Calcutta High Court (Appellete Side)
Govind Ram Agarwal & Ors vs Govind Ram Agarwal & Ors on 8 July, 2015
Author: Tapen Sen
Bench: Tapen Sen
1 8.7.2015
AB Court 34
C.R.M. 14704 of 2014
(CRAN 1667 of 2015)
(CRAN 2054 of 2015)
With
C.R.M. 17106 of 2014
(CRAN 1673 of 2015)
(CRAN 2055 of 2015)
Mr. Amalesh Ray,
Mr. Amlan Jyoti Sengupta,
Mr. Manobendra Thakur,
Mr. N. N. Roy ... for the Applicants in CRAN
No. 1667 of 2015.
Mr. Manobendra Thakur,
Mr. A. Sengupta ... for the Applicants in CRAN
No. 1673 of 2015.
Mrs. Manju Agarwal,
Mr. Asish Chowdhury,
Ms. Oindrila Basu ... for the Defacto-complainant/
Applicants in C.R.A.N.
2054/2015 & 2055/2015.
Mr. Jayanta Banerjee ... for the State in
C.R.M. 17106 of 2014 &
C.R.A.N. 2055 of 2015.
Mr. M. F. A. Begg ... for the State in
C.R.M. 14704 of 2014 &
C.R.A.N. 2054 of 2015.
Mr. Rudradipta Nandy ... for the State in C.R.A.N.
No. 1673 of 2015.
In re : C.R.A.N. 1667 of 2015 in C.R.M. 14704 of 2014
This is an application filed by the parents and/or the
relatives praying for recall of the Order dated 13.3.2015. The said
Order dated 13.3.2015 reads as follows :
"2 13.3.2015
AB Court 34 C.R.M. 14704 of 2014
Re : An application for anticipatory bail under Section 438 of the Code of Criminal
Procedure filed on 14th October, 2014 in connection with Ratua Police Station
Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the
Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And
In re : Govind Ram Agarwal & Ors. ...Petitioners.
With
C.R.M. 17106 of 2014
Re : An application for anticipatory bail under Section 438 of the Code of Criminal
Procedure filed on 4th December, 2014 in connection with Ratua Police Station
Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the
Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And
In re : Anup Kumar Agarwal ...Petitioner.
Mr. Milan Mukherjee,
Mr. Amlan Jyoti Sengupta,
Mr. Amalesh Roy,
Mr. N. N. Roy ... for the Petitioners in both the
Applications.
Mrs. Manju Agarwal,
Mr. Asish Chowdhury,
Mrs. Uma Bagree ... for the Defacto-complainant.
Mr. Jayanta Banerjee ... for the State in
C.R.M. 17106 of 2014.
Mr. M. F. A. Begg ... for the State in
C.R.M. 14704 of 2014.
Pursuant to our Order dated 27.02.2015, the Petitioners have finally
shown that they have seriously considered their option of gong in for divorce by
mutual consent.
Mr. Milan Mukherjee, learned Senior Counsel appearing today for the
Petitioners, has stated that his clients are ready and willing to pay a sum of Rs.75
Lacs (Rupees Seventy Five Lacs only) to the Informant, Mrs. Nisha Agarwala within
a period of three months from today. The payment shall be made by an account-
payee demand draft drawn in favour of Nisha Agarwala.
Mrs. Manju Agarwal, learned Counsel appearing for the Informant,
Nisha Agarwala, upon instructions, has stated that her client agrees with this
Order and the moment she receives the said sum of money, the parties will then
go for mutual divorce by filing a joint petition before the concerned court within a
period of one month thereafter.
The terms and conditions, which have been agreed upon in this
Court, are briefly stated hereinafter :-
(a) Having received the payment of Rs.75 Lacs (Rupees Seventy Five Lacs
only) by an account-payee demand draft within a period of three months, Nisha
Agarwala would not have any further claims on the Petitioners and she would
withdraw all criminal cases pending against them.
(b) It has been further agreed that out of the said sum of Rs.75 Lacs
(Rupees Seventy Five Lac only), Nisha Agarwala would keep Rs.25 Lacs (Rupees
Twenty Five Lacs only) in a fixed deposit in the ratio of Rs.12.5 Lacs in the name of
her son and Rs.12.5 Lacs in the name of her daughter in any nationalized bank
and the same will not be disturbed so long as they do not attain majority.
(c) Nisha Agarwala would not object to the exercise of visitation rights of
her husband only at least once in a month with prior intimation and the same will
continue till the children attain their majority whereupon they will have their own
discretion and choice to either continue meeting their father or not.
