BAIL APPLN./354/2016 of MAYA DEVI Vs THE STATE ( GOVT OF NCT DELHI)

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 19"* April, 2016+Bail Appln. 354/2016 & Crl.M.A.No.3879/2016

SMT. MAYA DEVI AppellantThrough: Mr.N.Hariharan, Sr.Advocate withMr.Sidharth Singh Yadav andMr.Sahil Paul, AdvocatesThrough: Mr.N.Hariharan, Sr.Advocate withMr.Sidharth Singh Yadav andMr.Sahil Paul, Advocates

versus

THE STATE (GOVT. OF NCT^ OF DELHI) Respondent

:Through: Mr.Rajesh Mahajan, ASC for Statealongwith Inspector Sunder Singh,alongwith Inspector Sunder Singh,

.Police Station DIU/Outer Delhi.

Mr.Mukesh Gupta, Special PP for

Delhi Police.

. Mr.Ashok Kumar Singh, Sr.Advocate,with Ms.Mona Tomar, Mr.RiteshBahri and Ms.Shivaiigi Aggarwal,Advocates for the, complainant.Bahri and Ms.Shivaiigi Aggarwal,Advocates for the, complainant.

%' CORAM:HON'BLE MS. JUSTICE SUNITA. GUPTA'

: SUNITA GUPTA, J.

JUDGMENT

For detailed order see Bail Appln.352/2016.

APRIL 19, 2016/mb

(SUNITA GUPTA)JUDGE

Signature Not Verified

Digitally SignedBy:AMULYA

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 19^** April, 201j6

Bail Appln. 352/2016 & Crl.M.A.No.3882/2016MS. PREETI

AppellajifThrough: Mr.N.Hariharan, Sr.Advocate ^^|thMr.Sidharth Singh Yadav andMr.Sahil Paul, Advocates

versus""""''THE STATE,(GQVT, ;dF'Nc5t' OPE)EtHiy\

Respondent

'• Through: Mi-.Rajesh ®haj% A^fC for Statealongwith InspeftprlSunder Singh,Police Station DIU/Quter Delhi.Mr.Mukesh Gupta, Special PP forV, Delhi Police. k j ;ye -"EMEAshokKurnar Singh, Sr.Advocatd:V V: WithMs Mona TomSr, Mr.RiteshV•/ ^ ^ -■■^•--H^ri and Ms.;^■■ . Advocates for t^e complainant.

+Bail Appln. 354/2016 & Crl.M.A.No.3879/2016SMT. MAYA DEVI

AppellantThrough: Mr.N.Hariharahi Sr.Advocate withMr.Sidharth Singh Yadav andMr.Sahil Paul, Advocates

versus

THESTATE(GOYT.OFNCTOFDEEHI)

Respondent

Through: Mr.Raj esh Mahaj an, ASC for Statealongwith Inspector Sunder Singh,Police Station;DIU/Outer Delhi.Mr.Mukesh Gupta, Special PP forDelhi Police.

Mr.Ashok Kumar Singh, Sr.Advocatewith Ms .Mona Tomar, Mr.RiteshBahri and Ms.Shivangi Aggarwal,Advocates for the complainant.with Ms .Mona Tomar, Mr.RiteshBahri and Ms.Shivangi Aggarwal,Advocates for the complainant.

CORAM: Z,.HON'BLE MS. JUSTie^.SWl|l%®

STTNTTA GUPTA, J_,

1, Maya Bevi and Preeti are the mother-in-law and|sister-in-law ofdeceased Deepa who met an pi^rfdhate death on 07.08|015. They seekanticipatory bail in case FIR'hio, 981/15 and^. Section 4|feA/304B/34 I|Cregistered with police station Prashant Vihar. ,2The FIR was rVgistefed on basis of ■hjjst'atement made by BrijeshYadav, brother of the deceased to the Exec-te|yeiMagistrate. ^

