Smt. Meghna Agarwal vs Smt. Manju Bagadiya
2022 Latest Caselaw 5597 MP

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           THE HIGH COURT OF MADHYA PRADESH
                     M.Cr.C. No.4200/2022
     Smt. Meghna Agarwal Vs. Smt. Manju Bagadiya and others

Gwalior, Dated:19/04/2022

       Shri Imran Khan, Advocate for applicant.

       Shri S.K. Shrivastava, Advocate for respondent no.1.

Shri C.P. Singh, Panel Lawyer for respondent No.3/State.

This application under Section 439 (2) of Cr.P.C. has been filed

for cancellation of bail granted to the respondents no.1 and 2 by order

dated 29/9/2021 passed by First Additional Sessions Judge, Ganj

Basoda, District Vidisha in Bail Application No.402/2021.

2. The necessary facts for disposal of the present application in

short are that the complainant/applicant has lodged an FIR against

the respondents no.1 and 2 and her husband on the allegations that

she got married to the co-accused Anurag Bagadiya on 20/1/2020 as

per Hindu rites and rituals. An amount of Rs.20,21,000/- in cash,

diamond jewelry, silver utensils etc. were given in dowry. She was

kept properly for few days after her marriage, but thereafter

respondents no.1 and 2 and her husband started harassing her on the

ground that the applicant/complainant is the only daughter of her

father and her father is a big food grain merchant, therefore, she

should bring an Audi car and an amount of Rs.50,00,000/- and only

then they would keep her properly in her matrimonial house. For

demand of dowry the respondents no.1 and 2 and her husband-

Anurag Bagadiya started harassing her physically and mentally.

When she refused to bring additional dowry, then she was beaten by

her husband-Anurag Bagadiya and respondent no.1-Smt. Manju

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4200/2022 Smt. Meghna Agarwal Vs. Smt. Manju Bagadiya and others

Bagadiya. In order to save the pride of her parents, she was silently

tolerating the physical and mental harassment and did not narrate the

incident to her parents. It was further alleged that her husband was

regularly asking for indulging in unnatural sex. On 5/8/2020 her

husband came to her parental home to attend the death rituals of her

grandmother and both were staying in one room, where her husband

committed unnatural sex with her. When she objected to it, then she

was threatened by her husband that in case if this fact is narrated to

anybody, then he would kill her. In order to protect the pride of the

family as well as on account of threat to her life, she did not narrate

the incident to anybody and after sometime she went to her

matrimonial house. Again in the matrimonial home at Katni she was

treated like servant. When respondents no.1 and 2 came to know

about the unnatural sex done by her husband, then they said that the

applicant has to live as per the wishes of her husband and she is

under obligation to accept all the demands of her husband, otherwise

she would continue to suffer beating. Her in-laws have kept all her

jewelry and money and ousted her from her matrimonial home on

16/11/2020. Under a belief that everything would improve, she did

not lodge the report, but now on 21/9/2021 she has narrated the entire

incident to her mother and accordingly, an FIR was lodged.

3. The respondents no.1 and 2 filed an application under Section

438 of Cr.P.C. It appears that the applicant also filed her objection to

the application.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4200/2022 Smt. Meghna Agarwal Vs. Smt. Manju Bagadiya and others

4. The Court below by the impugned order has granted

anticipatory bail to the respondents no.1 and 2 after considering the

fact that the allegations of committing unnatural sex is against her

husband and the only allegation against the respondents no.1 and 2 is

that when the applicant disclosed the fact of unnatural sex to

respondents no.1 and 2, then they simply replied that the applicant

has to live as per the wishes of her husband. Thus, it was observed

that the main allegation against the respondents no.1 and 2 is with

regard to physical and mental harassment on account of demand of

dowry and it was also observed that it appears that the prosecution

has not followed the law laid down by the Supreme Court in the case

of Arnesh Kumar Vs. State of Bihar reported in (2014) 8 SCC 273

as well as Section 41A of Cr.P.C. and granted anticipatory bail to the

respondents no.1 and 2.

