Madhya Pradesh High Court
Ku. Aditi Tyagi @ Gudiya @ Rani vs The State Of Madhya Pradesh Thr on 12 January, 2018
1
THE HIGH COURT OF MADHYA PRADESH
MCRC-28068-2017
(Ku. Aditi Tyagi @ Gudiya @ Rani Vs. State of Madhya
Pradesh)
Gwalior, Dated : 12.01.2018
Shri V.K. Saxena, senior counsel with Shri Anil Mishra,
counsel for the appellant.
Shri Devendra Chaubey, Public Prosecutor for the
respondent/State.
Shri Rajeev Sharma, counsel for the complainant. Case diary is available.
This is third application under Section 438 of Cr.P.C. for grant of anticipatory bail. The first application was dismissed as withdrawn by order dated 12.04.2017 passed in M.Cr.C. No. 3807/2017 and the second application was dismissed by order dated 12.12.2017 passed in M.Cr.C. No. 26245/2017.
The applicant apprehends his arrest in connection with Crime No.719/2016 registered by Police Station Bahodapur District Gwalior for the offence punishable under Sections 304-B, 498-A and 34 of IPC and Section 3/4 of Dowry Prohibition Act.
It is submitted by the counsel for the applicant that the husband of the deceased has been granted bail under Section 439 of Cr.P.C. The applicant is a spinster and in case, if she is arrested then it would adversely affect her career/character. It is further submitted by the counsel for the applicant that so far as the judgment passed in the case of State of M.P. Vs. Pradeep Sharma reported in (2014) 2 SCC 171 is concerned, 2 in that decision, the Supreme Court has not considered the decision passed in the case of Shri Gurbaksh Singh Sibbia and others Vs. State of Punjab reported in (1980) 2 SCC
565. Even otherwise, in the case of Lavesh Vs. State (NCT of Delhi) reported in (2012) 8 SCC 730, the word "normally"has been used in paragraph 12, which clearly shows that no hard and fast rule has been laid down to the effect that where the proceedings have been initiated under Sections 82 and 83 of Cr.P.C. and a person has been declared as an absconder, then the application under Section 438 of Cr.P.C. is not maintainable. It is further submitted that merely because a person is absconding, it cannot be said that it is a circumstance against him because sometimes even innocent persons in order to avoid their unnecessary arrest may also leave their place of residence. It is further submitted that the repeat application under Section 438 of Cr.P.C. is maintainable in case, if any changed circumstance is pointed out and in the present case, husband of the deceased has been granted bail under Section 439 of Cr.P.C. subsequent to the rejection of the bail of the applicant.
Per contra, the application is vehemently opposed by the counsel for the State. It is submitted by the counsel for the State that the applicant is absconding. This is a third bail application under Section 438 of Cr.P.C. The husband of the deceased has been granted bail under Section 439 of Cr.P.C. and, therefore, it would not be a change in circumstance. The police has filed the charge-sheet during her absconsion and the 3 warrant of arrest has already been issued by the Court below and under these circumstances, in the light of the judgment passed by the Supreme Court in the case of State of M.P. Vs. Pradeep Sharma (Supra), the bail application under Section 438 of Cr.P.C. is not maintainable.
Counsel for the complainant also raised the same submissions. It is further submitted that the deceased was married to the co-accused Deepak Tyagi on 11.06.2015 and sufficient dowry was given and about three months after the marriage, the applicant and the other co-accused persons started demanding rupees three lacs and a motorcycle and because of that, the death of the deceased took place within a period of one and half years.
Considering the facts and circumstances of the case and in the light of the judgment passed by the Supreme Court in the case of State of M.P. Vs. Pradeep Sharma (supra), this Court is of the view that the application for grant of anticipatory bail is not maintainable as the applicant is absconding and the warrant of arrest has already been issued by the Court below and as the charge-sheet has been filed under Section 299 of Cr.P.C.
This application fails and is, accordingly, dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2018.01.15 12:07:36 +05'30'