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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.       1331               OF     2012   (Arising out of SLP (Crl.) No. 1961 of 2012

Lavesh         .... Appellant(s)

Versus

State (NCT of Delhi)             .... Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Leave granted.

2) This appeal is filed against the final order dated  

05.12.2011 passed by the High Court of Delhi at New Delhi in  

Anticipatory Bail Application No. 1602 of 2011 whereby the  

High Court dismissed the application filed by the appellant  

herein.

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3) Brief facts:

(a) The appellant herein is the elder brother of the husband  

of the deceased - Vibha.  The appellant is engaged in the  

business of cutting of diamonds and getting them  

manufactured as per the specifications of his clients.  He is  

married for the last seven years and has two children.  

According to him, he resides with his wife and children in the  

separate portion of the house in Paschim Puri, New Delhi  

whereas one portion is occupied by his parents and one by his  

younger brother.   

(b) On 19.01.2010, younger brother of the appellant got  

married to Vibha (since deceased).  He lived with his wife on  

the first floor of the same house.  On 01.09.2011, Vibha,  

committed suicide.  On the same day, the mother of the  

deceased lodged a complaint against the family members of the  

husband of the deceased with the Police Station at Punjabi  

Bagh, New Delhi.   

(c) On the basis of the complaint, an FIR was registered vide  

No. 259/11 at Punjabi Bagh Police Station.  On the same day,  

the husband and mother-in-law of the deceased were arrested.  

The appellant herein moved an application for anticipatory  

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bail.  The Additional Sessions Judge, Delhi, by order dated  

05.11.2011, dismissed the said application.   

(d) Against the said order, the appellant moved an  

application for anticipatory bail before the High Court.  By the  

impugned order dated 05.12.2011, the High Court dismissed  

the said application.  Aggrieved by the said order of the High  

Court, the appellant preferred this appeal by way of special  

leave petition.

4) Heard Dr. Sarbjit Sharma, learned counsel for the  

appellant and Mr. Sidharth Luthra, learned Additional Solicitor  

General for the respondent-State.

5) The only point for consideration in this appeal is whether  

the appellant, who is elder brother of the husband of the  

deceased, has made out a case for anticipatory bail in terms of  

Section 438 of the Criminal Procedure Code, 1973 (hereinafter  

referred to as “the Code”)?

6) Before considering the claim of the appellant, it is useful  

to refer Section 438 of the Code relating to grant of bail to a  

person who is apprehending arrest which reads as under:

“438.  Direction for grant of bail to person apprehending  arrest – (1)  Where any person has reason to believe that he  may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court or the Court  

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of Session for a direction under this section that in the event  of such arrest he shall be released on bail; and that Court  may, after taking into consideration, inter alia, the following  factors, namely:-

(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as  

to whether he has previously undergone imprisonment  on conviction by a Court in respect of any cognizable  offence;

(iii) the possibility of the applicant to flee from justice; and  (iv) where the accusation has been made with the object of  

injuring or humiliating the applicant by having him so  arrested,

either reject the application forthwith or issue an interim  order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case  may be, the Court of Session, has not passed any interim  order under this sub-section or has rejected the application  for grant of anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without warrant the  applicant on the basis of the accusation apprehended in  such application. …….”

It makes it clear that in a non-bailable offence if a person has  

reason to believe that he may be arrested, he is free to apply to  

the High Court or the Court of Session praying that in the  

event of such arrest, he shall be released on bail.  The belief  

that the applicant may be arrested must be founded on  

reasonable grounds.  While considering such a request, the  

Court has to take into consideration the nature and the gravity  

of the accusation, antecedents, possibility of the applicant to  

flee from justice etc.  Further, normally, the Court should not  

exercise its discretion to grant anticipatory bail in disregard of  

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the magnitude and seriousness of the matter.  The matter  

regarding the unnatural death of the daughter-in-law at the  

house of her in-laws was still under investigation and the  

appropriate course to adopt was to allow the concerned  

Magistrate to deal with the same on the basis of the material  

before the Court.  

7) It is seen that the deceased had allegedly committed  

suicide after one year and eight months of marriage and  

further she was pregnant at the time when she had taken her  

life.  On the basis of the complaint filed by the mother of the  

deceased, an FIR was registered and during the course of the  

investigation, the police recorded the supplementary  

statements of Hira Lal, father of the deceased, the neighbour of  

the deceased near the matrimonial home as well as the  

complainant -mother of the deceased.   

