Komal Sethi vs State & Anr
2011 Latest Caselaw 5366 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                 Reserved on: 1st November, 2011

                                                  Decided on:   8th November, 2011

+       CRL.M.C. 3513/2011 & Crl.M.A. 12462/2011 (stay)

        KAPIL SETHI                                             ..... Petitioner
                                 Through:    Mr. Prashant Mendiratta, Adv.

                        versus
        STATE                                                  ..... Respondent
                                 Through:    Mr. Manoj Ohri, APP for State with SI
                                             Rakesh Kumar, PS CWC Nanakpura.
                                             Mr. K.K. Manan, Mr. Mustafa Arif,
                                             Mr. Nipun Bhardwaj, Adv. for
                                             complainant.

                                            AND
+       CRL.M.C. 3487/2011

        KOMAL SETHI                                           ..... Petitioner
                                 Through:    Mr. K.K. Manan, Mr. Mustafa Arif,
                                             Mr. Nipun Bhardwaj, Ms. Poonam
                                             Yadav, Advs.
                        versus

        STATE & ANR                                               ..... Respondents
                                 Through:    Mr. Manoj Ohri, APP for State with SI
                                             Rakesh Kumar, PS CWC Nanakpura.
                                             Mr. Prashant Mendiratta, Adv. for R-2

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may              Not Necessary
   be allowed to see the judgment?



Crl.M.C. Nos. 3513/2011 & 3487/2011                                           Page 1 of 11
 2. To be referred to Reporter or not?               Yes

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

MUKTA GUPTA, J.

1. The present petitions challenge the order dated 13 th October, 2011

whereby the Petitioner Kapil Sethi was granted anticipatory bail subject to

certain conditions. The grievance of the Petitioner Kapil Sethi is that while

granting anticipatory bail, he has been directed to fulfill the onerous condition

of placing on record the FDR in the sum of Rs. 15 lakhs in the name of the

learned District and Sessions Judge, subject to the final outcome of the cases

qua the claim of the Complainant about her jewellary articles being in custody

of Kapil Sethi.

2. The grievance of the Petitioner Komal Sethi, the Complainant against

the impugned order is that by the impugned order Kapil Sethi has been

permitted to travel to USA because of which he is likely to flee from justice

which would cause irreparable damage to the process of law underway

between the two Petitioners in the different proceedings going on before

different Courts.

3. Briefly the facts leading to passing of the impugned order are that the

parties were married on 28th September, 2006 whereafter they left for USA.

The Petitioners could not live compatibly resulting in Komal Sethi filing a

complaint with the Crime against Women Cell in January 2010 consequently

FIR No. 114/2010 under Sections 498A/406/34 IPC was registered at PS

CAW Cell, Nanakpura, Delhi. Despite notice being issued, the Petitioner

Kapil Sethi did not join the inquiry and thus on 21 st May, 2011 on an

application filed by Kapil Sethi for anticipatory bail, the learned Additional

Sessions Judge directed the Petitioners to appear in person on 2 nd June, 2011.

Though the Petitioner Kapil Sethi offered that he would like to resolve

through mediation however, it appears that no efforts were made by him to

resolve the disputes. In fact, it was the grievance of the Complainant Komal

Sethi before the learned Additional Sessions Judge that in the garb of trying to

resolve the matter Kapil Sethi was buying time and he had come to the

country only for the purpose that he could get his visa extended. The learned

Trial Court while permitting the Petitioner Kapil Sethi to withdraw the

application permitted the parties to approach the Mediator for mediation at

any of the mediation centre of their choice. The custody of the passport was

however, directed to be taken by the Investigating Officer after one week vide

order dated 13th June, 2011. Challenging the said order the Petitioner Kapil

Sethi filed a Crl. Misc Case No. 2018/2011 before this Court seeking

protection. This Court while disposing of the petition on 15th June, 2011

directed Kapil Sethi to join the investigation, deposit the passport with the

CAW cell permitting him to get the visa stamped on the passport within seven

days, directing him not to leave the country without the permission of the

Court and in the event of arrest to be given a seven days notice. The said

petition was disposed of with these directions with the consent of the parties.