3. Learned senior advocate for the petitioners submits that deceasedDeepa got married to Abhishek Kaushik on 07.11.2011 as per Hindu rifesand customs. It Was an intercast love in which no wasmarriage dowry given nor same was demanded by the applicants or any other familymember, as admitted by the complainant in his statement given to the SDM.The had admitted in his that there werecomplainant specifically stateme|it some petty disputes with the applicants. Therefore, tier husband wassearching for separate house for last ten days. Abhishek Kaushik, husband

of the deceased was arrested on 24.01.2016 and thereafter he was releasedon regular bail on 06.02.2016. Subsequently, complaint was madewherein also there were no allegations of demand of dowry. It was for thefirst time when complaint was made to Commissioner of Police on02.09.2015 that it was alleged that demand of Rs.lO lacs and two diamondsets was being made. Learned counsel further submits that the statement ofmother, brother and sister of the deceased and maid servant were recordedbelatedly. Moreover, as per the statements, demand of Rs.lO lacs and two'diamond sets were made oh the occasion of birth of the child which at themost is customary gift. !^oreoyer,,quesft these items doesnot arise as the .complainant himself was facihg^^finahcial crisis and heapproached the: .family of the applicants to help lim.lOut of love and.affection, Sh.B.K.Kaushik, father-imlaw of the deceasedl gave sum ofRs.Slacs to the complainant Brijesh Yadav through RTGS|Prior to that, hehad also gryen sum of &:f5^1acs,.i^^ the cousin of complainant on27.02.2013 made the witnesses are 'throughRTQSYjp^^ by afterthought. The.fetffion|-s.haye dready j myestrgation. They haveroots rn the society. working |i,n'feacher in Governmentschool as such, there is no appfe'Hensron of fleeing from justice. They arestill ready and willing to join investigation as such, they be granted thebenefit of anticipatory bail.4. Initially, when the bail application was filed and transfeired to thisCourt, MnRajesh Mahajan, learned Additional Standing Counsel appearedfor the State, however, on the date of hearing of the bail applicationMr.Mukesh Gupta, Advocate also appeared and placed on record copy ofthe order vide which he has been appointed as Special Public Prosecutorin

the bail The same was application. opposed by Mr.Rajesh Mahajan,Additional Standing Counsel on the ground that he was appointed by theState to contest these bail applications, however, without going into the saidcontroversy, since the bail applications are opposed by both the counsels, assuch, they were advised to assist each other.5. Mr.Rajesh Mahajan, learned Additional Standing counsel submits thatMahajan, learned Additional Standing counsel submits thatlearned Additional Standing counsel submits thatAdditional Standing counsel submits thatStanding counsel submits thatcounsel submits thatsubmits thatthat

5. Mr.Rajesh Mahajan, learned Additional Standing counsel submits thatMahajan, learned Additional Standing counsel submits thatlearned Additional Standing counsel submits thatAdditional Standing counsel submits thatStanding counsel submits thatcounsel submits thatsubmits thatthatalthough FIR was initially registered under Section 498A/34IPCsubsequently. Section 304B IPG was added. For invoking the provisions ofSection 304B IPG, it is .incumbent upon the l^fOsecution to prove;

(i) The deceased'metiwith an unnataral death;: .(ii) The unnatural death.-had Takem,|)lac^ within spven years of themarriage; ' 1. - . IT;.-. y _

(iii) Deceased was subjected-toyc^py or harassment^ on account ofdemand of dowry; : ' k i y

(iv) Soon before her foeatR..; -'1116 4; deceased was subjected tocruelty/harassment on account pTdpAryyy- Rv. ,4-

Gounsel submits- ;that.: in the instant .case-' ..all the four essentialingredients are there as therelis^no'disputeThaf got married withAbhishek Kaushik on 07.11.2011'arid she met an unnatural death on07.08.2015. As regards the cruelty or harassment to the deceased on accountof dowry, although it was admitted that in the initial complaint made byBrijesh Yadav, he had stated that the in-laws never demanded dowry fromhis sister but in the subsequent complaint the reasons for this omission wasduly explained where it was stated that Abhishek Kaushik is practicinglawyer in Rohini court. When Deepa was taken to hospital several lawyersfrom legal fraternity were present in the hospital and they pressurized the

