Tag Archives: delhi hc

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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15 lakhs for a SHORT marriage. FIR within 2 years of marriage !! Delhi HC

 
15 lakhs for a SHORT marriage. FIR within 2 years of marriage. 498a quahsed on payment ! Delhi HC

  • IN THE HIGH COURT OF DELHI AT NEW DELHI
  • CRL.M.C. 1653/2016
    Date of Decision: December 1st, 2016
    TARUN BATRA & ORS ….. Petitioners
    Through Ms.Guneet Khehar, Adv.

versus

THE STATE (NCT OF DELHI) & ANR ….. Respondents
Through Ms.Manjeet Arya, APP.
Respondent no.2 in person with
Mr.Madhukar, Adv. proxy for
Mr.Anirudh Mishra, Adv.
CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

ORDER

P.S.TEJI, J.(Oral)

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioners, namely, Sh. Tarun Batra, Sh. R.K. Batra, Smt. Alka Batra and Sh. Varun Batra for quashing of FIR No.556/2013 dated 21.11.2013, under Sections 498-A/406/34 IPC registered at Police Station Kalkaji on the basis of a mediation report of the Delhi High Court Mediation and Conciliation Centre, New Delhi in view of the settlement arrived at between petitioners and respondent no.2, namely, Ms. Deepti Sachdeva on 26.05.2015.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant of the FIR in question by her counsel.

  3. The factual matrix, in brief, of the present case is that the marriage was solemnized between Mr. Tarun Batra and respondent no.2 on 14.04.2011 according to Hindu rites. It is the case of the complainant that the in-laws and husband of the complainant were dissatisfied with the dowry brought in by the complainant at the time of marriage and that they would torture her for the same.

Thereafter, the complainant got lodged the complaint following which the FIR in question was registered against the petitioners. During the pendency of the proceedings, the matter was settled between the accused persons and the respondent no.2. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  1. Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the relevant terms of the mediation report, it is agreed that the respondent no.2 and Mr. Tarun Batra shall be dissolved by filing for divorce by mutual consent. It is agreed between the parties that the petitioners shall pay a sum of Rs. 15 Lakhs to respondent no.2 in full and final settlement towards all her claims arising out of the marriage of respondent no.2 and Mr. Tarun Batra which includes permanent alimony, dowry articles, istridhan, maintenance (past, present and future). It is agreed that the petitioners shall pay a sum of Rs. 5 Lakhs by means of a DD at the time of recording of the statement of the respondent no.2 in support of quashing of the FIR in question before this Court. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 18.04.2016 supporting this petition. In the affidavit, she has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent No.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  • In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:- “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”

  • The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-

  • | “29. in view of the aforesaid discussion, we sum up and lay down the
    | following principles by which the high court would be guided in
    | giving adequate treatment to the settlement between the parties and
    | exercising its power under section 482 of the code while accepting
    | the settlement and quashing the proceedings or refusing to accept the
    | settlement with direction to continue with the criminal proceedings:
    | 29.1 power conferred under section 482 of the code is to be
    | distinguished from the power which lies in the court to compound the
    | offences under section 320 of the code.
    | of 8 doubt, under section 482 of the code, the high court has
    | inherent power to quash the criminal proceedings even in those cases
    | which are not compoundable, where the parties have settled the matter
    | between themselves. however, this power is to be exercised sparingly
    | and with caution. 29.2. when the parties have reached the settlement
    | and on that basis petition for quashing the criminal proceedings is
    | filed, the guiding factor in such cases would be to secure:
    |
    | (i) ends of justice, or
    |
    | (ii) to prevent abuse of the process of any court. while exercising
    | the power the high court is to form an opinion on either of the
    | aforesaid two objectives. 29.3. such a power is not to be exercised
    | in those prosecutions which involve heinous and serious offences of
    | mental depravity or offences like murder, rape, dacoity, etc. such
    | offences are not private in nature and have a serious impact on
    | society. similarly, for the offences alleged to have been committed
    | under special statute like the prevention of corruption act or the
    | offences committed by public servants while working in that capacity
    | are not to be quashed merely on the basis of compromise between the
    | victim and the offender. 29.4. on the other hand, those criminal
    | cases having overwhelmingly and predominantly civil character,
    | particularly those arising out of commercial transactions or arising
    | out of matrimonial relationship or family disputes should be quashed
    | when the parties have resolved their entire disputes among themselves.

