Category Archives: Do NOT convert Anticipatory into recovery proceedings

10 CRORES for AB ! Not judicial discretion ! Onerous condition of 10 crores set aside by Supreme court !!

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Supreme Court of India

Avinash Arora And Ors. vs State Of U.T. Chandigarh And Anr. on 13 April, 2000

Equivalent citations: 2000 CriLJ 4674, JT 2000 (7) SC 501

Bench: G Pattanaik, U Banerjee

JUDGMENT

  1. Leave granted.
  2. The appellants have been alleged to have committed offence under Sections 420, 406, 468, 467, 471 and 120B, I.P.C. On an application being filed under Section 438 of the CrPC, the High Court of Punjab and Haryana granted anticipatory bail, subject to deposit Rs. 10 crores. The appellants did avail of the order by issuing a cheque of Rs. 10 crores from the IFCI ‘No Lien Account’. The earlier order was, however, modified requiring the appellants to deposit Rs. 10 crores from his own account. It is this order which is now being assailed before us. Mr. Jain, the learned senior counsel appearing for the appellants contends that requiring to deposit Rs. 10 crores itself is an unjust order and cannot be held to be proper exercise of discretion by the Court for grant of anticipatory bail under Section 438. Ms. Jaiswal, the learned Counsel for the State as well as the learned Counsel appearing for IFCI contend that the Court ought not to have exercised his discretion under Section 438, in view of the nature of accusation. But the Court having done so by requiring the appellants to deposit Rs. 10 crores, the same need not be interfered with. Having heard the learned Counsel for the parties, we have no hesitation to come to the conclusion that the Court committed error in passing the conditional order of depositing Rs. 10 crores for grant of anticipatory bail as in our view, this cannot be held to be an exercise of judicial discretion. In that view of the matter, we set aside the impugned direction and remit the matter to the High Court for re-disposal of the petition filed under Section 438 of the CrPC, in accordance with law.
  3. The appeals are disposed of.

498a, 406, 34 proceedings NOT to be become recovery proceedings !! BAIL GRANTED to Husband, Delhi HC

Pathetic case where an employed wife, earning almost as much as husband, living comfortably within the matrimonial home (meaning NO rent), NOT spending a dime on electricity or water and ALSO getting rs 4000 maintenance from husband, FILES 498A etc on husband and co and tries to get him arrested !!

If all of you are trying to blame this politician or that, please read the DATE OF THIS CASE !!!! and that is is from the DELHI HC !!!

Delhi High Court

Rajesh Chander Bhardwaj vs State on 19 July, 2005

Equivalent citations: 125 (2005) DLT 710, I (2006) DMC 60, 2005 (83) DRJ 295

Author: P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

  1. Petitioner No. 1 was married to Ms. Snehlata Bhardwaj. Petitioner No. 2 is the mother of petitioner No. 1.
  2. The marriage was not too happy. FIR in question has been registered on the complaint made by the wife alleging dowry harassment at the hands of her husband.
  3. Two children have been born to the petitioner and the complainant. The children are with the complainant.
  4. It is not in dispute that the complainant is residing in the matrimonial house, but in a separate part thereof. It is also not in dispute that the petitioner No. 1 is paying Rs. 4000 p.m. to the complainant towards maintenance for the two children. It is also not in dispute that the complainant is not spending any amount towards water and electricity consumed by her as also on the maintenance of the portion of the house in her possession.
  5. Petitioner No. 1 is earning Rs. 10,500 p.m. Complainant is earning Rs. 9800 p.m.
  6. I have perused the FIR which is the usual story of an unhappy marriage. Usual allegations against torture and mental harassment are set out.
  7. Proceedings under Section 498A/406/34 IPC are not to be converted into recovery proceedings. However, it is the desire of a Court to try and ensure that matrimonial disputes are resolved. Attempts were made in the present case in this direction, but unfortunately have failed.
  8. Considering the fact that the complainant is still residing in the matrimonial house, but in a separate portion thereof and the fact that she and her children are otherwise being provided with maintenance by the petitioner No. 1, I am inclined to admit the petitioners to anticipatory bail as prayed for. It has to be additionally noted that the petitioners have cooperated with the investigating officer during enquiry. Since 6.2.2004 petitioners are under interim protection.
  9. Petition stands disposed of with the direction that in the event of arrest, on petitioners furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail in FIR No. 39/2004 P.S. Narela.
  10. It would be a condition of the present order that the petitioners would join the investigation as and when required.
  11. Needless to state that the anticipatory bail granted would be coterminous with the decision on the application for regular bail, if any, required to be filed by the petitioners, should a challan be presented against them.