complainant not to make correct statement before the ExecutiveMagistrate. Moreover, under their influence even the local police was notinvestigating the matter properly, therefore, complainant was compelled tomake complaint to the Commissioner of Police on 02.09.2015 wherein itwas specifically stated that the deceased was being harassed for fulfillmentof demand of Rs.lO lacs and two diamond sets. Reference was also made tothe status report that the investigation was thereafter transferred to DIU/ODon 02.12.2015 and till then even the statement of relatives of the deceasedwere not recorded. After ^the investigatiqn ^as^trmsfe^^ to DIU/OD, theinvestigating officer recorded the^ ^atemeht of iriothe^ and sister ofthe victim as well as Kusum/ nraid^^sefyM wa|seiit|o the house of thedeceased after the/birth of t®el!fiifo^^ after tfe/cHM as well as thedeceased expenses of which Merd; borne by the mother pf the deceased.Counsels submits that in the statements jull the witnesses have clearly statedthat the deceased was being cOristantly/hhrassed for bringing Rs.lO lacs andtwo diamond sets and On had talked to her mothereyen fhdfiatefdTMayq^ as well as sister and feitefated,, these demands. Lear^ Additional PublicProsecutor further refers &^the' stafdmbrduf fi^^ brother and sister ofthe deceased recorded under Section f61 Cr.P.C where there are allegationsof harassment to the deceased and demand of Rs.lO lacs and two diamondsets. Mother of the deceased further alleged that her statement was notrecorded by the police and SDM since on 08.08.2015 some of the advocatesand one retired police officer kept pressurizing them. She further stated thaton the date of incident, she had talked to her daughter and tried to pacify her.Besides that, statement of one maid Smt.Kusum was recorded who workedto take care of the child of the victim for about two months in the in-lawshous6 of tho dcccs^sod. Sho a.lso stated that deceased was being regularlytortured by her mother-in-law, sister-in-law and husband for demand ofdowry. She used to describe these things to the victim's mother on hermobile. As per the status report, the analysis of CDR of deceased Deepashows that soon before her death she had talked to her mother and sister andthe CDR - details confirms talks of Smt.Kusum with the mother of thedeceased. Counsel further submits that the relatives of the deceased allegedthat they are being threatened by the relatives of the accused personstherefore FIR No.563/15,,at police station MaU'i^^^^^^^^ was registered. Acomplaint under SectioiCl56(3) Cr.H.C was'al|6ji^e by the complainantbefore the learnfed-Me^ Magistrate RohmiAnAhis regard. Due tosecurity reasonsvifihe mothef and'brother of the depdased had shifted toGurgaon where their statements were recorded by the investigating, officer of-nthe case aftef transfer of investigation to DIU. Learned AS® further submitsthat during investigation, it has?been ^found that twice abortibnAermination . .ofpregnancy waS;, got,/done from Kalra Hospital Kirti l^agar, Delhi. Cashwithdrawal of RsAMacs. on.^^ on 21.10.2014 asalleged to have been paid by,cash to the father-in-law and husband of thevictim is found in the account Aatements of complainant. In addition to it,Rs.2 lacs RTGS transaction on 05.07.2014 is also found in favour of victimafter her marriage from the account of the complainant. It is further statedthat the deceased had found CD allegedly an obscene CD of sister-in-lawwhich was one of the cause of quarrel however the mobile phone of thevictim, her computer, CD and money could not be recovered. Although thepetitioners were granted interim protection but they are not cooperating inthe investigation. Local enquiry also revealed that there used to be abusive

arguments among family members prior to the incident specially betweenthe petitioners on the one side and victim on another side. As such, it issubmitted that the investigation is at initial stage, the allegations are seriousin nature, viscera report is yet to be received; recovery of mobile phone ofdeceased, laptop, CD etc. is yet to the effected. Possibility of tampering withevidence and influencing independent witnesses cannot be ruled out m viewof the past complaints of the family members of the deceased as such, it issubmitted that the petitioners are not entitled to be granted benefit ofanticipatory bail. Rehance^iivas^pjaced vs. State NCT of DelhiBail Appl.No.l6dl^^01|||^aM'''lfly^s/iof Delhi BailAppl.No.l602/20U^wiiich was also case undefRectfen 498A/304B IPGand the petitioners/ were the real sister 'and brother oflhus^and of deceased.dor of bail was filed which wasApplication grant anticipatory by ||iem dismissed by this Court on 05.M20h" by placing reliii^ on SamunderSingh vs. State ofRajasthatM Ors. (19§7) 1 SCC 466. ^P was preferredagainst that order whtdrwast-Hls^ dismis§dd vide order dtted 31.08.2012 byobserving that while-considering such a^reqiiest for gmit of anticipatory bail,the Court has to talceir^jinto consi"derhtidn7^h^^^ and gravity of theaccusations, antecedents, possibility of the applicant to flee jfrom justice etc.Further, normally, the court should not exercise its discretion to grantanticipatory bail in disregard and magnitude and seriousness of the matter,the matter regarding unnatural death of the daughter-in-law at the house ofher in-laws is still under investigation and the appropriate course to adoptwas to allow the Magistrate concerned to deal with the same on the basis ofmaterial before the Court.

