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Anticipatory bail grant by Delhi High court in 498A/406/34 of IPC

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : INDIAN PENALCODE
BAIL APPLN. 1161/2012
Reserved on: 19th March , 2013
Decided on: 22nd March, 2013
MANJU GARG & ANR ….. Petitioners
Through: Mr. M.N. Krishnamani, Sr. Adv. with Mr. Sameer Dubey, Mr.
Arun K. Beriwal, Mr. Saurabh Kansal & Mr. Amit Kumar,
Advs.
versus
STATE ….. Respondent
Through: Mr. Manoj Ohri, APP for State with ASI Sumedha, PS Nanak
Pura. Mr. Dinesh Mathur, Sr. Adv. with Ms. Meena
Chaudhary, Adv. for complainant with complainant in person.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition the Petitioners who are the mother-in-law and
father-in-law respectively of the complainant Ms. Surbhi seek anticipatory
bail in case FIR No. 145/2010 under Section 498A/406/34 IPC registered at
PS Rohini North.
2. Learned counsel for the Petitioner contends that the Petitioners have
joined the investigation on 24 occasions. Raid has already been conducted
at the house and whatever items of dowry/ istridhan were there, the same
have been taken away on the identification of the complainant. The
allegations in the FIR against the Petitioners are at best demand of money,
the veracity of which will be adjudicated during trial. Bail is the rule and
jail is an exception. The principle of the accused being innocent till proven
guilty has to be borne in mind, besides balancing the same with the necessity
to arrest. Since the Petitioners have joined the investigation as and when
they were required, no custodial interrogation is required. The silver and
gold items stated in the complaint in the FIR were given to the complainant by her parents and not to the Petitioners. Further the value of these items
have been inflated. False FIRs are being registered against the Petitioners.
The Petitioners are not aware that Section 82 Cr.P.C. proceedings were
initiated against them and hence the same have not been mentioned in the
present petition and the moment it came to their notice, they approached the
learned Additional Sessions Judge, who has been pleased to stay the
proceedings. Further the Petitioners have already deposited a sum of Rs. 10
lakhs in the form of a FDR in the name of the complainant with the
investigating officer, as undertaken by them before this Court on 7th August,
2012 and are willing to fulfill any other condition which this Court may
impose. The Petitioners are further willing to deposit a sum of Rs. 17.5
lakhs though they dispute the cost of the items as calculated by the
complainant. Reliance is placed on Siddharam Satlingappa Mhetre Vs. State
of Maharashtra & Ors. AIR 2011 SC 312.
3. Learned APP for the State on the other hand contends that there are
serious allegations of preparing video film of the complainant in
unwarranted condition in her bedroom with her husband which was
uploaded. Though laptop, handycam and mobile phone were recovered,
however they were without SIM card, memory card and SD memory card.
The moment an application for cancellation of the bail of the son of the
Petitioners was filed, a locked SIM card of the mobile phone was handed
over to the investigating officer. Though the father of the complainant
wanted to spend Rs. 50 lakhs on the marriage, however on the insistence of
the Petitioners Rs. 2 crores had to be spent. Statement of Hanuman Prashad,
the domestic servant of Petitioners for the last many years was recorded who
confirmed ill behavior by the accused persons with the complainant on
various occasions and also confirmed that dowry articles used to come from
complainant’s parents house loaded in tempo and cars on every occasion.
Though the Petitioners deposited a booklet in Police Station on 16th March,
2012 which includes photocopies of the complainant’s passport, viza papers,
medical papers and certain typed SMS (text messages), however till date the
original of these documents have not been given nor the source of the said
SMSs have been furnished. Though raid was conducted, however no
jewellery could be recovered from the bank locker. Besides demand of
dowry, the complainant was treated with cruelty and she was beaten on 17th
March, 2011 when she was brought back to her home by her brother. The
DD entry recorded, which was duly signed by the Petitioner No.2, stated that
she was not taking with her any article. On 20th March, 2011 the Petitioner
No.2 came along with his son. Again there was a fight at the parental home of the complainant and a PCR call was made. When the complainant was
examined on 20th March, 2011 she had bluish red bruises on her right arm.
