Jharkhand High Court
Deepak Kumar vs The State Of Jharkhand on 29 January, 2020
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
A.B.A. No.7281 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 7281 of 2019
------
Deepak Kumar ... Petitioner
Versus
1. The State of Jharkhand
2. Namita Singh ... Opposite Parties
------
CORAM:HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
For the Petitioner : Mr. Krishna Murari, Advocate
For the State : Mr. Moti Gope, Addl. P.P.
For the O.P. No.2 : Mr. Ankit Vishal, Advocate
------
Order No.04 Dated- 29.01.2020
Apprehending his arrest, the petitioner has moved this Court for grant of privilege of anticipatory bail in connection with Patratu (Bhurkunda) P.S. Case No.45 of 2019 registered under sections 341/323/498A/34 of the Indian Penal Code read with sections 3/4 of the D.P. Act.
Heard the parties.
Both the petitioner and the opposite party no.2 are present in the Court today.
The opposite party no.2 submits that she is ready and willing to resume conjugal life with the petitioner but the petitioner submits that he is not ready and willing to resume conjugal life with the opposite party no.2 because of her past conduct.
The Learned counsel for the petitioner submits that the allegations against the petitioner is that at the time of marriage of the petitioner with the opposite party no.2 -informant, the father of the petitioner was working as engineer in Building Construction Department. Before the marriage, ring ceremony was solemnized in Hotel Hans Regency of Bokaro. At the time of the ring ceremony, Gold ring and other valuables and cash were given and as demanded by the petitioner and his family members, Rs.2,00,000/- was spent in Chheka ceremony and a cash amount of Rs. 2,51,000/- was given in addition to the same. Some days after 1 A.B.A. No.7281 of 2019 the Chheka, on being told by the petitioner and his family members, a sum of Rs.9,00,000/- was transferred to the account of one Modak Jewelries but the petitioner insisted that Rs.10,00,000/- be transferred to his own account also and accordingly, a sum of Rs.3,00,000/- on 02.11.2015 and a sum of Rs.1,50,000/- on 02.12.2015 was transferred to the account of the petitioner. Besides, on being instructed by the petitioner, Almirah, A.C., T.V. and Refrigerator total worth Rs.1,48,000/- was also given by the father of the informant at the time of the marriage of the informant and the petitioner. At the time of Tilak ceremony , cash of Rs.2,51,000/- a diamond ring and articles worth Rs.5,00,000/- were presented but it is alleged that even after giving of these amounts and articles, the father of the petitioner demanded more money. At the time of marriage, valuable gold jewelries were also presented. It is further alleged that after her marriage, the mother of the petitioner took away all the valuable jewelries and valuable articles from the custody of the informant and never returned the same to the informant. It is then submitted that after the informant reached her in-laws' house, the petitioner and his family members started demanding the rest of the money and a car but the informant did not tell her father to give the said money; upon which the petitioner and other members of his family started assaulting the informant and tortured her by several nefarious means. It is next alleged that after the marriage, as per the rituals, when the informant came to her father's house, the petitioner again demanded car and further dowry demand and as the father of the informant expressed his inability to meet the said demand and promised to pay the same over a period of four years, the petitioner was infuriated and threatened the informant that her life will not be smooth in his house, unless the said demand is fulfilled. Somehow, the petitioner stayed for a night in the house of the opposite party no.2-informant and agreed to take the informant along with him to his house but on the condition that the father of the informant has to meet his dowry demand. It is also alleged that, when the informant returned to her in-laws' house, the 2 A.B.A. No.7281 of 2019 petitioner enquired from the informant as to what her father told about the dowry demand of car and money and when the informant disclosed that her father expressed his inability to meet such demand, the petitioner became rude and treated the informant in inhuman manner. The informant remained in her in- laws' house for a period of two months but during the said period she was not given food and clothes properly and was treated like a maid servant and she was made to do all the household works of the house and when she became ill, no medical treatment was given to her and during the period of her illness also, she was forced to do all the household works. Somehow, bearing all the sufferings, she managed to stay in her in-laws' house but when she became seriously ill, she intimated the same to her father and brother and they came to her in-laws' house but the petitioner and his family members told them to take the informant to their house and unless the car and the rest dowry demand is arranged she will not be allowed to stay in her in-laws' house. After that, the informant came to her father's house. Thereafter, again the petitioner and members of his family came to the house of the father of the informant and told them to arrange the money immediately so that they will take the informant and will keep her properly but when the father of the informant expressed his inability to meet the dowry demand, they told that the father of the informant must keep the informant with him for the rest of her life. Thereafter, after a period of about one year and four months, the father and the brother of the informant under compulsion took the informant to her in-laws house but the petitioner and his family members did not allow the informant to enter into the house but the informant forcibly entered inside the house and went to her room and kept her belongings in the room. At this, the petitioner and his family members assaulted the informant and pushed her through the stair case and assaulted her and thrashed her. By such act, the bangles of the informant broke inside her hand and she started bleeding. When the informant did not agree to go out from the house, she was forcibly dragged out from the house by the 3 A.B.A. No.7281 of 2019 petitioner and after that the informant and her father stayed on protest in front of the petitioners' house and though they stayed there till 9:00 P.M., but even then, the petitioner did not agree to take her inside. Finding no alternative, the informant stayed in a hotel and on the next day again, the informant attempted to enter inside her in-laws' house, but she was not allowed and on the second day also, she stayed in front of the gate of the petitioner but again the petitioner did not allow the informant to enter inside the house. After that, the informant and her father returned to their house and now the petitioner and his family members are insisting that unless their demand of car and remaining dowry is met, they will not allow the informant to enter into his house. It is further submitted by the learned counsel for the petitioner that the allegation against the petitioner are false. It is then submitted that loss of job of the petitioner is the main reason behind the dispute between the spouse resulting in false implication of petitioner due to ulterior motive.
