing the correctness of the order granting anticipatory
bail. Significantly, on the specific query of the Court as to whether any
investigation has been carried out on the allegation that De epti was
murdered, Mr Vimlesh Kumar Shukla, learned Senior Coun sel has
answered in the negative. On the alleged suicide note, learned Senior
Counsel submitted that it was initially returned back by the FSL in the
absence of adequate material for comparing the hand writing and it has
now been re-submitted by the Investigating Officer with necessary
supporting material to the FSL, whose report is awaited.
C. Cancellation of Anticipatory Bail
12. The rival submissions will now be considered. The appellant,
who is the father of the deceased, lodged a complaint on 7 August 2020
311
on the basis of which FIR No. 0623 of 2020 was registered at Po lice
Station Tajganj in the District of Agra. The FIR contains the following
allegations:
(i) The marriage of the deceased to A-1, the son of A-2 took
place on 3 November 2014;
(ii) The deceased was a qualified doctor by profession;
(iii) An amount of Rs.1.5 crores was spent on the occasion of
her marriage;
(iv) A-1 to A-5 were dissatisfied with the moneys brought by
the bride and she was pressurized to bring an amount of
Rs. 1 crore;
(v) The appellant paid money by cheque to the groom’s family
in the interest of the domestic happiness of his daughter;
(vi) There was an incident in 2017 when the deceased was
assaulted by her in-laws. Injuries were suffered by her, as
revealed during the course of a medical examination at the
Government Hospital in Vrindavan;
(vii) The deceased suffered two miscarriages and had adopted
a girl child;
(viii) There was continued harassment of the deceased and of
the child whom she had adopted;
(ix) About 18 or 19 days before the incident on 3 August 2020,
the deceased had been assaulted by the accused persons
on account of dowry and threatened with consequences if
she informed her family;
(x) There was a telephone call on 3 August 2020 by A-2 to the
appellant-complainant for demanding money and threatening
him with consequences;
(xi) The deceased made telephone callsat3:09 PM and at 5:31
PM on 3 August 2020 to her parents when she revealed
being assaulted in the recent past and of the threat to her
life;
(xii) By the time the appellant travelled from Faridaba d to Agra
he found that his daughter had been killed for non-fulfillment
of the demand for dowry;
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
(xiii) The appellant removed the deceased to Sarvodaya hospital
at Faridabad for treatment where she died on 6 August
2020;
(xiv) The FIR was lodged after the last rites were perform ed;
(xv) The accused had taken possession of the moneys which
were 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 cognizabl e
offences. They were duty bound to investigate. One of the princ ipal
aspects which weighed with the Sessions Judge while denying anticipatory
bail on 21 August 2020 was the fact that the informant’s sideha d filed
documents indicating the transfer of moneys under different transactions.
Besides this, the Sessions Judge also relied on the letter dated 1 October
2017 addressed by the deceased to the SHO, Kosi Kalan, District
Mathura, specifically complaining that she had been assaulted b y A-3,
A-4 and A-5 as a consequence of which she had suffered injuries.T he
Sessions Judge noted that it has been alleged that thishad hap pened at
the 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 that
though the deceased had been assaulted in 2017, the informant had not
proceeded against the spouse of the deceased and the other me mbers
of his family, simply to save the marriage. The Single Judge, while
analyzing 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;
(ii) The spouse of the deceased is in custody; and
(iii) The FIR is not to be treated as “an encyclopedia of the
prosecution’s case but must reflect the basic prosecuti on
case.”
Having recorded the above premises, the Single Judge held that
(a) “the FIR prima facie appears to be engineered to implicate the
applicants”; (b) “there is no co-relation in between the various allegations
leveled in the FIR”; and(c) the allegations “are general in nature” with
no specific role being assigned to the accused.
