CRM No. M-5169 of 2009 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CRM No. M-5169 of 2009 (O&M) Date of decision: May 30, 2009 Krishna Sharma & another ...Petitioners Versus The state of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. N.S. Sekhawat, Advocate, for the petitioners. Mr. Tarun Aggarwal, Senior DAG, Haryana. Mr. Sapan Dhir, Advocate, for respondent No.2. Rajan Gupta, J. This is a petition praying for grant of anticipatory bail to the petitioners in a case registered against them under Sections 406, 420, 498-A IPC at Police Station Sector 5, Panchkula, vide FIR No.32 dated 21.1.2009. On May 01, 2009 when the case came up for hearing, following order was passed in this case:- “This is a petition for grant of anticipatory bail in a case registered against the petitioners under Sections 406,420,498-A IPC registered at police station Sector 5 Panchkula vide FIR No. 32 dated 21.1.2009. Notice of motion was issued in this case on February 25, 2009. When the matter came up for hearing before this CRM No. M-5169 of 2009 2 Court on March 9, 2009, a statement was made on behalf of counsel for the petitioners to the following effect: “ -- an effort shall be made to settle the entire matrimonial dispute and for this purpose the boy namely Vishal Sharma shall be called from abroad within 3 weeks. However, in case the boy does not come, counsel shall not press this petition for anticipatory bail.” On the basis of above statement, protective order was granted to the petitioners on March 9, 2009. Thereafter a Criminal Miscellaneous No. 20776 of 2009 was moved on behalf of the complainant (respondent No.2) stating therein that the petitioners had not complied with the undertaking given to this Court on 9th March, 2009, therefore, the petition for anticipatory bail be dismissed. Notice of this application was issued to the petitioners for today. However, today an application i.e. Criminal Miscellaneous No. 20858 of 2009 has been moved, wherein it has been stated inter alia that the statement made before this Court was without instructions. This apart, a new plea has been raised that the petitioners had already disowned their son, Vishal Sharma. Mr. Rahul Sharma, Advocate, who had made the statement on behalf of the petitioners on March 9, 2009 is present in Court. He stands by the statement made on the said date and has further stated that he had made the statement in the presence of counsel for the parties and there is no question of retracting from the same. Admittedly, Vishal Sharma, son of the petitioners has not come back from abroad. Mr. Shekhawat, who is now representing the petitioners, submits that all efforts were CRM No. M-5169 of 2009 3 made by the petitioners to call their son from Australia, but the efforts failed. He, therefore, prays that the matter be heard on merits. It appears that petitioners have not complied with the undertaking given by them, yet notice of Crl. Misc. No.20858 of 2009 is issued to the respondents for May 04, 2009.” As is obvious from the above order, notice of Crl. Misc. No.20858 of 2009 was issued to the respondents for May 04, 2009. In response to the notice, the respondent No.2- complainant, filed an application bearing Crl. Misc. No.22409 of 2009 for placing on record his reply by way of affidavit. The said application was allowed and reply (affidavit) to Crl. Misc. No. 20858 was taken on record. Though the petitioners did not comply with the undertaking given to this court on 9th March, 2009 and apparently no efforts were made for amicable settlement of the matrimonial dispute, on the basis of which interim relief was granted to the petitioners, yet accepting the prayer of counsel for the petitioners that the matter be heard on merits, I deemed it appropriate to hear the counsel for the parties. Mr. Sekhawat, who now represents the petitioners, has argued that the petitioners, who are parents of Vishal Sharma, are not at all liable for actions of their son as they had disowned him from their movable and immovable properties. Moreover, their son Vishal Sharma was having love affair with Dipika Chawla (complainant's daughter) and they tied the nuptial knot on 20th February, 2007. The parents CRM No. M-5169 of 2009 4 (petitioners) merely attended the marriage. According to the counsel, after marriage, the couple resided in a separate flat as the petitioners were living in a rented accommodation and the same being not upto the standard of Dipika. Ultimately, son of the petitioners left for Australia on 7.6.2007 and even Dipika left on 23.5.2008. Learned counsel referred to affidavit filed alongwith Crl. Misc. No.20858 of 2009 and stated that in Australia Dipika started harassing Vishal, due to which Vishal separated from Dipika Chawla on 23.9.2008 by informing the Australian Embassy. According to the counsel, Dipika Chawla humiliated Vishal despite the fact that he was paying the rent of the accommodation in which Dipika was living. This apart Dipika had malafide intention from the very beginning as she was collecting evidence against her own husband. According to the counsel, the petitioners are even now ready to amicably settle the entire matrimonial dispute. Learned counsel for the State has, however, opposed the prayer for anticipatory bail on the ground that recoveries are yet to be effected from the petitioners. According to the counsel in the instant case huge dowry was given in the shape of cash, gold ornaments and electronic gadgets. The same have been misappropriated by the petitioners. Learned counsel has also emphasized that daughter of the complainant was subjected