Abdul Rasheed E v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945 BAIL APPL. NO. 10993 OF 2023 CRIME NO.1662/2023 OF Medical College Police Station, Thiruvananthapuram** **PETITIONER:** ABDUL RASHEED E, AGED 63 YEARS S/O.EBRAHIMKUTTY, EDAYILA VEEDU, SASTHANADA, AYANIVELIKULANGARA, KOLLAM DISTSRICT., PIN - 690573 BY ADVS. NIREESH MATHEW C.C.THOMAS (SR.) ## **RESPONDENT/S:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 BY ADVS. SRI. T.A. SHAJI -DIRECTOR GENERAL OF PROSECUTION (AG-10) SRI.P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13.12.2023, THE COURT ON 15.12.2023 DELIVERED THE FOLLOWING: B.A.No.10993/2023 2 **C.R** . ## **ORDER** The petitioner is the 2[nd] accused in Crime No.1662/2023 of Medical College Police Station, Thiruvananthapuram City. The crime was initially registered under Section 174 of Cr.P.C., on account of the unnatural death of Dr. Shahana A.J. (hereinafter referred to as 'the deceased' or as 'the victim'), a postgraduate student in the Medical College Hospital, Thiruvananthapuram. Following allegations that the deceased had taken the extreme step owing to unreasonable demands for dowry made in connection with the proposal of the marriage of the deceased with the son of the petitioner, a report was filed before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram incorporating offences under Sections 306 IPC and Section 4 of the Dowry Prohibition Act, 1961. The petitioner's son was arraigned as the first accused in the case, and he was arrested and remanded to judicial custody on 7.12.2023. The petitioner has approached this Court apprehending arrest in connection with the aforesaid crime upon the allegation that the petitioner also had an active role to play in the demand for dowry leading to the death of the deceased by suicide. 2. Sri. C.C. Thomas, the learned Senior Counsel appearing B.A.No.10993/2023 3 for the petitioner on the instructions of Adv. Nireesh Mathew would contend that the petitioner is absolutely innocent in the matter. It is submitted that the first accused and the deceased were in love with each other. It is submitted that when the proposal of marriage between the 1st accused and the deceased was mooted, the petitioner had no objection to the proposal and had only stated that the marriage could be solemnized after the son of the petitioner and the deceased complete their post-graduation. It is submitted on the authority of the decisions of the Supreme Court in _**Amalendu Pal v. State of West Bengal; (2010) 1 SCC 707, Gangula Mohan Reddy v. State of Andhra Pradesh; (2010) 1 SCC 750, Rajesh v. State of Haryana; 2019(1) KLD 326(SC)**_ and _**Mohit Singhal v. State of Uttarakhand; 2023 KHC OnLine 7246**_ that by no stretch of imagination, can it be said that offence under Section 306 IPC has been committed by the petitioner herein. It is submitted with reference to the provisions of the Dowry Prohibition Act,1961 and the decision of the Supreme Court in _**L.V. Jadhav v. Shankarrao Abasaheb Pawar and others; AIR 1983 Supreme Court 1219**_ and _**Sakhi Mandalani v. State of Bihar and others; (1999) 5 SCC 705**_ that the offence under the Dowry Prohibition Act is also not attracted in the facts and circumstances of the case. It is submitted that the petitioner is a 63-year-old man, and his arrest, detention and B.A.No.10993/2023 4 custodial interrogation are absolutely unnecessary in the facts and circumstances of this case. It is submitted that the petitioner has been roped in as an accused only on account of media attention and consequential pressure on the investigating agency following the death of the deceased. It is submitted that the prosecution against the petitioner and his son is malafide and only on account of the fact that the petitioner’s son was an office bearer of the post-graduate medical students association and had been critical of the present Government. It is submitted that if the petitioner's cooperation can be ensured with the investigation, there is no reason to deny anticipatory bail to the petitioner. 3. Sri. T.A. Shaji, Senior Advocate and Director General of Prosecution, duly instructed by Sri. P. Narayanan, Senior Government Pleader and Additional Public Prosecutor would submit that the petitioner is not entitled to anticipatory bail. It is submitted that the deceased was staying at Flat No.201, City Plaza Buildings, Near the Thiruvananthapurm Medical College. It is submitted that a suicide note was recovered from the room in which the deceased was found dead. It is submitted that on verifying the suicide note, it was revealed that there was a deep and intimate relationship between the son of the petitioner and the deceased. It is submitted that the 1[st] accused, along B.A.No.10993/2023 5 with his father (the petitioner herein), his mother and his sister, had even visited the house of the