    1. The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agrees to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.

    2. The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    3. It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.

    4. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.

    5. The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already over burdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.

    6. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.

    7. In the facts and circumstances of this case, in view of statement made by the respondent No.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.

    8. Accordingly, this petition is allowed and FIR No.556/2013 dated 21.11.2013, under Sections 498-A/406/34 IPC registered at Police Station Kalkaji and the proceedings emanating therefrom are quashed against the petitioners.

    9. This petition is accordingly disposed of.

    (P.S.TEJI) JUDGE

    DECEMBER 01, 2016

    /dd

    Crl.M.C. 1653/2016


    *****************************disclaimer**********************************
    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



     

     

    source : https://indiankanoon.org/doc/40608081/

     

    Son has no legal right to live in parent’s house. He stays at their mercy & till they allow – Delhi HC

    In this classic case, elders harassed by their Daughters in law and sons seek mandatory injunction and peacefull possesion of their property. They are granted the same by lower courts. One of the sons goes on appeal. The HC affirms the lower court orders.

    The Hon Delhi HC goes on to add “…. 15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life….”


    IN THE HIGH COURT OF DELHI AT NEW DELHI

    Date of Decision: 24th November,2016

    RSA 136/2016 & CM No.19123/2016

    SACHIN & ANR ….. Appellants
    Through: Appellant No.1 in person

    versus

    JHABBU LAL & ANR ….. Respondents
    Through: Mr.Rakesh Kumar, Advocate with respondents in person

    PRATIBHA RANI, J. (Oral)

     