313
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 a ny of
the three prima facie findings. The informant had suffered a loss of his
own daughter due to an unnatural death in close proximity to the lodging
of his complaint. The FIR contains a reference to the previous incident
of October 2017,to the demands for dowry, payments of money in cheque
by the informant to the groom’s family and the telephone calls received
by the informant from the father-in-law of the deceased and later from
the deceased in close proximity to the incident, on the same day that she
died. 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 di d take
place, leading to her suffering injuries which were exam ined at the
Government Hospital, is a matter for investigation. How the learned
Single Judge could have concluded – in the face of specific allegations
in 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.”A
reading of the FIR would reveal that the finding of the Single Judge that
the allegations “are general without assigning a specifi c role to the
accused”is contrary to the record.The Single Judge observed, from the
income tax returns of the accused, that “it cannot be said tha t they are
not of sufficient means”.The Single Judge has erred in drawi ng this
inference without a full investigation by the investigating arm of the state.
Mr Luthra has sought to rely on the payment of monies to the deceased
by the two hospital establishments, the transfer of funds for the purchase
of properties and the joint ownership of properties. The trail of monies
alleged to be received by the deceased for her professiona l work is a
matter to be investigated. Similarly, the transfer of monies by the deceased
to her father-in-law and the nexus, if any, with the funds which she had
received from her parents is a matter for serious investigation. The death
was unnatural which took place within seven years of the marriage. The
alleged phone calls received by the informant from some of the accused
and by the deceased on the day when she was found to be hanging are
matters which required to be probed. The alleged absence of an external
injury on the body of the deceased is a matter for invest igation. The
approach of the High Court is casual. The surmises which are contained
in the reasons recorded by the High Court have no basis in the materials
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
with which it was confronted. The observation of the High Court that no
specific role is assigned in the FIR to the accused is based on a misreading
of the FIR. The entire approach of the High Court is flawed. It is contrary
to the record and, as we shall now explain, contrary to settled principles
of law governing the exercise of discretion on the grant of anticipatory
bail in a case involving the alleged commission of a serious offence.
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 the
cancellation of bail on the ground of the supervening misconduct of the
accused or because some new facts have emerged, requiring cancellation.
In Puran vs. Ramvilas7, this Court has held that where an order granting
bail ignores material on record or if a perverse order gra nting bail is
passed in a heinous crime without furnishing reasons, the int erests of
justice may require that the order be set aside and bail be cancelled. The
recording of no reasons is one end of the spectrum. The other end of the
domain for interference with an order granting anticipato ry bail (into
which the present case settles) is where the reasons are contrar y to the
material on record and hence found to suffer from perversity.
16. The facts which must be borne in mind while considering an
application for the grant of anticipatory bail have been elucidated in the
decision of this Court in Siddharam Satlingappa Mhetre vs. State of
Maharashtra8 and several other decisions. The factors to be considered
include:
“112. […]
(i) the nature and gravity of the accusation and the exact role
of the accused;
(ii) the antecedents of the applicant including whethe r the
accused has previously undergone imprisonment on a
conviction by a court in respect of a cognizable offence;
(iii) the possibility of the applicant fleeing from justic e;
(iv) the likelihood of the accused repeating similar or other
offences;
(v) whether the accusations have been made only with the object
of injuring or humiliating the applicant by arresting them;
7 (2001) 6 SCC 338
8 (2011) 1 SCC 694
315
(vi) the impact of the grant of anticipatory bail particularly in
cases of magnitude affecting a large number of people;
(vii) The court must carefully evaluate the entire material against
the accused. The court must also clearly comprehend the
exact role of the accused in the case. Cases in which the
accused is implicated with the help of Sections 34 and 149
of the Penal Code, 1860 the court should be considered
with even greater care and caution because overimplication
in such cases is a matter of common knowledge and
concern;
(viii) While considering the prayer for grant of anticipatory bail,
a balance has to be struck between two factors, namely, no
prejudice should be caused to the free, fair and fu ll
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
(ix) the reasonable apprehension of tampering of the witnes ses
or apprehension of threat to the complainant;
(x) frivolity in prosecution should always be considered and i t
is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.
