Karnataka High Court
Zarina W/O Riyazahmed Basrikati vs The State Of Karnataka on 24 January, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.P No. 103504 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL PETITION NO.103504 OF 2024
[438(Cr.PC)/482(BNSS)]
BETWEEN:
ZARINA W/O RIYAZAHMED BASRIKATI,
AGE: 58 YEARS, OCC. HOUSEHOLD,
R/O. #1021, BHATKANDE GALLI,
MOUJE NANDGAD, NANDGAD, BELAGAVI-591120.
... PETITIONER
(BY SRI A.A. PATHAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(THROUGH NANDGAD POLICE STATION)
BY H.C.G.P HIGH COURT BENCH,
DHARWAD HIGH COURT BUILDING BENCH,
DHARWAD-580008.
MANJANNA
Digitally
signed by
MANJANNA E
... RESPONDENT
E Date:
2025.01.24
14:18:37
+0530
(BY SRI JAIRAM SIDI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S.438 OF CR.P.C.
(482 OF BNSS), SEEKING TO GRANT ANTICIPATORY BAIL TO THE
ABOVE NAMED PETITIONER/ACCUSED NO.2 IN NANDGAD POLICE
STATION CRIME NO.130/2024 DATED 27.09.2024, FOR THE
ALLEGED OFFENCES PUNISHABLE U/S.85, 115(2), 126(2),
103(1), 351(2)(3), 3(5) OF BHARATIYA NYAYA SANHITA 2023
AND SECTION 3 AND 4 OF DOWRY PROHIBITION ACT, 1961
PENDING BEFORE THE ADDL. CIVIL JUDGE(JR.DN.) AND J.M.F.C,
KHANAPUR, BELAGAVI, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 103504 of 2024
ORAL ORDER
(PER: THE HON’BLE MR. JUSTICE RAVI V.HOSMANI)
This petition is filed by accused no.2 (petitioner) under
Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023
(‘BNSS’ for short) for grant of anticipatory bail in Crime
no.130/2024 of Nandgad Police Station for offences punishable
under Sections 80, 85, 115 (2), 126 (2), 103 (1), 351 (2) read
with Section 3 (5) of Bharatiya Nyaya Sanhita, 2023 (‘BNS’, for
short) and Sections 3 and 4 of Dowry Prohibition Act, 1961
(‘DP Act‘ for short).
2. Sri AA Pathan, learned counsel for petitioner
submitted, petitioner was 62 years of age, a homemaker, a law
abiding citizen and permanent resident of Nandgad village
residing there with her husband – accused no.3 and her son –
accused no.1. It was submitted, that she was suffering from
acute arthritis. And though, she had not committed any
offences, she was apprehending arrest on basis of false
complaint filed by Abdulrahim Rajesab Honnapur
(Complainant), on 27.09.2024 stating that about four months
earlier, Mudassar Basarikatti (accused no.1) had sought
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CRL.P No. 103504 of 2024
marriage alliance with his daughter Arsha Ahmadi (victim). As
same was acceptable to both families, their marriage was
solemnized on 09.06.2024. At that time victim was given 1½
tolas of gold. But eight days after marriage, accused no.1
began teasing her by stating that she was not from affluent
family and had not got either five lakhs worth gold,
refrigerator, washing machine, etc., which she informed
complainant when she came home. She was sent back after
advising. But, one month thereafter, when she came back
again, she told about petitioner body shaming her etc. Once
again after consoling her she was sent back. Complainant along
with his wife and children went to house of accused and
advised them to take good care of victim which they had
agreed. But on 25.09.2024, petitioner called complainant to
advise victim again. When they met victim, she told him that
accused had not allowed her to speak with her parents and
prevented her from going to them by stating that she would be
allowed only after arranging for Five Lakhs rupees. And at 9:00
p.m. on Monday, when she was sleeping accused came
together and forced her to drink some medicine despite her
refusal. Complainant had at that time consoled her that same
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CRL.P No. 103504 of 2024
may be for her benefit. Thereafter, he came back by leaving his
wife to take care of victim. But, later his wife called him stating
that victim had not recovered. When he went back with his
children, they found that she had been made to drink pesticide.
When they intended to take her to hospital, accused no.1 had
demanded them to pay Rs.5 lakhs first and thereafter take her
to hospital. Only after village elders assembled and advised,
victim was permitted to be taken to Venugrama hospital at
Belagavi. While under treatment, victim had told complainant
about accused beating her and by stating that she was from a
poor family and a burden to them forcibly made her consume
pesticide, with intention to kill her and thereafter, locked her up
in a room. Based on said complaint, Crime no.130/2024 was
registered for non-bailable offences as stated above.