(d) The mode and modality of such meeting will be worked out between
the parties before the concerned District Judge.
It is stated by Mr. Milan Mukherjee that the corpus fund for
purposes of making payment to Nisha Agarwala will have to be generated by sale
of land, which stands in the name of Nisha Agarwala.
Mrs. Manju Agarwal has very frankly stated that Nisha Agarwala is
not interested to retain that land and, therefore, she has no objection if the land
is sold and her client would cooperate in signing the deed etc. so that the corpus
fund is created before it is actually handed over to her within the aforesaid period.
Since the parties have now finally agreed as indicated above, we,
therefore, consider it appropriate to keep this matter pending with the interim
order and it will be listed after appropriate mentioning in that regard made by the
parties upon notice to the State when the application under Section 13B has been
disposed of.
We have heard the learned Counsel appearing on behalf of the State.
The Investigating Officer is present in Court today. His appearance
is now dispensed with.
(TAPEN SEN, J.)
(INDRAJIT CHATTERJEE, J.)"
In re : C.R.A.N. 1673 of 2015 in C.R.M. 17106 of 2014
This is an application filed by the husband praying for
recalling of the Order dated 13.03.2015 as quoted above.
In re : C.R.A.N. 2055 of 2015 in C.R.M. 17106 of 2014 &
C.R.A.N. 2054 of 2015 in C.R.M. 14704 of 2014
In these two applications, the Applicant is Nisha Agarwal.
In both the applications, prayer is for vacating the Order dated 13th
March, 2015 by which we had stayed the operation of the Order
dated 5th December, 2014 for grounds mentioned therein. The Order
dated 5.12.2014 reads as follows :
" 05/12/2014
(1) (Ct. 34)
ARDR
CRM 14704 of 2014
In Re: An application under Section 438 of the Code of Criminal Procedure filed
on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated
17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read
with Sections 3/4 of the Dowry Prohibition Act.
And
In the matter of: Govind Ram Agarwal & Ors.
...Petitioners.
With
CRM 17106 of 2014
In Re: An application under Section 438 of the Code of Criminal Procedure filed
on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated
17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read
with Sections 3/4 of the Dowry Prohibition Act.
In the matter of: Anup Kumar Agarwal ...Petitioner.
Mr. Manabendra Thakur,
Mr. Amlan Jyoti Sengupta,
Mr. N. N. Roy, ...for the Petitioners in both the applications.
Mr. Debasish Roy,
Mr. Siladitya Sanyal,
Mr. Assish Chowdhury,
Ms. Aindrila Basu, ..for the De-facto complainant.
Mr. M. F. A. Beg,
...for the State.
These two anticipatory bail applications have been filed by father-in-law,
mother-in-law, two brothers-in-law (Dewars) and also, on behalf of Kiran Agarwal,
married sister-in-law as well as on behalf of the husband Anup Kumar Agarwal
respectively in the two cases. Both have prayed for grant of anticipatory bail in
Ratua Police Station Case no. 541 of 2014 dated 17/9/2014 registered under
Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of
the Dowry Prohibition Act.
The gist of the matter is domestic trouble with allegations of severe
torture being inflicted upon the wife/informant, namely, Nisha Agarwala. Let it be
recorded that out of the wedlock on 03/2/2007, two children were born, one
being a baby boy and the other being a baby girl.
When initially the first case came up for hearing i.e. the one filed by the
in-laws, we duly looked into the records and we were of the view that this being a
case of severe misunderstanding owing to the aforementioned facts and
circumstances including demand for money etc., a sincere attempt can be made
for a rapprochement between the parties and we, therefore, accordingly observed
that if the husband was also before us, then a workable solution can be worked
out. It is under those circumstances that the husband Anup Kumar Agarwal filed
the other application being CRM 17106 of 2014 and both, being on the Board
today, have been heard together.
We individually talked both to the husband as well as to the wife. While
one of them stated that he had no objection to live together as husband and wife,
he, in the same tenor, also frankly conceded that he has become an
inebriate/drunkard and that he has become addicted to it. When we asked Nisha
Agarwala and sought her views, she very vehemently stated that considering the
day-to-day torture being meted out to her together with insults coupled with
regular beatings, she was not inclined to continue to live as husband and wife. It
was thereafter that we talked to the two minor children after we assured ourselves
that they had the capacity to converse intelligently. We then asked them
separately as to whether they would like to live like a family with their father
Anup Kumar Agarwal. The two children told us things that have shocked our
conscience. They have said that their father repeatedly assaults their mother,
insults her, comes home in a drunken state and that they would never accept him
as a father at all. Having considered all these facts and circumstances and having
also talked to the father of Anup Kumar Agarwal and taking into consideration of
what has been told to us, we are prima-facie of the view that the marriage has
broken down and there is no chance of a rapprochement because the behaviour of
the husband has/had been continuing for so long that the wife and the minor
children now want freedom, peace and a chance to move on in life.