6. Samimder Singh (supra) was an appeal and the same was dismissedwith the following observations:-

"The widespread belief that, dowy deaths ^Lrt has granted--mess a. all l-^s to be w.l .Wed. « CWdTofhave exereised its Cwrbail in disregard °f"^^nduderegarding the unnatural death of th §law was still under investigation an PP .,.l„ uwg of the material beforethe concerned magistrate to deal with the same on the ^as.the court at the point of time o p ^ed anticipatory bail--Subject to these nbservationSi.the:.aroehlda msmissed.p

7. Reliance was also placddl^pi/a^^/' Sani vs. State Assam (2002)

10 see 277 where also the; n initial fcomplaint was lacking m certainparticulars regarding demand 7pf. dp^ and it was si^mitted that theevidence of demand.forjdowrymouldhtot bcM ^iall. Repelling thecontention, Hon'ble' Supreme Court observd&hdi^'Jraman nature is verycomplex. Different persons: react :4iff^erhiy:mh<ief>ressur or in times ofsudden bereavement or grinh^ddie-shock suffered by parent having , seenhis dead in an unnatural manner can in some cases daughter preventimmediate outpouring of reasons. Each case would have to be tested on itsown facts and no hard and fast rule can be laid down in this behalf.

8. Mr.Mukesh Gupta, learned Special Public Prosecutor supported thesubmissions of levied Additional Standing Counsel and opposed the bailapplication on thei ground that custodial interrogation of the petitioners isrequired for recovei7 of laptop, mobile, CD etc. Moreover, reference was

made to the conduct of the petitioners for submitting that due to threatsadministered by the relatives of the petitioners, mother of the deceased wascompelled to shift to Gurgaon.9. Learned Senior advocate for the complainant adopted the argumentsraised by learned Additional Standing Counsel as well as learned SpecialPublic Prosecutor for the State. In addition, it was submitted that at theinitial juncture wrong information was given to the mother of thedeceased by Abhishek Kaushik, husband of the deceased by stating thatDeepa has suffered heaff'attacl%WhemrhQth^ of the deceased informedhim that she is coming fofthe house then she w^ she is beingtaken to Bhagwati .Hospital. When the mother bffthe'deceased alongwithyounger brothervand other relatives reached the hospM, they noticed somespots on the throat of Deepa. On enquiry Abhishek Kaushik informed thatshe has committed suicide. It further submitted that the influencewqs du|to exerted by some advocates,ffnehds of Abhishek Kaushikf the complainantcould not give the/coi^^letfe narration of facts before theExecutive Magistrate ^Undbrftheir pressure.' E^ven the local police did notinvestigated the matter, properly. It was only, after the investigation wastransferred to DIU that the statement of some of the relatives and anindependent witness was recorded which reflects the circumstances underwhich the unfortunate incident has taken place within four and half yearsof her marriage. Reliance was placed on Samunder Singh vs. State ofRajasthan (1987) 1 SCC 466; State vs. Jaspal Singh Gill (1984) 3 SCO555, Gajanand A-garwui vs. State of Orissa 2007(14) SCC 537; CentralBureau of Investigation vs. V. Vijay Sai Reddy 2013 (7) SCALE 15;Nassirudin vs. State of NCT 2014 (13) SCC 579; Ramesh Arjan Thadani

vs. State of Maharashtra 1995 CRLJ 2782 and Sanjay Bahl vs. State ofU.P. 1995 Crl.J 1658.