3. It was submitted, accused no.1 was arrested on
28.09.2024. It was submitted, application for anticipatory bail
was filed before filing of charge-sheet. Prosecution had in
meanwhile completed investigation and filed charge-sheet on
23.12.2024. It was submitted, during her admission at
Venugrama hospital, victim was certified on 26.09.2024, as not
fit to give her statement. It was submitted, similar
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CRL.P No. 103504 of 2024
endorsement was made on 27.09.2024, 28.09.2024 and
29.09.2024. It was submitted, when Investigating Officer (‘IO’)
had requested Tahasildar and Taluka Magistrate to record her
dying declaration, he had refused by referring to doctor’s
certificate. Contrary to above endorsements, it was thereafter
stated that victim had given statement in writing on
27.09.2024 implicating accused for forcing her to drink
pesticide.
4. Apart from above, statement of CW-10 –
Dr.Madhukar Patil recorded on 02.10.2024 was that on
25.09.2024 petitioner had taken victim for treatment at 4:30
p.m. by claiming that she was suffering from vomiting,
dysentery and urination. Therefore, he had administered saline
solution. But, at 7:30 p.m., he came to know that she had
consumed poison and therefore sent for treatment to
Venugrama hospital. It was pointed out that CW-10 had stated
about victim consuming poison.
5. It was submitted, in statement recorded under
Section 183 of BNSS on 12.11.2024, complainant had sought to
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CRL.P No. 103504 of 2024
improvise by stating, while under treatment at Hospital, victim
had held her Thali and told him not to spare her husband.
6. Learned counsel further drew attention to contents
of complaint wherein it was stated “after discussion, complaint
was filed”, to contend that there was ample scope for
improvisation. It was submitted, complaint averments in any
case fell short of substantiating ingredients of Section 80 of
BNS. It was submitted, rejection of bail petition by learned
District Judge was solely on ground that petitioner may hamper
investigation. Since charge-sheet was filed, said apprehension
did not survive. In support of his submissions, learned counsel
relied upon decision of Hon’ble Supreme Court in case of Asha
Dubey v. State of Madhya Pradesh, (Crl.A.no.4564/2024
disposed of on 12.11.2024) wherein, under similar
circumstances on arrest of husband of deceased, anticipatory
bail was granted to mother-in-law of deceased, on conditions.
On above grounds sought for grant of bail on any conditions
7. On other hand, Sri Jairam Siddi, learned HCGP for
respondent – State opposed petition. At outset, it was
submitted offence alleged against petitioner were heinous. It
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was submitted, death of victim was within four months of
marriage, while under treatment for forcible consumption of
pesticide. It was submitted, allegations in complaint were
against all accused and substantiating offence of murder
punishable with death or imprisonment of life. Moreover, victim
had given dying declaration in writing and same was attested
by doctor, clearly implicating accused, including petitioner. Said
declaration contained averment of specific overt act by
petitioner herein that she had mixed poison in water and made
victim drink it and thereafter confined her in a room.
8. It was submitted, investigation was already
completed and charge-sheet filed after finding sufficient
incriminating material against accused. Learned HCGP further
pointed out to statement of complainant in complaint as well as
in statement recorded under Section 183 of BNSS to effect that
accused had refused victim to avail treatment until payment of
Rupees Five Lakhs and thereby contributed to her death by
delaying treatment. It was submitted, in case of grant of bail,
petitioner was in all likelihood to tamper prosecution witnesses
or flee away. Above circumstances fully justified denial of bail
to petitioner.
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CRL.P No. 103504 of 2024
9. Heard learned counsel and perused material on
record.
10. Thus point that arises for consideration is:
“Whether petitioner is entitled for
anticipatory bail on conditions?”
11. This petition is by accused no.2 seeking for
anticipatory bail in Crime no.130/2024 of Nandgad Police
Station for offences punishable under Sections 80, 85, 115 (2),
126 (2), 103 (1), 351 (2) read with Section 3 (5) of BNS and
Sections 3 and 4 of DP Act.
12. From above, it is seen petitioner’s application for
anticipatory bail stems from apprehension about imminent
arrest in view of registration of Crime no.130/2024 (supra) for
non-bailable offences alleged to have been committed by
petitioner along with other accused. Therefore requirement of
reasonable basis for apprehension for anticipatory bail is
satisfied.