In view of the serious allegations against the Petitioners, no case for
anticipatory bail is made out.
4. Learned counsel for the complainant states that besides the serious
demand of dowry, the conduct of the Petitioners does not warrant grant of
anticipatory bail. The seized incriminating articles have been found without
any SIM card, memory card and SD memory card. When the complainant
filed an application for cancellation of bail of the son of the Petitioners, a
locked SIM card was given. Even things like passport, medical papers,
source of SMS have been retained by the Petitioners. The Petitioners are in
possession of the receipts which also they are not deliberately producing.
Reliance is placed on MCD Vs. State of Delhi and Anr. (2005) 4 SCC 605
and Chandra Shashi Vs. Anil Kumar Verma (1995) 1 SCC 421. The
Petitioner has deliberately concealed the factum of proceedings under
Section 82 Cr.P.C. before this Court in the present petition. The 82 Cr.P.C.
proceedings were initiated on 10th July, 2010 and on 17th July, 2010 the
order was pasted on their house. Thus, when the petition before this Court
was filed on 4th August, 2012 the Petitioners were very well aware of the
proceedings, however this fact has been completely concealed. Reliance is
placed on Lavesh Vs. State 2012 STPL (Web) 470 SC. The Petitioners
have been taking contrary pleas, as before the Hon’ble Supreme Court they
sought bail and before the learned Sessions Judge with regard to proceedings
under Section 82/83 Cr.P.C. it is stated that the Petitioners have already been
granted bail. The witnesses in the present FIR are being terrorized and
complaints under Section 153(3)/340 Cr.P.C. have already been filed against
the witness Ashwani who sold the laptop to the son of the Petitioners. The
surety has no control over the Petitioners. A letter was written by Shri Vijay
Mittal surety of the Petitioner No.1 on 10th January, 2013 to the
investigating officer stating that he was the surety of Smt. Manju Garg but
he has no knowledge of her whereabouts. Thus no anticipatory bail be
granted to the Petitioners.
5. Heard learned counsel for the parties. This application came up
before this Court for the first time on 7th August, 2012 when the learned
senior counsel for the Petitioners undertook to deposit Rs. 10 lakhs in the
form of FDR in the name of the complainant with the investigating officer
and the matter was referred to mediation. This Court further directed the
matter to be listed on 30th October, 2012 and till the next date of hearing in the case of arrest Petitioners were directed to be released on anticipatory bail
subject to their furnishing personal bonds with one surety with directions to
cooperate in the investigation. The application was disposed of in the above
terms. On 30th October, 2012 the factum of mediation process still going on
was noted and the matter was adjourned to 9th January, 2013. On 9th
January, 2013 this Court observed that the bail application had already been
disposed of vide order dated 7th August, 2012 and the mediation had ended
in a non-settlement and thus no further orders were called for in the present
application. Consequently, the applications filed by the complainant were
also dismissed, however the Petitioners were granted liberty to take remedies
as available in law. Subsequently, an application for clarification was filed
before this Court by the State and it was clarified that the order dated 7th
August, 2012 granted interim protection to the Petitioners only till 30th
October, 2012. Further an application was filed by the Petitioners for
clarification which was withdrawn. The Petitioners preferred a special leave
petition wherein the Hon’ble Supreme Court restored the anticipatory bail
application and the two applications filed by the complainant and directed
that the same be disposed of after hearing the parties within two weeks from
the receipt of the order in accordance with law. The matter was put up
before this Court on 15th March, 2013 on an office note, when the learned
counsel for the Petitioner sought time and thus the matter has now been
heard on 19th March, 2013.
6. A perusal of the FIR shows a continuous demand of dowry by the
Petitioners who are the mother-in-law and father-in-law of the complainant.
No doubt as against the admitted amount of Rs. 10 lakhs taken by way of
cheque, FDR has already been deposited by the Petitioner with the
Investigating Officer, however further Rs. 10 lakhs, 50 lakhs, 35 lakhs were
demanded at the time of wedding, besides whole lot of jewellery, gold and