deceased in order to meet the deceased, and the family of the deceased was also invited to their house to discuss the finalization of the marriage proposal. It is submitted that the statements recorded from the brother of the deceased on 5.12.2023 & from the mother of the deceased and the contents of the suicide note will clearly show that the deceased was driven to suicide only on account of the huge demand for dowry by the 1[st] accused and the petitioner. It is submitted that the role of the petitioner is clearly seen from the suicide note, which must have been prepared in the last moments before the death of the deceased. It is submitted that the 1[st] accused had deleted a message from the deceased which was sent at 3.33 a.m. on 4.12.2023, the day on which the deceased died owing to suicide. It is submitted that there are eyewitnesses for proving the demand for dowry at the time when the 1[st] accused, along with his father, the 2[nd] accused (the petitioner herein), his mother and his sister had visited the house of the deceased. It is submitted that the 1[st] accused had blocked all calls/messages from the deceased on 4.12.2023. It is submitted that the 1[st] accused has already confessed that there were conversations between the petitioner/2[nd] accused and the deceased regarding dowry. It is submitted that, on investigation and on analysis of the call data records, it is seen that the B.A.No.10993/2023 6 petitioner/2[nd] accused had talked to the deceased over the phone on 2.11.2023. It is submitted that this is the offending communication which instigated the deceased to commit suicide. It is submitted that the petitioner is clearly the mastermind behind the demand for dowry, and this is also clearly revealed from the suicide note of the deceased. It is submitted that, owing to the illegal demand for dowry, a bright postgraduate Medical Student has lost her life, and the same is a loss not only to her family but also to society. It is submitted that if the petitioner/2[nd] accused is granted bail, there is every chance that he may influence and intimidate the witnesses or tamper with the evidence, and this may not be conducive to the investigation, which is still in the preliminary stages. It is submitted that the grant of bail to the petitioner/2[nd] accused will send a wrong message to the society, and it is necessary that the petitioner/2[nd] accused be taken into custody also to show that the law deals with demands for dowry in a stern voice. The learned Director General of Prosecution has placed before me the statement recorded from the brother of the deceased on 5.12.2023, a copy of the suicide note recovered from the apartment where the deceased was found dead, as well as the copy of the statement recorded from the mother of the deceased. The learned Director General of Prosecution would refer to the judgment of the Supreme Court in _**Sumitha Pradeep v. Arun Kumar C.K. &**_ B.A.No.10993/2023 7 _**another; 2022 SCC OnLine SC 1529**_ to contend that while dealing with applications for anticipatory bail, the question as to whether custodial interrogation is required or not is not the only ground to be considered. It is submitted that the aforesaid decision is the authority for the proposition that the Court should look into the question as to whether there is a _prima facie_ case against the accused, and thereafter, the Court must also consider the nature of offence and the severity of punishment. It is submitted that while the necessity of custodial interrogation may be one of the factors that can be considered, the absence of any requirement for custodial interrogation, by itself, cannot be a ground to grant anticipatory bail. The learned Director General of Prosecution has also placed the judgment of the Three Judge Bench of the Supreme Court in _**State of**_ _**Madhya Pradesh v. Joogendra and another; (2022) 5 SCC**_ _**401**_ to contend that while considering the provisions of the Dowry Prohibition Act, the Court must lean in favour of an interpretation that will not defeat the intention of the Parliament and an interpretation that will promote the objects sought to be achieved through the legislation which was intended to root out the social evil of dowry should be favoured. The learned Director General of Prosecution also placed for my consideration the decision of the Supreme Court in _**Pawan Kumar v. State of Himachal**_ B.A.No.10993/2023 8 _**Pradesh;(2017) 7 SCC 780**_ . He also submits that the said decision is authority for the proposition that when it is alleged that somebody was forced to commit suicide, the instigation may be in the form of an active suggestion, stimulation, by any means or language direct or indirect (whether it takes the form of expressed solicitation or not) by hints, insinuation or encouragement. It is submitted that instigation