BAIL APPLN./491/2016 of GAURAV GAUTAM Vs STATE

* IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. 491/2016 GAURAV GAUTAM Through Gautam, Advs. versus STATE

..... Petitioner Through Mr Rakesh Tikku, Sr. Adv. with Mr Prakash Gautam, Advs. versus ..... Respondent Through Mr Ashok Kumar Garg, Additional Public Prosecutor for the State alongwith Sub Inspector Sandeep Shrivastava Police Station Maurya Enclave, Delhi Mr Sanjay Suri, Adv. for complainant

CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA O R R% 06.04.2016

By virtue of this application under Section 438 of Cr.PC, the petitioner seeks anticipatory bail in case FIR No.1100/2015 under Section 307 IPC registered at Police Station Maurya Enclave, Delhi.

The police machinery swung into action on receipt of PCR call vide DD No.22B received at Police Station Maurya Enclave, Delhi whereby ASI Jagbir Singh reached Maheshwari Hospital, Pitampura, Delhi where he collected MLC of Ms Ritu Gautam and it was learnt that she has been shifted to Max Hospital, Shalimar Bagh, Delhi. The complainant was opined to be unfit for statement by the doctor on 16.11.2015. Thereafter, her statement was recorded wherein she stated that she has been working as A.O. in United India Assurance Limited. On 15.11.2015 between 11 am to 12 pm when she was alone at her matrimonial home, her husband – Gaurav Gautam (petitioner herein) forcibly laid her on the ground and poured All-Out in her mouth and made her drink All Out and swallow some pills / tablets. Hardly two years had passed after their marriage when she filed complaint regarding dowry demand, beatings and abusing in her parental home at Sonepat when the accused apologized and brought her back to her matrimonial home. However, his behaviour did not change and he kept on repeating the same things. On that day, her husband tried his best to kill her and she became unconscious. He brought her to small private nursing home but someone informed her parents who took her to Max Hospital for better treatment. This statement culminated in registration of FIR under Section 307 IPC.

Learned senior counsel for the petitioner submits that even if the averments made in the FIR are assumed to be correct even then no case under Section 307 IPC is made out. It was

submitted that as per FSL report, the exhibit was found to contain transfluthrin and acetaminophen. He further submits that transfluthrin is fast-acting insecticide which is used in household and hygiene products mainly against flying insects, such as mosquitoes and flies, but also against material pests, such as moths (Pflanzenschutz Nachrichten Bayer, Special eidition, 1995, Bayer AG, Leverkusen). It was submitted that symptoms of poisoning with pyrethroid compounds are at the most:

(i)Irritation of skin and eyes.

(ii)Irritability to sound or touch, abnormal facial sensation, sensation of prickling, tingling or creeping on skin, numbness. tingling or creeping on skin, numbness.

(iii)Headache, dizziness, nausea, vomiting, diarrhea, excessive salivation, fatigue.

(iv)In severe cases – fluid in the lungs and muscle twitching may develop, seizures may occur and are more common with more toxic cyano-pyrethroids. may occur and are more common with more toxic cyano-pyrethroids.

–As regards acetaminophen this drug is used to treat mild to moderate pain (from headaches, menstrual periods, toothaches, backaches, osteoarthritis, or cold / flue aches and pains) and to reduce fever. This drug has no side effects. It is further submitted that custodial interrogation of the petitioner is not required as already gastric lavage of the complainant was taken which was sent to FSL from where report has already been received. It was the complainant herself who consumed the aforesaid items. It was the petitioner himself who took her to hospital. If there was any forceful administration of any substance by the petitioner to the complainant in that case same would have led to scuffle resulting in some injury either on the petitioner or on the complainant but as per the medical report, there was no mark of any injury on the person of complainant. The petitioner has deep roots in the society. He was granted interim protection which was not misused by him as such he be released on anticipatory bail. Reliance was placed on Siddharam Satlingappa Mhetre v State of Maharashtra and others, (2011) 1 SCC 694; Arnesh Kumar v State of Bihar and another, (2014) 8 SCC 273; and Tara Chand v State of NCT of Delhi, 2015 (3) AD (Delhi) 694.

The application is vehemently opposed by learned counsel for the complainant as well as learned Additional Public Prosecutor for the State. It is submitted by learned counsel for the complainant that the complainant got married with the petitioner on 03.03.2014 at Sonepat. The complainant had lodged complaint with CAW Cell at Sonepat in March, 2015. The matter was patched up in mediation and the parties started living together in April, 2015. However, the behaviour of the petitioner did not improve and while living together, he filed divorce petition. His whole endeavour was to get rid of complainant either by legal or illegal means. Despite the

fact that the parties were living together he kept on pursuing the divorce petition and on the fateful day he forcibly administered poisonous substance to the complainant and also made her to swallow some tablets. Counsel further submits that transfluthrin is fast acting pyrethroid insecticide and the symptoms of poisoning include nervousness, anxiety, skin diseases, etc. As regards acetaminophen, excessive dose of the same can cause liver injury. Some literature was filed for showing that many individuals with paracetamol toxicity may have no symptoms at all in the first 24 hours following overdose. With progressive disease, signs of liver failure may develop; these include low blood sugar, low blood pH, easy bleeding and hepatic encephalopathy. Some will spontaneously resolve although untreated cases may result in death. Reference was also made to medical report of Maheshwari Hospital. As such it was submitted that keeping in view the seriousness and gravity of the offence, the petitioner is not entitled to be granted anticipatory bail.