113. Arrest should be the last option and it should be re stricted
to those exceptional cases where arresting the accused is
imperative in the facts and circumstances of that case. The
court must carefully examine the entire available record
and particularly the allegations which have been directly
attributed to the accused and these allegations are
corroborated by other material and circumstances on
record.”
Adverting to the above observations, in Jai Prakash Singh vs
State of Bihar9,this Court held:
“19. Parameters for grant of anticipatory bail in a serious offence
are required to be satisfied and further while granting such relief,
9 (2012) 4 SCC 379
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
the court must record the reasons... Anticipatory bail can be granted
only in exceptional circumstances where the court is prima facie
of the view that the applicant has falsely been roped in the crime
and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T.
Manokaran [(2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345] , State
of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008)
1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. Padam
Narain Aggarwal [(2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)”
17. In the recent decision of the Constitution Benchin Sushila
Aggarwal vs State (NCT of Delhi),10 the considerations which ought
to weigh with the Court in deciding an application for the grant of
anticipatory bail have been reiterated. The final conclusions of the Court
indicate that:
“92.1… The application seeking anticipatory bail should contain
bare essential facts relating to the offence, and why the applicant
reasonably apprehends arrest, as well as his side of the st ory.
These are essential for the court which should consi der his
application, to evaluate the threat or apprehension, its gravity or
seriousness and the appropriateness of any condition that may
have to be imposed.
92.3…While considering an application (for grant of anticipatory
bail) the court has to consider the nature of the offence, the role
of the person, the likelihood of his influencing the course o f
investigation, or tampering with evidence (including intimidating
witnesses), likelihood of fleeing justice (such as le aving the
country), etc.
92.4. Courts ought to be generally guided by considerations such
as the nature and gravity of the offences, the role attributed to the
applicant, and the facts of the case, while considering whether to
grant anticipatory bail, or refuse it. Whether to grant or not is a
matter of discretion; equally whether and if so, what kind of special
conditions are to be imposed (or not imposed) are dependent on
facts of the case, and subject to the discretion of the court.”
18. The Constitution Bench has reiterated that the correctness of
an order granting bail is subject to assessment by anappellate or superior
court and it may be set aside on the ground that the Court granting bail
10(2020) 5 SCC 1
317
did not consider material facts or crucial circumstances. A t wo judge
Bench of this Court, in Kanwar Singh Meena vs. State of
Rajasthan11,noted that:
“10. Thus, Section 439 of the Code confers very wide powers on
the High Court and the Court of Session regarding bail. But, while
granting bail, the High Court and the Sessions Court are guided
by the same considerations as other courts. That is to say, the
gravity of the crime, the character of the evidence, posit ion and
status of the accused with reference to the victim and witnesses,
the likelihood of the accused fleeing from justice and repea ting
the offence, the possibility of his tampering with the witness es
and obstructing the course of justice and such other grounds are
required to be taken into consideration. Each criminal case
presents its own peculiar factual scenario and, there fore,
certain grounds peculiar to a particular case may have to
be taken into account by the court. The court has to only
opine as to whether there is prima facie case against the
accused. The court must not undertake meticulous
examination of the evidence collected by the police and
comment on the same. Such assessment of evidence and
premature comments are likely to deprive the accused of a
fair trial. While cancelling the bail under Section 439(2) of the
Code, the primary considerations which weigh with the court are
whether the accused is likely to tamper with the eviden ce or
interfere or attempt to interfere with the due course of justice or
evade the due course of justice. But, that is not all. The Hig h
Court or the Sessions Court can cancel the bail even in cases
where the order granting bail suffers from serious infir mities
resulting in miscarriage of justice. If the court granting bail
ignores relevant materials indicating prima facie
involvement of the accused or takes into account irreleva nt
material, which has no relevance to the question of grant of
bail to the accused, the High Court or the Sessions Court
would be justified in cancelling the bail. Such orders are against
the well-recognised principles underlying the power to grant bail.
