S. 439 CrPC: Delhi High Court Stays Sessions Court's Bail Order Castigating Police Investigation

The Delhi High Court has stayed an order passed by a Sessions Court in bail proceedings, wherein it had pulled up an Investigating Officer of the Delhi Police for conducting perfunctory investigation in connection with a dowry death case.

Justice Chandra Dhari Singh observed,

"it is a settled position of law that the lower courts are not akin to constitutional courts. While deciding an application under Section 439 of the Code, the courts are bound to decide it within the four corners of the statue."

The Judge relied on the case of State of West Bengal v. Mir Mohammad Omar & Ors, (2000) 8 SCC 382, where the Supreme Court had directed the courts to ordinarily desist from castigating the investigation even while ordering acquittal.

"Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case," the Top Court had said.

The High Court was also mindful of several other precedents, crystallizing the fact that the power of a bail court are limited to grant or not to grant bail pending trial and it cannot delve into the realm of investigation.

In State v. M. Murugesan, the Supreme Court set aside a Madras High Court order, passed during bail proceedings, that directed the State to constitute a committee to recommend reforms for improving the quality of investigation.

In the instant case, the Court was dealing with a plea filed by the husband challenging the ASJ's order and seeking an ad-interim ex-parte order staying the same. It was the case of the husband that the Sessions Judge had no inherent powers and could not delve into the realm of investigation, while sitting in bail jurisdiction.

Vide the impugned order dated November 1, 2021, Additional Sessions Judge Vishal Singh of Tis Hazari Court had slammed the IO and observed that the investigation file was completely devoid of evidence of the reported offence.

The judge was dealing with a case concerning the death of one Salma Khatoon, under suspicious circumstances in her matrimonial home, within two years of her marriage.

There were allegations that soon before her death, she had been talking through mobile calls to her father about harassment and torture by her husband i.e. the applicant namely Mohd. Mehandi Saha and had been talking about her impending death in his hands.

Accordingly, the judge, the bail plea could not be decided on the said date and that the IO had conducted perfunctory investigation and had not bothered to make efforts to collect independence evidence of reported offence.

"IO has not collected an iota of evidence related to the mobile calls and communication between the deceased with her parents. This is only one of the numerous aspect of the case regarding which IO seems to have deliberately or negligently failed to collect evidence," the judge noted in the impugned order.

When the matter reached the High Court, the Court after hearing the applicant counsel, took note of the fact that the Sessions Judge, while passing the impugned order had made observations with regard to the conduct of investigating officer and lapses in the investigation.

"Furthermore, it is a settled position of law that the lower courts are not akin to constitutional courts. While deciding an application under Section 439 of the Code, the courts are bound to decide it within the four corners of the statue," the Court noted.

Accordingly the Court stayed the impugned order and directed the Sessions Judge to hear the bail application on merits and decide the same in accordance with law.

The matter will now be heard on December 8.

Case Title: MOHD MEHANDI SHAH v. STATE

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