Both the husband and the wife are in the prime of their age and they
should not be deprived of their liberty and the right to carry on with their own
vocations and they should not be saddled with a situation in which either of them
would be subjected to torture and everyday tension making their lives miserable.
Moreover, on the basis of whatever we have heard and as observed earlier, we are
not even sure as to whether things could get even worse which may cause serious
damage to the parties both mentally and physically and therefore, we asked them,
in the presence of their parents and relatives as to whether they would like to go
for a mutual decree of divorce. All of them readily agreed and stated that they
would work out their terms and conditions so that the same could be
incorporated in an application under Section 13(B).
It is in the background of such developments having taken place and as
per the own suggestions of the parties that we direct that this matter be listed for
further hearing on the 19th of December, 2014 at 12 noon. All parties have agreed
to be present before this Court on that day.
List this matter on the 19th of December, 2014 at 12 noon.
In the special facts and circumstances of this case, we direct the
Investigating Officer not to arrest the accused persons till further Orders are
passed by this Court.
(Tapen Sen, J.)
(Indrajit Chatterjee, J.)"
In order to appreciate the facts on the basis whereof we
passed different Orders, it would be necessary to quote the various
Orders that we had passed during the course of hearing of these two
applications. These Orders are the Orders dated 2.12.2014,
5.12.2014, 19.12.2014, 29.1.2015, 6.2.2015, 27.2.2015 and 13.3.2015. These Orders are quoted below :-
"02.12.14 C.R.M. 14704 of 2014 21 a.j.
Re: An application under Section 438 of the Code of Criminal Procedure filed on
14.10.2014 in connection with Ratua Police Station Case No. 541 of 2014 dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
In re: Govind Ram Agarwal & Ors. ... Petitioners.
Mr. Manabendra Thakur, Mr. Daanish Haque.
...For the Petitioners.
Mr. Debasish Roy, Mr. Siladitya Banerjee, Mr. Assish Chowdhury, Ms. Aindrila Basu.
....For the de-facto Complainant.
Mr. Mirza Firoj Ahamed Beg.
....For the State.
After having heard the learned Counsel for the petitioners as well as the learned Counsel for the State and also the learned Counsel for the informant, we were of the view that this matter, being an example of severe misunderstanding between the husband and the wife where, the in-laws have also be roped in, an attempt to sort out the matter in Court is made.
Under the circumstances, we directed the parties to appear before us. They have appeared before us and we have heard them at length. The learned Counsel for the petitioners states that in order to effectively reach to an understanding, he will advise his clients to also file an anticipatory bail application on behalf of the husband so that his part of the story can also be heard and then necessary orders can be passed either rejecting the prayer for anticipatory bail or allowing the said prayer or passing such order or orders as may be deemed fit and justiciable by this Court. We have appreciated the stand taken by the parties and we grant leave to them.
Let the matter come up again under the same heading on the 5th of December, 2014 at 10.30 A.M. ( Tapen Sen, J. ) ( Indrajit Chatterjee, J. )"
" 05/12/2014 (1) (Ct. 34) ARDR CRM 14704 of 2014 In Re: An application under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated 17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
And In the matter of: Govind Ram Agarwal & Ors.
...Petitioners.
With CRM 17106 of 2014 In Re: An application under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated 17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
In the matter of: Anup Kumar Agarwal ...Petitioner.
Mr. Manabendra Thakur, Mr. Amlan Jyoti Sengupta, Mr. N. N. Roy, ...for the Petitioners in both the applications.
Mr. Debasish Roy, Mr. Siladitya Sanyal, Mr. Assish Chowdhury, Ms. Aindrila Basu, ..for the De-facto complainant.
Mr. M. F. A. Beg, ...for the State.