may be in express words or maybe by implied conduct. It is submitted that in the facts and circumstances of this case since the direct role of the petitioner/2[nd] accused has been revealed from the suicide note, the petitioner/2[nd] accused must be subjected to custodial interrogation, and his custody is necessary for the recovery of material objects. It is submitted that the _prima facie_ indication is that the petitioner is equally guilty along with the 1st accused, and therefore the prosecution must be permitted to take him into custody as part of the investigation. It is stated that the decisions relied on by the learned counsel for the petitioner are decisions in cases where the trial had been completed and the entire evidence was before the Court and, therefore, those decisions cannot be pressed into service in this case. 4. Having heard the learned Senior Counsel appearing for the petitioner and the learned Director General of Prosecution, I am inclined to grant anticipatory bail to the petitioner. The deceased died B.A.No.10993/2023 9 on 4.12.2023. The suicide note recovered from the apartment where the deceased was staying and from where her body was found, no doubt, indicates that the deceased was upset by the fact that the family of the 1[st] accused, including the petitioner herein, had demanded a huge quantity of gold and other assets as dowry for solemnizing the marriage between the 1[st] accused and the deceased. There is also a specific reference regarding the petitioner where the deceased essentially states that the petitioner, who also has a daughter, will definitely understand the difficulty of arranging a huge dowry when the marriage of his daughter is fixed. The deceased has also stated that it is the ego of the petitioner and his greed for money that has left her with no option but to commit suicide. It is also true that the statement recorded from the brother of the deceased on 5.12.2023 indicates that there was a proposal of marriage between the 1[st] accused and the deceased. He goes on to state that in the discussions that followed between the families, since there was no understanding regarding the financial matters, the said proposal had to be dropped and further that the 1[st] accused and the deceased were in love with each other and that the deceased may have committed suicide fearing that the marriage between the 1[st] accused and the deceased would not take place. The statement recorded from the mother of the deceased also indicates that there were demands for dowry from the 1[st] accused B.A.No.10993/2023 10 and the family of the 1[st] accused, and this fact had been revealed to her by the deceased. The statement also indicates that when the mother of the deceased visited her on 3.12.2023, the deceased again indicated that she was mentally upset on account of the fact that there was a demand for dowry from the family of the 1[st] accused. The question to be considered is whether the aforesaid facts cumulatively indicate at least _prima facie_ that the petitioner/2[nd] accused was guilty of an offence punishable under Section 306 IPC and/or the provisions of the Dowry Prohibition Act. In _**Amalendu Pal (supra)**_ , it was held: _**“10.** The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in Randhir Singh v. State of Punjab [(2004) 13 SCC 129 : 2005 SCC (Cri) 56] as follows in paras 12 and 13: (SCC p. 134)_ _“12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC._ _13. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance,_ B.A.No.10993/2023 11 _discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”_ **==> picture [367 x 41] intentionally omitted <==** _**11.** Further, in Kishori Lal v. State of M.P. [(2007) 10 SCC 797 : (2007) 3 SCC (Cri) 701] this Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6: (SCC p. 799)_ _“6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word ‘instigate’ literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ‘Abetted’ in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.”_ _(See also Kishangiri Mangalgiri Goswami v. State of Gujarat [(2009) 4 SCC 52 : (2009) 2 SCC (Cri) 62] , SCC p. 55, para 13.)_ _**12.** Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged_ B.A.No.10993/2023 12 _abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable._ _**13.** In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC._ _**14.** The expression “abetment” has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.”_ It is clear from the decision of the Supreme Court in _**Amalendu Pal (supra)**_ that in order to sustain a conviction under Section 306 IPC, there has to be evidence to suggest that the cruelty and harassment B.A.No.10993/2023 13 meted out to the victim had left the victim no alternative but to put an end to her life and further that in cases of alleged abetment of suicide, there must be proof of direct or direct acts of incitement to the commission of suicide. It was further held that, without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide, a conviction under Section 306 IPC is not sustainable. The question again came up for consideration before the Supreme Court in _**Gangula Mohan Reddy (supra)**_ . It was held:- _“_ _**16.