Nikhil Rastogi S/O Shri Sunil ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 2054 MP

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                           IN     THE       HIGH       COURT OF MADHYA                          PRADESH
                                                         AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                               ON THE 6 th OF FEBRUARY, 2023
                                          MISC. CRIMINAL CASE No. 49318 of 2022

                           BETWEEN:-
                           NIKHIL RASTOGI S/O SHRI SUNIL KUMAR RASTOGI
                           THROUGH FATHER SH. SUNIL RASTOGI R/O I-236
                           PHOOL BAGH, G.B. PANT UNIVERSITY CAMPUS PANT
                           NAGAR (UTTARAKHAND)

                                                                                               .....APPLICANT
                           (SHRI ROHIT GUPTA - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH POLICE STATION VIJAY NAGAR
                           INDORE (MADHYA PRADESH)

                                                                                          .....RESPONDENT
                            (SHRI VISHAL SANOTHIYA - GOVERNMENT ADVOCATE AND SHRI
                            LAKHAN SINGH CHANDEL - ADVOCATE FOR OBJECTOR)

                                This application coming on for orders this day, the court passed the
                           following:
                                                               ORDER

This is first application under section 438 of the Cr.P.C in crime no.148/2022 under section 420, 406, 498-A of the IPC and section 3/4 of the Dowry Prohibition Act registered at police station Vijay Nagar, Indore. Initially, the application was filed for grant of anticipatory bail through Power of Attorney holder alongwith affidavit of the father of the applicant Sunil Kumar Rastogi, who is also one of the accused person. He has already been granted anticipatory bail in the present crime number. An objection was raised on behalf of the objector that the application under section 438 of the Cr.P.C is not Signature Not Verified Signed by: SOURABH YADAV Signing time: 07/02/2023 6:08:38 PM

maintainable because it is filed through Power of Attorney holder and the same is not duly filed by the applicant himself and the applicant is at abroad, therefore, the application is not maintainable and deserves to be dismissed. During the pendency of the application, the applicant filed Vakalatnama as well as affidavit sworn in India stating that he has come to India on 01.12.2022 and apprehends his arrest in the present crime. In view of the aforesaid, this court by order dated 21.12.2022 held that the application is maintainable in view of the law laid down by the Apex Court in the case of Shri Gurbaksh Singh Sibbia and Ors Vs. State of Punjab reported in (1980) 2 SCC 565 and Sushila Aggarwal and Ors Vs. State (NCT of Delhi) and Anor reported in

(2020) 5 SCC 1.

The facts of the case are that the marriage was solemnized between the complainant and the applicant on 25.11.2017 as per Indian Customs and Traditions in New Delhi, India. The applicant and the complainant separately traveled to USA but because of furnishing incorrect information, the complainant was banned from traveling to USA for five years. On 03.03.2020, the complainant had sent a legal notice to the applicant seeking divorce by mutual consent and demanded Rs.One Crores alimony. A reply to the said legal notice was submitted by the applicant. Thereafter, on 02.02.2022, the present FIR was registered for commission of the offence under section 420, 406, 498- A of the IPC and 3/4 of the Dowry Prohibition Act.

The applicant applied for anticipatory bail before the Sessions Court, which was dismissed and thereafter the present application was filed before this court. He argued that the objector has no locus to object the application for grant of anticipatory bail as per the provisions of section 301 of the Cr.P.C. To bolster his submissions, he placed reliance on the order passed by the Signature Not Verified Signed by: SOURABH YADAV Signing time: 07/02/2023 6:08:38 PM