Courts can’t force husbands to pay #maintenance as condition for #Anticipatory #BAIL. Supreme Court !

In this case, the wife had filed a #498a , #406 cocktail on the husband. The husband and his parents approach the HC for #Anticipatory #bail. The HC initially sends the parties to #mediation. The mediation fails. then the HC imposes a #condition that the husband shall pay Rs 300,000 arrears and also pay Rs 12,500 p.m. as monthly maintenance as a condition for the bail.

The husband approaches the Hon Supreme court in appeal. The Hon Supreme court clearly states that courts CANNOT impose such conditions for payment of maintenance as part of the bail proceedings

The Apex court clarifies that ‘….It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all….” The Apex court goes on to state that the conditions cannot be onerous and frustrate the very purpose of the bail “…While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code. ….”

The court very clearly states that “…. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/-for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. …”

We hope this classic case helps harassed husbands who are seeking AB in 498a, 406 cases !!

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 344 OF 2009

(Arising out of S.L.P. (Criminal) No. 637 of 2008)

Munish Bhasin & Ors. … Appellants

Versus

State (Govt. of N.C.T. of Delhi) & Anr. … Respondents

J U D G M E N T

J.M. PANCHAL, J.

  1. Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.
  2. Heard Counsel.

  3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code.

  4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02, 2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.

  6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.

  7. From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under subsection (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including (i) a condition that a person shall make himself available for interrogation by police officer as and when required, (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, (iii) a condition that the person shall not leave India without the previous permission of the Court and (iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, inter alia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

  8. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and subsection (3) of Section 437 of the Code. Normally, conditions can be imposed (i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/-for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.

  10. The Appeal is accordingly disposed of.

…………………………J. [R.V. Raveendran]

…………………………J. [J.M. Panchal]

New Delhi;

February 20, 2009.


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Don’t convert BAIL 2 recovery proceedings & civil case 2 criminal case! Excellent Delhi HC Anticipatory

An elderly couple approach the Delhi HC seeking bail. Their son’s failed SECOND marriage is the cause of their misery. The young couple have met in London and married, stayed and separated in Dubai but the daughter in law has filed 498a etc on the elderly in-laws. The daughter in law has alleged gifts worth crores of rupees without much proof. The lower court has tried to make bail concomitant with recovery of money / promised settlement etc !! The Hon Delhi HC sees thru the entire matrix, appreciates that the elders have had little or NO role in the lives of the couple. The Hon orders that “…Since allegations in the complaint are to the effect that jewellery and gifts worth crores were given by the parents and relatives of the complainant, instant case would require a prior investigation by the investigating officer before petitioners are made to account for the gifts, whether at all the family of the complainant had the means to shower gifts of such magnitude…..” The court also reiterates that “…Case is thus made to admit petitioners to anticipatory bail. While so directing, I am conscious of the failed compromise talks before the learned Additional Sessions Judge but I cannot ignore the fact that proceedings for bail cannot be converted into recovery proceedings. ….” and thus grants bail to the elders !!

Please note that this case is from 2007 !! yes approx 9.5 years ago !! the court has in many places says that the case against the elders is unwarranted ! the Hon court refers to multiple decisions where 498a has been misused including Sushil Kumr sharma case !!

Still in 2017 there seems to be NO let up to the number of false cases and ways to milk men !!