    1. The appellant No.1, who is present in person, requests for an adjournment on the ground that he wants to change his counsel. The appellants are enjoying an ex-parte interim stay granted in their favour on 20th May, 2016 against their dispossession from the suit property.
    2. On 29th August, 2016 the appellants requested for a date on the ground that the counsel was suffering from fever. This Court passed the following order:- “1. Only for the reason that counsel for the appellants is said to be down with fever, therefore, this case is adjourned, otherwise prima facie I find no merits in the appeal where appellants/defendants who are son and daughter-in-law of the respondents/plaintiffs have been evicted from the suit premises. 2. List on 7th September, 2016.
    3. On 7th September, 2016 after hearing respondent No.2, mother of the appellant No.1, with the consent of the parties, appellant No.1 Sachin was directed to pay ` 3500/- per month to the respondents/parents with effect from September, 2016. Appellant No.1 Sachin undertook to comply with this obligation. He also agreed not to stop his elder brother Sanjay (Defendant No.1) from using the second floor of the property. Matter was also referred to the mediation. Mediation report dated 17 th October, 2016 received with the report that it was ‘Non-Starter’.
    4. Today appellant No.1 Sachin was asked as to whether he has complied with the order dated 7th September, 2016 by making payment to his parents, he simply stated that he has no money to pay and sought time to change his counsel. The appellant No.1 was again asked whether he is ready to comply with the directions dated 7 th September, 2016 as in that case he can be given time to make the payment to his parents. The appellant No.1 has refused to make any payment to his parents.
    5. When the mediation failed on 17th October, 2016, if the appellants intended to change their counsel, nothing prevented them from doing so. The appellants cannot be permitted to abuse the process of law by seeking adjournment on one pretext or the others especially when they are enjoying ad-interim stay against their dispossession from this Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    6. Heard.
    7. The Regular Second Appeal No.136/2016 under Section 100 of the Code of Civil Procedure, 1908 impugns the concurrent judgment of the Court below i.e. of the trial Court dated 16 th March, 2015 and of the First Appellate Court dated 13th January, 2016 whereby Civil Suit No.49/14 filed on 11th February, 2014 by the parents of the appellants (respondent Nos.1 & 2 herein) against their two sons and their wives seeking decree of permanent and mandatory injunction has been decreed.
    8. The suit was filed by respondent No.1, Sh.Jhabbu Lal and respondent No.2, Smt.Raj Devi pleading that they are senior citizens residing on ground floor in House No.RZ-H-81, Gali No.4, Nihal Vihar, Nangloi, Delhi-110041 and construction on the said plot has been raised upto second floor. Their elder son Sanjay along with his wife Mamta was permitted to live on the second floor whereas the younger son Sachin along with his wife Neetu was permitted to live on the first floor of the said property out of love and affection for their sons. The parents of the appellant No.1 claimed themselves to be owner of the suit property which was self acquired. It was further pleaded by the parents of the appellants that their sons as well their wives made the life hell for them so much so that they were not even paying the electricity bills. The old parents were constrained to make various complaints to the police and also issued public notice on 5th January, 2007 and 17th May, 2012 disowning their sons and debarring them from their self acquired property. It was also pleaded that said property was purchased by them by selling their earlier property being RZ-H-215A, Nihal Vihar, Laxmi Park, Nangloi, Delhi-110041. Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.
    9. Two separate written statements were filed by the Sanjay and his wife (Defendant Nos.1 & 2) and Sachin and his wife Neetu (Defendant Nos.3 and 4) denying the claims of the plaintiffs to be the exclusive owner of the suit property or that it was their self acquired property. They claimed to be co- owner having contributed towards purchase as well as towards costs of construction for the said property.
    10. Perusal of the LCR shows that on 9th September, 2014 following issues were framed:- 1. Whether the plaintiff is entitled to be relief of mandatory and permanent injunction as prayed? OPP 2. Whether the plaintiff is not the exclusive owner of the suit property and the defendant are the co-owners? OPD 3. Relief.
    11. Both the plaintiffs filed their examination-in-chief by way of affidavit in support of the averments made in the plaint. However, all the four defendants failed to appear at that stage thus their right to cross-examine PW-1 & PW-2 was closed by the Court. Even at the stage of defence evidence none of the defendants led any evidence to prove that plaintiffs were not the exclusive owner of the suit property or that they were the co- owners. Believing the unrebutted testimony of the plaintiffs which was supported by necessary documentary evidence, learned trial Court decreed the suit interalia on the following grounds:- (i) The documents i.e. GPA, agreement to sell, receipt and Will being in favour of the plaintiff No.1 (Father of defendant Nos.1 & 3) though do not make him absolute owner but he has a better title as compared to the defendants. (ii) It has not been denied by the defendants that the property stands in the name of the plaintiff No.1 Sh. Jhabbu Lal and have not claimed any ownership right of their own distinguished from the plaintiffs. No evidence has been led to prove that they are the co-owners having contributed their share towards the purchase of the said property. (iii) The testimony of the plaintiffs that defendants were licensees and their license has been revoked stands unrebutted. (iv) Suit for mandatory injunction being filed within a reasonable time i.e. within six months period after termination of the license, separate suit for possession is not mandatory. Decree for mandatory and permanent injunction was accordingly passed in respect of the suit property. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    12. The first appeal bearing RCA No.63/15 was filed only by defendant Nos.3 and 4 i.e. younger son Sachin and his wife Neetu. Before the First Appellate Court the grievance was more towards the learned Presiding Officer than on merits.
    13. The appeal was dismissed observing that it was a case of gross- negligence on the part of the appellants/defendant Nos.3 & 4 in defending the case. It was further held that in the absence of any evidence being led by the appellants and the testimony of the respondents/plaintiffs having remained unchallenged, the impugned order was not suffering from any illegality. Hence the appeal was dismissed.
    14. The appellant No.1 is the younger son of the respondent No.1/plaintiff No.1 Jhabbu Lal who has led detailed evidence both oral and documentary duly corroborated by testimony of his wife, respondent No.2/plaintiff No.2 Smt. Raj Devi to prove their case. The respondent Nos.1 and 2/plaintiffs may not have proved themselves to the owner of the suit property as may be established in a case of acquiring title under a registered sale deed but surely they would have better rights/entitlement to seek possession of the suit property from his sons who were permitted to live on the first floor only out of love and affection towards them.
    15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life.
    16. In my opinion in a case such as the present one where the appellants/defendant Nos.3 & 4 have led no evidence to prove that it waived self acquired or co-ownership in the suit property whereas respondents/plaintiffs No.1 & 2 have proved their case on the basis of documentary evidence i.e. copies of General Power of Attorney, Agreement to Sell, Receipt possession letter Affidavit etc., the learned trial Court was justified in decreeing the suit which was upheld by the First Appellate Court.
    17. In view of the above no substantial question of law arises for this Court to exercise its power under Section 100 of the Code of Civil Procedure. Therefore, the appeal is dismissed leaving the parties to bear their own costs.

    PRATIBHA RANI, J.