13. Prosecution material reveals that accused are
alleged to have committed murder of victim by making her to
drink pesticide and thereafter confining her in a room and
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CRL.P No. 103504 of 2024
preventing her from availing help/treatment. Therefore, nature
of offences alleged are grave and serious. Admittedly, death of
victim has occurred within four months of marriage due to
unnatural causes, while she was in her matrimonial home
(although actual death was in hospital). Death Summary issued
by Venugrama Hospital indicates cause of death as due to
“paraquat poisoning with hepato-renal failure”, which would be
unnatural.
14. When there are clear averments in
complaint/statements prima facie substantiating necessary
ingredients for commission of offences alleged, discrepancies
and inconsistencies sought to be pointed out do not
conclusively rule out any involvement of petitioner or render
offences alleged without any basis. Prima facie, material would
also indicate, even if as sought to be contended that victim had
consumed pesticide/poison herself, her death appears due to
failure to avail timely and proper treatment.
15. Moreover insofar as discrepancies and
inconsistencies in prosecution material sought to be highlighted
by learned counsel for petitioner, question that arises would be
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CRL.P No. 103504 of 2024
whether this is appropriate stage for consideration. Especially,
when in meanwhile prosecution has completed investigation
and filed Charge sheet. Indeed, there is no denying that
petitioner is a woman aged 65 years without any criminal
antecedents, but prima facie nature of offences alleged and
prosecution material does not indicate that petitioner was
arraigned only for purposes of harming her reputation or
causing her harm, especially as all accused were residing
together with victim.
16. High Court of Delhi in case of Sushma v. State
(NCT of Delhi), reported in 2024 SCC OnLine Del 6750 has
held as follows under similar circumstances:
“10. The learned counsel for the applicant
submits that the applicant along with her
husband was residing on the first floor of the
house while the rest of the family including
the deceased resided on the second floor of
the house.
11. He submits that the applicant, being a senior
citizen aged 60 years, is suffering from
various old age diseases including acute
arthritis in her knees. He submits that it is
very difficult for her to climb stairs to the
second floor of the house and had no
concern in the day today personal affairs of
the deceased and his son.
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CRL.P No. 103504 of 2024
12. He submits that the sister-in-law and brother-
in-law of the victim have already been
granted pre-arrest bail by the learned Trial
Court vide order dated 21.06.2024 wherein it
was noted that no specific allegations of
demand of dowry or causing harassment to
the deceased had been levelled against
them.
13. The learned Additional Public Prosecutor for
the State vehemently opposes the grant of
any relief to the applicant. He submits that
specific allegations have been levelled
against the applicant whereby he cannot
claim parity with the co-accused persons who
have been granted pre-arrest bail.
14. He submits that the PCR call regarding the
death of the victim was made by her friend
who had informed that the victim had died
an unnatural death. He submits that the
accused persons made no attempt to
intimate the police authority on their own.
15. The considerations governing the grant of
pre-arrest bail are materially different than
those to be considered while adjudicating
application for grant of regular bail, as in the
latter case, the accused is already under
arrest and substantial investigation has been
carried out by the investigating agency.
16. It is trite law that the power to grant a pre-
arrest bail under Section 438 of the CrPC is
extraordinary in nature and is to be
exercised sparingly. Thus, pre-arrest bail
cannot be granted in a routine manner. The
Hon’ble Apex Court, adverting to its previous
precedents, has discussed the parameters to
be considered while considering pre-arrest
bail applications, in the case of State of
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CRL.P No. 103504 of 2024A.P. v. Bimal Krishna Kundu, (1997) 8 SCC
104, has held as under:
“8. A three-Judge Bench of this Court
has stated in Pokar Ram v. State of
Rajasthan [(1985) 2 SCC 597 : 1985
SCC (Cri) 297 : AIR 1985 SC 969] :
(SCC p. 600, para 5)
“5. Relevant considerations
governing the court’s decision in
granting anticipatory bail under
Section 438 are materially
different from those when an
application for bail by a person
who is arrested in the course of
investigation as also by a person
who is convicted and his appeal is
pending before the higher court
and bail is sought during the
pendency of the appeal.”