5. Challenging the order passed by the Court below, it is

submitted by the counsel for the applicant that since the respondents

no.1 and 2 had refused to take cognizance of the act of unnatural sex

by her husband, therefore, it is clear that the unnatural sex was

committed by her husband with the consent and knowledge of

respondents no.1 and 2.

6. Per contra, the application is vehemently opposed by the

counsel for the State.

7. It is fairly conceded by the counsel for the applicant that there

is nothing on record to show that the husband of the complainant was

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4200/2022 Smt. Meghna Agarwal Vs. Smt. Manju Bagadiya and others

sharing his bedroom activities with his parents. The Supreme Court

in the case of Jagjeet Singh and Others Vs. Ashish Mishra @

Monu and another by order dated 18/4/2022 passed in Cr.A.

No.632/2022 has held that the Court should refrain from evaluating

or undertaking a detailed assessment of evidence, as the same is not a

relevant consideration at the threshold stage. However, the Court may

examine the prima facie issue including any reasonable grounds

whether the accused committed an offence or the severity of the

offence itself, but an extensive consideration of merits which has the

potential to prejudice either the case of the prosecution or the

defence, is undesirable.

8. If the reasons assigned by the Court below are considered, then

it is clear that the Court below has applied its mind to the effect as to

whether the allegations made under Section 377 of IPC are prima

facie made out against the respondents no.1 and 2 or not. Even

otherwise, during the course of arguments, the counsel for the

applicant could not point out anything from the record to show that

the offence of unnatural sex was committed by her husband with due

knowledge and instigation by the respondents no.1 and 2. The

parents-in-laws of the complainant may be or may not be responsible

for the bedroom activities of her husband, but in order to make them

prima facie responsible there must be some specific allegation that

the bedroom activities was committed with the knowledge and

instigation of the parents-in-laws. Under these circumstances, this

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4200/2022 Smt. Meghna Agarwal Vs. Smt. Manju Bagadiya and others

Court is of the considered opinion that the observation made by the

Court below that prima facie offence under Section 377 of IPC is

made out, does not amount to evaluating or assessing the evidence in

detail. So far as the allegations of physical and mental harassment on

account of demand of dowry is concerned, the counsel for the

applicant could not point out as to how the observations made by the

Court below with regard to non-compliance of the guidelines issued

by the Supreme Court in the case of Arnesh Kumar (supra) is bad.

9. At this stage, it is submitted by the counsel for the applicant

that had a notice under Section 41A of Cr.P.C. was issued to the

respondents no.1 and 2, then they would have been required to file an

application for grant of regular bail at the time of filing of charge-

sheet. Therefore, the unlimited anticipatory bail granted by the Court

below is unwarranted. In support of his contention, the counsel for

the applicant has relied upon the judgment passed by the Supreme

Court in the case of Sushila Aggarwal and others Vs. State (NCT

of Delhi) and another reported in (2020) 5 SCC 1.

10. Considering the totality of the facts and circumstances of this

case as well as in the light of the judgment passed by the Supreme

Court in the case of Sushila Aggarwal (supra) wherein it has been

held that under certain facts and circumstances of the case, the Court

can grant anticipatory bail for a limited period, the order dated

29/9/2021 passed by First Additional Sessions Judge, Ganj Basoda,

District Vidisha in Bail Application No.402/2021 is hereby modified.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.4200/2022 Smt. Meghna Agarwal Vs. Smt. Manju Bagadiya and others

While upholding anticipatory bail granted to respondents no.1 and 2,

it is directed that it shall remain in force till filing of the charge-sheet.

On the day when the charge-sheet is filed, respondents no.1 and 2

shall be required to file an application for grant of regular bail, which

shall be considered afresh without getting influenced or prejudiced

by any of the observations made by this Court or by the Court below

while granting anticipatory bail to the respondents no.1 and 2, as the

observations have been made at a stage where the investigation itself

is incomplete.

11. With aforesaid modification, the application is finally disposed

of.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.04.21 14:28:23 +05'30'