Such orders are legally infirm and vulnerable leading to miscarriage
of justice and absence of supervening circumstances such as the
11(2012) 12 SCC 180
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
propensity of the accused to tamper with the evidence, to flee
from justice, etc. would not deter the court from cancelling the
bail. The High Court or the Sessions Court is bound to cancel
such bail orders particularly when they are passed relea sing the
accused involved in heinous crimes because they ultimately result
in weakening the prosecution case and have adverse impact on
the society. Needless to say that though the powers of this Court
are much wider, this Court is equally guided by the above principles
in the matter of grant or cancellation of bail.”
(emphasis supplied )
Recently, this Court in Myakala Dharmarajam vs. The State of
Telangana12 reiterated the above principles and stated:
“9. It is trite law that cancellation of bail can be done in cases
where the order granting bail suffers from serious infir mities
resulting in miscarriage of justice. If the court granting bail ignores
relevant material indicating prima facie involvement of the Accused
or takes into account irrelevant material, which has no relevance
to the question of grant of bail to the Accused, the High Court or
the Sessions Court would be justified in cancelling the bail.”
19. It is apposite to mention here the distinction betwe en the
considerations which guide the grant of anticipatory bail a nd regular
bail. In Pokar Ram vs. State of Rajasthan 13, while setting aside an
order granting anticipatory bail, this Court observed:
“5. Relevant considerations governing the court’s decision in
granting anticipatory bail under Section 438 are materially different
from those when an application for bail by a person who is arrested
in the course of investigation as also by a person who is convicted
and his appeal is pending before the higher court and bail is sought
during the pendency of the appeal. Three situations in which the
question of granting or refusing to grant bail would arise, materially
and substantially differ from each other and the re levant
considerations 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 i n the
High Court unfortunately fell into an error in mixing up all t he
12(2020) 2 SCC 743
13(1985) 2 SCC 597
319
considerations, as if all the three become relevant in the pr esent
situation.
6. The decision of the Constitution Bench in Gurbaksh Singh
Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri)
561] clearly lays down that “the distinction between an ordinary
order of bail and an order of anticipatory bail is that whereas the
former is granted after arrest and therefore means relea se from
the custody of the police, the latter is granted in antici pation of
arrest and is therefore effective at the very moment of arrest”.
Unlike a post-arrest order of bail, it is a pre-arrest l egal process
which directs that if the person in whose favour it is issued is
thereafter arrested on the accusation in respect of which the
direction is issued, he shall be released on bail. A direction under
Section 438 is intended to confer conditional immunity from the
touch as envisaged by Section 46(1) or confinement. In para 31,
Chandrachud, C.J. clearly demarcated the distinction between
the relevant considerations while examining an application for
anticipatory bail and an application for bail after arrest in the course
of investigation. Says the learned Chief Justice that in regard to
anticipatory bail, if the proposed accusation appears to stem not
from motives of furthering the ends of justice but from some ulterior
motive, the object being to injure and humiliate the applicant by
having him arrested, a direction for the release of the applicant on
bail in the event of his arrest would generally be made. It w as
observed that “it cannot be laid down as an inexorable rule t hat
anticipatory bail cannot be granted unless the proposed accusation
appears to be actuated by mala fides; and, equally, that anticipatory
bail must be granted if there is no fear that the applican t will
abscond”. Some of the relevant considerations which govern the
discretion, noticed therein are “the nature and seriousness of the
proposed charges, the context of the events likely to lead to the
making of the charges, a reasonable possibility of the applicant’s
presence not being secured at the trial, a reasonable apprehension
that witnesses will be tampered with and ‘the larger inter ests of
the public or the State’, are some of the considerations which the
court has to keep in mind while deciding an application for
anticipatory bail”. A caution was voiced that “in the evaluation of
the consideration whether the applicant is likely to abscond, there
can be no presumption that the wealthy and the mighty will submit
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
themselves to trial and that the humble and the poor will run away
from the course of justice, any more than there can be a
presumption that the former are not likely to commit a crime and
the latter are more likely to commit it.”
Judged in the light of the above principles, the judgment of the
Single Judge of the High Court of Judicature at Allahabad is unsustainable.