Learned counsel for the petitioner next relied upon the Judgment of Hon'ble Supreme Court of India in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, reported in (2011) 1 SCC 694wherein in paragraph nos. 112, 113 & 117, the Hon'ble Supreme Court has held as under:-
112. The following factors and parameters can be taken into consideration while dealing with the 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 a 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 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 a 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 the accused is implicated with the help of 4 A.B.A. No.7281 of 2019 Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a 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.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
117. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive:
(1) Direct the accused to join the investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.
(2) Seize either the passport or such other related documents, such as, the title deeds of properties or the fixed deposit receipts/share certificates of the accused. (3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of a number of persons which according to the prosecution are necessary in view of the facts of the particular case. (5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. (6) Bank accounts be frozen for small duration during the investigation.
Learned counsel for the petitioner next relied upon the Judgment of Hon'ble Supreme Court of India in the case of Dataram Singh v. State of U.P., reported in (2018) 3 SCC 22 wherein in paragraph nos. 4, 5 & 16 the Hon'ble Supreme Court has held as under:-
4. To put it shortly, a humane attitude is required to be 5 A.B.A. No.7281 of 2019 adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re, that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson5 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
16.In our opinion, it is not necessary to go into the correctness or otherwise of the allegations made against the appellant. This is a matter that will, of course, be dealt with by the trial Judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge-sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months' time to appear before the trial Judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial Judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody's case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.
The learned counsel for the petitioner next relied upon the Judgment of Hon'ble Supreme Court of India in the case of Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273wherein the Hon'ble Supreme Court has held as under:-
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing 6 A.B.A. No.7281 of 2019 specified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
It is lastly submitted by the learned counsel for the petitioner that the petitioner is a law abiding person and he has not committed any heinous offence. Hence, it is submitted that the petitioner be given the privilege of anticipatory bail.
Learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for grant of anticipatory bail and submits that the inhuman conduct of the petitioner to ensure that unless the illegal demand of car and dowry is met, he will not take the opposite party no.2 to his house,stands exposed as in the openCourt today the petitioner refused point blank to take the opposite party no.2, without any rhyme and reason. It is further submitted that the custodial interrogation of the petitioner is required during the investigation of the case to recover the Stree Dhan property and the cash given at the time of marriage. Hence, it is submitted that the petitioner ought not to be given the privilege of anticipatory bail.
It is pertinent to mention here that a five judge bench of the Hon'ble Supreme Court of India today in the case of Sushila Aggarwal and Others v. State (NCT of Delhi) and Anr, 7 A.B.A. No.7281 of 2019 Special Leave Petition (Criminal) Nos. 7281-7282/2017 Dated 29.1.2020 in paragraph 35,133 (j), 137 and 139(12) held as under:-
35. ................ Therefore, considering the decision of the Constitution Bench of this Court in the case of Gurbaksh Singh Sibbia (supra) and the relevant observations, reproduced hereinabove, the decision of this Court in the case of Siddharam Satlingappa Mhetre (supra) to the extent it takes the view that the life of the order under Section 438 Cr.P.C. cannot be curtailed is not a correct law in light of the observations made by the Constitution Bench in paragraphs 42 and 43 in Gurbaksh Singh Sibbia (supra).
133 (j). The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.
137. ....................Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors.
2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other judgments which have followed it are accordingly overruled.
139(12).The observations in Siddharam Satlingappa Mhetre v. Stateof Maharashtra & Ors (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra and subsequent decisions (including K.L. Verma v. State & Anr; Sunita Devi v. State of Bihar & Anr; Adri Dharan Das v. State of West Bengal; Nirmal Jeet Kaur v. State of M.P. & Anr ; HDFC Bank Limited v. J.J. Mannan; Satpal Singh v. the State of Punjab and Naresh Kumar Yadav v Ravindra Kumar) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.
Considering the serious nature of allegation against the petitioner of perpetrating his nefarious design by treating the opposite party no.2 in an inhuman manner in order to fulfill his illegal demand of car and the remaining dowry amount though he has already been paid considerable amount including transfer of Rs.4,50,000/- to his account as well as the requirement of his custodial interrogation during the investigation of the case, this Court is of the considered view that this is not a fit case where the above named petitioner be given the privilege of anticipatory bail.
8 A.B.A. No.7281 of 2019Accordingly, the prayer for grant of privilege of anticipatory bail of the above named petitioner is rejected.
(Anil Kumar Choudhary, J.) AFR-Sonu-
9