Learned Additional Public Prosecutor for the State also strongly opposes the application on the ground that the petitioner has committed heinous offence and tried to kill his wife. His custodial interrogation is required to know which pills / tablets were administered to the complainant and to unearth the whole offence. The investigation is at its early stage and in case bail is granted, the petitioner may threaten the complainant and may tamper with the evidence.

The provisions of Section 438 of the Code lays down the comprehensive guidelines for consideration of the Court while granting or refusing anticipatory bail. The said provisions 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 (an) accusation of having committed non-bailable offence, he may apply to the High Court or the Court of Session for 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- (1) Where any person has reason to believe that he may be arrested on (an) accusation of having committed non-bailable offence, he may apply to the High Court or the Court of Session for 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 Court in respect of any cognizable offence; he has previously undergone imprisonment on conviction by 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” 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”

The aforesaid provision mandates that it is on the Court considering an application for

grant of anticipatory bail to ensure compliance with the prerequisite conditions enlisted therein for grant of such bail including the nature and gravity of the accusation.

In Siddharam Satlingappa Mhetre(supra), Hon’ble Supreme Court laid down the following factors and parameters to be taken into consideration while dealing with the application for grant of anticipatory bail:

“i.The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it 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.”

The aforesaid parameters clearly reflect that while dealing with such application, the nature of gravity of the accusation and the role of the accused has to be taken into consideration.

It is not in dispute that there was matrimonial discord between the parties with the result within two years of marriage, complaint was lodged by the complainant under Sections 498A/406 IPC against the petitioner and his family members at Sonepat, Haryana in March, 2015. However, as per status report, in her statement made to police which became bedrock of investigation and statement made before the Executive Magistrate, Saraswati Vihar, Sub-Division, Delhi she reported that the petitioner and his family members apologized for their acts and assured to keep the complainant with love and as such she came back to her matrimonial home. Things, however, did not improve. On 15.11.2015, petitioner tried to kill her by forcefully making her to swallow All Out and 10 -15 tablets. She was removed to Maheshwari Hospital by the petitioner where it was reported that there was some quarrel in the family and there was history of “ingestion” of mosquito repellent. It is the submission of learned senior counsel for the petitioner that the petitioner may be guilty of some other offence but no offence under Section 307 IPC is made out because as per FSL report exhibits sent to Laboratory was found to contain transfluthrin and acetaminophen which, according to him, is not fatal for human beings, therefore, it cannot be said that the petitioner intended to cause such injuries to the complainant which could have taken her life. In this regard, it may be mentioned that at this stage, it will be preposterous to express any opinion as to whether offence under Section 307 IPC is made out or not as the investigation is at its threshold.The gravity of the offence cannot be lost sight of as as per the averments made in the complaint, it was the petitioner who forcibly laid the complainant on the ground and poured All Out in her mouth and made her to swallow some pills / tablets. As per the medical report of Maheshwari Hospital, it was observed that the patient was kept under observation and explained that cardiac, respiratory, liver, kidney effects can come any time in 24 hours time. Moreover, the literature provided by counsel for the petitioner himself mentions that too much acetaminophen may cause serious (possibly fatal) liver disease. It was advised that it should not be taken more than 4000 ml. Gm (4 gm) day. People with liver problems and children should take less acetaminophen. Moreover, any other drug containing acetaminophen should not be taken without advise of the doctor. Keeping in view the effects of transfluthrin and acetaminophen administered to the complainant with the previous history of matrimonial discord leading to filing of the complaint against the petitioner and his family members at Sonepat, Haryana which ultimately resulted in settlement, the parties started living together yet the petitioner continued pursuing

his divorce petition makes the circumstances more grave and serious in nature which cannot be lost sight of while considering the application for grant of anticipatory bail.

As per the status report custodial interrogation of the petitioner is required to know which pills / tablets were injected to the complainant and to unearth the whole offence. However, according to learned senior counsel for the petitioner, nothing is required to be ascertained from the petitioner once gastric lavage was sent to FSL and the report has been received and, therefore, no custodial interrogation is required. Same may be true, but, at the same time, at the cost of repetition, the seriousness and gravity of the offence cannot be lost sight of.

Arnesh Kumar (supra) replied upon by the petitioner, with due respect, does not help the petitioner because in that case, various directions were given to the police before arresting the accused where offence is punishable for imprisonment for term which may be less than 7 years or which may extend to 7 years. However, in the instant case, the FIR has been registered under Section 307 IPC which is punishable with imprisonment up to ten years and fine and in case hurt is caused it can go up to life imprisonment. In Tara Chand (supra), the petitioner was granted anticipatory bail on the facts and circumstances appearing in that case. The factual scenario appearing in the instant case are entirely different.

That being so, in my opinion, the petitioner does not deserve the benefit of grant of anticipatory bail at this stage when investigation is still in progress. That being so, the application is accordingly dismissed.

It is, however, clarified that the observations made herein before shall not tantamount to expression of any opinion on the merits of the case.

APRIL 06, 2016/rd

SUNITA GUPTA, J