The FIR contains a recital of allegations bearing on the role of the accused
in demanding dowry, of the prior incidents of assault and the payment of
moneys by cheque to the in-laws of the deceased. The FIR has referred
to the telephone calls which were received both from the father-in-law
of the deceased on the morning of 3 August 2020 and from the deceased
on two occasions on the same day- a few hours before her body was
found. The grant of anticipatory bail in such a serious offence would
operate to obstruct the investigation. The FIR by a fathe r who has
suffered the death of his daughter in these circumstances can not be
regarded as “engineered” to falsely implicate the spouse of the deceased
and his family. We hasten to add that our observations at this stage are
prima facie in nature, and nothing that we have said should be construed
as a determination on the merits of the case which will be adjudicated at
the trial.
D. Transfer of further investigation to the CBI
20. The investigation by the UP Police in the present case leaves
much to be desired. We have already extracted in the earlier part of this
judgment, the contents of the counter affidavit which have been filed on
behalf of the Deputy Superintendent of Police, Agra. The conte nts of
the counter affidavit are at a material divergence with t he contents of
the charge-sheet filed on 5 November 2020. During the course of the
hearing, this Court has been specifically informed by l earned Senior
Counsel appearing on behalf of the State of Uttar Pradesh, that no
investigation was conducted into the allegationin the FIR that the
deceased had been murdered. Though much was sought to be made out
of the alleged suicide note, at this stage it needs to be emphasised that its
authenticity has been seriously disputed by the appellant. As the learned
Senior Counsel for the State of Uttar Pradesh informed the C ourt, the
forensic science laboratory referred the matter back in the absence of
adequate material to assess the genuineness of the suicide no te and
upon re-submission, a report is awaited.
321
Within a couple of days of the death of Deepti, the alleged suicide
note found its way into the newspapers in Agra. This is in fact a
circumstance relied upon by the learned Counsel for the accused when
they submit that despite the publicity given to the suicide note, the FIR
does not impugn its authenticity. The sequence in this case appears to
follow familiar patterns. Immediate publicity was give n to the alleged
suicide note. These examples are now becoming familiar. Se lective
disclosures to the media affect the rights of the accused in some cases
and the rights of victims’ families in others. The media does have a
legitimate stake in fair reporting. But events such as what has happened
in this case show how the selective divulging of information, including
the disclosure of material which may eventually form a crucial p art of
the evidentiary record at the criminal trial, can be used to derail the
administration of criminal justice. The investigating officer has a duty to
investigate when information about the commission of a cogniz able
offence is brought to their attention. Unfortunately, this role is being
compromised by the manner in which selective leaks take place i n the
public realm. This is not fair to the accused because it pulls the rug
below 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 their
families. Neither the victims nor their families have a platform to answer
the publication of lurid details about their lives and circumstances. Having
said this, we prima facie reject the insinuation that the FIR had not
doubted or referenced the suicide note, despite its publication in the news
media. The daughter of the appellant had died in my sterious
circumstances. The family had completed the last rites.T o expect that
they should be scouring the pages of the print and electronic media before
reporting the crime is a mockery of the human condi tion. The
apprehension of the appellant that A-2 and his family have a prominent
social status in Agra and may have used their position in society to thwart
a proper investigation cannot be regarded to be unjustified.
21. In the backdrop of what has been stated above and the serious
deficiencies in the investigation, we have during the hearing, made al l
the counsel aware of the possibility of this court referrin g the case for
further investigation to the CBI. The court must enter upon the prospect
of such a course of action with circumspection for two reas ons. First,
this court has repeatedly observed that the power which is ve sted in a
superior court to transfer the investigation to another agency, such as
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
the CBI, must be wielded with caution. In a recent judgement of this
Court, Arnab Goswami vs. Union of India14,one of us (Dr. Justice DY
Chandrachud) had interpreted the rationale underpin ning the
circumspection in the following terms:
“44. In assessing the contention for the transfer of the investigation
to the CBI, we have factored into the decision-making calculus
the averments on the record and submissions urged on behalf of
the petitioner. We are unable to find any reason that warra nts a
transfer of the investigation to the CBI. In holding thus, we have
applied the tests spelt out in the consistent line of pr ecedent of
this Court. They have not been fulfilled. An individual under
investigation has a legitimate expectation of a fair process
which accords with law. The displeasure of an accus ed
person about the manner in which the investigation
proceeds or an unsubstantiated allegation (as in the prese nt
case) of a conflict of interest against the police cond ucting
the investigation must not derail the legitimate cour se of
law and warrant the invocation of the extraordinary power
of this Court to transfer an investigation to the CBI. Court s
assume the extraordinary jurisdiction to transfer a n
investigation in exceptional situations to ensure th at the
sanctity of the administration of criminal justice is preserved.