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Delhi High Court

Smt. Surjit Kaur Chopra vs State And Anr. [Along With Bail … on 21 August, 2007

Author: P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

FIR No.6/2007 dated 3.1.2007 under Section 498A/406 IPC PS Hazrat Nizamuddin.

  1. Vide Bail Application No. 1711/2007, Smt. Surjit Kaur Chopra seeks anticipatory bail. Vide Bail Application No. 1716/2007, Sh. Harbhajan Singh Chopra seeks anticipatory bail. The 2 applicants are the mother-in-law and father-in-law respectively of the complainant, Arti.
  2. At the outset, I must refer my displeasure at the manner in which Bail Application No. 1711/2007 has been drafted by learned Counsel for the petitioner.
  3. The same is a verbatim copy of Bail Application No. 1716/2007.
  4. Use of computers does not mean that learned members of the Bar would not apply their mind. Human beings cannot become computers and start operating themselves by clicking a mouse.
  5. Little realizing that in Bail Application No. 1716/2007 reference to the applicant was made as father of the husband of the complainant i.e. as father-in-law of the complainant, even Smt. Surjit Kaur Chopra has been referred to as father of the husband of the complainant i.e. father-in-law of the complainant.
  6. In the instant case, the misdescription may be trivial. But in large number of cases I notice that the misdescription is not trivial, more so, when disputes relate to complaints under Section 138 of the Negotiable Instruments Act 1881. In said cases description of the accused with reference to the role assigned becomes relevant. Precious judicial time is wasted in identifying who is being referred to and in what context reference is being made pertaining to persons accused of offence and who have filed quashing petitions challenging the summoning order.
  7. It is hoped and expected that learned members of the Bar would justify them being referred to as ‘learned Counsel’. Their being learned must be reflected in their pleadings.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  8. Referring to the facts, why else would a father-in-law and mother-in-law be seeking bail? Of course, when their daughter-in-law has filed a complaint resulting in registration of FIR under Section 498A/406/34 IPC. This has happened in the instant case.
  9. Since issue of anticipatory bail has to be decided, reference to the FIR becomes necessary.
  10. Touching upon the salient features of the FIR, complainant Arti, stated that she met Jitender Singh Chopra, son of the applicants in London in July 2004 through common friends. She states that the two met a number of times and around 3rd week of September 2004 decided to get married in Dubai on 30.9.2004. She stated that she and Jitender Singh Chopra came to Delhi and got engaged. That at the time of engagement presents worth Rs. 15 lakhs were gifted by her parents to the in-laws and relatives of Jitender. That her in-laws gave her jewellery worth Rs. 40 lakhs. That at the asking of her prospective mother-in-law, for relatives who were not present at the engagement, her mother sent additional gifts worth Rs. 5 lakhs. That marriage between the complainant and Jitender was solemnized at Dubai on 27.10.2004 as per Hindu rites and customs. At the time of marriage her mother, relatives and friends gave gifts worth Rs. 70 lakhs. Her in-laws gifted her jewellery worth Rs. 90 lakhs. Next day her mother-in-law took away the jewellery for safe keeping. She and her husband came to Delhi on 3.11.2004 and stayed at the farm house of the in-laws. The couple celebrated their first Deepawali. On said function her relatives gave gifts worth Rs. 40 lakhs to her husband. That her mother and her relatives gave her ancestral jewellery worth Rs. 1.75 lakhs at said function. That her in-laws gave her expensive gifts and jewellery worth Rs. 80 lakhs. That when they were at Delhi her brother-in-law tried to force himself upon her. That she was disgraced by the family of her in-laws who stated that they expected that she would bring a Mercedes car in her dowry. That when the couple left for their honeymoon her husband compelled her to drink excessively as also to indulge in vulgar sexual acts. That since it was her second marriage she did not speak to anyone. That on 18.1.2005 she and her husband went back to Dubai. For said trip her husband demanded Rs. 25 lakhs from her mother. Her mother arranged Rs. 5 lakhs and gave the same to her husband. That her husband demanded more money. Her mother paid Rs. 15 lakhs. That she came back to Delhi on 29.12.2005 and in spite of requests to hand over her jewellery, none was being returned to her. That her father-in-law wanted her parents to transfer ownership rights of 2 floors of their house in name of her husband. That her mother-in-law had retained her jewellery.