These two anticipatory bail applications have been filed by father-in-law, mother-in-law, two brothers-in-law (Dewars) and also, on behalf of Kiran Agarwal, married sister-in-law as well as on behalf of the husband Anup Kumar Agarwal respectively in the two cases. Both have prayed for grant of anticipatory bail in Ratua Police Station Case no. 541 of 2014 dated 17/9/2014 registered under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
The gist of the matter is domestic trouble with allegations of severe torture being inflicted upon the wife/informant, namely, Nisha Agarwala. Let it be recorded that out of the wedlock on 03/2/2007, two children were born, one being a baby boy and the other being a baby girl.
When initially the first case came up for hearing i.e. the one filed by the in-laws, we duly looked into the records and we were of the view that this being a case of severe misunderstanding owing to the aforementioned facts and circumstances including demand for money etc., a sincere attempt can be made for a rapprochement between the parties and we, therefore, accordingly observed that if the husband was also before us, then a workable solution can be worked out. It is under those circumstances that the husband Anup Kumar Agarwal filed the other application being CRM 17106 of 2014 and both, being on the Board today, have been heard together.
We individually talked both to the husband as well as to the wife. While one of them stated that he had no objection to live together as husband and wife, he, in the same tenor, also frankly conceded that he has become an inebriate/drunkard and that he has become addicted to it. When we asked Nisha Agarwala and sought her views, she very vehemently stated that considering the day-to-day torture being meted out to her together with insults coupled with regular beatings, she was not inclined to continue to live as husband and wife. It was thereafter that we talked to the two minor children after we assured ourselves that they had the capacity to converse intelligently. We then asked them separately as to whether they would like to live like a family with their father Anup Kumar Agarwal. The two children told us things that have shocked our conscience. They have said that their father repeatedly assaults their mother, insults her, comes home in a drunken state and that they would never accept him as a father at all. Having considered all these facts and circumstances and having also talked to the father of Anup Kumar Agarwal and taking into consideration of what has been told to us, we are prima-facie of the view that the marriage has broken down and there is no chance of a rapprochement because the behaviour of the husband has/had been continuing for so long that the wife and the minor children now want freedom, peace and a chance to move on in life.
Both the husband and the wife are in the prime of their age and they should not be deprived of their liberty and the right to carry on with their own vocations and they should not be saddled with a situation in which either of them would be subjected to torture and everyday tension making their lives miserable.
Moreover, on the basis of whatever we have heard and as observed earlier, we are not even sure as to whether things could get even worse which may cause serious damage to the parties both mentally and physically and therefore, we asked them, in the presence of their parents and relatives as to whether they would like to go for a mutual decree of divorce. All of them readily agreed and stated that they would work out their terms and conditions so that the same could be incorporated in an application under Section 13(B).
It is in the background of such developments having taken place and as per the own suggestions of the parties that we direct that this matter be listed for further hearing on the 19th of December, 2014 at 12 noon. All parties have agreed to be present before this Court on that day.
List this matter on the 19th of December, 2014 at 12 noon.
In the special facts and circumstances of this case, we direct the Investigating Officer not to arrest the accused persons till further Orders are passed by this Court.
(Tapen Sen, J.) (Indrajit Chatterjee, J.)"
" 13 19.12.2014 AB Court 34 C.R.M. 14704 of 2014 Re : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua Police Station Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And In re : Govind Ram Agarwal & Ors. ...Petitioners.
With C.R.M. 17106 of 2014 Re : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 4th December, 2014 in connection with Ratua Police Station Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And
In re : Anup Kumar Agarwal ...Petitioner.
Mr. Manobendra Thakur,
Mr. Amlan Jyoti Sengupta,
Mr. N. N. Roy ... for the Petitioners in both the
Applications.
Mr. Debasish Roy,
Mr. Siladitya Banerjee,
Mr. Asish Chowdhury,
Ms. Aindrila Basu ... for the Defacto-complainant.
Mr. Mirza Firoj Ahmed Begg ... for the State The matter was taken up again today and the parties have prayed for some more time.
Heard-in-part.
We, accordingly, direct this matter to be listed for further hearing on the 29th of January, 2015 at 12.00 noon in camera. The parties will remain present on that date.
The interim order shall continue till further orders are passed by this Court.
(TAPEN SEN, J.) (INDRAJIT CHATTERJEE, J.)"
"12 29.1.2015 AB Court 34 C.R.M. 14704 of 2014 Re : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua Police Station Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And In re : Govind Ram Agarwal & Ors. ...Petitioners.
With C.R.M. 17106 of 2014 Re : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 4th December, 2014 in connection with Ratua Police Station Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And
In re : Anup Kumar Agarwal ...Petitioner.