While no inflexible guidelines are laid down, the notion that
such a transfer is an “extraordinary power” to be u sed
“sparingly” and “in exceptional circumstances” comports
with the idea that routine transfers would belie not j ust
public confidence in the normal course of law but also render
meaningless the extraordinary situations that warrant the
exercise of the power to transfer the investigation. Having
balanced and considered the material on record as well as the
averments of and submissions urged by the petitioner, we find
that no case of the nature which falls within the ambit of the tests
enunciated in the precedents of this Court has been establ ished
for the transfer of the investigation.”
(emphasis supplied )
22. Second, in the facts of this case, the charge-sheet which is
dated 24 October 2020 has been submitted to the competent court on 5
14 WP (Crl) 130 of 2020, decided on 19 May 2020
323
November 2020. The submission of the charge-sheet does not oust the
jurisdiction of a superior court, when as in the pr esent case, the
investigation is tainted and there is a real likelihood o f justice being
deflected. In Vinay Tyagi vs Irshad15, 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 canon
of the criminal jurisprudence that the superior courts hav e the
jurisdiction under Section 482 of the Code or even Article 226 of
the 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 in
law would be the same. The superior courts are even vested
with the power of transferring investigation from one agency
to another, provided the ends of justice so demand su ch
action. Of course, it is also a settled principle that this power
has to be exercised by the superior courts very spa ringly
and with great circumspection .”
(emphasis supplied )
The court held that wherever a charge-sheet has been submitted
to the court, even this Court would not ordinarily reopen the investigation
especially by entrusting it to aspecialized agency. However, in a proper
case, when the Court feels that the investigation by the polic e has not
been in the proper perspective and that in order to do complete justice,
where the facts of the case demand that the investigation be handedover
to a specialized agency, a superior court is not bereft of the authority to
do so. (Disha v. State of Gujarat [(2011) 13 SCC 337: (2012) 2 SCC
(Cri) 628] and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC
200: (2010) 2 SCC (Cri) 1006])
In Pooja Pal vs Union of India 16, a two judge Bench of this
Court, speaking through Justice Amitava Roy, observed that there was
no embargo on this Court to transfer an investigation to t he CBI after
submission of the charge-sheet in the following terms-
“79. The precedential ordainment against absolute prohibition for
assignment of investigation to any impartial agency like C BI,
submission of the charge-sheet by the normal investigating agency
15 (2013) 5 SCC 762
16 (2016) 3 SCC 135
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
in law notwithstanding, albeit in an exceptional fact situa tion
warranting such initiative, in order to secure a fair, honest and
complete investigation and to consolidate the confidence of the
victim(s) and the public in general in the justice adminis tering
mechanism, is thus unquestionably absolute and hallowed by time.
Such a measure, however, can by no means be a matter of course
or routine but has to be essentially adopted in order to live up to
and effectuate the salutary objective of guaranteei ng an
independent and upright mechanism of justice dispensation without
fear or favour, by treating all alike…..
81. The judicially propounded propositions on the aspects o f
essentiality and justifiability for assignment of further investigation
or reinvestigation to an independent investigating agency like CBI,
whether or not the probe into a criminal offence by the local/State
Police is pending or completed, irrespective of as wel l, the
pendency of the resultant trial have concretised over the year s,
applicability whereof, however, is contingent on the factual setting
involved 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 and
reliability is the precondition for a direction for further investigation
or reinvestigation, submission of the charge-sheet ipso fact o or
the pendency of the trial can by no means be a proh ibitive
impediment. The contextual facts and the attendant circumstances
have to be singularly evaluated and analysed to dec ide the
needfulness of further investigation or reinvestigation to unravel
the truth and mete out justice to the parties.”
