JUDGMENT
Badar Durrez Ahmed, J.
1. This application for anticipatory bail was argued by Mr Mathur, the learned senior counsel appearing for the applicant who is the mother-in-law of the deceased. The case pertains to FIR No. 6/2004 registered at Police Station Keshav Puram, under Section 304B, 498A and 34 I.P.C. on 4th of January, 2004. Mr Mathur states that the applicant is 62 years of age and that the death of the deceased occurred not in the matrimonial home or in the home in which the petitioner and her husband resided but in the paternal home. This fact is disclosed in the FIR itself where the father has stated that he had taken away the deceased on 4.12.2003 to his home. The deceased committed suicide on 4.1.2004. Accordingly, Mr Mathur submits that there is no proximate connection between the petitioner’s alleged action and the incident of suicide by the deceased. In fact, Mr Mathur made a pointed reference to the statement in the FIR to the following effect:-
“In between, the husband of the girl used to harass the girl by coming at our house and gave threats to withdraw the case.”
Thus, according to Mr Mathur, there is no allegations in the period which the deceased was at the father’s house in respect of the petitioner and the only allegations contained in the FIR are with regard to the husband who is already in custody. In view of the foregoing facts, he submitted that the case under Section 304B, at least, is not made out against the present applicant and also in view of the fact that the petitioner is a lady of over 62 years of age, she ought to be granted anticipatory bail.
2. Mr Dudeja, the learned counsel for the State opposed the grant of anticipatory bail on two grounds. First of all, he argued on the maintainability of the application itself. He submitted that earlier an application for anticipatory bail was moved by this very petitioner before this Court and the same had been withdrawn on 21.5.2004. Thus, according to him the second bail application under Section 438 of the Code of Criminal Procedure, 1973 was not maintainable. Secondly, in any event, he submitted that the Court ought not to grant anticipatory bail on merits also.
3. On the maintainability issue, Mr Dudeja referred to three decisions of the Supreme Court:-
1. Ram Govind Upadhyay v. Sudarshan Singh and others, .
2. Samunder Singh v. State of Rajasthan and Others, .
3. Madhu Mehta v. Union of India, .
Taking up the first decision of the Supreme Court , it appears that in that case earlier the application for bail had been rejected and upon a subsequent application the High Court had granted bail. In this context, the Supreme Court had observed in paragraph 9 thereof as under:-
“……. It is a duty incumbent on to the High Court to explicitly state the reasons as to why the sudden departure in the order of grant as against the rejection just about a month ago.”
In the present case however, I find that first of all there was no rejection on merits of the bail application. The application itself had been withdrawn and the same was recorded in the order dated 21.5.2004. Secondly, in the case before the Supreme Court the second bail application was considered only within one month of the first application having been rejected. In the present case, the withdrawal of the earlier bail application was made on 21.5.2004, i.e. almost eight months ago. The second case that was relied upon by the learned counsel for the State pertains to the unnatural death of the daughter-in-law at the house of the father-in-law. There the Supreme Court observed in the facts of that case that the High Court ought not to exercise its jurisdiction to release the accused on anticipatory bail in disregard of the magnitude and seriousness of the matter of this nature. It is true that there is no compulsion on the High Court to grant or not to grant anticipatory bail and the facts of each case have to be considered before a bail application is accepted or rejected. In the case before the Supreme Court the unnatural death had occurred in the matrimonial home itself and the allegations appeared to be severe and there appear to be a live link between the fact of cruelty based on dowry demand on the part of the accused therein and the death of the victim. However, in the present case, I find that at least insofar as the mother-in-law (present petitioner) is concerned, for a period of one month during which the petitioner was in paternal home, there was no contact between her and the deceased and the allegation in the FIR are in respect of the husband who is already in custody. As such, the said decision of the Supreme Court would not come in the way of consideration of grant of bail to the present petitioner. The third decision relied upon by Mr Dudeja dealt with the situation where a series of bail applications had been made and had been earlier rejected. Some of these rejection orders were not placed before the High Court which had ultimately passed the order granting the bail. It is in this context, that the Supreme Court observed as under:-
“Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody’s case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation.”
4. The situation obtaining in the present case is quite different. First of all, there is no rejection of the bail application on merits by this Court. The earlier bail application had been withdrawn on 21.5.2004. Secondly, the gap between the two applications is not such a short one as in the case before the Supreme Court. Moreover, the learned counsel for the petitioner has shown some orders passed by this Court in the quashing petition filed by the petitioner which is pending before this Court in which interim protection had been granted. Therefore, none of the decisions cited by the learned counsel for the State would come in the way of the grant of bail to the petitioner. Insofar as the merits are concerned, there cannot be any denial of the fact that the offence is of a grievous nature. However, at the same time, it has to be understood that it is the actual offenders who are to be in custody and not all family members are to be roped in.
5. As noted above, prima facie, there does not appear to be a proximate or live link between the conduct of the present petitioner and the death of the victim. Accordingly, this is the fit case in which anticipatory bail ought to be granted. The petitioner shall be released on bail in the event of her arrest on her furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the arresting officer. It goes without saying that she shall continue to join investigation as and when directed by the Investigation Officer.