Delhi High Court

Rajesh Manchanda & Ors. vs State on 22 April, 2009

Author: Mool Chand Garg

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Bail Application No. 883/2008 and Crl.M.B.593/2008

%                              Date of reserve : 13th April, 2009
                               Date of decision: 22nd April, 2009

       Rajesh Manchanda & Ors.            ...Petitioners
                      Through:      Mr.J.M.Bari, Advocate

                                 Versus

       State                               ...Respondent
                         Through: Mr.Navin Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers    Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?       Yes

3.     Whether the judgment should be           Yes
       reported in the Digest?

MOOL CHAND GARG, J.

1. This petition for grant of Anticipatory Bail has been filed by

petitioner no. 1m the husband and in-laws of the

complainant, Smt. Sarika Saluja in case FIR no. 114/2008

registered on 26.03.2008 at Police Station Hari Nagar at the

instance of the complainant after all efforts for conciliation

failed before the CAW cell. It is also submitted that a notice to

arrest the petitioners was given by the concerned SHO and for

that reason present petition has been filed afresh.

2. It has been submitted by the petitioners that complainant was

married to petitioner No.1 according to Hindu Rites on

25.11.2001 but was residing separately from him with effect

from 25.1.2003. The complaint for the first time was lodged

by the complainant in January, 2008 on which basis an enquiry

was held. The petitioner filed an application for the grant of

anticipatory bail soon thereafter and was protected by the

Additional Sessions Judge by an order directing the Police

Authorities to give a notice of seven days in case the

petitioner was to be arrested after the registration of FIR at

the instance of the complainant.

3. In her complaint Smt. Sarika Saluja had alleged that petitioner

No.1/husband troubled her for the money and that he also,

used to take liquor and used to beat her beside demanding

money to be brought from her parent's house. She also

alleged that petitioner No.1 has taken loan of Rs.8 lacs from

her mother and is not returning that amount. He is also

having illicit relationship with his bhabhi. The complainant

also asked that all of istridhan which is in the possession of

her in-laws may be returned to her.

4. According to the petitioner all the aforesaid allegations are

false and frivolous because the complainant is living in the

house of her mother with effect from 10.1.2006 and she has

approached the CAW Cell in the month of January, 2008 and it

is thereafter an FIR was registered.It has been submitted that

all the goods and articles belonging to the complainant have

already been taken by her and only few articles such as T.V.,

refrigerator, double bed, dressing table, centre table and

almirah are lying in the matrimonial home. The washing

machine which was in unrepairable condition was given to

Kabadi with the consent of the complainant, besides that other

clothes were taken by petitioner No.1 and the complainant

after they had decided to live separately. It is also submitted

that the husband was always ready and willing to return even

those articles and in fact he wanted the complainant to live

with him along with the child born from the wedlock and for

this purpose he has filed a petition for restitution of conjugal

rights.

5. It is also submitted that the complainant is under the influence

of her mother and does not want to settle with the petitioner.

It is submitted that petitioner No.2 is a man of means and is

the owner and in possession of property No.23, Rashid Market,

First Floor, Gali No.4, Near Geeta Colony, Delhi, the present

market value of the same is more than Rs. 18 lakhs.

Petitioner No.3 has his own shop in Gole Market and petitioner

No.1 works and earns Rs. 4000/- per month. Other petitioners

have also very good roots in the society. It is also submitted

that they have never demanded any dowry from the

complainant. It is also submitted that their application for

grant of anticipatory bail was dismissed by the Additional

Sessions Judge vide order dated 24.4.2008 by taking a wrong

notion of the allegations made in the FIR and by making a new

case for the complainant inasmuch as the Additional Sessions

Judge has observed that petitioner No.1 has taken loan from

the mother-in-law but he is not willing to pay the same even

though it was never admitted by the petitioner.

6. I have heard the submissions from both sides.

7. The bail application came up before this Court for hearing for

the first time on 29.4.2008. As per the said order petitioner

No.2 to 8 were directed to be released on interim bail till the

next date of hearing subject to each of them filing personal

bond in the sum of Rs. 10,000/- with one surety each in the

like amount to the satisfaction of the Investigating Officer,

subject to their cooperating in the investigation. However, as

far as petitioner No.1 is concerned it was held that there is no

case made out for the grant of any interim protection.

