Recovery process
upasna
(Querist) 05 November 2011
This query is : Resolved
Dear sir,
Its a humble request to provide any judgment of Supreme court/high court which says that 498A/406 is not a recovery process.This shld not be a problem in confirming the anticipatory in to a regular bail.
Rajeev Kumar
(Expert) 05 November 2011
Dear upasna, As per as your query there is no bar in confirming anticipatory bail in sections 498A and 406 of IPC. There are several judgements of our apex court and various highcourts on granting of anticipatory bail in section 498 A and 406 of IPC.
upasna
(Querist) 05 November 2011
Dear Rajeev sir,
The interim anticipatory Bail is already granted. The family needs to get absolute regular bail.They have already joined the investigation as directed by the court.there was no mention of recovery as a condition in granting the bail. all the articles wr returned to th egirl but however she refused to take up some of the things as furniture and gold ornaments and as is the Indian police ..the IO got a good bribe from them and made a report that furniture,gold,her educational certificates and cash has not been recovered even the cash,furniture and the certificates wr nvr mentioned annexures.he has written that on these basis the bail be rejected. That is why I was trying to get something from the Honorable nApex court judgments to be used as citations.regards
Rajeev Kumar
(Expert) 05 November 2011
Dear upasna when you were returning the articles that time you ought to make a list of returned article with the signature of informant as well as their parent and the another two witnesses on the non judiciary stamp paper.If it happens so then use this document in the court for confirmation of your bail and try to prove yourself that all articles have been returned. I will provide you some apex court judgements later in this regard.
upasna
(Querist) 05 November 2011
thnks sir,
The list was made and signed.If u can provide me with some judgments .i would be really thankful.I knew it already that the lady is going to create a trouble.bcus she has already created a lot of scene in the police station even before the articles arrived.her lawyer might have guided her to refuse to take the articles so that problems can be created at the time of regular bail.
Shonee Kapoor
(Expert) 06 November 2011
THIS IS PUNJAB AND HARYANA HC JUDGEMENT,
Criminal Misc. No. M-27218 of 2009 [ 1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. M-27218 of 2009 (O&M)
Date of decision: 25.9.2009
Gurdeep Singh Cheema
.. Petitioner
v.
State of Punjab and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Ranjan Lakhanpal, Advocate for the petitioner.
...
Rajesh Bindal J.
Prayer in the present petition is for cancellation of anticipatory bail
granted to respondents No. 2 and 3 by learned Additional Sessions Judge,
Jalandhar vide order dated 8.6.2009.
FIR in the present case was registered on account of a matrimonial
dispute. It is a case where both husband and wife, who are the main parties to the
dispute, are residing in Canada. In fact, they had left for Canada immediately after
the marriage on 21.1.2008. Respondents No. 2 and 3 herein are father and mother
of the husband.
The contention of learned counsel for the petitioner that anticipatory
bail granted to respondents No. 2 and 3 deserves to be cancelled because recovery
is yet to be effected has no legs to stand. He has not been able to point out any
valid ground on the basis of which the anticipatory bail granted to respondents No.
2 and 3 could be cancelled. He has not pointed out any instance where respondents
No. 2 and 3 had ever misused the concession of anticipatory bail granted to them
or have not joined the investigation. Complainant-Rupinder Kaur is citizen of
Canada and is residing there. Initially, complaint was made to the police. The
matter was investigated and it was found that no offence was made out against
respondents No. 2 and 3. Subsequently, complaint under Section 156(3) Cr. P.C.
was filed in the court, on the basis of which the FIR was registered.
It is a case where the complainant and her husband resided in Canada
after their marriage. The FIR was got registered in India because of certain
differences between the couple. As learned counsel for the petitioner has not been
able to point out any ground on the basis of which the anticipatory bail granted to
Criminal Misc. No. M-27218 of 2009 [ 2]
respondents No. 2 and 3 could be cancelled, I do not find any reason to interfere in
the present petition. Accordingly, the same is dismissed.
(Rajesh Bindal)
Judge
25.9.2009
mk
Shonee Kapoor
(Expert) 06 November 2011
THIS IS SUPREME COURT JUDGEMENT
CASE NO.:
Appeal (crl.) 490 of 2008
PETITIONER:
Mohinder Kaur
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 14/03/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
JUDGMENT
CRIMINAL APPEAL NO. 490 OF 2008
(Arising out of SLP (Crl.) No. 8213 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Punjab and Haryana High Court
dismissing the petition filed in terms of Section 438 of the
Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.').