4. On a notice of arrest being issued by the Investigating Officer the

Petitioner applied for anticipatory bail. The learned Trial Court after

observing the conduct of the Petitioner granted him interim anticipatory bail

for a period of two months, with the directions that the passport of Kapil Sethi

would remain with the Investigating Officer till further orders on 23 rd July,

2011. Even the order dated 23rd July, 2011 passed by the learned Additional

Sessions Judge granting protection for two months was challenged by the

Petitioner Kapil Sethi in Crl. Misc. No. 2442/2011. The said petition was

dismissed being devoid of merit, in view of the previous conduct of Kapil

Sethi. The Petitioner then again approached the learned Metropolitan

Magistrate seeking appropriate directions to visit USA, to resume his duties

and for release of the passport. The learned Metropolitan Magistrate in view

of the fact that the anticipatory bail application of the Petitioner had not been

finally disposed of by the learned Additional Sessions Judge declined to grant

permission to visit USA and resume the duties. The anticipatory bail

application of the Petitioner Kapil Sethi was heard and vide the impugned

order dated 13th October, 2011 he was granted anticipatory bail and

permission to travel to USA without the permission to the Court subject to the

conditions.

5. The conditions imposed by the learned Additional Sessions Judge by

the impugned order which are the bone of contentions in the present petitions

are:

"In these circumstances, keeping in view the fact that the charge-sheet has yet not been filed and technically the investigation is still pending, the applicant is hereby admitted to anticipatory bail and it is ordered that in the event of his arrest, he be released on anticipatory bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the IO/SHO concerned subject to further fulfillment of the following conditions by the applicant:-

1. That the applicant shall place on record an FDR in a sum of Rs.15 lacs in the name of Ld. District & Sessions Judge, Delhi which shall be subject to final outcome of the case qua claim of the complainant about her jewellery articles being in custody of the applicant.

2. That the applicant shall submit his permanent residential address of USA as well as the address of his employer on an affidavit before IO/Court.

3. That the applicant shall join the investigation as and when called by the IO.

4. That the applicant shall appear before the court concerned as and when called/directed.

5. That the applicant shall not travel to any other country except USA without permission of the Court."

6. Learned counsel for the Petitioner contends that the condition of

depositing the FDR in lieu of the Complainant's claim qua streedhan is

contrary to the law. Reliance in this regard is placed on M. Sreenivasulu

Reddy vs. State of T.N., 2002 (10) SCC 653; Amarjit Singh vs. State (NCT of

Delhi), 2002 (61) DRJ 670 (SC); Sandeep Jain vs. National Capital territory

of Delhi, JT 2000 (1) SC 166; Avinash Arora and others vs. State of U.T.

Chandigarh and another, JT 2000 (7) SC 501; Ramatha and others vs.

Inspector of Police and another, 10 (2009) (3) Scale 550; Munish Bhasin and

other vs. State, JT 2009 (3) SC 604 and Rajesh Chander Bhardwaj vs. State,

125 (2005) DLT 710 to contend that these conditions are onerous and should

not be imposed while grant of anticipatory bail.

7. Learned counsel for the Petitioner admits that such a condition can be

imposed for ensuring that the Petitioner does not flee from justice however,

the condition cannot be imposed in lieu of return of streedhan as the

proceedings under Sections 406/498A IPC are not recovery proceedings.

During the course of the arguments, learned counsel for the Petitioner

consented that he is willing to deposit a bank guarantee to the tune of Rs. 10

lakhs before the Registrar General of this Court in order to ensure that the

Petitioner Kapil Sehti will return to this country for attending the various

proceedings.

8. Learned counsel further states that this Court in another matter i.e.

Sharad Kapoor through its POA vs. State, Bail Application No.423/2011

directed the Petitioner therein to leave the country on his furnishing a bank

guarantee of Rs. 3 lakhs with the Registrar General of this Court which is a

reasonable condition and thus claims parity. It is contended that the Petitioner

has been continuously joining the investigation and since the charge sheet is

likely to be shortly filed he is no more required for investigation, however, he

would be available as and when required by the learned Trial Court.

9. Learned counsel for the Petitioner Komal Sethi is aggrieved by the

blanket orders granted to the Petitioner Kapil Sethi for permitting him to go to

USA even without the permission of the learned Trial Court though there is no

grievance to the grant of anticipatory bail to the Petitioner Komal Sethi.

Learned counsel vehemently contends that the Petitioner's conduct with the

Complainant and also during the proceedings is such that it does not inspire

confidence that he will not flee from justice and will be available for the trial.

