Delhi High Court
Akshay Dhingra vs State (Govt. Of Nct Of Delhi) on 30 December, 2022
2022/DHC/005877
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 30.12.2022
+ BAIL APPLN. 3754/2022
AKSHAY DHINGRA ..... Applicant
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Applicant : Mr. V. Aggarwal, Adv.
For the Respondent : Ms. Priyanka Dalal, APP for the State
alongwith Inspector Dinesh Kumar, P.S.
KNK Marg.
Mr. Rajiv Bajaj, Adv. for complainant.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present application under Section 438 of the Code of
Criminal Procedure, 1973 is filed by the applicant seeking pre-arrest
bail in FIR No. 826/2022 dated 24.09.2022 under Section 380 of the
Indian Penal Code, 1860 registered at police station K.N. Katju Marg,
Rohini.
2. The FIR was registered on a complaint made by Mrs. Ashka
Kholi alleging that the household articles have been stolen while she
was away from her house.
Signature Not Verified
Digitally Signed
Signing Date:30.12.2022
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2022/DHC/005877
3. Learned counsel for the applicant submits that the applicant is
married to the complainant and the FIR was registered due to
matrimonial discord.
4. He submits that the parties are litigating and the house from
where the articles are alleged to be stolen was taken on rent by the
applicant.
5. He submits that the complainant, on her own, had left that
house. The applicant was left with no other option but to surrender the
tenancy of the house and the articles were removed.
6. Learned counsel for the complainant submits that the
complainant has gone to her parents' house for three days and when
she returned, the house was found to be locked and the household
articles were found to be stolen which led to filing of the complaint.
7. He submits that the parties have been litigating and in order to
pressurise the complainant, the applicant surreptitiously, in the
absence of complainant, surrendered the flat to the landlord. The
house was the matrimonial home and the complainant, in this manner,
could not have been thrown out of the house.
8. He submits that prior to the present incident, another complaint
was given to the SHO, PS - K.N. Katju Marg, Rohini, against the
petitioner and his family members, in relation to the theft of the
diamond ring and in relation to physical and mental torture.
Signature Not Verified
Digitally Signed
Signing Date:30.12.2022
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2022/DHC/005877
9. He further submits that the household articles include the
television, refrigerator, washing machine, laptop, cash, jewellery, etc.
He submits that the said articles were purchased by the complainant
on her own and these articles have nothing to do with the litigation
pending between the parties, which relates to istridhan.
10. Learned counsel has also handed over a brief note along with
supporting documents to show that the household articles were bought
by the complainant. The same is taken on record.
REASONING
11. It is pertinent to note that the FIR was lodged on the report of
theft by the complainant on 25.09.2022. At that stage, she had not
given the name of suspect and in the column for 'details of known /
suspect / unknown accused', it was mentioned as 'not known'.
12. The Investigating Officer is present in Court. On being asked,
informed that the statement of landlord has been recorded who stated
that the applicant came to the house and took all the household
articles. The statement of witness 'Pawan' has also been recorded who
admits to have helped the complainant in removing the articles. He
had specifically mentioned that a Godrej Fridge, Washing Machine,
Mixer Grinder were removed by the applicant with his help.
13. At this stage, it is apparent that the applicant has surrendered
the tenancy and has removed the articles without informing the
complainant and without her consent and knowledge. Even though the
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Signing Date:30.12.2022
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applicant is the husband of the complainant, the law does not permit
even the husband to take the household articles including the jewellery
in this manner. No person can be allowed to take law in his own hands
with an excuse that the parties are litigating. Only because a complaint
of wife in relation to istridhan is pending, does not mean that the
husband can be allowed to surreptitiously throw the wife out of the
matrimonial house and take away the articles.
14. It is pointed out that the applicant has brought some old clothes
/ old chappals / sandals, which the complainant had refused to accept.
The complainant has specifically provided the bills in relation to the
articles which have allegedly been stolen.
15. It is apparent that the investigation is at a nascent stage and the
accused has not joined the investigation. The articles are yet to be
recovered.
16. It is settled that the power under Section 438 of the CrPC is not
to be exercised in a routine manner. The power is to be exercised in
case it is felt that accusation has been made with the object of injuring
or humiliating the applicant by having him arrested. Similarly, the
order of bail in anticipation of arrest, cannot be granted for it to be
used as a shield. In the facts of the present case, it cannot be said at
this stage that the allegations made are frivolous or have only been
made with the object to injure or humiliate the applicant by having
him arrested.
Signature Not Verified
Digitally Signed
Signing Date:30.12.2022
18:33:23
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17. This Court finds no reason to grant pre-arrest bail to the
applicant and the same is, accordingly, dismissed.
18. It is, however, made clear that any observations made in the
present order are only for the purpose of deciding the present bail
application and should not influence the outcome of the trial.
AMIT MAHAJAN, J
DECEMBER 30, 2022
'KDK'
Signature Not Verified
Digitally Signed
Signing Date:30.12.2022
18:33:23
