Ms. Sumitra Chauhan vs State And Anr.
2005 Latest Caselaw 1045 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner, Sumitra Chauhan, was married to Amarnath Chauhan on 11.12.1993. In March, 1995 the couple were blessed with a female child named Ramita. Master Rishab was born to them in February, 2001. As per the petitioner, she suffered dowry harassment. She bore the trauma as she wanted the family not to break. She alleges that on 7.5.2002 an attempt was made to set her on fire when kerosene oil was poured on her by her husband and her mother-in-law. In spite thereof friends and relatives intervened. They attempted a patch up. For the sake of her children she continued to live with her husband in the matrimonial house but ultimately was forced to leave the house Along with her children when things became unbearable.

2. She lodged a complaint pursuant whereto FIR No. 289/2005 PS M.S. Garden was registered for offences under Section 498-A/406 IPC.

3. Amarnath Chauhan was arrested and was produced before the Duty Magistrate on 13.9.2003. On said date, as recorded by Ms.Anu Grover, Duty Magistrate, counsel for Amarnath Chauhan submitted that he wishes to settle the matter with the petitioner. Accused Amarnath gave an undertaking in writing that he will pay Rs. 6 lakhs to the petitioner for the dowry articles and would also pay Rs. 5,000/- per month for maintenance of the children. He paid Rs. 50,000/-, which fact stands recorded in the order dated 13.9.2003. He undertook to pay the balance sum of Rs. 5.5 lakhs within 15 days.

4. Recording what transpired in court as also the undertaking of Amarnath Chauhan, he was admitted to interim bail till 27.9.2003.

5. Having secured the benefit of interim bail, Amarnath Chauhan filed a petition in this court registered as Crl.M.(M) No. 3929/2003. He stated in the petition that the learned Duty Magistrate could not impose onerous condition of deposit. Petition filed by Amarnath was listed in this court on 23.9.2003. Following order was passed:-

"3.9.2003

Present: Mr.Mukesh Kalia and Mr.Rakesh, Adv. for the petitioner.

Crl.M.5316/2003

Exemption allowed subject to all just exceptions.

Crl.M.(M) 3929/2003 and Crl.M. 5317/2003

The impugned order is a conditions order. Such an order is not permissible in law. No condition of payment of maintenance allowance or the money in lieu of the release of bail can be imposed. The Magistrate is only required to consider the facts whether the accused is entitled to bail or not. The conditions can be imposed upon the petitioner as envisaged in section 437 Cr.P.C. section 437 Cr.P.C. nowhere provides for imposition of such conditions. However, efforts can be made by the court for effecting compromise between the parties and for resolving all the disputes as to claims and counter claims of the parties but bail order cannot be a conditional order for payment of Rs. 5,50,000/- and Rs. 5000/- towards maintenance allowance is concerned. Bail application cannot be converted into maintenance application under section 125 Cr.P.C. nor can be converted into a suit for recovery of dowry articles.

Petition is disposed of to the aforesaid extent. The bail bond furnished by the petitioner which has been accepted till 22nd September 2003 shall be deemed to have been accepted without any limitation of period.

Sd/-

J.D. Kapoor, J."

6. At the outset, I may note that the order dated 23.9.2003 is without notice to the State. On the very first date, petition was allowed.

7. Perusal of the order dated 23.9.2003 passed in Crl.M.(M) 3929/2003 shows that it has proceeded on the premise that the learned Duty Magistrate imposed conditions, a fact contrary to the record, for the reason, Amarnath voluntarily gave an undertaking which was recorded by the learned Duty Magistrate and binding Amarnath to the undertaking furnished, in terms of the undertaking, interim bail was granted.

8. Petitioner who is aggrieved by the order dated 23.9.2003 prays that order dated 23.9.2003 may be modified/set aside as the order proceeds on the basis that the learned Metropolitan Magistrate has imposed conditions while admitting Amarnath to interim bail, ignoring the fact that order passed by the learned Metropolitan Magistrate was the outcome of a concession and an undertaking furnished by Amarnath.

9. Sh. Javed Hashmi, learned counsel for Amarnath submitted that in view of the latest pronouncement of the Supreme Court reported as 2004 (IV) CCR 55 (SC) Jagtar Singh & Anr. v. State of Punjab & Ors., order dated 23.9.2003 passed by this court is in consonance with law and cannot be recalled or modified.