Mr. Manobendra Thakur,
Mr. Amlan Jyoti Sengupta,
Mr. N. N. Roy ... for the Petitioners in both the
Applications.
Mr. Debasish Roy,
Mr. Siladitya Banerjee,
Mr. Asish Chowdhury,
Ms. Aindrila Basu ... for the Defacto-complainant.
Mr. Jayanta Banerjee ... for the State in
C.R.M. 17106 of 2014.
As jointly prayed for by the parties, let this case be listed under the same heading and at the same time on the 5th of February, 2015.
(TAPEN SEN, J.) (INDRAJIT CHATTERJEE, J.)"
"06/2/2015 (2) (Ct. 34) ARDR CRM 14704 of 2014 In Re: An application under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated 17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
And In the matter of: Govind Ram Agarwal & Ors.
...Petitioners.
With CRM 17106 of 2014 In Re: An application under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated 17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
In the matter of: Anup Kumar Agarwal ...Petitioner.
Mr. Manabendra Thakur, Mr. Amlan Jyoti Sengupta, ...for the Petitioners in both the applications. Mrs. Manju Agarwal, Mrs. Uma Bagree, ..for the De-facto complainant.
Mr. Jayanta Banerjee, ...for the State in CRM 17106 of 2014.
Mr. M. F. A. Beg, ...for the State in CRM 14704 of 2014.
As prayed for by the learned Counsel for the parties, put up this case on the 27th February, 2015 at 2 p.m. under the same heading.
(Tapen Sen, J.) (Indrajit Chatterjee, J.)"
"27/02/2015 1 aj CRM 14704 of 2014 In Re: An Application under Section 438 of the Code of Criminal Procedure filed on 14/10/2014 in connection with Ratua P.S. Case No. 541 of 2014 dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act (G.R. Case No.1544/14).
In the matter of :- Govind Ram Agarwal & Ors.
.... Petitioners.
With CRM 17106 of 2014 In Re: An Application under Section 438 of the Code of Criminal Procedure filed on 04/12/2014 in connection with Ratua P.S. Case No. 541 of 2014 dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act (G.R. Case No.1544/14).
In the matter of :- Anup Kumar Agarwal.
.... Petitioner.
Mr. Manabendra Thakur,
Mr. Amlan Jyoti Sengupta.
....for the Petitioners in both the applications.
Mrs. Manju Agarwal, Mrs. Uma Bagree.
...for the De-facto Complainant.
Mr. Mirza Firoj Ahamed Beg.
...for the State in C.R.M. 14704 of 2014.
Mr. Jayanta Banerjee.
...for the State in C.R.M. 17106 of 2014.
In these two cases we have given sufficient indulgence to the parties and that would appear from our orders dated 02.12.2014 and 05.12.2014 respectively. In the order dated 05.12.2014 we had sufficiently indicated and given reasons as to why we thought it appropriate to direct the Investigating Officer not to arrest accused persons till further orders were passed by this Court. In fact, from the order sheets dated 05.12.2014 it would further appear that the parties on being asked in the presence of their relatives and parents as to whether they would like to go with the mutual divorce had readily agreed and stated that they would work out their terms and conditions so that the same could be incorporated in an application under Section 13(B). For the convenience of all, we are therefore quoting our orders dated 02.12.2014 and 05.12.2014.
"02.12.14
21.AJ. C.R.M. 14704 of 2014 Re: An application under Section 438 of the Code of Criminal Procedure filed on 14.10.2014 in connection with Ratua Police Station Case No. 541 of 2014 dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
In re: Govind Ram Agarwal & Ors.
... Petitioners.
Mr. Manabendra Thakur, Mr. Daanish Haque.
...For the Petitioners.
Mr. Debasish Roy, Mr. Siladitya Banerjee, Mr. Assish Chowdhury, Ms. Aindrila Basu.
....For the de-facto Complainant.
Mr. Mirza Firoj Ahamed Beg.
....For the State.
After having heard the learned Counsel for the petitioners as well as the learned Counsel for the State and also the learned Counsel for the informant, we were of the view that this matter, being an example of severe misunderstanding between the husband and the wife where, the in-laws have also be roped in, an attempt to sort out the matter in Court is made.
Under the circumstances, we directed the parties to appear before us. They have appeared before us and we have heard them at length. The learned Counsel for the petitioners states that in order to effectively reach to an understanding, he will advise his clients to also file an anticipatory bail application on behalf of the husband so that his part of the story can also be heard and then necessary orders can be passed either rejecting the prayer for anticipatory bail or allowing the said prayer or passing such order or orders as may be deemed fit and justiciable by this Court. We have appreciated the stand taken by the parties and we grant leave to them.