** This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2009) 11 Scale 24] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words “instigation” and “goading”. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances._ _**17.** Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires_ B.A.No.10993/2023 14 _an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.”_ It is clear from the decision in _**Gangula Mohan Reddy (supra)**_ that in order to convict a person under Section 306 IPC, there has to be clear _mens rea_ to commit the offence and an act or direct act which led the deceased to commit suicide and such act must have been intended to push the deceased into such a position that he/she committed suicide. In _**Rajesh (supra)**_ , it was held that without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide, a conviction under Section 306 IPC cannot be sustained. After referring to the judgment of the Supreme Court in _**Chithresh Kumar Chopra v. State; 2009 (16) SCC 605**_ and _**Amalendu Pal (supra),**_ it was held:- “ **8.** It is _necessary_ to refer to Section 306 IPC and Section 107 IPC which reads as under: _“306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”_ _“107. Abetment of a thing.—A person abets the doing of a thing, who—_ B.A.No.10993/2023 15 _First.—Instigates any person to do that thing; or_ _Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or_ _Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing._ _Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”_ _**9.** Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (See Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] )_ _**10.** The term “instigation” under Section 107 IPC has been explained in Chitresh Kumar Chopra v. State (NCT of Delhi) [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] as follows: (SCC p. 611, paras 1617)_ B.A.No.10993/2023 16 _“16. Speaking for the three-Judge Bench in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation._ _17. Thus, to constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or “urging forward”. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action; provoke to action or reaction” (see Concise Oxford English Dictionary); “to keep irritating or annoying somebody until he reacts” (see Oxford Advanced Learner's Dictionary, 7th Edn.).”_ **11.** Words uttered in a fit of anger or omission without any intention cannot be termed as _instigation_ . (See _Praveen Pradhan_ v. _State of Uttaranchal_ [ _Praveen Pradhan_ v. _State of Uttaranchal_ , (2012) 9 SCC 734 : (2013) 1 SCC (Cri) 146] .)” ## The issue was again recently considered by the Supreme Court in _**Mohit Singhal (supra),**_ where it was held: “8. ……………..Section _306 of the IPC makes abetment to commit suicide as an offence. Section 107 of the IPC, which defines the abetment of a thing, reads thus:_ _“Section 107 — Abetment of a thing.- A person abets the doing of a thing, who—_ B.A.No.10993/2023 17 _First.—Instigates any person to do that thing; or_ _Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or_ _Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing._ _Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”_ _9. In the facts of the case, secondly and thirdly in Section 107, will have no application. Hence, the question is whether the appellants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide.”_ It is thus clear that unless there are materials to suggest that the petitioner had acted with the _mens rea_ and had actually aided and abetted the commission of suicide by the deceased by any act proximate to the date on which the deceased had committed suicide, he cannot be prosecuted for having committed the offence under Section 306 IPC. The argument of the learned Director General of Prosecutions that it is only after thorough investigation can materials be found to suggest that the petitioner had committed the offence B.A.No.10993/2023 18 under Section 306 IPC and, therefore, the custodial interrogation of the petitioner is a must is no doubt compelling. However, one must keep in mind that while considering an application for anticipatory bail, this Court must also be conscious of the fact that the right to personal liberty is a sacrosanct fundamental right flowing from Article 21 of the Constitution of India. Therefore, unless there are clear materials to suggest that the petitioner/2[nd] accused had actually aided and abetted the suicide of the deceased and had, therefore, committed the offence under