8. On 22nd May, 2008 when the matter was fixed before this

Court for hearing, on instructions from the petitioner, counsel

for petitioner No.1 submitted that the petitioner shall pay

Rs.3500/- per month for the maintenance of minor child Ishan

Manchanda born from the wedlock without prejudice to the

rights and contentions of both the parties in all pending

proceedings. Such amount was directed to be paid on or

before seventh day of each English Calendar month. The said

amount was directed to be accepted without prejudice to the

rights and contentions of the parties.

9. The matter was referred to Delhi High Court Mediation Cell but

there on 17.10.2008 it was informed that parties are re-

thinking to find out the possibility of reconciliation as they

have a child of six years.

10. On 19.11.2008 the following orders were passed :

"Complainant-wife is ready to live with Petitioner No.1-

husband in a separate rented accommodation provided husband put some amount in a fixed deposit in the name of the child so that she has some assurance about the maintenance of the child.

Counsel for the petitioner has stated that petitioner is ready to have separate accommodation on rental basis and is also ready to put a sum of Rs.4 lakhs in the form of fixed deposit in the name of the child under the guardianship of complainant-wife. Counsel states that he will bring the fixed deposit on the next date of hearing.

Renotify on 19th December, 2008.

Parties are at liberty to do the needful in the meanwhile.

Till then, interim orders to continue."

11. However, on 3.2.2009 at request of counsel for the petitioner,

the following orders were passed:-

"Counsel for the petitioner has not brought the fixed deposit in the sum of Rs.4 lakhs in Court today as admitted by him vide order dated 19th November, 2008. He submits that he will bring the same on the next date of hearing.

List this matter for hearing on 8th April, 2009. Interim order, if any, to continue."

12. On 8.4.2009 when the matter was taken up it was stated by

the petitioner that he was not willing for any settlement and

therefore the matter was heard on merits.

13. Thus it would seen that despite availing various opportunities

and indulgence from this court, the petitioner except for

taking time has not shown any genuine interest in settling the

matter with the complainant.

14. At this stage, it would be appropriate to take note of the

allegations made in the letter dated 21.4.2003 which has been

filed by the petitioner himself :

"April 21, 2008

The SHO

Police Station : Hari Nagar

Delhi.

In the matter of :

FIR No. 114/2008 dated 26.03.2008 U/ss. 406 & 498A IPC registered on the basis of complaint made by Mrs. Sarika Saluja @ Manchanda, w/o Shri Rajesh @ Sonu Manchanda assigned to IO Mr. Nirakar Kaushik, ASI

Sir,

In respect of the above FIR I, Shri Rajesh @ Sonu Manchanda the husband of the complaint made by Mrs. Sarika Saluja @ Manchanda have t say that at the first time I have come to know through the above FIR that the complainant Sarika is requesting your goodself to get her all her Stridhan back to her from her in laws. In this regard I have to submit that presently the following items of the common/join use are lying in the matrimonial house, for which myself or for that matter any of the persons named in the above FIR have no objection that the said items be taken by the complainant Sarika directly or though your goodself at any time.

1. T.V. LG 21 Inch

2. Fridge

3. Double Bed

4. Dressing Table

5. Central Table

6. Almirah

7. Khesia - 2

8. Pillow with cover - 2

9. Dinner Set (Steel)

10. Cooker 5 Ltr.

11. Cooker 3 Ltr.

12. Mattresses - 2

13. Dinner Set Unbreakable

14. One steel Bucket

15. One Wall Clock

16. Woolen Cover

Out of the absolute and personal property of wife, the articles of the exclusive use of the wife and child such as all ornaments golden and silver and the cloths are already taken by the wife and the furniture and utensils of the common/joint use of the husband and wife are lying in the matrimonial house. The same can be taken at any time by the wife.

It is also important to clarify that customary gifts given to relatives of husband or to the husband and the incidental expenses incurred at the occasions of the necessary ceremonies of the marriage or thereafter and the goods and items already consumed would not fall within the meaning of stridhan. However, the other items meant for common use would fall within definition of stridhan.

