Gujarat High Court
Thakkar vs State on 5 August, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.MA/8855/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8855 of 2010
=========================================================
THAKKAR
UMANGKUMAR GUNVANTRAI & 2
Versus
STATE
OF GUJARAT
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Appearance
:
MR
PRASHANT DESAI FOR MR.MRUGEN K PUROHIT
for
Applicants
MR HL JANI ADDL. PUBLIC PROSECUTOR for Respondent
MR
TM BAROT for original
Complainant
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 05/08/2010
ORAL
ORDER
In the facts and circumstances of the case and by consent of both the sides, this matter is taken up for hearing today.
This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure in connection with the FIR bearing M. Case No. I 1 of 2010 registered with Harij Police Station for the offences punishable under Sections 403, 406, 498-A, 504, 506(2) and 114 of the Indian Penal Code.
Mr.Prashant Desai, learned senior advocate for Mr.Mrugen Purohit, learned advocate for the applicants submitted that the applicants are innocent persons and have not committed any offence as alleged in the FIR and they have been wrongly arraigned in the commission of the offence. He contended that every articles are now in safe custody in the house of the applicants and whatever articles are there, the applicants are ready to give to the complainant and they have never misused for their own purpose. He contended that the ingredients of Section 405 of the Indian Penal Code regarding dominion over the property is concerned, it is not covered from the contention raised by the complainant also. He contended that the applicant No.1 is a Doctor and working as Pediatrician in Kidney Hospital, at Civil Hospital, Shahibaug, Ahmedabad. He contended that the applicant Nos.2 and 3 are the father-in-law and mother-in-law of the complainant and applicant No.2 is diabetic patient and suffering from Gullienbarro Syndrom and suffering from paralysis. In view of the aforesaid facts and circumstances of the case, it is a fit case to release the present applicants on anticipatory bail.
Mr.M. C. Barot, learned advocate with Mr.T.M.Barot, learned advocate for the original complainant contended that so far as the meaning of dowry is concerned, it is covered from the contentions of the FIR. Learned advocate for the original complainant, thereafter, changed his arguments and he has submitted drawing the attention to this Court that he used the word stridhan instead of dowry. No doubt, the complaint is filed by the complainant for the offence of demand of dowry also. He contended that the present applicants have misappropriated the property of the complainant. He contended that the applicant No.1 is Doctor and complainant is M.B.A., both are respectable persons in the society. He contended that the ingredients of the said offence, are attracted looking to the averments made in the complaint as well as the police papers and the complaint was sent to the police for investigation under Section 156(3) of the Criminal Procedure Code. He relied upon the decision of the Apex Court in the case of Rashmi Kumar Vs. Mahesh Kumar Bhada, reported in (1997) SCC
397. He submitted that in view of the aforesaid facts and circumstances, the present application is required to be rejected.
Mr.H. L. Jani, learned Additional Public Prosecutor representing the State submitted that from the statements of relatives of the complainant, it is clear that the applicants have committed the offence. He submitted that considering the roles attributed to the applicants which are reflected in the FIR at Annexure-A to the application and the nature of offences in which the applicants are involved as well as the manner in which the offences are committed by the applicants, the application deserves to be rejected.
Having considered the rival submissions, affidavit-in-reply filed by the complainant as well as police papers produced on record and on perusal of the FIR at Annexure-A to the application, the applicants are booked for the offences punishable under Sections 403, 406, 498-A, 504, 506(2) and 114 of the Indian Penal Code. First of all I have considered the meaning of dowry as defined under Section 2 of the Dowry Prohibition Act. I have not found any substance in the complaint also, and so it is irrelevant whether the demand is previous demand or after demand.
Even from the contention of the learned advocate for the original complainant, it appears that he has changed his version and stated that there was a stridhan but not dowry dhan, so it is not covered under the provisions of Dowry Prohibition Act. Even I have also gone through the judgment of the Hon'ble Apex Court reported in (1997) 2 SCC 397. In para-9 of the aforeasaid decision, the Apex Court has observed that entrustment of stridhana property to the husband or any other member of the family and dishonest misapproriation or conversion to own use of that property by the husband or such other person by itself amount to criminal breach of trust. In view of the decision of the Apex Court, I am of the view that I have not found any substance in the say of the complainant in the complaint that there was entrustment and dominion over the property by the husband. Even I have also perused Section 405 of the Indian Penal Code also. So far as Section 498A of the Indian Penal Code is concerned, it is non-bailable offence, but looking to the contentions of the complaint, it appears that the dispute is between the husband and wife. I am of the view that when the applicant No.1 is serving in Kidney Hospital, at Civil Hospital, Shahibaug, Ahmedabad, his presence is always available. In view of the above facts and circumstances of the case and without entering into merits of the case, I am inclined to exercise my discretion in favour of the applicants.
In the event of arrest of the applicants in connection with FIR bearing M. Case No. I 1 of 2010 registered with Harij Police Station for the offences punishable under Sections 403, 406, 498-A, 504, 506(2) and 114 of the Indian Penal Code, they shall be released on bail on executing a bond of Rs.5,000/- [Rupees five thousand only] each with one surety of the like amount on the following conditions that they shall:
[a] co-operate with the investigation and make themselves available for interrogation whenever and wherever required.
[b] shall remain present at the concerned Police Station on 9.8.2010 at 11:00 a.m. [c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer;
[d] at the time of execution of bond, furnish their residential addresses to the investigating officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
[e] not leave India without the permission of the Court and, if holding a passports, they shall surrender the same before the Trial Court within a week;
[f] not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the police;
It would be open to the Investigating Officer to file an application for remand if he considers it proper and just; and the competent Court would decide it on merits.
This order will hold good, if the applicants are arrested at any time within 90 days from today. The order for release on bail will remain operative only for a period of ten days from the date of his arrest. Thereafter, it will be open to the applicant to make a fresh application for being enlarged on bail in usual course, when it comes up before the competent Court, will be decided in accordance with law, having regard to all the attending circumstances and the materials available at the relevant time, without being influenced by the fact that anticipatory bail was granted.
With these directions, this application is allowed. Rule is made absolute. Direct Service is permitted.
(Z.K.SAIYED, J.) (vijay) Top