10. Rebutting the submissions of learned counsels for the complainant aswell as the learned Public Prosecutor for the State, learned senior advocatefor the petitioners submits that the mother of the deceased had shifted toGurgaon because they were allotted flat by Haryana Urban DevelopmentAuthority in the year 1987 and after the house was constructed they shiftedto this house and not because of any threat, as alleged by them. Moreover,in order to bring the case within the ingredient of "soon before death" asrequired under Section 304B IPG, the alleged demand of Rs. 10 lacs and twodiamond jewellery^ was set up on the occasionfof Birth of son of thedeceased who was bom in January and the customary.to took place inMarch, 2015 but the alleged demandds-ybeing stretched to August, 2015.11. I have carefully considered the. tomissions made by Jeamed counselsfor the parties. , ;y 5;

12. Neediest to aresay^fhe; alleg^ibnsgleveM petitioners serious in nature. dealing with apphcatibmfqf grant of anticipatorybail, among other circumstahces,-the following factors have also to beconsidered before granting bair,ihey are:

i) The nature of accusations and the severity of punishment in case ofconviction and nature of supporting evidence;conviction and nature of supporting evidence;

ii) Reasonable apprehension of tampering with the witness orapprehension of threat to the complainant;apprehension of threat to the complainant;

iii) Prima facie satisfaction of the Court in support of the charge.

13. The deceased has committed suicide within four and half years from

the date of her marriage. It is tme that in the initial complaint made by

Brijesh Yadav, brother of the deceased, to the Executive Magistrate it wasalleged that there was no demand of dowry, however, the subsequentcomplaints made by him reflect the circumstances under which such astatement was made before the Executive Magistrate. Moreover, the localpolice had not even recorded the statement of the near and close relatives ofthe deceased. It was only subsequently complaint was made by BrijeshYadav for inaction on the part of the police and, subsequently anothercomplaint was made stating therein that the deceased was subjected toharassment on account of Constant demand of Rs.lO lacs and two diamondjewellery sets. It was Only" after the investigation' was transferred to DIUthat the statement/of" motherEiahbthdr/brother,/sister-m maid of thedeceased were recorded which unfolded the demand;of Rs.lO lacs and twodiamond sets. All this materihlYblldet^jduring investigation will be subjectto scrutiny at the trial, by the Sessions -Judge at the appropriate stage. As perthe status report, there was soms-•money transaction n which reflected-payment of Rs.4 lacs/j/YhdcsfanE/v-JA whereasaccording to petitioners/a sum .of Rs.5 lac ahd -fS lac was given by father-in-law of deceased'to her'■ bfdth»:an#wdusiM these transactions arerequired to be investigated. Moreover, although the petitioners have joinedinvestigation pursuant to the interim protection granted to them however itis alleged that they are not cooperating with the investigation. The CDalleged to be contkining obscene pictures of Preeti, video clip, mobile andlaptop of the deceased etc. are yet to be recovered. Despite the fact that'Abhishek Kaushik was arrested and his police custody remand was takenbut these things could not be recovered. Moreover, there are allegations ofthreats being adhiinistered to the complainant and his family members

: which resulted in registration of FIR No. 563/2015 under Section 506 IPG;at police station Maurya Enclave and it is alleged that because of security-reason, the complainEint and his family members were compelled to shiftI Gurgaon. At the stage of bail, the Court is not to threadbare analyse the! evidence furnished by the prosecution. That exercise will only be done afteri the witnesses have been examined in the trial court.

: 14. For the reasons mentioned above and since the case is still at thein threshold, I do not think that it is case where benefit of anticipatory bailI1 deserves to be extendpftdbfthe petitioners,. Adbordingly, the applications arei dismissed. The interim ^pfotdctibn .granted t^ Ihf^'petftipners vide order dated17.02.2016 an(Tbxtended thereafter stands:yacateS/T' ''iy

15. It is of be treated as anclafifie.dfthat'expression any opinion niapn^ ' expression on merits of the case. ^ '-1

^ '-1fill! S

APRIL19,2016 nmb

(SUNITAdUPTA)judge