    NOVEMBER 24, 2016 ‘pg’


    *****************************disclaimer**********************************
    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
    *******************************************************************************

     

    habeas corpus dismissed in Child custody, though current guardian accused of mental disorders !!

    The father, an advocate on record, tries to accused the mother of various mental disorders and files habeas corpus to get back his child. his habeas corpus is dismissed !!

    ==============================================

    Supreme Court of India

    Rajesh K. Gupta vs Ram Gopal Agarwala And Others on 28 April, 2005

    Author: G Mathur

    Bench: Cji R.C. Lahoti, G. P. Mathur

    CASE NO.:
    Appeal (crl.)  633 of 2005

    PETITIONER:
    Rajesh K. Gupta

    RESPONDENT:
    Ram Gopal Agarwala and others

    DATE OF JUDGMENT: 28/04/2005

    BENCH:
    CJI R.C. Lahoti & G. P. Mathur

    JUDGMENT:

    J U D G M E N T (Arising out of S.L.P. (Criminal) No. 1471 of 2005) G.P. Mathur, J.

    Leave granted.

    1. This appeal by special leave has been preferred against the judgment and order dated 10.3.2005 of Delhi High Court by which the habeas corpus petition filed by the appellant was disposed of with certain directions.

    2. The appellant Rajesh Kumar Gupta is an Advocate-on-Record and is practicing in the Supreme Court of India since 1996. His marriage with Smt. Aruna Gupta daughter of Shri Ram Gopal Agarwala (respondent No. 1 herein) took place on 24.8.1997 and a daughter Rose Mala was born out of the wedlock on 5.6.2003. It appears that some differences have arisen between the appellant and his wife Smt. Aruna Gupta and currently she is living along with her parents, who have also been arrayed as respondent Nos. 1 and 2 in the special leave petition. The dispute here is about the custody of the child Rose Mala, who is with her mother. The appellant filed a habeas corpus petition in the Delhi High Court seeking the custody of his daughter Rose Mala mainly on the ground that she had been abducted by respondent Nos. 1 and 2 on 6.3.2005 and that on account of mental ailment with which his wife was suffering, the custody of the child should be given to him.

    3. After hearing learned counsel for both the parties the High Court disposed of the petition on 10.3.2005 and the relevant portion of the order reads as under: – “Mr. R.K. Jain, Sr. Advocate, appearing for the parents and the wife submits that Mrs. Aruna Gupta is ready and willing to give an undertaking to this Court that she would not leave the jurisdiction of this Court until an appropriate order in that regard is passed by the competent Court. We accept the said undertaking which is given to us. On query to Mrs. Aruna Gupta, she has categorically stated that she would like to stay with her parents and would like to retain the custody of the child and that she is not in a position to leave the child. Considering the facts and circumstances of the case and also upon hearing the counsel for the parties and also on talking to Mrs. Aruna Gupta and upon seeing and observing the child who is found to be in good and perfect condition, we are satisfied that the mother of the child, Mrs. Aruna Gupta, could continue to retain the custody of the child for the present. Ordered accordingly. It shall, however, be open to the petitioner to seek remedy for establishing his right of guardianship in accordance with law which is available to him in the Civil Court. If and when such a remedy is resorted to by the petitioner by filing a petition, the same shall be considered by the appropriate Court in accordance with law. The order passed today giving custody of the child to the mother shall be subject to the order, if any, passed by the civil court. Till then, the custody of the child shall remain with the mother, namely, Mrs. Aruna Gupta. In terms of the aforesaid order this petition stands disposed off.”

    4. Shri Gopal Subramanium, learned senior counsel for the appellant, has submitted that the marriage of the appellant with Smt. Aruna Gupta was an arranged marriage, which took place on the basis of an advertisement in the newspaper. After marriage it was revealed that Smt. Aruna Gupta was suffering from serious mental disorder of paranoid schizophrenia for almost two decades. She had been treated in U.S.A. for her illness as at the relevant time her father Shri Ram Gopal Agarwala was working there. After the marriage when the appellant discovered that she was suffering from mental ailment, she was treated in the All India Institute of Medical Sciences. In this connection learned counsel has drawn the attention of the court to the medical reports prepared in several hospitals where Smt. Aruna Gupta had been admitted and had been given treatment for the disease paranoid schizophrenia with which she has been suffering. Learned counsel has further submitted that life and health of baby girl Rose Mala would not be safe, if she is allowed to remain in the custody of the mother. He further submitted that the mother of the appellant will be living with him and she will be able to look after the child.

    5. Shri R.K. Jain, learned senior counsel appearing for the respondent Nos. 1 to 3, controverted the submissions made by the learned counsel for the appellant and has submitted that Smt. Aruna Gupta is in perfect health and is not suffering from any mental ailment. He has further submitted that the baby girl Rose Mala is being well looked after. She is in fine condition and the apprehension of the appellant that she would not get proper care from her mother has no basis.

    6. It is well settled that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties [see Dr. (Mrs.) Veena Kapoor vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin vs. Dr. Rukhsana and others (2001) 5 SCC 247]. It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.

    7. The medical reports of Smt. Aruna Gupta regarding her treatment in some hospitals in U.S.A. are mostly of the year 1984 and the doctor of Holy Cross Hospital, U.S.A. recorded his assessment as under: – “Borderline personality disorder with no obvious medical problems on examination or in the laboratory. PLAN: No further medical intervention is necessary.” The medical reports of All India Institute of Medical Sciences, which are of the year 2000, do not show that she has been suffering from any such mental ailment, which may be termed as serious. In fact, according to the appellant himself Smt. Aruna Gupta is a case of paranoid schizophrenia and not any kind of serious mental ailment.

    8. It is important to note that the appellant is in the profession of law being an Advocate-on-Record in the Supreme Court. A lawyer’s profession is very exacting and busy profession and requires lot of time. The appellant has submitted that his mother will come and stay with him, who will look after the child. It is admitted that currently Smt. Aruna Gupta is living with her parents. Her father Shri Ram Gopal Agarwala did his Doctorate in Econometrics from Manchester University, U.K. in the year 1966 and joined the World Bank in 1971 where he held very senior positions. He is, therefore, a well-educated and financially sound person who can look after the needs of his daughter and also the granddaughter. The mother of Smt. Aruna Gupta, namely, Smt. Bimala Agarwala, aged about 60 years, is also there to look after the child if an occasion arises. The learned judges of the High Court before whom Smt. Aruna Gupta appeared along with Rose Mala and had also talked to her, have recorded that the child was in good and perfect condition and Smt. Aruna Gupta could be allowed to retain her custody. Having given our careful consideration to the submissions made by the learned counsel for the parties and to the material placed before us, we do not find any ground to take a contrary view and disturb the present custody of Rose Mala and give her in the custody of the appellant.

    9. The appeal, therefore, lacks merit and is dismissed.

    498A accused allowed 2 travel abroad w/OUT prior permission. Right 2 travel constitutional right. Delhi HC

    498A accused allowed 2 ravel abroad /OUT prior permission. Right 2 travel constitutional right. Delhi HC

    “…..8. It is settled law that right to travel is a facet of personal liberty and is protected by Article 21 of the Constitution of India. (See Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248 and Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., AIR 1976 SC 1836).

       9. This Court also takes judicial notice of the fact that the condition of obtaining prior permission before leaving the boundary of Delhi is a cumbersome one as the permission takes time and causes hardship to the petitioner. This Court is of the view that the impugned condition would certainly restricts the accused’s fundamental right to travel.

       10. Undoubtedly, the accused’s right to travel can be curtailed by a reasonable, transparent and fair procedure, but in the opinion of this Court such a restriction should be rarely imposed by the trial court while granting bail and that too, for cogent reasons….”

    ======================================================

    IN THE HIGH COURT OF DELHI AT NEW DELHI

    CRL.M.C. 4231/2012

    NANDINI BHATNAGAR ….. Petitioner
    Through: Mr. S.K. Bhaduri, Advocate with
    Mr. Krishna Kumar, Advocate with
    petitioner in person.

    versus

    STATE GOVT. OF NCT OF DELHI ….. Respondent
    Through: Mr. Manoj Ohri, APP for State with
    ASI Narender Singh, PS CWC Nanak
    Pura, New Delhi.
    Mr. Atul Aggarwal and Mr. Deepak
    Jain, Advocates for complainant.
    Complainant in person.

    Date of Decision: 14th December, 2012

    CORAM:

    HON’BLE MR. JUSTICE MANMOHAN

    JUDGMENT

    MANMOHAN, J : (Oral)

    Crl.M.A. 19845/2012 (exemption) in Crl.M.C. 4231/2012 Allowed, subject to just exceptions.

    Accordingly, present application stands disposed of.

    Crl.M.C. 4231/2012 & Crl.M.A. 19844/2012

     

    1. Present petition has been filed under Section 482 Cr.P.C. challenging the condition imposed by the Additional Sessions Judge, Dwarka Courts, New Delhi, whereby the petitioner has been directed “not to leave the boundary of the NCT of Delhi as well as the NCR and the country without the prior permission of the concerned Court of Ld. M.M.”.
    2. Issue notice.
    3. Ms. Jasbir Kaur, learned APP accepts notice on behalf of the State. Mr.Atul Aggarwal, learned counsel accepts notice on behalf of complainant. With consent of parties, matter is taken up for hearing.
    4. The relevant facts of the present case are that petitioner’s sister-in-law had filed a First Information Report being FIR No.124/2012 with Crime Against Women Cell, Nanakpura, New Delhi under Sections 498A/406/34 IPC. In the said FIR, allegations have been made against the petitioner and her family members.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    5. The Sessions Court granted anticipatory bail to the petitioner vide order dated 06th October, 2012. But by the said order, it imposed the aforesaid impugned condition. The order passed by the Additional Sessions Judge is reproduced hereinbelow:
      • ” Heard.
      • In view of the submissions and averments made in the application and the allegations against the present applicant being the unmarried sister-in-law (nanad) of the complainant, the applicant is admitted to anticipatory bail on furnishing personal bond in a sum of Rs.25,000/- with one surety in the like amount in the event of her arrest to the satisfaction of concerned IO/arresting officer/SHO.
      • The applicant is directed to join the investigation as and when required by the IO and she is also directed to deposit her passport within 2 days with the IO and she is directed not to leave the boundary of the NCT of Delhi as well as the NCR and the country without the prior permission of the concerned Court of Ld. MM and if, she gets the permission from the concerned Court, she is also directed to inform the same to the IO. The application is disposed of accordingly.
      • The copy of this order be given dasti to both the parties for its compliance.”
    6. It is stated in the present petition that petitioner is employed with the International Finance Corporation which is a part of the World Bank group and due to exigency of work, she has to periodically travel out of station and even abroad.
    7. It is further stated in the petition that petitioner has to travel on 17th December, 2012 to Nepal in connection with a development project. It is also stated that for the said project she has to travel on and off to Nepal for a period of approximately six months. A letter dated 04th December, 2012 to this effect issued by Ms. Monica J Chander, Head-Portfolio, South Asia Manufacturing, Agribusiness and Services Department is enclosed.
    8. It is settled law that right to travel is a facet of personal liberty and is protected by Article 21 of the Constitution of India. (See Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248 and Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., AIR 1976 SC 1836).
    9. This Court also takes judicial notice of the fact that the condition of obtaining prior permission before leaving the boundary of Delhi is a cumbersome one as the permission takes time and causes hardship to the petitioner. This Court is of the view that the impugned condition would certainly restricts the accused’s fundamental right to travel.
    10. Undoubtedly, the accused’s right to travel can be curtailed by a reasonable, transparent and fair procedure, but in the opinion of this Court such a restriction should be rarely imposed by the trial court while granting bail and that too, for cogent reasons.
    11. However, in the present case, this Court finds that the Additional Sessions Judge has not given any reason for imposing the aforesaid restriction.
    12. This Court is of the view that the right to travel cannot be curtailed as a matter of routine – as has been done in the present case.
    13. This Court is also of the opinion that if the impugned condition imposed by the Additional Sessions Judge is not immediately set aside, the petitioner in the near future could lose her job.
    14. Moreover, in the opinion of this Court, petitioner who is having no criminal antecedents and good academic qualifications is unlikely to abscond.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    15. Consequently, present petition is allowed and the condition imposed by the impugned order dated 06th October, 2012 restraining the petitioner from leaving the boundary of the NCT of Delhi as well as the NCR and the country without the prior permission of the Court of Metropolitan Magistrate is set aside.
    16. The SHO/Investigating Officer is directed to release the petitioner’s passport forthwith.
    17. With the aforesaid observations, present petition and application stand allowed.

     

    Order dasti.

    MANMOHAN, J

    DECEMBER 14, 2012

    js