Delhi High Court
Lalita vs The State & Anr on 21 August, 2018
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 21st August, 2018
+ CRL.M.C. 4107/2016
LALITA ..... Petitioner
Through: Ms. Shashi Bala for Mr. Anil K.
Batra, Advocate with Mr.
Praveen Kumar, Advocate.
versus
THE STATE & ANR ..... Respondents
Through: Mr. Ravi Nayak, APP for State
with ASI Shiv Charan, P.S.
Vijay Vihar.
Mr. Mahendra Singh, Adv. with
R-2 in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The case (first information report) (FIR) No. 417/2013 was
registered by Police Station Vijay Vihar at the instance of the
petitioner (wife), inter alia, against the second respondent (the
husband), it involving offences punishable under Sections
498A/406/34 Indian Penal Code, 1860 (IPC). The second respondent
(husband) was arrested in the course of the said investigation, his bail
application (no.1834/2013) having come up before this Court on
11.10.2013. The said respondent was produced from custody pursuant
to the production warrants that were issued. The parties at that stage
entered into a negotiated settlement, the terms whereof were recorded
in the proceedings dated 11.10.2013, the interim arrangement being as
under:-
"(i) It is agreed that petitioner will return 100 grms. of
gold to the complainant within three weeks of the date of
his release.
(ii) Without prejudice to his rights and contentions and
subject to further orders which may be passed by the
appropriate court of jurisdiction, petitioner undertakes
to this court to pay interim maintenance @ Rs.5000/- per
month to the complainant and her minor child w.e.f.
1.10.2013. The said money will be deposited directly in
the bank account of the complainant on or before 7th day
of each English calendar month. The account number
shall be communicated to the petitioner through counsel
either by SMS, e-mail or by a letter.
(iii) Petitioner shall not give up his share in the ancestral
property(ies).
Parties shall remain bound by the above said
arrangement and the same is taken on record."
2. The learned single judge took note of the said interim
arrangement and allowed the bail application by following directions:-
"Heard. Taking into consideration the facts of this
case and the interim arrangement arrived at between the
parties, the present bail application is allowed.
Consequently, petitioner shall be released on bail on his
furnishing a personal bond in the sum of 10,000/- with
one surety of the like amount to the satisfaction of the
trial court.
All rights of the parties are kept open. The interim
arrangement is without prejudice to the rights and
contentions of both the parties. Parties have been
explained the consequences of breach of undertaking,
which is given to this court. In case an application is filed
for maintenance, the appropriate court will decide the
application in accordance with law, unaffected by any
observations made in this order today. However, in case
100 grms. gold is not returned to the complainant within
three weeks from the date of release of the petitioner and
violation of any condition of this order, will give right to
complainant to seek variation of this order.
Bail application stands disposed of."
3. The petitioner (wife) had some grievances as to the return of the
gold in terms of the above mentioned interim arrangement. She, thus,
brought the petition - Crl.M.C. No. 677/2014 - which was considered
by another single bench of this Court on 16.12.2015 when the
following order was passed:-
"The respondent no.1 has informed that he has
already deposited the gold with the Investigating Officer.
The investigating officer has informed that as per the
order, the gold has been deposited and he got the same
verified from the goldsmith also which shows the market
value of the gold to Rs.2,39,000/-.
Learned counsel for the petitioner has submitted
that the gold is not pure gold and even as per the
certificate, the value of gold as on date is Rs.26,000/- for
10 grams and as per the petitioner, it should be pure gold
of 100 gm.
In the facts and circumstances of the case, the
present petition is disposed of with the direction to the
Investigating Officer to return the gold furnished before
him to the respondent no.1 and the respondent no.1
would be at liberty to deposit the amount equal to 100
grams with the investigating Officer within a period of
five months.
This petition is disposed of in the above terms."
4. The present petition was filed on 27.10.2016 by the complainant
(wife) once again submitting that the aforesaid condition in the interim
bail order had not been duly complied with. It appears pursuant to the
liberty granted, she has already filed an application for maintenance
allowance to be awarded, which matter is pending before the
competent court where appropriate orders would be passed that would
regulate the obligation of the second respondent on that score. The
present petition under Section 439(2) of Code of Criminal Procedure,
1973 (Cr.P.C.) is pressed vis-a-vis the obligation of the second
respondent with regard to return of the gold to the extent of 100
grams.
5. The second respondent through counsel submits that after the
order dated 16.12.2015, he had remitted an amount of Rs.1,49,000/-
by deposit in the account of the petitioner (wife) in two parts in 2017.
He concedes that the gold to the extent of 100 grams was released to
him from the malkhana of police station on 29.01.2016 but status
report dated 21.03.2017 states that no amount was deposited by the
second respondent with police pursuant to the directions in the order
dated 16.12.2015. The petitioner (wife) also denies having received
the aforesaid amount by deposit into her account from the second
respondent.
6. In the above facts and circumstances, it would be proper to
direct the concerned Metropolitan Magistrate to hold an inquiry. The
second respondent is given liberty to place before the said court,
within four weeks hereof, proof of the deposit of the money in the
account of the petitioner (wife) equivalent to the value of 100 grams
gold as is claimed. While holding the inquiry and calling upon the
wife to respond to such claim, the Metropolitan Magistrate will have
to bear in mind that the amounts payable towards the maintenance
allowance are to be kept apart rather than being mixed up with his
obligation towards the return of the gold as per the settlement referred
to earlier. In case the second respondent is found to have committed
default in compliance with the direction(s) about return of (the value
of) the gold, the Metropolitan Magistrate will have the liberty and
jurisdiction to hold him to be in breach of material condition of the
bail order and consequently proceed to issue the necessary directions
thereupon, including of cancellation.
7. With these directions, the petition is disposed of.
8. Dasti to all sides.
R.K.GAUBA, J
AUGUST 21, 2018
srb