to physical and mental cruelty by the petitioners as demands of dowry never ceased. He has further stated that son of the petitioners cannot be apprehended as he is abroad while CRM No. M-5169 of 2009 5 the petitioners have a protective order from this court. Thus, it has become difficult to take the investigation to its logical end. Learned counsel for the complainant has also vehemently opposed the prayer for anticipatory bail and filed a detailed affidavit dated 27.2.2009 in reply to the averments made in the petition. He has referred to the said affidavit to state that daughter of the complainant was humiliated and harassed. She was mentally tortured and given physical beating. According to the counsel, Istridhan of the daughter of the complainant is being retained by the petitioners. The same is yet to be recovered. According to the counsel, Dipika Chawla, daughter of the complainant, was harassed during the period, she stayed with the petitioners after her husband left for Australia. Frequent demands for more dowry were made from her. Learned counsel has referred to various Annexures including photographs annexed to the affidavit to show entrustment of dowry to the petitioners. Learned counsel has also rebutted the contention of counsel for the petitioners that the petitioners had disowned their son. He has also referred to Crl. Misc. No.22409 of 2009, whereby reply (by way of affidavit dated 1.5.2009) to Crl. Misc. No.20858 of 2009 was placed on record. According to the counsel, the stand taken by the petitioners before this court in Crl. Misc. No.20858 of 2009 that they had disowned their son, is absolutely false. According to him, photographs clearly show the active participation of the petitioners in the marriage. He has further submitted that this stand was not taken by the petitioners either before the lower court or before this CRM No. M-5169 of 2009 6 court at any stage. Only after they failed to comply with the undertaking given by them on 9.3.2009 to this court, a new stand has been taken. According to the counsel, even the plea that the petitioners never instructed their counsel to state before this court that the parties wanted to arrive at an amicable settlement and for this purpose Vishal Sharma shall be called from abroad, is totally false. He has drawn particular attention of this court to para 2 of his affidavit dated 1.6.2009, relevant portion whereof reads thus: “.............. Even if the averments taken in the application under reply by the applicants/petitioners are correct that the learned counsel for the petitioners/applicants made statement before this Hon'ble Court on 09.03.2009 not on their own instructions, then it was for the applicants/ petitioners required to move such application immediately after 09.03.2009 itself and not after a gap of one and half month. Even otherwise, had it been so, then the applicants/ petitioners may strictly put to prove that what action they have taken against their counsel appeared before this Hon'ble Court on 09.03.2009 till date. ..............” Learned counsel for the complainant concluded his argument by submitting that the present is not a usual case of matrimonial discord and the petitioners are not entitled to the concession of anticipatory bail in the facts and circumstances of the instant case. I have heard learned counsel for the petitioners and given CRM No. M-5169 of 2009 7 careful thought to the facts of the case. The FIR was lodged by father of Dipika alleging therein that at the time of marriage, considerable expenses were incurred by the complainant. According to the allegations made in the FIR, Rs.3,90,000/- was spent on reception of Barat, which comprised 1000 guests. The reception was held at Grace Banquet, Zirakpur on 20th February, 2007. This apart all modern electronic items like colour T.V., washing machine, microwave etc. were given at the time of marriage. A sum of Rs.1,01,000/- was given as Shagan to the husband Vishal Sharma. Besides two gold chains weighing 40 grams, a kara weighing 30 grams, gold ring weighing 10 grams and suit length etc. were also given. A gold chain (20 grams), gold ring (10 grams) and a suit length of Raymond were also given to petitioner No.2. Petitioner No.1 was also given one gold kitty-set and sarees worth Rs.15,000/- etc. Similar gifts were given to the grand mother of Vishal Sharma and his younger brother. Another sum of Rs.51,000/- was given to Shiv Kumar Sharma and Krishna Devi (petitioners). A diamond set (Tanishq made), gold sets (140 grams), 6 gold bangles (78 grams), sofa-set, double bed, almirah and dining set were given by the complainant to his daughter. According to the FIR, these were entrusted to the petitioners at the time of departure of Barat, but despite all these expenses incurred on the marriage, the petitioners started demanding a Honda City car immediately after marriage. Not only this, they started demanding the keys of Flat no.305, Society No.12, Mansa Devi Complex, Panchkula CRM No. M-5169 of 2009 8 owned by the daughter of the complainant. Another allegation in the FIR is that after Vishal Sharma (husband) left for Australia on 5th June, 2007, leaving Dipika Chawla at House No.773, Sector 9, Panchkula (petitioners' residence), she was mentally and physically harassed by her father-in-law and mother-in-law and was asked to bring more money from her parents. Demand for the Flat and Honda City car was again made. As a result, the complainant gave Rs.70,000/- and Rs.50,000/- on two occasions to Shiv Sharma (father-in-law) and Krishna Sharma (mother-in-law) respectively. Later the