Delhi High Court in the case of Smt.Indu Bala and Ors Vs. Delhi Administration and Ors reported in 1991 Cri.LJ 1774 and the order passed by the Punjab and Haryana High Court on 19.01.2022 in CRM-M-39621/2021 passed in the case of Kuwarpal Singh Vs. State of Punjab. He also placed reliance on the judgment passed by the Apex Court in the case of Arnesh Kumar Vs. State of Bihar passed in Cri.Appeal No.1277/2014, in support of his contention that the custodial interrogation is not necessary in the present case and police ought to have issued notice under section 41-A of the Cr.P.C. The law relating to the right of a private counsel to conduct prosecution in Sessions Court has been decided by the Apex Court in the case of Shiv Kumar Vs. Hukam Chand and Anor reported in (1999) 7 SCC 467, wherein it has been held that the role of prosecution in Session case cannot be conducted by anyone other than public prosecutor. The role of private counsel is limited to act under the direction of the public prosecutor. He can submit written arguments after the closure of the evidence with prior permission of the Court. A duty of the public prosecutor is to act fairly and not merely to obtain conviction by any means fair or foul. If the accused is entitled to any legitimate benefit the public prosecutor should make it available to him or inform the court even if the defence counsel overlooked it.

Learned counsel for the objector submits that he is only assisting the public

prosecutor in the present case and is not playing role of public prosecutor. He seeks permission of this Court to place facts before the court. After arguments at length, learned counsel for the applicant submits that if the Court grants permission to the learned counsel for the objector to assist the Court and public prosecutor, he has no objection.

Signature Not Verified Signed by: SOURABH YADAV Signing time: 07/02/2023 6:08:38 PM

It is submitted that the sole reason of the complainant marrying the applicant was to illegally migrate to USA. The complainant was denied entry to USA and was deported back to India with a ban of five years. The complainant had no intention to stay with the applicant. The statement given by the complainant was recorded under section 325(b)(1) of the Migration and Nationality Act and the Home Land Department of USA confirms the same. It is submitted that in the legal notice sent on 03.03.2020 by the complainant, no allegation of demand of dowry etc was made. After almost period of two years, FIR was lodged alleging commission of fraud, cheating and cruelty and demand of dowry. It is submitted that no ingredients of section 420, 406, 498-A of the IPC and 3/4 of the Dowry Prohibition Act are mentioned in the FIR. It is further submitted that the applicant has already come to India and he has filed a divorce petition on the ground of cruelty at New Delhi and the complainant/wife has filed an application under section 9 of Hindu Marriage Act for restitution of Conjugal Rights. The alleged demand of Rs.24 lakhs in the year 2017 was not leveled in the legal notice sent by the complainant. There is all possibility of compromise and mediation between the parties. Learned counsel for the respondent/state and objector opposed the prayer for grant of anticipatory bail and submits that till this date, the applicant has not surrendered before the Investigating Agency and there is all possibility of fleeing from India. It is further submitted that the applicant in a planned way fetched the conspiracy to cheat the complainant and had taken Rs.24 lakhs from her aunt in the name of preparation of various official documents in USA.

Combating the aforesaid, learned counsel for the applicant has drawn attention of this court to the e-mail messages where aunt has acknowledged the

Signature Not Verified transfer of amount of Rs.24 lakhs in her account. Signed by: SOURABH YADAV Signing time: 07/02/2023 6:08:38 PM

After hearing learned counsel for the parties and upon perusal of the various documents and record there seems to be matrimonial dispute between the parties. Since the applicant has already come in India and undertakes to co- operate with the investigation, I am of the view that the applicant is entitled for grant of anticipatory bail on the following conditions:-

1) The applicant shall co-operate with the investigation and make himself available as and when required by the concerned Police Station.

2) The applicant shall surrender his passport before the concerned police station and shall not leave the country without leave of this Court.

It is directed that in the event of arrest, the applicant shall be released on bail upon her furnishing a personal bond in a sum of Rs.5,00,000/- (Rs. Five Lakh Only) with one surety in the like amount to the satisfaction of arresting officer. The applicant shall further abide by the other conditions enumerated in sub-section (2) of Section 438 of Cr.P.C.

A typed copy of this order is being forwarded to the Office of the Advocate General, on their email address, for intimation to the Police Station concerned.

Accordingly, the application is allowed and disposed off. Certified copy as per rules.

VIJAY KUMAR SHUKLA) JUDGE Sourabh

Signature Not Verified Signed by: SOURABH YADAV Signing time: 07/02/2023 6:08:38 PM