Some items which were already broken and unusable and were

disposed of the by the husband and wife jointly cannot be returned. Such item is the Washing Machine.

It is prayed accordingly.

Rajesh Manchanda

S/o Late Sh. Bodh Raj Manchanda

23 Rashid Market, First Floor,

Gali No. 4, Near Geeta Colony,

Delhi - 110051.

Telephone No. 9873149470

Copy to : Mrs. Sarika Saluja @ Manchanda, W/o Shri Rajesh Manchanda D/o Shri Ashok Saluja, R/o 37/8, Ashok Nagar, Ist Floor, New Delhi -

18."

15. A perusal of the aforesaid letter goes to show that none of the

jewellery items were returned to the complainant.

16. On 24.4.2008 when the bail application of the petitioner was

taken up, the Additional Sessions Judge passed the following

orders:

"It is the case of the prosecution that complainant is the only child of her parents and her father has already expired. Applicants forced the complainant's mother to sell off her house and the proceeds thereof to the extent of Rs. 8 lacs were taken away by the petitioner No.1 at the instance of the remaining applicants and they all demand dowry from her. Her Istridhan is in their custody.

Sh. Bari on behalf of applicants submit that no demand was ever made in writing by the complainant for return of her claimed articles and that there is no documentary proof regarding the money having been given. It is also submitted that the amount was in the nature of loan.

However, Sh. Bari submits that the complainant may collect furniture items from the house of the applicant.

Heard.

Considering the fact that complainant is wife of applicant no.1 and all the remaining applicants are closely related and allegations have been made against them. The amount admitted to have taken by way of loan has also not been returned. The matter would require custodial interrogation. The application is, therefore, dismissed."

17. Thus from the aforesaid it apparent that at least one of the

allegations made by the complainant that petitioner had

procured a loan from the mother of the complainant can be

accepted as correct subject to evidence of the party. This

amount has not been returned. Efforts made for conciliation

have failed because the petitioner was not willing to even

comply with his own assurances given to the Court. It is true

that this Court while considering the bail application for

anticipatory bail may not be able to impose conditions other

than what have been specified under Section 437 Cr.P.C. as

has been laid down by the Apex Court in the case of Munish

Bhasin & ors. Vs. State (Govt. of NCT of Delhi) & Anr., 2009(3)

Scale 259 and in the case of Sunder Babu & Ors. Vs. State of

Tamil Nadu delivered in Criminal Appeal No.773/2003 decided

on 19.02.2009, nothing prevents this Court to make an effort

for conciliation if the parties are willing to do that and it is for

this reasons the matters are also referred to Conciliation

Centre so as to avoid any harassment to either of the parties

who in fact in matrimonial relationship with each other and

many a times differences do arise on account of number of

factors besides the demand of dowry.

18. I have also gone through the judgments relied upon by the

petitioner, i.e.:

(i) Parmod Kumar Oberoi & Ors. Vs. Radha Rani, 1991(1) C.L.R. 524 (P&H).

(ii) G.Sagar Suri & Anr. Vs. State of U.P. & Ors., (2000) 2 SCC 636.

(iii) Raj Pal Singh Vs. State of Haryana, 2000(3) RCR (Criminal) 135(P&H).

(iv) Smt.Neera Singh Vs. State (Govt. of NCT of Delhi) & Ors., judgment dated February 21, 2007 in Crl.M.C. 7108/2006 passed by Justice S.N.Dhingra, Judge, High Court of Delhi.

(v) Smt.Neera Singh Vs. State (Govt. of NCT of Delhi) & Ors., judgment dated February 23, 2007 in Crl.M.C. 7262/2006 passed by Justice S.N.Dhingra, Judge, High Court of Delhi.

(vi) Smt.Sangeeta Kalra Vs. State, judgment dated March 02, 2007 passed in Crl.M.C. 98/2006 by Justice S.N.Dhingra.

(vii) Pratibha Rani Vs. Suraj Kumar & Anr., AIR 1985 SC 628

(viii) M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. & Ors., AIR 2006 SC 2780.