complainant came to know that Vishal Sharma was having an affair with another girl. When the daughter of the complainant proceeded to Australia, she was left alone there for days together in order to press Dipika Chawla to part with more money. According to the FIR, the complainant gave a cheque of Rs.25,000/- on 9th December, 2008 to petitioner No.2. However, his daughter was given physical beating and was subjected to inhuman treatment by the accused. Besides, all the dowry articles have been misappropriated by the petitioners. The argument of the counsel for the petitioners that they had disowned their son, has not been raised in the main petition. It is only in the Crl. Misc. No.20858 of 2009 that this ground has been taken. The counsel for the petitioners has claimed that the petitioners had disowned their son, due to which he no longer has any right over their movable or immovable properties. However, no date has been specified on which the petitioners had taken a decision to disown their son and to CRM No. M-5169 of 2009 9 deprive him of his rights over the movable and immovable properties. On the other hand, learned counsel for the complainant has drawn the attention of the Court to the photographs (Annexures R2/2) clicked at the time of marriage which show very active participation of the parents in the wedding. Thus, argument of counsel for the petitioners that it was a case of love marriage between Vishal Sharma and Dipika and the petitioners had hardly any role to play, is not convincing. The photographs annexed with the affidavit (reply) of the complainant filed before this court not only show active participation of the petitioners in the marriage but also exchange of gifts. In fact, Annexures R2/2 (colly.) shows number of gold ornaments, money, electronic articles and wrist watch etc. (described in the FIR) being handed over to Vishal Sharma and his parents. Thus, the plea that the couple had tied the nuptial knot due to love affair between them and the petitioners were not directly concerned, is quite hollow. During the course of arguments, learned counsel for the complainant also referred to bank statement, Annexure R2/4 of complainant Shakti Kumar and statement of ATM, Annexure R2/5 being operated by daughter of the complainant namely, Dipika Chawla. These documents were referred to for the purpose of showing the withdrawals from the account of the complainant and that of Dipika Chawla. The counsel submitted that the withdrawals were made basically to satisfy the demands made by the petitioners. According to him, frequent withdrawals made by Dipika Chawla through ATM CRM No. M-5169 of 2009 10 showed the same thing. Learned counsel for the complainant also referred to a document, Annexure R2/3 to show that the petitioners had admitted that Dipika Chawla was in fact residing with them after her husband left for Australia. The contention of the counsel that while leaving, Dipika Chawla had taken all her articles, was vehemently disputed by the learned State counsel as well, who submitted that recoveries of the articles given in dowry were yet to be effected from the petitioners. He also pointed out that persons, who had stood surety for the petitioners at the time, they were granted interim bail by the court below, had later moved applications to withdraw the same. In the facts and circumstances of the case, I am of the considered view that the petitioners are not entitled to the concession of anticipatory bail. The allegations of entrustment of dowry as made in the FIR as also the photographs (Annexure R2/2) annexed with the affidavit filed in reply, cannot be lightly brushed aside. The argument of the counsel for the petitioners that the son of the petitioners separated from Dipika Chawla by informing the Australian Embassy, is also queer. Obviously, there can be no separation by sending a communication to the Embassy. This court initially even entertained the plea of the petitioners that they wanted to amicably settle the dispute and granted interim protection to them, yet it appears that no effort, whatsoever, was CRM No. M-5169 of 2009 11 made from 9.3.2009 (when interim protection was granted) to 1.5.2009 for any settlement. On the other hand, an application was moved taking an entirely new plea that the petitioners had nothing to do with the marriage as they had disowned their son. The petitioners took benefit of the protective order from 9.3.2009 till 1.5.2009. However, when the said period was due to expire, Crl. Misc. No.20858 of 2009 was moved taking the stand that they had not instructed their counsel to make any statement before this court. I find force in the contention of counsel for the complainant that had that been the case, an appropriate application would have been moved by the petitioners immediately after 9th March, 2009 and not 1½ month thereafter. It is thus obvious that the petitioners have been shifting their stand before this court. This makes the bonafides of the petitioners doubtful. Under the circumstances, they have disentitled themselves for the concession of anticipatory bail. The allegations levelled in the FIR pertaining to entrustment of dowry articles, retaining Istridhan etc. as well as mental and physical cruelty to the daughter of the complainant at the hands of the petitioners after her husband left for Australia, cannot be outrightly ignored. It can also not be said that the offences in question were not committed within the jurisdiction of the country. I, therefore, find no merit in this petition. The same is hereby dismissed. (RAJAN GUPTA) May 30, 2009 JUDGE 'rajpal'