Let the matter come up again under the same heading on the 5th of December, 2014 at 10.30 A.M. ( Tapen Sen, J. ) ( Indrajit Chatterjee, J.)"
"05/12/2014 (1) (Ct. 34) ARDR CRM 14704 of 2014 In Re: An application under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated 17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
And In the matter of: Govind Ram Agarwal & Ors.
...Petitioners.
With CRM 17106 of 2014 In Re: An application under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua P.S. case no. 541 of 2014 dated 17/9/2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
In the matter of: Anup Kumar Agarwal ... Petitioner.
Mr. Manabendra Thakur, Mr. Amlan Jyoti Sengupta, Mr. N. N. Roy, ...for the Petitioners in both the applications.
Mr. Debasish Roy, Mr. Siladitya Sanyal, Mr. Assish Chowdhury, Ms. Aindrila Basu, ..for the De-facto complainant.
Mr. M. F. A. Beg, ...for the State.
These two anticipatory bail applications have been filed by father-in- law, mother-in-law, two brothers-in-law (Dewars) and also, on behalf of Kiran Agarwal, married sister-in-law as well as on behalf of the husband Anup Kumar Agarwal respectively in the two cases. Both have prayed for grant of anticipatory bail in Ratua Police Station Case no. 541 of 2014 dated 17/9/2014 registered under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3/4 of the Dowry Prohibition Act.
The gist of the matter is domestic trouble with allegations of severe torture being inflicted upon the wife/informant, namely, Nisha Agarwala. Let it be recorded that out of the wedlock on 03/2/2007, two children were born, one being a baby boy and the other being a baby girl.
When initially the first case came up for hearing i.e. the one filed by the in-laws, we duly looked into the records and we were of the view that this being a case of severe misunderstanding owing to the aforementioned facts and circumstances including demand for money etc., a sincere attempt can be made for a rapprochement between the parties and we, therefore, accordingly observed that if the husband was also before us, then a workable solution can be worked out. It is under those circumstances that the husband Anup Kumar Agarwal filed the other application being CRM 17106 of 2014 and both, being on the Board today, have been heard together.
We individually talked both to the husband as well as to the wife. While one of them stated that he had no objection to live together as husband and wife, he, in the same tenor, also frankly conceded that he has become an inebriate/drunkard and that he has become addicted to it. When we asked Nisha Agarwala and sought her views, she very vehemently stated that considering the day-to-day torture being meted out to her together with insults coupled with regular beatings, she was not inclined to continue to live as husband and wife. It was thereafter that we talked to the two minor children after we assured ourselves that they had the capacity to converse intelligently. We then asked them separately as to whether they would like to live like a family with their father Anup Kumar Agarwal. The two children told us things that have shocked our conscience. They have said that their father repeatedly assaults their mother, insults her, comes home in a drunken state and that they would never accept him as a father at all. Having considered all these facts and circumstances and having also talked to the father of Anup Kumar Agarwal and taking into consideration of what has been told to us, we are prima-facie of the view that the marriage has broken down and there is no chance of a rapprochement because the behaviour of the husband has/had been continuing for so long that the wife and the minor children now want freedom, peace and a chance to move on in life.
Both the husband and the wife are in the prime of their age and they should not be deprived of their liberty and the right to carry on with their own vocations and they should not be saddled with a situation in which either of them would be subjected to torture and everyday tension making their lives miserable. Moreover, on the basis of whatever we have heard and as observed earlier, we are not even sure as to whether things could get even worse which may cause serious damage to the parties both mentally and physically and therefore, we asked them, in the presence of their parents and relatives as to whether they would like to go for a mutual decree of divorce. All of them readily agreed and stated that they would work out their terms and conditions so that the same could be incorporated in an application under Section 13(B).
It is in the background of such developments having taken place and as per the own suggestions of the parties that we direct that this matter be listed for further hearing on the 19th of December, 2014 at 12 noon. All parties have agreed to be present before this Court on that day.
List this matter on the 19th of December, 2014 at 12 noon.
In the special facts and circumstances of this case, we direct the Investigating Officer not to arrest the accused persons till further Orders are passed by this Court.
(Tapen Sen, J.) (Indrajit Chatterjee, J.)"