  11. According to the petitioners the marriage at Dubai was financed by the petitioners. Entire stay of the family of the bride was paid for by the petitioners. That after the wedding, the newly wed came to Delhi to celebrate their first Deepawali and went back to Dubai in February 2005. They took on rent a villa and resided separately from the petitioners. That the couple separated due to temperamental differences. That their son sought divorce in London due to irreconcilable differences. That the FIR was a counter blast to the divorce petition filed by their son.
  12. Before dealing with the rival submissions on the issue whether petitioners should be granted anticipatory bail or not, it has to be noted that petitioners as also their second son i.e. the brother-in-law of the complainant sought anticipatory bail before the learned Additional Sessions Judge. Attempts were made to compromise the matter and in full and final satisfaction of all claims of the complainant not only the FIR be withdrawn but the couple could agree for an amicable settlement. Order dated 29.3.2007 passed by the learned Additional Sessions Judge records that a settlement was arrived at pursuant whereto complainant would be paid Rs. 4 crores in cash and a flat at DLF Gurgaon worth Rs. 60 lacs would be transferred in her name. Thereafter, the talks broke down inasmuch as offer was reduced to Rs. 2 crores.
  13. Petitioners when charged with attempting to wriggle out of an agreed settlement explained that their younger son was briefing the counsel and he was receiving instructions from the husband of the complainant for the reason any payment under the settlement had to be financed by the husband of the complainant. That unfortunately, their son i.e. husband of the complainant could not firm up his mind and for said reason settlement failed.
  14. Shri K.T.S. Tulsi, learned senior Counsel for the applicants urged that proceedings for grant of anticipatory bail cannot be converted into a recovery proceedings. Learned senior Counsel urged that the anxiety of the Court to try and effect a settlement between the warring couple may be a laudable act but is alien to the exercise of jurisdiction while deciding an application seeking grant of anticipatory bail. Learned senior Counsel urged that the well known parameters viz. gravity of the offence, seriousness of the allegations constituting the offence, possibility of the accused absconding or threatening witnesses of the prosecution, inherent probabilities, for and against the accused are some of the factors which have to be considered by the Court while deciding an application for grant of anticipatory bail.
  15. Expanding the argument, learned senior Counsel submitted that documents annexed as Annexure-C to the petitions conclusively establish that the petitioners paid the entire bill at Dubai when marriage took place. Drawing attention to Annexure-D, learned senior Counsel urged that the same evidences that the newly married couple set up separate residence in Dubai. As regards the petitioners, learned senior Counsel urged that they were residents of Delhi. Their son was settled abroad. Except for participating in the joyous occasion of the marriage of their son and showering their blessings and gifts upon the newly wed as also to finance the marriage, the two had no role to play in the matrimonial life of the couple. Learned senior Counsel further urged that allegations in the FIR are alien to the social norms of the society from which complainant, her family and the petitioners come from. Learned senior Counsel explained that main items are gifted to the couple at the time of their marriage. Thereafter, as and when festive occasions occur, small gifts are exchanged. Learned senior Counsel urged that it was unbelievable that at the time of Deepawali celebrations after the couple got married, complainant’s family members would gift to their daughter and her in-laws, gifts worth Rs. 1.75 crores. Learned senior Counsel further submitted that the allegations of dowry demand are against the husband i.e. the son of the petitioners. Allegations of mental and physical cruelty are against the husband save and except a vague allegation that on one occasion father-in-law threw a plate at the complainant and abused her as a bitch. Learned senior Counsel stated that the two allegations pertaining to dowry demand against the father-in-law viz. that he expected his daughter-in-law to bring a Mercedes car and a demand for ownership rights of 2 floors in her parent’s house at Sunder Nagar are false. Learned senior Counsel submitted that the gravement of the allegation against the mother-in-law is that she retained the jewellery of the complainant.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  16. Learned senior Counsel urged that in view of the fact that the complainant and her husband had set up their matrimonial house at Dubai, a residence separate from that of the petitioners, considering the social background of the family of the complainant as also the petitioners it was unbelievable that the complainant would have handed over her jewellery to her mother-in-law.
