G.R. Luthra, J.
(1) The present petition under Section 439(2) of the Code of Criminal Procedure (in short the Code) is for cancellation of bail of Jitender Chopra and Man Mohan Chopra respondents granted to them on 1st September, 1979 by Shri N.C. Goel, Additional Sessions Judge, Delhi. According to the prosecution respondents had committed an offence of murder by causing the death of Smt. Kanchan Chopra by burning punishable under Section 302 read with Section 34 Indian Penal Code.
(2) Smt. Kanchan Ghopra was daughter of Shri Madan Lal Bedi. She was employed as a Stenographer in the office of Union Public Service Commission. She was married to Jitender Chopra respondent on February 9, 1978. Out of the wed-lock a child was born. Respondent No. 2 Man Mohan Ghopra is father of Jitender and father-in-law of Kanchan deceased.
(3) Relations between Jitender and Kanchan were strained. The version of the prosecution is that both the respondents were dowry hungry and that on account of ever unsatisfied greed they were forcing Kanchan to bring money from her parents from time to time.
(4) On 27thJune, 1979, as usual, Kanchan went from her matrimonial home to her office in the Union Public Service Commission. However instead of returning to her matrimonial home, she went straight to her parents residing in a house at Malvia Nagar and told her parents that she would not go back to the house of her husband because her husband was demanding money from her with a view to enable him to purchase a scooter. When Kanchan did not reach back her husband's house, where she had left her small child, her husband, that is, respondent No. 1 accompanied by his father, i.e. respondent No. 2 reached the house of the parents of Kanchan at about 8.30 P.M. with a request that she should be sent back along with them to the matrimonial home. M.L. Bedi, the father of Kanchan was not agreeable, but ultimately he was prevailed upon to accede to the request of the respondents. The net result was that at about 10 P.M. Kanchan was brought back to the house of the respondents accompanied by her younger brother Sunil. It was promised by respondents that Kanchan would be sent back to her parental home in the evening of 28th June, 1979. ShriM^L. Bedi, father of Kanchan accompanied by one Chander Malhotra went to the house of the respondents, where they were assured by a sikh gentleman, who was living in a neighbouring house, that no harm. would come to Kanchan and that they may go back. Accordingly Shri M.L. Bedi and Sunil, father and brother respectively of Kanchan went away to their house leaving Kanchan with her husband and her father-in-law.
(5) At about I A.M. on the night between 27th and 28th June, 1979, that is hardly few hours of arrival of Kanchan, at her matrimonial home in the manner mentioned above, she was found having hundred percent burns in a very small bath room of the house of respondents of the dimensions of 4'.7' in length, 3'.2' in breadth and 8'.10' in height. She was removed to Dr. Ram Manohar Lohia Hospital by Jitender Chopra respondent at about 1 .45 A.M. where she died.
(6) At about 5.30 A.M. on 28th June, 1979, Jitender Chopra lodged F.I.R. No. 480 under section 309 Indian Penal Code at Police Station Patel Nagar to the effect that Kanchan had attempted to commit suicide. The investigation on the basis of that F.I.R. continued till 29thJune, 1979. On which date at about 10 A.M. Shri M.L. Bedi, the unfortunate father of Kanchan lodged F.I.R. No. 482 under Section 302 read with Section 34 Indian Penal Code indicting both the respondents as the murderers of Kanchan because of strained relations between husband and wife on account of hunger and greed of the respondents for dowry having remained unsatiated. Because of dissatisfaction of M.L. Bedi in respect of the investigation carried out by the local Police, the investigation was transferred to the Special Staff, Central District, Delhi who arrested the respondents on 21st July, 1979.
(7) The respondents filed separate petitions in the Sessions Court for grant of bail which) as already stated, were heard and decided on 1st September 1979 and bail was granted. Each of the respondent is on bail. The present petition was filed on 30th day of November 1979. It is contended by the State (Delhi Administration) that the learned Additional Sessions Judge had laid too much emphasis on the circumstances supporting the version of suicide, that Kanchan was without any sympathizer or well wisher, that both the respondents had ample time to create false circumstances and evidence for showing suicide and that the learned Sessions Judge had not taken into consideration many circumstances which raised reasonable grounds to believe that respondents had committed murder and that, thereforee, they were not entitled to bail. Inter-alia following circumstances have been mentioned by the petitioner in the petition :
(A)That the two respondents were present in the House at the time when the burning took place.
(B)That unless Kanchan Chopra deceased was burnt to the extent of 100% the respondents had no occasion to suspect anything so as to be directed to the bath room which was situated in a very small house and they did not hear any shrieks of the deceased.
(C)That the size of the bath room, the alleged place of occurrence was about 3' x 4.5' and there were no marks of buring of flames on the walls of the bath room or on the door of the wooden plank or on the ceiling except smoke stains.
(D)That the plastic mug, plastic chappal and a live match box were found in the bath room without being burnt or charred.
(E)That the recovery of Sari hung on the water top of the bath room could escape being burnt completely.
(F)That the kerosene oil tin was not recovered from the bath room but instead was outside the bath room. A person committing suicide would not keep the kerosene oil tin after sprinkling the same on the body away from, the place where the suicide is committed.