8) According to the prosecution, if we look into all the above  

particulars coupled with the supplementary statements, it has  

been clearly made out, particularly, insofar as the appellant is  

concerned, that there was a definite allegation against him.  

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Further, the appellant and other family members subjected the  

deceased to cruelty with a view to demand dowry, right from  

the date of marriage and also immediately before the date of  

her death.

9) By placing the relevant materials and two status reports  

submitted by the police, Mr. Sidharth Luthra, learned ASG  

submitted that the appellant was a Proclaimed Offender.   To  

this effect, Mr. V. Ranganathan, Additional Commissioner of  

Police, West District, New Delhi, in his counter affidavit, filed  

in this Court on 25.06.2012, has stated that, “Efforts were  

made to arrest the petitioner but he absconded as such he  

was got declared a Proclaimed Offender.  The case is  

pending trial.”  The same has been reiterated in the status  

report filed by Mr. Virender Dalal, Station House Officer, P.S.  

Punjabi Bagh, New Delhi, before the High Court.     

10) From these materials and information, it is clear that the  

present appellant was not available for interrogation and  

investigation and declared as “absconder”. Normally, when the  

accused is “absconding”  and declared as a “proclaimed  

offender”, there is no question of granting anticipatory bail.  

We reiterate that when a person against whom a warrant had  

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been issued and is absconding or concealing himself in order  

to avoid execution of warrant and declared as a proclaimed  

offender in terms of Section 82 of the Code is not entitled the  

relief of anticipatory bail.   

11) On reading the FIR, statements of various persons  

including father and mother of the deceased, neighbours and  

supplementary statement of mother of the deceased clearly  

show that all the family members of the husband of the  

deceased including the appellant, who is elder brother of the  

husband of the deceased, subjected her to cruelty by  

demanding sizeable amount in order to settle the payment of  

Rs.5 lakhs of the allotted DDA flat.

12) Another circumstance against the appellant is that even  

though this Court on 23.03.2012, while ordering notice,  

granted interim protection, namely, not to arrest the appellant  

in connection with FIR No. 259/2011 registered at Police  

Station, Punjabi Bagh, New Delhi, it is the claim of the  

respondent-State that the appellant did not cooperate and visit  

the said police station.  Though Dr. Sarbjit Sharma, learned  

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counsel for the appellant, submitted that the appellant visited  

the police station on 23.03.2012, 20.07.2012, 24.07.2012 and  

27.07.2012, it is brought to our notice that at the relevant  

period, viz., 07.04.2012, 01.05.2012 and 18.06.2012, he  

neither visited the police station nor contacted Mr. Narender  

Khatri, Inspector – Investigation, Punjabi Bagh Police Station.  

The last three dates are relevant since after getting the interim  

protection granted by this Court on 23.03.2012, the appellant  

did not care either to visit the police station or to the  

Investigation Officer concerned.  The claim of his visit on later  

dates, particularly, in the month of July, 2012 have no  

relevance.  Considering his conduct, not amenable for  

investigation and, moreover, declaring him as an absconder,  

there is no question of granting anticipatory bail.  Thus, the  

conduct of the appellant does not entitle him to anticipatory  

bail as prescribed in Section 438 of the Code.

13) Taking note of all these aspects, in the light of the  

conditions prescribed in Section 438 of the Code and conduct  

of the appellant immediately after the incident as well as after  

the interim protection granted by this Court on 23.03.2012,  

we are of the view that the appellant has not made out a case  

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for anticipatory bail.  Unless free hand is given to the  

investigating agency, particularly, in the light of the allegations  

made against the appellant and his family members, the truth  

will not surface.

14) Under these circumstances, we are unable to accept the  

claim of the appellant.  On the other hand, we agree with the  

contentions raised by the learned ASG and confirm the  

impugned order dated 05.12.2011 passed by the High Court in  

Bail Application No.1602/2011.  

15) We make it clear that while upholding the rejection of the  

anticipatory bail, we have not expressed any opinion on the  

merits of the case.  We also clarify that after surrender, the  

appellant is free to move bail application before the Court  

concerned which may be disposed of in accordance with law.   

16) With the above observation, the appeal is dismissed and  

the interim protection granted by this Court on 23.03.2012  

stands vacated.  The appellant is directed to surrender within  

a period of one week from today.

...…………….…………………………J.            (P. SATHASIVAM)                                 

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..…....…………………………………J.    (RANJAN GOGOI)  

NEW DELHI; AUGUST 31, 2012.  

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