  17. Fulcrum of opposition by learned Counsel for the complainant centered around the orders passed by the learned Additional Sessions Judge regarding a settlement between the parties from which petitioners back tracked. Learned Counsel submitted that the said settlement evidenced the acknowledgment by the petitioners that the complainant had to be recompensed. Learned Counsel submitted that the jewellery articles of the complainant have yet to be recovered. Counsel submitted that the complainants have started dissipating their assets. Thus, counsel urged that no case is made out to grant anticipatory bail to the petitioners.
  18. It is not in dispute that the instant marriage was the second marriage of both parties. Thus, both would be presumed to be aware of not only their matrimonial obligations but even the matrimonial laws. Judicial authorities are replete with a caution by the Courts that the unfortunate tendency to rope in all family members of the in-laws is a growing trend which has two side effects. Firstly, innocent persons suffer the trauma of a criminal prosecution and secondly, even the accused get acquitted for the reason, false implication of innocent persons is followed by presentation of fabricated evidence before the Court. So inextricably interwoven is truth with lies that truth cannot be segregated from lies resulting in benefit of doubt being given even to the accused persons.
  19. More often than not, pertaining to dowry, Courts are faced with a dilemma inasmuch as tax avoidance is the norm in India. Huge volume of black money in circulation finds expression in ostentatious marriages. But when called upon to prove that the family had enough assets to justify the stated gifts gifted at the time of marriage, family members of the girl side have no answers. They cannot establish the means to justify their capacity to shower gifts worth crores.
  20. In the instant case, before the in-laws of the complainant can be called upon to account for the gifts given by the parents of the girl, the parents of the girl would have to establish their means and their capacity to gift items worth Rs. 3 crores to their daughter and her in-laws.
  21. As noted above, gravement of the allegations are directed principally against the husband. No doubt, there is reference against the petitioners pertaining to dowry demand and retention of jewellery, but, as noted above, allegations of dowry demand are against the father-in-law and not against the mother-in-law. Vice versa, allegations pertaining to retention of the jewellery of the complainant is against the mother-in-law and not the father-in-law. Thus, if at all, father-in-law may be answerable to a charge under Section 498A IPC. If at all, mother-in-law may be answerable for a charge under Section 406 IPC.
  22. Qua the mother-in-law a circumstance which stands out is that her son and her daughter-in-law had a separate residence at Dubai. The couple was married at Dubai. Whatever may be the jewellery gifted to the complainant at the time of marriage, there is no material on record that when she along with her husband came to India they made a declaration to the Customs Authority that personal jewellery worth crores was being brought by her i.e. the complainant to India. Greater probability would be that either jewellery of the value alleged to be gifted to her by the complainant was not gifted to her, or if gifted, the same was in her custody at Dubai.
  23. . Pertaining to the father-in-law I find that the allegations are general. It is not stated in the complaint that because father-in-law desired that the complainant should bring a Mercedes car he i.e. the father-in-law took vengeance against the complainant. What is stated in the FIR is that the father-in-law commented that he expected that the complainant would bring as part of dowry a Mercedes car.
  24. Prima facie, it is one thing to have a desire and express the same. It is altogether another thing to raise a demand as per the desire.
  25. Allegation of mental cruelty against the father-in-law pertains to an alleged incident when according to the complainant she served cold food to her father-in-law. Prima facie, said allegation of cruelty does not relate to a dowry demand.
  26. . The only other allegation pertaining to transfer of 2 floors in the house of the complainant’s parents at Sunder Nagar is without any particulars i.e. the day or the month when said demand was raised.
  27. In the report published as Indian Oil Corporation v. NEPC India Ltd. in para 13 the Hon’ble Supreme Court lamented as under: 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests o lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