9. Similar observations have been
made by us in a recent judgment
in State v. Anil Sharma [(1997) 7 SCC
187 : 1997 SCC (Cri) 1039 : JT (1997)
7 SC 651] : (SCC pp. 189-90, para 8)
“The consideration which should
weigh with the Court while
dealing with a request for
anticipatory bail need not be the
same as for an application to
release on bail after arrest.”
xxxx xxxx xxxx
12. We are strongly of the opinion that
this is not a case for exercising the
discretion under Section 438 in favour
of granting anticipatory bail to the
respondents. It is disquieting that
implications of arming the respondents,
when they are pitted against this sort
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CRL.P No. 103504 of 2024
of allegations involving well-
orchestrated conspiracy, with a pre-
arrest bail order, though subject to
some conditions, have not been taken
into account by the learned Single
Judge. We have absolutely no doubt
that if the respondents are equipped
with such an order before they are
interrogated by the police it would
greatly harm the investigation and
would impede the prospects of
unearthing all the ramifications
involved in the conspiracy. Public
interest also would suffer as a
consequence. Having apprised himself
of the nature and seriousness of the
criminal conspiracy and the adverse
impact of it on “the career of millions of
students”, learned Single Judge should
not have persuaded himself to exercise
the discretion which Parliament had
very thoughtfully conferred on the
Sessions Judges and the High Courts
through Section 438 of the Code, by
favouring the respondents with such a
pre-arrest bail order.”
17. This Court, while dismissing the bail
application of the applicant’s husband, who is
a co-accused in the present case, observed
that the victim died under unnatural
circumstances within three years of her
marriage to the applicant’s son. This fact
raises a statutory presumption under
Section 113B of the Indian Evidence Act,
1872. Furthermore, the applicant has been
specifically accused of harassing the
deceased soon after her marriage, allegedly
in connection with dowry demands, which
eventually led to her tragic death.
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CRL.P No. 103504 of 2024
18. This Court relied upon the judgment passed
by the Hon’ble Apex Court in the case
of Samunder Singh v. State of
Rajasthan, (1987) 1 SCC 466, wherein it was
held that in cases involving dowry death, the
High Court should exercise caution and
refrain from granting pre-arrest bail, given
the gravity and seriousness of such offences.
19. It was further noted by this Court that,
although there was a delay in the statement
regarding the cruelty inflicted upon the
deceased, such delay cannot, at this stage,
be considered detrimental to the
prosecution’s case. The merit of this aspect
will be evaluated during the trial, and it does
not warrant the granting of pre-arrest bail at
this juncture.
20. It cannot be held, at this stage, that the
investigation is being carried out with the
intention to injure or humiliate the
applicants. The nature and the gravity of the
allegations are serious. It is settled law that
custodial interrogation is qualitatively more
elicitation oriented than questioning a
suspect who is well ensconced with a
favourable order under Section 438 of
the CrPC [Ref. State v. Anil Sharma, (1997)
7 SCC 187].
21. The investigating agency needs to be given a
fair play in the joints to investigate the
matter in the manner they feel appropriate.
22. The relief of pre-arrest bail is a legal
safeguard intended to protect individuals
from potential misuse of power of arrest. It
plays a crucial tool in preventing harassment
and unjust detention of innocent persons.
However, the court must carefully balance
the individual’s right to liberty with the
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CRL.P No. 103504 of 2024
interests of justice. While the presumption of
innocence and the right to liberty are
fundamental principles of law, they must be
considered in conjunction with the gravity of
the offence, its societal impact, and the need
for a comprehensive and unobstructed
investigation.
23. While the benefit of proviso to Section 437 of
the CrPC, which allows for leniency in
granting bail to a woman, sick, or infirm, is
recognized under certain circumstances, this
benefit cannot be extended at the stage of
pre-arrest bail. The applicant is accused of
having a role similar to that of her
husband/co-accused, whose pre-arrest bail
has already been dismissed by the Hon’ble
Apex Court.
24. Even otherwise, the protection under
Section 437 of the CrPC is not absolute and
is subject to the nature and gravity of the
offence. In this case, where the applicant is
alleged to be directly involved in the
incessant demands of dowry and harassment
of the deceased, the mere fact of being an
elderly woman or infirm does not
automatically entitle her to pre-arrest bail.
The allegations must be scrutinized based on
the merits of the case, and the severity of
the crime takes precedence over any
personal exemptions under Section 437 of
the CrPC.
25. In view of the above, in the present
circumstances, this Court is of the opinion
that custodial interrogation of the applicants
ought not to be denied to the investigating
authority.
26. Considering the aforesaid discussion, this
Court is of the opinion that the applicant has
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CRL.P No. 103504 of 2024
not made out a prima facie case for grant of
pre-arrest bail.
27. The present application is accordingly
dismissed.”
17. Applying ratio and taking note of seriousness of
offences alleged, point for consideration is answered in
negative.
18. Consequently, following:
ORDER
Petition is rejected.
SD/-
(RAVI V.HOSMANI)
JUDGEGRD
CT:PA
List No.: 1 Sl No.: 9
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