silver items. Even accepting the contention of the learned counsel for the
Petitioner that since the Petitioner No.2 was involved in event management,
the money was spent on various functions organized at the time of wedding,
a perusal of the photographs show that gold ornaments were given to the
Petitioners besides several gold coins and silver items. A reply by the
Petitioners to the list of dowry articles by the complainant though admits
some of the items to be given, however refuses to return the same on the
pretext that the same were not istridhan. Articles given to the Petitioners at
the time of marriage amount to dowry articles given in consideration of the
marriage and the Petitioners are bound to return the same. 7. The incriminating articles like laptop, handycam, mobile phones etc.
have not been handed over in a complete condition by the son of the
Petitioners and not the Petitioners as the same belong to their son. Even the
originals of passport and the medical documents of the complainant have
been retained. Further proceedings under Section 82 Cr.P.C. were initiated
against the Petitioners on 10th July, 2010 and on 17th July, 2010 the order
was pasted on their house. Immediately thereafter, interim protection was
granted. No final order of declaring the Petitioners a proclaimed offender
was passed by the learned Trial Court when this petition was filed and thus
the decision in Lavesh (supra) has no application to the facts of the case.
The allegations of beating are against the son of the Petitioners. An
application for cancellation of bail of the son of the Petitioners has already
been filed by the complainant.
8. Learned counsel for the Petitioners has strenuously relied on
Siddharam Satlingappa Mhetre (supra). The Hon’ble Supreme Court in the
said decision warned against false implication and also laid down that while
granting anticipatory bail, a balance has to be struck between two major
factors i.e. there should be no prejudice to the free, fair and full investigation
and to prevent harassment, humiliation and unjustified detention of the
accused. In the present case the photographs produced before this Court at
the time of hearing clearly show that extensive silver and gold items were
taken in dowry, however the same are now being refused to be returned on
the pretext that the same are not istridhan. Learned counsel for the
Petitioner in this regard has already undertaken to deposit Rs. 17.5 lakhs
without prejudice to the rights of the parties.
9. In the facts and circumstances of the case, in the event of arrest, the
Petitioners be released on bail on their furnishing a personal bond in the sum
of Rs.50,000/- each with one surety of the like amount each to the
satisfaction of the Arresting Officer/SHO concerned, further subject to the
condition that they will join the investigation as and when directed and will
also deposit a further sum of Rs.17.5 lakhs in the form of FDR in the name
of the complainant with the Investigating Officer within two weeks and they
will not leave the country without prior permission of the learned Trial
Court.
10. On filing of the charge sheet, the aforesaid two FDRs of Rs.10 lakhs
and Rs.17.5 lakhs in the name of the complainant will be deposited with the learned Trial Court and will be subject to the orders passed by the learned
Trial Court during trial.
11. The petition is disposed of.
Sd/-
(MUKTA GUPTA)
JUDGE
MARCH 22, 2013

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About NADEEM QURESHI ADVOCATE

I am a Practicing advocate in Delhi and NCR (Ghaziabad, Noida and Faridabad)since last Nine Years. I am dealing with Family Law cases like, Dowry case, Cruelty, Maintenance, Child Custody, Marriage, Divorce, Domestic Violence Case. Criminal Cases like, Negotiable Instrument Case, Banking Cases, Bail, Anticipatory bail, Criminal Revision and Appeal Civil cases like, Permanant and temporary Injunction, Property Cases.(partition Suit, Specific Relief Act cases, Suit for Recovery, Summery Suit). Draftting like Agreements, Notices, Pleadings, Written Statement, Reply, Revision petition in Session Court and HIgh court, Appeal in both Civil and Criminal cases before Session and High Court. We Provide Online Legal Drafting service, Legal Research,and Family Counslling. Nadeem Qureshi (Advocate) Chember No. D-720, Lawyers Chembers, Karkardooma Court, Delhi email : nadeemqureshi1@gmail.com web: nadeemqureshi498a.webs.com Blog: http://nadeemqureshi1.wordpress.com/ Mob: +91 9953809956 +91 8802305262 +91 9899686394

One response »

  1. Pingback: LegalPoint | Bail – anticipatory bail

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