He states that besides the condition of depositing the FDR of Rs. 15 lakhs in

lieu of the streedhan the Petitioner Kapil Sethi should be asked to furnish

sufficient bank guarantee so that he returns to this country to attend the

various proceedings going on against him. It is stated that the Petitioner earns

around $ 1,00,000 per year and is not willing to pay any maintenance or return

back the dowry and the sthreedhan articles of the Complainant. Kapil Sethi

though took interim protection on the ground that he would like to settle the

matter however, he never approached the mediation centre for settlement and

thus his past conduct during the proceedings has been evasive and there is

every possibility that after going back to USA, he will not come back and be

available for trial.

10. I have heard learned counsel for the parties.

11. The Petitioner Kapil Sethi for the first time appeared before the Court

on 2nd June, 2011 and though he stated that he would like to settle the matter

but he did not approach any mediation centre for settlement. He has never

made efforts to settle the matter with the Complainant. Thus, there is merit in

the contention of the complainant Komal Sethi that the previous conduct of

the Petitioner does not inspire confidence.

12. However, the core issues in the present case is whether by the

impugned order the condition of deposit of Rs. 15 lakhs of a FDR could be

imposed on the Petitioner Kapil Sethi and whether the Petitioner Kapil Sethi

can be permitted to go to USA without being asked to furnish any bank

guarantee.

13. In M. Shreenivasulu Reddy (Supra) relied upon by the Petitioner Kapil

Sethi, the Hon'ble Supreme Court held that the Court while exercising

jurisdiction under Section 438 Cr.P.C. must bear in mind and be satisfied that

the accused will not abscond or otherwise misuse the liberty which can be

ascertained by several factors like conduct of the accused in the past and his

assets in the country and so on. While grating anticipatory bail though the

Court may impose such conditions as it deems feet but the object of putting

conditions should be to avoid the possibility of the person hampering the

investigation. It was further held that discretion of the Court while imposing

conditions should be an exercise of judicial discretion and in an offence under

Section 409/420 IPC the Court will certainly not recover the alleged amount

as a condition to grant of bail. In Amarjit (Surpa) their Lordships held that

the imposition of the condition of deposit of a sum of Rs. 15 lakhs in the form

of a FDR was an unreasonable condition and therefore, set aside the same.

The said condition was a condition precedent for granting anticipatory bail.

14. The reliance of the Petitioner on the decision of this Court in Sharad

Kumar (Surpa) is wholly misconceived. In the said case the jewellary of the

Complainant was lying in the locker which locker had been directed to be

opened and the Petitioner therein had no objection to the jewellary being

given to the Complainant. The Petitioner therein after coming back to India

showed his bona fides. As held by the Hon'ble Supreme Court in M.

Shreenivasulu Reddy (Supra) the conditions are to be imposed keeping in

view the conduct of the parties and their assets left behind so as to ensure the

presence. Thus the Petitioner cannot claim parity with another case as the

facts of the two cases are not identical.

15. A perusal of the decisions relied upon by the learned counsel for the

Petitioner Kapil Sethi show that the Court can impose any condition so as to

ensure that the accused does not flee from justice and is available during the

trial but cannot use the mechanism of anticipatory bail as recovery

proceedings. In the present case, in my opinion the grievance of the both the

Petitioners are justified. The impugned order directs submitting of Rs. 15

lakhs in the form of a FDR in lieu of the streedhan articles of the Petitioner

Komal Sethi however, the Petitioner has been permitted to go to USA without

any condition being imposed with the result that there is no condition to

ensure his presence during trial. The past conduct of the Petitioner Kapil

Sethi is not encouraging. Further it has not been stated that he has assets in

his name in India.

16. Thus, in the interest of justice and in view of the law laid down by the

Hon'ble Supreme Court, the order dated 13th October, 2011 is modified and it

is directed that the Petitioner be admitted to anticipatory bail and in the event

of arrest he be released on anticipatory bail on his furnishing a personal bond

in the sum of Rs. 50,000/- with one surety of the like amount to the

satisfaction of the Investigating Officer/SHO concerned subject to the

following conditions:

1. That the Petitioner Kapil Sethi is permitted to travel to USA and no

other country subject to his furnishing a bank guarantee in the sum of Rs. 20

lakhs with the learned Trial Court within two weeks from today.

2. That the Petitioner Kapil Sethi shall submit his permanent address of

USA as well as the address of his employer on an affidavit before the

Investigating Officer/Court before leaving the country.

3. The Petitioner Kapil Sethi shall join the investigation as and when

directed by the Investigating Officer; and

4. The Petitioner Kapil Sethi shall appear before the Court concerned as

and when directed.

With these directions the petitions and the pending applications stand

disposed of.

(MUKTA GUPTA) JUDGE NOVEMBER 08, 2011 vn