(8) In Gurcharan Singh & others V. Slate A. 1. R. 1978 S. G. 179 it is laid down as to when bail already granted by the Court of Sessions should be cancelled by the High Court. Relevant observations are in para 26 on page 186 which read as under :
'INthe present case the Sessions Judge having admitted the appellants to bail by recording his reasons we will have to see whether that order was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice to interfere with his discretion in granting the bail.'
So it is to be seen if there was any serious infirmity in the order of the learned Additional Sessions Judge on account of which it is in the interest of justice, to interfere with the discretion in granting bail.
(9) The learned counsel for the respondents laid great stress on a number of circumstances prima facie indicating that the present was a case of suicide and those Circumstances seem to have influenced the learned Additional Sessions Judge. Briefly stated, they are as under :
(A)Soon after the burning of Kanchan three neighbours came and in their presence Jitender told Kanchan as to what she had done, thereby indicating that the respondents had no hand in her burning.
(B)It was respondent Jitender who had taken Kanchan to Hospital. Had there been case of murder the respondents must have ensured that she was dead before she was taken out of the house.
(C)There was promptness on the part of the respondents to inform parents about the incident.
(D)Kanchan was earning hand and it could not be possible that the respondents, if they were greedy, as has been represented by the prosecution should kill a hen laying golden eggs and on the other hand they should have been to it that she survived and went on earning and giving her earnings to her husband.
(E)It was with promptness that Jatinder Ghopra lodged F.I.R. in respect of suicide.
(F)Father of Kanchan lodged report of murder after delay of about 33 hours.
(G)It has not been suggested to where Kanchan was burnt if her burning did not take place in the bath room.
(H)Accused were not arrested till 21st July 1979.
(I)Two notes in the hand of Kanchan recovered from the house of respondent suggested suicide.
(J)Respondents have been on bail since 1st September 1979 and there is no allegation that any of them had misused privilege. Investigation has been slow and there is hardly any justification for sending the respondents to jail.
(10) I do not wish to express any opinion on the circumstances relied upon by the respondent on one hand and the prosecution on the other hand so as to avoid prejudice to trial. But at the same time due weight is to be given to what prosecution says and it is to be seen if there is prima facie case of murder. The learned Additional Sessions Judge did not keep that aspect in his mind and seems to have been swayed by only what defense had put forward in support of version of suicide.
(11) Now what is urged by the prosecution is being stated. It is very important to note that as alleged by prosecution. Kanchan did not want to go back to her matrimonial home and she had been brought by the respondents on the ill fated day of 27th June 1979. Had she been so adamant against going to her matrimonial home and she preferred ending her life, she could have easily refrained from acceding to the entreaties of the respondents and could have with frankness and firmness told her parents that she preferred death to returning to house of respondents. The fact that she was taken back and on the very night she was found burnt gives indication of a well thought out plan on the part of the respondents to get riddance by finishing her up. There was good reason for nursing grudge and desire to avenge on the part of respondents because Kanchan caused humilation to respondents when she went to her parents home rather than going to matrimonial home and told her parents about the greed of Jitinder Chopra respondent for money for scooter.
(12) The very existence of suicide notes on which much emphasis, is being laid by the respondents, tells a tale. It was hardly expected that when Kanchan was so fed up with her husband and in-laws she should try to save them by way of writing suicide notes. Such notes prima facie give impression of having been obtained under coercion in pursuance of a pre-plan to finish her with impunity.
(13) The other circumstances relied upon by the respondents and learned Additional Sessions Judge pale into insignificance as against the aforesaid circumstances for raising reasonable ground to believe that the respondent had committed murder those circumstances are capable of Explanationn. Statements of neighbours that soon after the burning Jatinder was asking from Kanchan as to what she had done is of no significance at all. She was hardly conscious so as to be able to respond and posing such question was merely an attempt to create evidence of innocence on the part of Jatinder. Promptness of lodging a report of suicide and removing Kanchan to the hospital was of no consequence because when there were 100 per cent burns and Kanchan was unconscions, the respondents must be sure that there was no chance of her survival and that they must show aforesaid promptness to strengthen theory of suicide. No doubt Kanchan was laying golden eggs, but may be the greed of respondents was not satisfied with those eggs alone and they wanted her parents to shed more money than what had been given. Delay on the part of the father of Kanchan in making allegations of murder can be ascribed to the fact that the Local Police was mixing up with the respondent. Circumstances of mixing up aforesaid could be gathered from the fact that afterwards investigation had been transferred to special staff.
(14) Having regard to totality of circumstances as are available, it is apparent that there is serious infirmity in the order of the learned Additional Sessions Judge granting bail when there was prima facie case of murder. But having regard to the fact that active part is ascribed by prosecution to Jatinder Chopra respondent and also having regard to the fact that father of Jatinder Chopra namely Manmohan Chopra respondent No. 2 is of old age. I am of the view that interests of justice demand that let his bail be not cancelled and that of Jatinder Chopra alone be cancelled.
(15) I, thereforee, cancel bail of Jatinder Chopra and direct that he should be arrested immediately and sent to the jail. It is made clear that all these observations are without prejudice to and will not effect decision of the case on merits. A copy of this order be sent to the learned Sessions Judge, Delhi for ensuring compliance.