(ix) Onkar Nath Mishra & Ors. Vs. State & Anr., (2008) 2 SCC 561.

(x) Besai Venkata Ramana Murthy Vs. State by Station House Officer IV Town Law & Order Police Station, Visakhapatnam, 2003(4) RCR (Cri) 597 (AP).

(xi) Tarlok Singh Vs. State of Punjab, 1998(2) RCR (Cri) 590 (P&H).

(xii) Shakuntala Vs. The State of Delhi, judgment dated February 26, 2007 in Crl.M.C. 5536/2006 passed by Justice S.N. Dhingra, Judge, High Court of Delhi.

19. However none of these judgments have any application on the

facts of this case inasmuch as the allegations of cruelty are

writ large in the complaint made by the complainant against

the petitioner and other in laws of the complainant. To quote

a few, I would just take down the portion of the complaint

which has been lodged by the complainant against the

petitioner:

"My marriage was solemnized on 25.11.2001 as per the Hindu rites and ceremonies with son of Shri Bodh Raj Manchanda and Smt. Roppa Manchanda. We were living together with whole family of my husband consisting of mother-in-law Roopa Manchanda, my husband Rajesh Manchanda, elder brother (Jeth) Rakesh Manchanda, Bhabhi (Jethani) Veena Manchanda and two sons of Jethani. I humbly request that I am very much harassed by the atrocity of my husband. My husband works with his elder brother but he troubles me for the money. My husband takes all kinds of intoxicants. He beats me and demands money. In the today's age of dearth I am being tortured in the hands of my husband for fulfilling his arbitrary demands. He frequently beats me for money and pressurizes me to bring money from my parents house. In my parents house my mother in living alone. My father is no more. There is no other brother or sister. I am sole child of my mother. My whole articles and jewellary is in in- laws house. My husband had taken Rs. 8,00,000/- form my

mother which he is not returning. I am for one year form 10.1.2006 living in the house of my mother. My mother bears the expenses of my child with great difficulty. I have no other source of income. When I asked for the expenses of child, my jeth and husband refused and threaten that they have big contacts. Six years have passed from my marriage and I was tolerating till date so that house is not broken and there is no insult but now it is beyond my tolerance because there is illicit relations between my husband and jethani. I want your held. My mother has given dowry beyond her capacity which is in the possession of my in-laws. Therefore, I request that my whole stridhan which is in the possession of my in-laws be returned back to me. The legal action against following persons of my in- laws be taken : (1) Rajesh Manchanda (husband), (2) Roop Rani Manchanda (mother-in-law), (3) Rakesh Manchada (Jeth), (4) Veena Manchanda (Jethani), (5) Pinki @ Kiran Mehra (Nand), (6) Shashi Mehra (Nandoi) (7) Parents of Jethani, Applicant Sarika Manchanda D/o Late Shri Ashok Saluja and Kamal Saluja R/o 37/8, Ashok Nagar, New Delhi - 110 018, my husband Rajesh Manchanda, R/o 23, Rashid Market, Gali No. 4, Near Geeta Colony, Phone Nos. 98731494570. Duty officer to register a case U/S 498-A/406/34 IPC and hand over the investigation to ASI Nirakar Kaushik. Sd/- English SHO/HN 26,3,08. On receipt of the complaint the case was registered for the above offences and a computer copy of the FIR and original complaint as per the order of SHO, was given to SI Nirakar Kaushik which will be used for further investigation. The other copies will be sent through post to the High Officers."

20. The aforesaid allegations are specific at least to the extent

that the complainant was treated with cruelty by the husband

and other in-laws primarily for two reasons:- (i) the husband is

not willing to repay the amount of loan taken from the mother

of the complainant ; (ii) He is maintaining illicit relationship

with his bhabi.

21. The aforesaid are sufficient to hold that prima facie allegations

of extending cruelty qua the complainant are made out

against the petitioner.

22. In these circumstances, I direct that petitioner Nos. 2 to 8 if

arrested in connection with F.I.R. No.114/2008 under Section

406/498-A/34 IPC registered at Police Station Hari Nagar, they