Punjab-Haryana High Court
Ashok & Anr vs State Of Haryana on 8 February, 2016
Author: Daya Chaudhary
Bench: Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-3135 of 2016 (O&M)
Date of decision: 08.02.2016
Ashok and another ..Petitioners
Versus
State of Haryana ..Respondent
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
1. Whether reporters of local newspapers may be allowed to see
judgment? Yes
2. To be referred to reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
Present: Mr. B.S. Rana, Sr. Advocate with
Mr. Vikas P. Singh, Advocate
for the petitioners.
Mr. Baljinder Singh Virk, DAG, Haryana
for the respondent - State.
Mr. Parveen Kataria, Advocate
for the complainant.
Daya Chaudhary, J.
CRM-4266 of 2016 Allowed as prayed for.
CRM-4267 of 2016 This application is for placing on record Annexures R-1 to R-6.
Application is allowed and Annexures R-1 to R-6 are taken on record.
CRM-M-3135 of 2016 This petition has been filed under Section 438 Cr.P.C. for NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 2 grant of anticipatory bail to the petitioners, namely, Ashok and Raj Devi, in case FIR No.63 dated 10.12.2015 registered under Sections 376, 406, 417, 493, 494, 495 and 498-A read with Section 34 of Indian Penal Code at Police Station Women, Bhiwani Learned counsel for the petitioners submits that the petitioners have falsely been implicated in the case whereas no offence is made out against them. The marriage of son of the petitioners with complainant-Mamta Sharma was solemnized on 14.07.2013 and a girl child was also born out of said wedlock. It was a simple marriage and no dowry was given. The petitioners were having no role as it was love marriage. The petitioners were not aware about the fact that earlier their son got married with one Preeti Sharma, who is the daughter of his maternal aunt (Massi) six months prior to the marriage of accused-Mukesh with the complainant. It was a void marriage. Learned counsel also submits that the complainant was adamant to take divorce from said Preeti Sharma and a petition for dissolution of marriage was also filed, which is still pending. Learned counsel for the petitioners has also relied upon judgment of this Court in Shrimati Krishni Devi vs. Shrimati Tulsan Devi, 1972 AIR (Punjab) 305 in support of his contentions.
Learned counsel for the complainant opposes grant of anticipatory bail to the petitioners on the ground that the factum of earlier marriage with Preeti Sharma was not disclosed to the complainant whereas the petitioners were aware about the said NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 3 marriage being in close relation of the petitioners'. The offence was committed by main accused in connivance with the petitioners. Learned counsel also submits that the petitioners cannot take this plea that they were not aware about the earlier marriage whereas it has specifically been mentioned in the petition that when the petitioners came to know with regard to earlier marriage then they asked their son not to meet Preeti Sharma.
Learned State counsel also opposes grant of anticipatory bail to the petitioners as they were directly involved in the case and specific allegations are levelled against them. They were aware about the earlier marriage but still it was not informed to the complainant.
Heard arguments of learned counsel for the parties and have also perused the allegations levelled in the FIR and other documents available on the file.
On perusal of FIR, it appears that specific allegations of demand of dowry as well as harassment are there against the petitioners. A close relative of the accused persons told that accused Mukesh has already been married and on inquiry it was found that the accused Mukesh was earlier married with Preeti Sharma on 08.10.2012. The petitioners were asked why earlier marriage was not disclosed to the complainant. Thereafter, the marriage was solemnized with the complainant in conspiracy with the present petitioners. The complainant was not aware about earlier marriage and by considering herself as legally wedded wife of accused- NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 4 Mukesh, she was having physical relations with him whereas Mukesh was aware that he was married with one Preeti Sharma, due to which, offence under Section 376 IPC is made out.
Not only the allegations of conspiracy in commission of offence are levelled but allegations of harassment and demand of dowry are also there against the petitioners as when the marriage with the complainant was solemnized, the factum of earlier marriage was not disclosed.
The argument raised by learned counsel for the petitioner that the divorce is not necessary as the marriage earlier solemnized was void, is not going to support the case of the petitioners as the complainant was under the impression that she is legally wedded wife of son of the petitioners whereas both the petitioners being parents were well aware about the earlier marriage.
As per provisions of Section 375 IPC fourthly, in case, the victim is having physical relations with the accused under the impression that she is legally wedded wife but the other party is aware about the earlier marriage, then offence of rape is made out against the accused persons.
In the present case, the involvement of the petitioners being parents of main accused is there as they were well aware about the earlier marriage and this fact was not told to the complainant. Allegations of demand of dowry and harassment are also there against the petitioners. The dowry articles were also handed over to NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 5 the petitioners.
For grant of anticipatory bail, the nature, gravity of offence as well as role of the accused is to be seen. There are certain factors, which are to be considered while granting bail under Section 438 Cr.P.C. Hon'ble the Apex Court in a judgment rendered in Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another 2015 (8) JT 125 has summarized certain factors to be taken into consideration while granting anticipatory bail, which are reproduced as under:
"The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 6 accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended.
Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 7 the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 8 grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 9 then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 10 following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) 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;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 11 role of the accused in the case. The cases in which the accused is implicated with the help of 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;
(h) 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 free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) 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 in entitled to an order of NEETU RANI 2016.02.15 10:41 I attest to the accuracy and authenticity of this document Chandigarh Criminal Misc. No. M-3135 of 2016 12 bail.
Accordingly, keeping in view the allegations levelled against the petitioners, no ground is made out to grant anticipatory bail to the petitioners and the petition being devoid of any merit is hereby dismissed.
08.02.2016 (DAYA CHAUDHARY)
neetu JUDGE
NEETU RANI
2016.02.15 10:41
I attest to the accuracy and
authenticity of this document
Chandigarh