10. Issue whether monitory conditions can be imposed while admitting an accused to bail was a subject matter of consideration in the decision reported as 93 (2001) DLT 585 Sarkar Saheb Vs. State. In para 5 of the report, learned Single Judge of this court has opined as under:-

"5. Coming to the facts of the case in hand, it is found that the petitioner is being proceeded against under Sections 498-A/406 IPC on the complaint of his wife, who had alleged that soon after her marriage, the petitioner and his family had started harassing and torturing her in regard to the dowry demands. She had also alleged that her jewellery as well as Istridhan was taken and retained by her husband and his brother's wife on the assurance that it would be returned as and when required. However, when the complainant demanded her jewellery and other articles back, they flatly refused and threw her out of the matrimonial home. In matrimonial disputes, a tendency appears to be emerging to return only those articles of dowry, which become worthless after use and retain the jewellery which has a higher value. Therefore, under such circumstances the condition attached by learned Additional Sessions Judge to merely deposit a sum of Rs. 50,000/- with the Trial Court in F.D.R. to be dealt with at the final stage of the trial, was not an unreasonable, unjust or arbitrary condition. It appears that this condition was imposed to protect and safeguard the interests of the complainant and also make the petitioner feel that law does not countenance harassment of newly wed girls and deprivation of their jewellery and other valuables with impunity."

11. Decision in Jagtar Singh relied upon by counsel for respondent No. 2 is entirely distinguishable and if at all applicable, goes against the stand of respondent No. 2.

12. In Jagtar Singh's case, facts were that FIR stood registered under Section 420 r/w Section 120-B IPC. Apprehending arrest, accused sought anticipatory bail and to show bonafides offered to deposit in court the sum of Rs. 5.82 lakhs stated to be the sum cheated. Recording the offer and receiving the amount in court, accused was granted anticipatory bail.

13. Dispute between the complainant and the accused was referred to the Lok Adalat. Lok Adalat returned the reference as unsettled.

14. In proceedings before the High Court, directions were issued to disburse the amount deposited by the accused to the complainant. It was said order passed by the High Court which was under challenge before the Hon'ble Supreme Court. Setting aside the order passed by the High Court, Hon'ble Supreme Court directed that the amount deposited voluntarily by the accused ought to have remained in court and could not have been ordered to be disbursed by the High Court. Following was observed in para 12 and 13 of the report:-

"12. Since the amount in question was kept deposit with the Magistrate voluntarily by Nanak Chand to show his bona fides and consequent to which he had obtained a bail the said amount will not be returned to Nanak Chand either till the order of bail continues to be in existence.

13. We notice by an earlier order the Chief Judicial Magistrate, Hoshiarpur had directed the amount to be deposited in the interest bearing account in the event of there being no settlement between the parties. Therefore, in the interest of justice, we think the said direction should be given effect to and the amount in question be kept in the interest bearing deposit in a nationalized bank till such time as an appropriate orders are passed by the competent Court in this regard."

15. Decision in Jagtar Singh's case (Supra) does not lay down a proposition that where the accused offers to pay over to the complainant or deposit money in court, bail order conditional upon performance of the offer would be an illegality.

16. In the decision reported as 2001(2) Crimes 230 (SC) M. Sreenivasulu Reddy v. State of Tamil Nadu, Their Lordships of the Supreme Court, in para 6 of the report observed as under:-

"6.................. While granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions, should be an exercise of judicial discretion. In an offence under Sections 409 and 420 IPC, the Court is certainly not going to recover the alleged amount as a condition of grant of bail. This being the position, since the High Court had directed the payment of aforesaid money on the basis of the undertaking given by the accused, we would not modify that part of the order and, therefore, the accused would be required to pay the balance sum of Rs. 15 crores within a period of four weeks from today."

17. Decision in M. Sreenivasulu Reddy's case (supra) shows that a condition of grant of bail based on an undertaking given by the accused cannot be equated with a unilateral condition of grant of bail imposed suo motto by the court.

18. A Division Bench of this court in the judgment reported as 103 (2003) DLT 534 M.R. Narayanan v. State, considered the decision of the Supreme Court in M. Sreenivasulu Reddy's case (supra) and held that a conditional bail order, conditions being the ones offered by the accused, was legal and valid.

19. Doctrine of estoppal would prohibit a person from making a promise or an offer and receiving benefit there under, later on withdrawing the promise or the offer. If a court is persuaded to accept the terms and conditions for grant of indulgence, it would not be permissible for the party making the offer to later on resile from those terms and conditions. Where an accused offers to make a deposit and indulgence is granted to him, such an accused cannot question the condition imposed.

20. Petition is allowed. Order dated 23.9.2003 passed in Crl.M.(M) No. 3929/2003 is recalled. Consequences shall follow.

21. Order be transmitted to the learned trial court for necessary action.