3. The appellant had sought for protection in terms of
aforesaid provision in FIR No. 105 dated 15.8.2007 registered
at the Police Station Bhogpur, District Jalandhar. The
complainant had alleged that she was married to Ranjit Singh,
son of the appellant on 23.10.2002. The said Ranjeet Singh
went abroad in February, 2002 and came back after about one
year. Alleging that the complainant was harassing her for
brining insufficient dowry, the complaint was lodged in the
police station. The appellant filed a petition under Section 438
Cr.P.C. for protection. The High Court observed that
ordinarily in such cases the court is inclined to grant
protection against arrest to family members of husband of the
complainant, however the facts of the present case were
different. It was stated that the appellant herself was a retired
police officer who was serving as an inspector of Punjab police.
Her son was residing abroad and she had
transferred/bequeathed her property in favour of her grand
son who is born to another son who is settled abroad. No part
of the immovable property has been given to grand daughter
born to the complainant. The High Court, therefore,
concluded that the complainant and her minor daughter were
left without any source of livelihood. It was noted that serious
allegations were made against the appellant. The hostile
treatment meted out to the grand daughter speaks loudly that
the allegations leveled carry prima facie substance. After
making these observations, the High Court also accepted the
contention that the appellant being a recently retired police
officer, the local police were hob-nobbing with her and the
investigations were not being done properly. The High Court
therefore, dismissed the petition. But at the same time it
directed the Senior Superintendent of Police, Jalandhar to
depute a fairly senior police officer to monitor the on-going
investigation and take all lawful measures to interrogate the
appellant and recover the dowry articles. Her passport was
also seized and she was not to be permitted to go abroad
without the permission of the Court.
4. Learned counsel for the appellant submitted that the
conclusions of the High Court are clearly without any
foundation. The appellant was serving neither as an inspector
nor was she retired recently. She was serving as a constable
and had retired nearly 10 years back i.e. in May, 1999.
Further it is inconceivable that a retired constable who had
retired 10 years back would have influence over the police
officials to render the investigation ineffective. It is printed out
after death of her husband, she was inducted as a Constable
on compassionate grounds.
5. The direction for recovering dowry articles clearly means
as if certain dowry articles were there. It is therefore submitted
that all the directions are insupportable.
6. Learned counsel for the State on the other hand
submitted that looking into the gravity of the accusation order
has been passed.
7. As rightly submitted by learned counsel for the appellant
the High Court seems to have completely acted on materials
which do not support the conclusions. By way of illustration,
it can be said that the appellant was not serving as an
inspector but was a constable who had retired about a decade
back. Therefore the conclusion of the High Court that she was
in a position to make the investigation ineffective does not
have any foundation. The other directions given like recovery
of dowry articles etc. need not have been given while dealing
with an application under Section 438 Cr.P.C. filed by her.
The directions for seizing the appellant's passport also could
not have been given a petition under Section 438 Cr.P.C. filed
by her.
8. The directions regarding deputation of a senior police
officer to monitor the investigation and/or recover the dowry
articles to seize her passport stand deleted.
9. The parameters for exercising of power under Section 438
Cr.P.C. has been highlighted by this Court in Adri Dharan Das
v. State of W.B. (2005(4)SCC 303).
10. Keeping in view the parameters highlighted in Adri
Dharan Das's case (supra), we direct in case the appellant
surrenders before the concerned court and moves for bail the
application shall be disposed of expeditiously preferably on the
date it is filed. We make it clear that we have not expressed
any opinion on the acceptability of the prayer for bail to be
made in terms of the aforesaid direction.
11. The appeal is allowed to the aforesaid extent
Shonee Kapoor
(Expert) 06 November 2011
However, your query won't be satisfied with the same.
The crux of the SC judgement is that if recovery has to be effected, the court can take decision to send the accused to Police Custody and they can then get recovery effected.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
upasna
(Querist) 06 November 2011
Thanks,
The high court judgment is sufficient.
regards
dev kapoor
(Expert) 08 November 2011
This apart,it is now settled law that once 'BAIL' including anticipatory bail,is granted,it will be cancelled only on proof of grounds required for CANCELLATION OF BAIL.The law is different in both the cases.
Shonee Kapoor
(Expert) 08 November 2011
I guess only interim bail is given as of now and AB application is yet to be decided on merits.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
