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CR.MA/1411/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1411 of 2010
=========================================================
KUVARSINH
@ RAJU MANSINH KUSHAVA RAJPUT & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
SOEB R BHOHARIA for
Applicant(s) : 1 - 3.
MS ML SHAH, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 19/02/2010
ORAL
ORDER
This
is an application under Section 439 of the Code of Criminal
Procedure, 1973 [ Code for short] by the applicants who came to
be arrested in connection with I CR No. 102 of 2009 registered with
Ambaji police station for the offence punishable under Sections 302,
201, 304B and 34 of IPC and sections 3 and 7 of Dowry Prohibition
Act.
Mr.
SR Bhoharia, learned advocate for the applicants submitted that the
applicants are innocent persons and they have not committed any
offence alleged in the complaint. It is submitted that considering
the role attributed to the applicants, statements of witnesses and
the fact that since the investigation is over and charge-sheet is
already filed, they deserve to be enlarged on bail. Learned advocate
further placed reliance on the order dated 17.11.2009 passed by this
Court [Coram: Akil Kureshi, J.] in Criminal Misc. Application No.
12400 of 2009 and submitted that sister-in-law of the deceased has
already been enlarged on bail. Considering the aforesaid fact and
since the applicants are also identically situated like sister-in-law
of the deceased, they deserve to be enlarged on bail even on the
ground of parity.
Ms.
M.L. Shah, learned APP representing the opponent State, placing
reliance on the order dated 17.11.2009 passed by this Court [Coram:
Akil Kureshi, J.] in Criminal Misc. Application No. 12400 of 2009,
submitted that sister-in-law of the deceased was staying separately
and her case stands on different footing than the case of the present
applicants. As the present applicants were staying with the deceased
and they subjected the deceased to cruelty and harassment and
abetted the husband in the aforesaid act, their case cannot be
equated with sister-in-law who was staying separately and enlarged on
bail by this Court. Thus, considering the aforesaid aspect and
provisions of Section 304B of Indian Penal Code, which is with regard
to dowry death, no discretionary relief be granted to the applicants
and the application deserves to be dismissed.
I
have heard the learned advocate Mr. Bhoharia for the applicants and
Ms. M.L. Shah, learned APP for the opponent State, at length and in
great detail. I have considered the averments made in the
application, role attributed to the applicants and the manner in
which the offence is committed by the applicants. Statements of
witnesses which are referred to by the learned advocates of both the
sides are perused by me. Deceased was subjected to mental and
physical cruelty by the applicants and that fact is borne out from
the statements of witnesses.
Section-304B
of IPC is also perused by me. It is with regard to dowry death. It is
stated therein, that where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by
her husband or any relative of her husband for, or in connection
with, any demand for dowry, such death shall be called dowry
death and such husband or relative shall be deemed to have caused
her death. Sub-section [2] of Sec.304B prescribes punishment for
dowry death for not less than seven years and it may extend to
imprisonment for life.
Thus,
considering the role attributed to the applicants as discussed herein
above and from perusal of police papers, no discretionary relief, in
my view, be granted to the applicants. Case of the applicants cannot
be equated with the case of the sister-in-law who is already enlarged
on bail and was staying separately from the deceased and other family
members. Thus, considering the aforesaid aspect, the applicants, in
my view, are not entitled to claim discretionary relief and as there
is no merit in the application, the same is dismissed. Rule is
discharged.
[H.B.
ANTANI, J.]
pirzada/-
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