Section 306 IPC, it would not be proper to reject the prayer of the petitioner/2nd accused for anticipatory bail. I have carefully gone through the suicide note recovered from the apartment where the deceased had stayed. A close reading of the note suggests that there are some specific allegations against the 1st accused. Apart from the reference to the ego and greed of the petitioner/2nd accused, there seems to be nothing to suggest that the petitioner/2nd accused had actually demanded anything directly from the deceased. The prosecution has stated that the CDR details revealed that there was a telephone conversation between the petitioner/2nd accused and the deceased on 2.12.2023. However, that by itself cannot be an indication that there was a demand for dowry by the petitioner/2nd accused on 2.12.2023. There are indications in the suicide note that the deceased was troubled by various other factors. She has referred to the selfish B.A.No.10993/2023 19 nature of her brother and her mother's attitude of always protecting her brother. The deceased has referred to her brother's lazy nature, the act of her father's younger brother cheating her father of some property etc. She laments that money is everything and there is no sincerity in this world. She also laments that her death might in fact bring smiles to the faces of many including certain relatives. While it could not be proper for this Court to reach any conclusion on the basis of the statements made in the suicide note, I have made the above observations, taking into consideration the submission of the learned Director General of Prosecutions that the Court must have regard to a _prima facie_ case apart from the requirement of custodial interrogation, on the authority of the judgment of the Supreme Court in _**Sumitha Pradeep (supra).**_ 5. Coming to the offence under the provisions of the Dowry Prohibition Act, I must note that the offence alleged is under Section 4 of the said Act. Section 4 of the Dowry Prohibition Act penalizes a ‘ _demand’_ for dowry as opposed to a _‘giving’_ or _‘taking’_ of dowry, which is penalized under Section 3 of the said Act. The offence under Section 4 of the Dowry Prohibition Act is punishable with a maximum imprisonment of two years. Though the offences under the Dowry Prohibition Act have been made non-bailable, considering the penalty B.A.No.10993/2023 20 provided, I am not compelled to hold that the petitioner must be denied anticipatory bail. 6. The petitioner is a 63 year old man. His role in the incident leading to the death of the deceased by suicide has to be ascertained with clarity and certainty before he can be arraigned as an accused in the case. His custodial interrogation appears unnecessary. 7. In the result, this bail application is allowed. It is directed that the petitioner shall be released on bail in the event of arrest in connection with Crime No.1662/2023 of Medical College Police Station, Thiruvananthapuram subject to the following conditions:- (i) Petitioner shall execute a bond for a sum of Rs.1,00,000/(Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer; (ii) Petitioner shall report before the Investigating officer in Crime No.1662/2023 of Medical College Police Station, Thiruvananthapuram at 11.00 A.M on 18.12.2023, 19.12.2023 and 20.12.2023 and thereafter as and when called upon to do so; (iii) Petitioner shall not interfere with the investigation or to influence or intimidate any witness in Crime No.1662/2023 of Medical College Police Station, Thiruvananthapuram; B.A.No.10993/2023 21 (iv) The petitioner shall surrender his passport before the investigating officer. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the investigating officer; (v) Petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the Investigating officer in Crime No.1662/2023 of Medical College Police Station, Thiruvananthapuram may file an application before the jurisdictional Court for cancellation of bail. I make it clear that these observations are only for the purposes of considering the entitlement of the petitioner/2nd accused for bail and shall not be treated as a finding by this Court on any aspect of the matter. I also make it clear that I have focused only on the allegations raised against the petitioner/2nd accused, and these observations shall not be treated in any manner as favouring the grant of bail to the 1st accused, who is already in custody. sd/- **GOPINATH P. JUDGE** acd B.A.No.10993/2023 22 ## **APPENDIX OF BAIL APPL. 10993/2023** PETITIONER ANNEXURES Annexure 1 TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1662/2023 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM DATED 05.12.2023 Annexure 2 TRUE PHOTOCOPY OF THE REMAND REPORT OF THE SON OF THE PETITIONER DATED 07.12.2023 IN CRIME NO.1662/2023 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM