Judgements of sc and hc
Querist :
Anonymous
(Querist) 29 January 2012
This query is : Resolved
offence registered under section 498A, 323,313,406 r/w 34 IPC. Parents and other family members applied for ABA and husband was arrested and now in judicial custody , magistrate rejected bail application on ground of serious offence, and may tamper the prosection evidence. He applied in upper court for bail. Have any judgement of SC and HC for ABA and regular Bail
adv. rajeev ( rajoo )
(Expert) 29 January 2012
Justice Malimath has reported that 498A is legal terriorism. MOst of the women are taking the undue advantage of this. File a revision in the Dist., court against the order of the lower court. You will get the regular bail.
ajay sethi
(Expert) 29 January 2012
CASE NO.: Appeal (crl.) 219 of 2005 PETITIONER: M.P.Lohia RESPONDENT: State of West Bengal & Anr. DATE OF JUDGMENT: 04/02/2005 BENCH: N.Santosh Hegde & S.B.Sinha JUDGMENT: J U D G M E N T (Arising out of SLP(Crl.)No.991 of 2004) (With Crl.A.Nos 220/05 @ SLP(Crl.) No.1302/04, & Crl.A.No 221/05 @ SLP(Crl.)No.1829/04) SANTOSH HEGDE,J.
Heard learned counsel for the parties. Leave granted. The appellants in these appeals have been charged for offences punishable under Sections 304B, 406 and 498A read with Section 34 of the IPC. Their applications for the grant of anticipatory bail have been rejected by the courts below. Daughter of the complainant Chandni (since deceased) was married to the appellant in the third appeal before us. Their marriage took place on 18th February, 2002. The appellants live in Ludhiana whereas the complainant and his family are residents of Calcutta. Chandni committed suicide on 28th of October, 2003 at her parents house in Calcutta. It is the case of the appellants herein that the deceased was a schizophrenic psychotic patient with cyclic depression and was under medical treatment. Though she was living in the matrimonial home often went to Calcutta to reside with her parents and she was also being treated by doctors there for the above- mentioned ailments. While the complaint against the appellants is that they were not satisfied with the dowry given at the time of wedding and were harassing the deceased continuously, consequent to which she developed depression and even though the parents of the deceased tried to assure the appellants that they would try to meet their demand of the dowry, the deceased was being treated cruelly at her matrimonial home and her husband had no love and affection to her because of which she developed depression. It has also come on record that the deceased had tried to commit suicide at the residence of her parents sometime in July, 2002 i.e. about a year earlier than the actual date of her death. On behalf of the prosecution as well as on behalf of the defence, large number of documents have been produced to show that the appellants were demanding dowry because of which the deceased was depressed and ultimately committed suicide. Per contra the documents from the side of the defence show that the relationship between the husband, wife and the in-laws were cordial and it was only illness of the deceased that was the cause of her premature death. One thing is obvious that there has been an attempt on the part of both the sides to create documents either to establish the criminal case against the appellants or on the part of the appellants to create evidence to defend themselves from such criminal charges. Correctness or genuineness of this document can only be gone into in a full-fledged trial and it will not be safe to place reliance on any one of these documents at this stage. Therefore, we would venture not to comment on the genuineness of these documents at this stage. Suffice it to say that this is a matter to be considered at the trial. In this background the only question for our consideration at this stage is whether the appellants be granted anticipatory bail or not. As stated above, any expression of opinion on the merits of the case except to the extent of finding out prima facie whether the appellants are entitled for anticipatory bail or not, would likely to effect the trial. Therefore, taking into consideration the entire material available on record without expressing any opinion on the same, we think it appropriate that the appellants should be released on bail in the event of their arrest on their furnishing a bail bond of Rs. 1,00,000/- (Rupees One lakh) each and one surety for the like sum by each appellants to the satisfaction of the Court or the arresting authority as the case may be. We direct that the appellants shall abide by the conditions statutorily imposed under Section 438(2) of the Code of Criminal Procedure and further direct that in the event of the investigating agency requiring the presence of the appellants for the purpose of investigation they be given one week's notice and they shall appear before such investigating agency and their presence at such investigation shall not exceed
two days at a time but such interrogation shall not be a custodial interrogation. They shall be entitled to have their counsel present at the time of such interrogation. Having gone through the records, we find one disturbing factor which we feel is necessary to comment upon in the interest of justice. The death of Chandni took place on 28th February, 2002 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipatory bail was disposed of by the High Court of Calcutta on 13.2.2004 and special leave petition was pending before this Court. Even then an article has appeared in a magazine called 'Saga' titled "Doomed by Dowry" written by one Kakoli Poddar based on her interview of the family of the deceased. Giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that this type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who was responsible for the said article against indulging in such trial by media when the issue is subjudiced. However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice. For the reasons stated above, these appeals succeed and the same are allowed
V R SHROFF
(Expert) 29 January 2012
498 failed 98%
All false case.
True cruelty do not come to police & Court. Only false cases comes, increase their bargaining power, share money so recd by all, adv police & give -ve evidence,
It is planned Drama with Courts.
Rajeev, Thanks for Citations.
ajay sethi
(Expert) 29 January 2012
The direction was given by Chief Justice of Jharkhand Mr V. K. Gupta on 11.07.2001 against a case
"Birendra Jha v/s The State of Jharkhand , A.B.A No. 4654 of 2001".
On the question of grant of bail to accused I may also observe that there is another category of
offences where normally bail should be granted and refusal should be an exception. I’m talking of
offences under Section 498A I.P.C. and Section 4 of the Dowry Provision Act, 1961.
… In those cases where it is manifestly clear, on a plain reading of the police report or the contents
of the private complaint that neither any grievous injury has been inflicted upon the alleged victim
nor is there any other clear proof of the alleged victim having physically suffered and that there is
also no serious allegation supported with positive proof of dowry having been demanded in the
immediate proximity of the marriage or thereabout, the bail should be granted. It happens quite
often that in ordinary matrimonial disputes or where there is some discordant note in a matrimonial
relationship, the woman as an alleged victim sets in motion 498A or Sec. 4…
5. Registrar General of this court is directed to circulate copies of this judgment to all Subordinate
Courts in the Sate of Jharkhand for their information, compliance and necessary action. “
ajay sethi
(Expert) 29 January 2012
IN THE HIGH COURT OF DELHI AT NEW DELHI
Bail Application No. 1627/2008
04.08.2008
Judgment delivered on: 04.8.2008
Chander Bhan and Anr. ...... Petitioners
Through: Mr. Rajesh Khanna Adv.
versus
State ..... Respondent
Through: Mr. Pawan Sharma APP
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? yes
2. To be referred to Reporter or not? yes
3. Whether the judgment should be reported
in the Digest? yes
KAILASH GAMBHIR, J. (Oral)
By way of the present petition the petitioners who are parentsin-
law of the complainant seek grant of anticipatory bail.
Mr. Sharma counsel for the State submits that allegations are
serious in nature against the petitioners, therefore, the petitioners do not
deserve grant of anticipatory bail.
Complainant is present in the court. She states that there is no
possibility of her going back to the matrimonial home. However, the
complainant is not averse to the matter being sent before the mediation cell.
Let the matter be sent to the Mediation Cell, Rohini Court, Delhi for exploring
the possibility of amicable settlement between the parties.
Let the parties appear before the Mediation Cell, Rohini Court,
Delhi on 11.8.2008 at 4.00 P.M.
List the matter before the court on 23.9.2008.
Till then the petitioners shall not be arrested.
Before parting with this case, I deem it expedient and in the
larger interest of saving matrimony of the couples and to restore peace between
the two hostile families of husband and wife who once must have celebrated the
marriage of couple with great zeal, fervor and enthusiasm but when faced with
many facets and stark realities of life entangled themselves to fight a long
drawn legal battle instead of building confidence, trust, understanding, mutual
respect for each other and their respective families.
The offence of cruelty by husband or relatives of husband (Section 498-A)
was added in 1986 to curb the vise of subjecting women to coerce them or their
relatives to meet unlawful demands for dowry.
Since its enactment, this provision has been subjected to systematic and
sustained attack. It has been called unfair and responsible for the
victimisation of husbands by their wives and her relatives. No doubt there may
be many deserving cases where women are being subjected to mental and physical
cruelty at the hands of the avaricious in-laws. But such cases have to be
distinguished from other cases where merely due to trivial fights and ego
clashes the matrimony is facing disaster.
What is not comprehended by young minds while invoking the provisions of
the likes of Section 498-A and 406 of IPC is that these provisions to a large
extent have done incalculable harm in breaking matrimony of the couples. Despite
the western culture influencing the young minds of our country, still it has
been seen that Indian families value their own age old traditions and culture,
where, mutual respect, character and morals are still kept at a very high
pedestal.
It has been noticed in diverse cases, where the brides and their family
members in litigation find the doors of conciliation shut from the side of groom
and his family members only on account of there having suffered the wrath of
Police harassment first at the stage when matter is pending before crime against
women cell and thereafter at the time of seeking grant of anticipatory or
regular bail and then the ordeal of long drawn trial.
Daily, matters come before this court seeking bail and for quashing of
FIR?s registered under Sections 498A/406 of the IPC. This court is of the view
that it is essential to lay down some broad guidelines and to give directions in
such matters in order to salvage and save the institution of marriage and
matrimonial homes of the couples.
Guidelines:
1. Social workers/NGO
There is no iota of doubt that most of the complaints are filed in the
heat of the moment over trifling fights and ego clashes. It is also a matter of
common knowledge that in their tussle and ongoing hostility the hapless children
are the worst victims. Before a wife moves to file a complaint with the Women
Cell, a lot of persuasion and conciliation is required.
(a) The Delhi Legal Service Authority, National Commission for Women, NGO?s and
social worker?s working for upliftment of women should set up a desk in crime
against women cell to provide them with conciliation services, so that before
the State machinery is set in motion, the matter is amicably settled at that
very stage. But, if ultimately even after efforts put by the social workers
reconciliation seems not possible then the matter should be undertaken by the
police officials of Crime against Women cell and there also, serious efforts
should be made to settle the matter amicably.
2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the Commissioner of Police,
Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest
in the dowry cases registered under Sections 498-A/406 IPC and the said
guidelines should be followed by the Delhi Police strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be registered without the prior
approval of DCP/Addl. DCP.
(ii) Arrest of main accused should be made only after thorough investigation has
been conducted and with the prior approval of the ACP/DCP.
(iii) Arrest of the collateral accused such as father-in-law, mother-in-law,
brother-in-law or sister-in-law etc should only be made after prior approval of
DCP on file.
(b) Police should also depute a well trained and a well behaved staff in all the
crime against women cells especially the lady officers, all well equipped with
the abilities of perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine manner.
(d) The endeavor of the Police should be to scrutinize complaints very carefully
and then register FIR.
(e) The FIR should be registered only against those persons against whom there
are strong allegations of causing any kind of physical or mental cruelty as well
as breach of trust.
(f) All possible efforts should be made, before recommending registration of any
FIR, for reconciliation and in case it is found that there is no possibility of
settlement, then necessary steps in the first instance be taken to ensure return
of stridhan and dowry articles etc. by the accused party to the complainant.
3. Lawyers:
Lawyers also have a great responsibility in this regard.
(a) While drafting pleadings/complaints, the lawyers should not unnecessarily
suggest incorporation of wild allegations, or in character assassination of any
of the parties or their family members whatever the case may be.
(b) Lawyers are also to endeavour to bring about amicable settlement between the
parties as they are expected to discharge sacred duty as social engineers in
such cases instead of making them target for monetary considerations by
multiplying their cases.
4. Courts:
Subordinate courts, be it trying civil or criminal cases concerning bail,
maintenance, custody, divorce or other related matters shall in the first
instance, in every case where it is possible so to do consistently with the
nature and circumstances of the case, to make every endeavour to bring about
reconciliation between the parties.
a) The first endeavor should be for possible reunion and restitution of the
parties and as a last endeavor to bring about peaceful separation.
b) If possible extra time should be devoted to such matters to restore peace in
the lives of rival parties be it by re-uniting them or even in case of their
parting ways.
c) Conciliatory proceedings by the court should preferably be held in camera to
avoid embarrassment.
d) Wherever, the courts are overburdened with the work, necessary assistance of
Mediation and Conciliation cells should be sought.
Apart from above directions it would not be out of place to ask parties
also to themselves adopt a conciliatory approach without intervention of any
outside agency and unless there are very compelling reasons, steps for launching
prosecution against any spouse or his/her in-laws be not initiated just in a
huff, anger, desperation or frustration.
DASTI.
KAILASH GAMBHIR, J
August 04, 2008
?mg?
Bail Application No. 1627/2008
Page 11
prabhakar singh
(Expert) 29 January 2012
nothing left to be further discussed.
A. A. JOSE
(Expert) 29 January 2012
Yes, as usual Mr.Ajay Seth ji is fastest.
Raj Kumar Makkad
(Expert) 29 January 2012
Nothing remains to be added in the light of detailed reply.
Devajyoti Barman
(Expert) 29 January 2012
now rerad the decision to decide whether it aplies to you or not.
Shonee Kapoor
(Expert) 30 January 2012
Bail would be decided based on the facts and circumstances of the case. If denied by trial court, you would have to move Session and then High Court, if denied at Session as well.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