  28. In para 19 of the report published as Sushil Kumar Sharma v. Union of India the Supreme Court observed as under:  19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentional provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike a the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.
  29. In the decision dated 23.2.2007 in Crl.M.C. No. 7262/2006 Neera Singh v. State and Ors. a learned Single Judge of this Court had pains to note as under: 4. Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 reads as under: 2. Rules in Accordance With Which Lists of Presents Are to Be Maintained. – (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom. (3) Every list of presents referred to in Sub-rule (2)-(a) shall be prepared at the time of the marriage or as soon as possible after the marriage; (b) shall be in writing; (c) shall contain: (i) a brief description of each present; (ii) the approximate value of the present; (iii) the name of the person who has given the present; and (iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship. (d) shall be signed by both the brides and the bridegroom. 5. The Metropolitan Magistrate should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statements of the complainant, without any verification that a large number of false complaints are pouring in.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  30. Admittedly, neither complainant nor her family members have complied with Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules 1985.
  31. Since allegations in the complaint are to the effect that jewellery and gifts worth crores were given by the parents and relatives of the complainant, instant case would require a prior investigation by the investigating officer before petitioners are made to account for the gifts, whether at all the family of the complainant had the means to shower gifts of such magnitude.
  32. I note that the husband of the complainant is paying to her a monthly maintenance of Rs. 1 lakh.
  33. Learned Counsel for the State did not urge that the petitioners are not cooperating with the IO.
  34. The special circumstances of the case may be summarized:
    • (a) Marriage is a love marriage and took place at Dubai. There is prima facie evidence that marriage expenses were borne by the in-laws of the complainant.
    • (b) The young couple took up separate residence at Dubai and stayed their after the marriage till they came to India to celebrate their first Deepawali festival. The complainant stayed with her in-laws for about 10 days. The couple departed for their honeymoon.
    • (c) Allegations in the FIR are primarily directed against the husband. Prima facie it appears to be a case of temperamental difference between the husband and the wife.
    • (d) There are no allegations of dowry demand against the mother-in-law. Allegation against her is of retaining the jewellery gifted by her parents as stated by the complainant to be in the value of over Rs. 2 crores. There is no evidence that jewellery of such magnitude was gifted.
    • (e) Allegations of dowry demand against the father-in-law only relate to transfer of ownership rights of 2 floors in a property at Sunder Nagar in the name of the husband of the complainant. The allegation is of a general nature. The time, date and month of demand has not been specified.
    • (f) The couple separated at Dubai. The petitioners did not have a joint residence with the complainant and thus could not be in possession of her jewellery.
  35. Case is thus made to admit petitioners to anticipatory bail. While so directing, I am conscious of the failed compromise talks before the learned Additional Sessions Judge but I cannot ignore the fact that proceedings for bail cannot be converted into recovery proceedings. I find prima facie justification of the petitioners that their younger son was briefing the counsel and was informing the counsel what was being consented to by the son of the petitioners. If the son of the petitioners back tracks from his commitment, petitioners cannot be faulted with.
  36. I additionally note that the complainant is being paid a monthly maintenance of Rs. 1 lakh by her husband.
  37. Petition stands disposed of directing that on the petitioners surrendering their passport to the Investigating Officer and cooperating at the inquiry to be conducted by the Investigating Officer, in the event of the petitioners being arrested by the IO, the petitioners would be released on bail by the IO on the petitioners furnishing a personal bond of Rs. 1,00,000/- each with one surety each in the like amount to the satisfaction of the IO in the above captioned FIR.
  38. Needless to state, the petitioners would join the investigation as and when required by the IO.
  39. Copy of the order be supplied dusty to learned Counsel for the petitioners.


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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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