Thereafter the husband has repeatedly taken time after time as would be evident from the other order sheets and we have been accommodating him because each time his Counsel told us that his clients will work out ways and means to facilitate an application for mutual divorce and it was on these premises that we repeatedly extended the interim orders.
Let it be recorded that in this case a Bench has to be constituted specially for hearing them "in camera" and when we are told that each time that the parties have not yet compromised ways and means, we feel that judicial time is unnecessarily being taken.
What is more shocking is that today when the case was called out, Mrs. Manju Agarwal, learned Counsel appearing for the informant very candidly stated that the husband has been showing arrogance in the matter and his attitude is as if he is dealing with a beggar with a begging bowl.
We feel that sufficient indulgence has been given and we must also mention that we have given sufficient time and therefore a similar prayer being made by Mr. Sengupta, learned Counsel for the petitioners that another opportunity being given is considered and rejected.
Having considered the allegations made in the FIR and having taken into the facts and circumstances that were brought to our notice even by the little children as would be evident from our order dated 05.12.2014, we refuse to grant anticipatory bail to these petitioners.
Their prayer for grant of anticipatory bail in both the cases stands rejected. All interim orders passed earlier stand vacated. This order has been passed in the presence of the Investigating Officer who will now take action in accordance with law.
After we had dictated the aforementioned order, Mr. Amlan Jyoti Sengupta, learned Counsel for the petitioners has made a very fervent appeal stating that his clients may be given one last opportunity and this order be kept in abeyance till that date. Mrs. Manju Agarwal appearing for the informant did not oppose and left the matter to the Court.
Considering the aforementioned fervent appeal, we give one last opportunity to the parties indicating their desire whether they would go for a mutual divorce or not and, if so, to come before us with a joint compromise petition failing which the law will take its own course.
As prayed for by Mr. Sengputa himself, let this case be listed on the 13th of March, 2015 at 2 P.M. "in camera".
As a consequence of this order, the portion quoted above shall remain in abeyance to the effect that the petitioners will not be arrested till we pass appropriate orders in this case.
( Tapen Sen, J. ) ( Indrajit Chatterjee, J.) "
"2 13.3.2015 AB Court 34 C.R.M. 14704 of 2014 Re : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 14th October, 2014 in connection with Ratua Police Station Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And In re : Govind Ram Agarwal & Ors. ...Petitioners.
With C.R.M. 17106 of 2014 Re : An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 4th December, 2014 in connection with Ratua Police Station Case No. 541 of 2014 Dated 17.09.2014 under Sections 498A/325/307/34 of the Indian Penal Code read with Sections 3 and 4 of the D. P. Act.
And
In re : Anup Kumar Agarwal ...Petitioner.
Mr. Milan Mukherjee,
Mr. Amlan Jyoti Sengupta,
Mr. Amalesh Roy,
Mr. N. N. Roy ... for the Petitioners in both the
Applications.
Mrs. Manju Agarwal,
Mr. Asish Chowdhury,
Mrs. Uma Bagree ... for the Defacto-complainant.
Mr. Jayanta Banerjee ... for the State in
C.R.M. 17106 of 2014.
Mr. M. F. A. Begg ... for the State in
C.R.M. 14704 of 2014.
Pursuant to our Order dated 27.02.2015, the Petitioners have finally shown that they have seriously considered their option of gong in for divorce by mutual consent.
Mr. Milan Mukherjee, learned Senior Counsel appearing today for the Petitioners, has stated that his clients are ready and willing to pay a sum of Rs.75 Lacs (Rupees Seventy Five Lacs only) to the Informant, Mrs. Nisha Agarwala within a period of three months from today. The payment shall be made by an account- payee demand draft drawn in favour of Nisha Agarwala.
Mrs. Manju Agarwal, learned Counsel appearing for the Informant, Nisha Agarwala, upon instructions, has stated that her client agrees with this Order and the moment she receives the said sum of money, the parties will then go for mutual divorce by filing a joint petition before the concerned court within a period of one month thereafter.
The terms and conditions, which have been agreed upon in this Court, are briefly stated hereinafter :-
(a) Having received the payment of Rs.75 Lacs (Rupees Seventy Five Lacs only) by an account-payee demand draft within a period of three months, Nisha Agarwala would not have any further claims on the Petitioners and she would withdraw all criminal cases pending against them.
(b) It has been further agreed that out of the said sum of Rs.75 Lacs (Rupees Seventy Five Lac only), Nisha Agarwala would keep Rs.25 Lacs (Rupees Twenty Five Lacs only) in a fixed deposit in the ratio of Rs.12.5 Lacs in the name of her son and Rs.12.5 Lacs in the name of her daughter in any nationalized bank and the same will not be disturbed so long as they do not attain majority.
