Masroor Akhtar @ Guddu vs State
2015 Latest Caselaw 8076 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   BAIL APPLN. 2157/2015
                                Date of Decision : October 20th, 2015
    MASROOR AKHTAR @ GUDDU                                  ..... Petitioner
                       Through:       Mr.Mukesh Gupta, Adv.

                       versus

    STATE                                             ..... Respondent
                       Through:       Ms.Manjeet Arya, APP with Insp.
                                      Rajender.

          CORAM:
          HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present application has been filed by the petitioner under

Section 438 of the Code of Criminal Procedure, 1973 for the grant of

anticipatory bail in FIR No.113/2015, Police Station Chandni Mahal,

under Sections 302/304-B/498A/34 of the Indian Penal Code.

2. The allegations levelled against the petitioner/accused are that

on 24.04.2015, an information was received in the police station vide

DD No.50B. On receipt of said information, police reached LNJP

Hospital where Ms.Shahin was found under treatment and she was

unfit for statement. There were strangulation marks on the neck of

the victim. SDM of the area recorded statement of Smt. Tahira

Begum, mother of the victim who stated that her daughter Ms.Shahin

used to be harassed and tortured by the accused persons for bringing

less dowry and that the husband of her daughter and in-laws tried to

murder her daughter on 24.04.2015. On the basis of statement of the

complainant, FIR was registered under Section 307/498A/34 IPC.

3. During the course of investigation, Parvez Mirza and Azaz

Mirza, husband and brother-in-law of the victim, respectively, were

arrested whereas other accused persons absconded. During treatment,

the victim expired on 02.05.2015 and penal Section 302 IPC was

substituted in place of Section 307 IPC. Thereafter, Section 304-B

IPC was also added in the present case.

4. Arguments advanced by the learned counsel for the petitioner

and the learned APP for the State were heard.

5. Arguments advanced by the counsel for the petitioner are that

the petitioner is the son of aunt of Parvez Mirza, husband of the

deceased; he is residing separately in his house and was not at all

residing with Parvez Mirza or deceased; the petitioner is a married

person having three minor children. He never interfered in the

matrimonial life of the deceased. No accusation of any nature has

been alleged against the petitioner. Charge sheet has already been

filed against husband-Parvez Mirza and Jeth-Azaz Mirza. Since no

evidence has been found against the petitioner, he has been kept in

column No.12 in the charge sheet. The petitioner never made any

demand of dowry of any kind either from the deceased or any of her

relatives. The allegations made are general in nature and non-

specific.

6. On the other hand, learned APP for the State opposed the bail

application on the ground that the petitioner has not surrendered

before the Court and is evading arrest. It is submitted that the

custodial interrogation of the petitioner is required as some

incriminating evidence is to be collected.

7. In the present case, NBWs were issued against the petitioner

and he approached the court of learned ASJ on 22.09.2015. Vide

order dated 22.09.2015, the learned ASJ observed that since the

NBWs issued against the petitioner/accused already stood cancelled,

the accused was granted liberty to move application for bail before

the Trial Court. Thereafter, another application was moved by the

accused before the Ld. ASJ who disposed of the same vide order

dated 28.09.2015 while granting the accused two days time to

approach the higher court if his bail application is dismissed by the

Trial Court. The accused approached the Trial Court and moved the

bail application. The learned MM observed that since the accused/

petitioner was not in custody, there arose a question on the

maintainability of the application. Thereafter, the accused moved an

application before the learned ASJ for clarification of bail order dated

22.09.2015. It was observed by the learned ASJ that the accused had

to surrender before the Trial Court and then his bail application would

be considered by the Trial Court.

8. The learned MM vide order dated 01.10.2015 dismissed the

bail application of the accused/petitioner while observing that there is

bar of section 437(1)(i) of Cr.P.C., but as per order of ld. ASJ, the

accused was not sent to JC but was allowed two days time for

surrendering for being taken into custody.

9. Thereafter, the accused/petitioner approached this Court for the

grant of anticipatory bail. Chapter XXXIII of the Cr.P.C. deals with

the provisions as to grant of bail and furnishing of bonds. Section 437

Cr.P.C. deals with the grant of bail by the Trial Courts when the

accused is in custody in any non-bailable offence. In the present case,

accused has played hide and seek with the Court. Firstly, he

approached the Court of Session for the grant of anticipatory bail.

The learned ASJ directed the accused to approach the Trial Court,

meaning thereby that he was asked to surrender before the Trial Court

and then to move the bail application under Section 437 Cr.P.C. This

fact has even been clarified by the learned ASJ in his order dated

01.10.2015. The order of the learned ASJ is clear that the accused/

petitioner was directed to surrender first before the Trial Court and

then to move the bail application.

10. Instead of surrendering before the Trial Court, the accused/

petitioner kept on playing with the Court on one pretext or the other.

Firstly, he approached the learned ASJ for the grant of anticipatory

bail, then after taking liberty, approached the Trial Court for the grant

of bail without surrendering. Then he approached the learned ASJ

again seeking clarification and then after having the same, he

approached the Trial Court for the grant of bail. After dismissal of his

bail application, he approached this Court. The accused cannot be

allowed to play with the law in this manner.

11. In view of the above mentioned facts and circumstances, no

ground is made out for the grant of anticipatory bail to the accused/

petitioner.

12. The application is disposed of accordingly. However, it is

made clear that the observations made above shall not affect the

merits of the case.

(P.S.TEJI) JUDGE OCTOBER 20, 2015 dd