Similarly, in Dharam Pal vs State of Haryana 17, a two judge
Bench of this Court, speaking through Justice Dipak Mishra (as the
learned Chief Justice then was), upheld the power of this Court to transfer
an investigation to the CBI, irrespective of the stage of the trial. It held:
“24. Be it noted here that the constitutional courts can direct for
further investigation or investigation by some other investigating
agency. The purpose is, there has to be a fair investigation and a
fair trial. The fair trial may be quite difficult unless there is a fair
17 (2016) 4 SCC 160
325
investigation. We are absolutely conscious that direction for further
investigation by another agency has to be very sparingly issued
but the facts depicted in this case compel us to exercise the s aid
power. We are disposed to think that purpose of justice commands
that the cause of the victim, the husband of the deceased, deserves
to 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 acc ept the
proposition that as the trial has commenced, the matter is beyond
it? That is the “tour de force” of the prosecution and if we allow
ourselves to say so it has become “idée fixe” but in our view the
imperium of the constitutional courts cannot be stifled or smothered
by bon mot or polemic….”
23. Having regard to the circumstances which have emerged on
the record, which have been adverted to in the earlier part of the
judgment, we are of the view that it is necessary to entrust a further
investigation of the case to the CBI in exercise of the powers of this
Court under Article 142 of the Constitution. The co nduct of the
investigating authorities from the stage of arriving at t he 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-she et evinces a
perfunctory rendition of the investigating authorities’ duty by a bare
reference to the facts and the presumption under Section 304B of the
IPC when the death occurs within seven years of the marriage. T he
stance taken by the Deputy Superintendent of Police in the Counter
Affidavit, filed a few days after forwarding the charge-she et, travels
beyond the scope of the investigation recorded in the charge-sheet with
respect to the veracity of the suicide note, medical examination of injuries
and the past miscarriages of the deceased. Critical fac ts of the money
trail 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 between
the issuance of non-bailable warrants on 09 September 2020 and interim
protection from arrest by the High Court granted on 22 September 2020.
As noted above, upon questioning during the hearing, the Counsel for
the State answered thatno investigation on the allegation of murder had
been conducted. It would indeed be a travesty if this Court w ere to
DR NARESH KUMAR MANGLA v. SMT. ANITA AGARWAL &
ORS. ETC. [DR. DHANANJAYA Y CHANDRACHUD, J.]
ignore the glaring deficiencies in the investigation conducted s o far,
irrespective of the stage of the proceedings or the nature of the question
before this Court. The status of the accused as propertied and w ealthy
persons of influence in Agra and the conduct of the investigat ion thus
far diminishes this Court’s faith in directing a further investigation by the
same authorities. The cause of justice would not be served if the Court
were to confine the scope of its examination to the wisdom of granting
anticipatory bail and ignore the possibility of a trial being concluded on
the basis of adeficient investigation at best or a biased one at worst.
24. Mr K M Nataraj, Additional Solicitor General of India has
appeared in these proceedings with Mr Arvind Kumar Sharma, and stated
that the CBI would abide by the orders of this Court.
E. Summation
25. We accordingly allow the appeal and issue the follow ing
directions:
(i) The order passed by the Single Judge of the High Court of
Judicature at Allahabad allowing the applications f or
anticipatory bail by the respondents-accused shall stand set
aside and the bail granted to them shall stand cancelled;
and
(ii) The CBI is directed to conduct a further investigation of
the case arising out of case Crime No.0623 of 2020
registered at Police Station Tajganj, District Agra, dated 7
August 2020.
26. The appeals are disposed of in the above terms.
27. Pending application(s), if any, stand disposed of.
Ankit Gyan Appeals disposed of