(c) Nisha Agarwala would not object to the exercise of visitation rights of her husband only at least once in a month with prior intimation and the same will continue till the children attain their majority whereupon they will have their own discretion and choice to either continue meeting their father or not.
(d) The mode and modality of such meeting will be worked out between the parties before the concerned District Judge.
It is stated by Mr. Milan Mukherjee that the corpus fund for purposes of making payment to Nisha Agarwala will have to be generated by sale of land, which stands in the name of Nisha Agarwala.
Mrs. Manju Agarwal has very frankly stated that Nisha Agarwala is not interested to retain that land and, therefore, she has no objection if the land is sold and her client would cooperate in signing the deed etc. so that the corpus fund is created before it is actually handed over to her within the aforesaid period.
Since the parties have now finally agreed as indicated above, we, therefore, consider it appropriate to keep this matter pending with the interim order and it will be listed after appropriate mentioning in that regard made by the parties upon notice to the State when the application under Section 13B has been disposed of.
We have heard the learned Counsel appearing on behalf of the State. The Investigating Officer is present in Court today. His appearance is now dispensed with.
(TAPEN SEN, J.) (INDRAJIT CHATTERJEE, J.)"
Now, in these two applications, we find that the parents and relatives in C.R.A.N. 1667 of 2015 have stated that they have no legal obligation nor are they bound to pay and/or share any amount of permanent alimony to the defacto-complainant nor they will be the parties to the matrimonial suit for divorce.
They have further stated that 16 cottahs of land, which stands in the name of the defacto-complainant at the outskirts of Siliguri city, cannot be sold now at a marketable price because of the recent earthquake.
They have also stated that of-late, their son, Anup Kumar Agarwal has interacted with his wife over telephone on diverse dates and they hope that their marital relationship has not irretrievably broken down and that there can be a chance of reconciliation if their well-wishers intervene.
The husband in his application being C.R.A.N. 1673 of 2015 has, inter alia, stated that it is impossible and impracticable on his part to pay Rs.75 Lacs at a time to his wife and that he had never agreed nor expressed his unequivocal consent before his Advocate on record with regard to payment of Rs.75 Lacs to his wife since his financial condition is not sound.
The wife, Nisha Agarwal in her application being C.R.A.N. 2054 of 2015 has, inter alia, stated that out of the wedlock, two children were born in 2008 and 2010. She has also made other statement inline with her own complaint, which she had made before the police.
In the aforementioned circumstances and reading the different Orders that we had passed in these two cases, it will appear that the parties were given indulgence after indulgence, but at one point of time, since the husband had shown arrogance, we rejected the prayer for grant of anticipatory bail vide our Order dated 27.2.2015, but at that point of time, Mr. Amlan Jyoti Sengupta, who was appearing for the Petitioners, very fervently has stated that his client be given one last opportunity and that the said Order be kept in abeyance till that date.
Mrs. Manju Agarwal, learned Counsel appearing for the defacto-complainant, had not opposed such a fervent appeal of Mr. Amlan Jyoti Sengupta. It was thereafter that when we took up the matter on 13.3.2015, we were given to understand that the Petitioners had seriously considered their option of going for mutual divorce and it was under that understanding that we finally passed the Order dated 13.3.2015. That Order was passed in terms of what was agreed upon in Court and as suggested by themselves. It was in that background that we had stated that since the parties had finally agreed, the matter be kept pending with an interim order that it will be listed after appropriate mentioning is made in that regard by the parties upon notice to the State when the application under Section 13B had been disposed of.
Learned Counsel for the State has appeared today and we heard him also.
Let it be recorded that the investigation in this case is still pending.
Considering the fact that even after we had passed the Order, the parties are not willing to adhere to their statements that they had made in Court and are flinging allegations against each other, we are of the view that the Orders, that we had passed earlier and which have been quoted above, need to be recalled.
We, accordingly, recall all the Orders mentioned and quoted above. The applications for anticipatory bail will now be listed before appropriate bench.
All interim orders, granted earlier, are hereby vacated.
All the applications being C.R.A.N. 1667 of 2015, 1673 of 2015, 2054 of 2015 and 2055 of 2015 stand disposed of.
The matter shall not be treated as 'part-heard' before us any more.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(TAPEN SEN, J.) (INDRAJIT CHATTERJEE, J.)