Amjad Ali vs State
2009 Latest Caselaw 3731 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Bail.App. 1738/2009

%                                 Date of reserve: 08.09.2009
                                  Date of decision: 14.09.2009


AMJAD ALI                                             ...PETITIONER
                       Through: Mr. M. Rais Farooqui, adv.



                                    Versus

STATE                                                 ...RESPONDENT
                       Through:   Mr. Navin Sharma, APP for state.


CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers      No
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?         No

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

MOOL CHAND GARG, J.

1. This order shall dispose of an application filed on behalf of

the petitioner under Section 438 Cr.P.C. for grant of anticipatory

bail apprehending his arrest in FIR No. 368/2009 filed by

complainant under Section 419/420/468/469/471/354/352 IPC

registered at P.S. Anand Vihar, Delhi.

2. Briefly stated the facts of the case are that on 17.08.2009

the FIR was registered at P.S. Anand Vihar on the allegations

made by the complainant, that she happens to be a student of

B.A, first year in Ambedkar College and the accused was also in

the same college and was her friend. After assuring her that he

had good links in some companies and in garb of the promise of

getting job asked the complainant to submit her documents i.e.

school certificates, address proof photos and other documents.

Believing the same, complainant submitted her documents to the

accused on the basis of which accused/applicant is harassing her

to marry. She has further alleged that accused had made

fabricated documents of the marriage and even filed one petition

at Ambedkar Nagar, U.P for restitution of marriage and

thereafter, accused/applicant along with his associates came to

the house of the complainant and threatened her.

3. According to the applicant, the complainant Smt. Barkha is

his legally wedded wife who got married with him on 05.05.2006

according to Muslim Rites & Rituals and Dower Amount was fixed

of Rs.501/- at the time of Nikah. It is also submitted that the

complainant went for honeymoon at different places of India and

enjoyed their married lives as husband and wife. It is submitted

that it was during May 2009 the complainant received a call from

her parents that her mother received a severe heart attack upon

which she went to see her mother and never allowed by her

parents to join the matrimonial home of applicant/accused. It is

thereafter the applicant filed a suit for conjugal Rights before the

competent court at Ambedkar Nagar U.P.

4. It is also submitted by the applicant that on 30.07.2009 at

about 4.00 PM, he received a call from the house of the

complainant whereby he was called at the house of the

complainant where he found the father, mother and sisters of the

complainant along with two other unknown persons and was

served cold drink after consuming which applicant become

unconscious and was found next date i.e on 1.08.09 at Lucknow

by the Police in an unconscious condition. It was when brother of

applicant Israr Ali could not found him he made a missing

complaint which was registered as DD NO. 14-A dated

01.08.2009 at P.S. Anand Vihar, Delhi, wherein it was stated that

Amjad Ali was found missing and he had gone to meet Hira Lal

Sharma at his residence on 30.07.2009 at about 6.00 pm in his

bike No. DL-855-7799 and has not returned since then and

therefore action against the Hira lal Sharma for abduction for

calling Amjad Ali. Thereafter on next day i.e.1.08.09 lucknow

police contacted the brother of the applicant/accused, who on

receiving this information rush to lucknow and brought applicant

to Delhi, where his statement was recorded by Police of P.S

Anand Vihar.

5. It is also there case when the Amjad Ali handed to his

brother Israr Ali an enquiry report along with handed over memo

dated 02.08.2009 from P.S. Gosain Ganj, Lucknow was handed

over to them.

6. It is also submitted that after the registration of the said

FIR, on the allegations made by the complainant, SHO submitted

that "no cognizable offence has been committed in the area of

P.S.Anand Vihar nor any cause of action arises in our area, the

matter is already subjudice in the court of HCJ Ambedkar Nagar,

U.P" vide its report dated 03.08.2009 which reads as under:

Enquiry conducted revealed that the complainant was studying in Ambedkar College, Delhi and the person complained against Amzad Ali was also a student of same college. Both were friends and knowing each other. The person complained against Amzad Ali also filed a suit in the court of HCJ Ambedkar Nagar, U.P. In the said suit he stated that he and the complainant got married on 05.05.06 as per Muslim Sunni Shariyat and the complainant Ms. Barkha Sharma had also changed her name as Shaheen.

Neither the complainant nor the person complained against Amzad Ali has filed/produced any marriage certificate. Amzad Ali could not be met for enquiry, he is reportedly missing vide DD No. 14-A dated 01.08.09. From the enquiry made, it has been found that neither any forged document/marriage certificate has been produced nor used in the area of P.S. Anand Vihar. The complainant only received a notice for personal appearance from the court of law Ambedkar Nagar, U.P. No cognizable offence has been committed in the area of P.S. Anand Vihar nor any cause of action arises in our area. The matter is already subjudice in the court of HCJ, Ambedkar Nagar, U.P. Copy of suit filed by Amzad Ali is enclosed for perusal.

Submitted please.

Sd/-

13.08.09.

S.H.O. P.S. Anand Vihar

7. The main ground urged by the applicant is that the in the

instant case no ingredient of the alleged offence is attracted nor

the applicant placed any document with the petition of

Restitution of conjugal Rights prepared or executed on behalf of

the complainant nor the complainant placed anything with her

complaint before the magistrate and therefore the question does

not arise for preparation of false document nor its use, even

though it is the submission of the petitioner that he has filed such

a petition against the complainant.

8. Before this Court learned APP has strongly opposed the bail

application and he has submitted that accused has tried to

defame the complainant and threatened her for dire

consequences such as throwing acid on her face in case she

refused to marry with him. He also submitted that complainant

has not been married with the accused and there is no such

document is there to support this fact and even accused by

telling a different name and later on disclosed as Amjad Ali

cheated her which fact also creates a doubt on the character of

boy and in these circumstances bail should not been granted to

him.

9. In so far as the factum of marriage of the complainant with

the applicant is concerned, this court is not required to deal with

that question at this stage, as the matter is already pending for

restitution of conjugal rights in the Court of HCJ, Ambedkar Nagar,

U.P. and therefore complainant can raise any defence in this

regard that she had not been married with the applicant.

10. The photographs filed by the petitioner and the CD shown

by the petitioner to this Court shows that the complainant had

been moving around with the petitioner though that cannot be

considered as a factum of marriage but certainly shows that

there was acquaintance between the parties. In so far as parting

with the document is concerned, even if that is correct whether

the documents were mis-used or not would be a matter of

evidence. The allegation of the petitioner that the complaint is a

counterblast to avoid the assertion of marriage by the petitioner

cannot be ruled out at this stage.

11. In these circumstances, the applicant be released on bail in

the event of his arrest on furnishing a bail bond in the sum of Rs.

50,000/- with one surety in the like amount to the satisfaction of

I.O./Arresting Officer subject to the condition that applicant will

not try to meet the complainant without her consent and will also

not visit her or threat her parents & would join his investigation

as & when required. This is also the condition of bail that the

applicant would furnish a copy of the documents in his power and

possession to the IO, which he has received from the complainant

and will not misuse those documents in any manner adverse to

the interests of the complainant.

12. Application stands disposed of.

MOOL CHAND GARG, J.

SEPTEMBER 14, 2009 nm/ag