1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.2431/2009 Vinod Chopra Applicant Vs. The State of Maharashtra Respondent Mr.Amit Desai i/b Bhave & Co.for the applicant Mr.H.J.Dedhia ,APP for the Respondent State Mr.Abad H.Ponda for original complainant CORAM: MRS.MRIDULA BHATKAR,J. (VACATION COURT) DATE : 27h MAY,2009. P.C. . This application is made by the applicant/accused (for short applicant) for anticipatory bail against the order of rejection of anticipatory bail application passed by the learned Sessions Judge,Bombay, on 23/5/2009. The original complainant/wife of the applicant has lodged complaint against him under section 498-A of the Indian Penal Code which is registered at C.R.No.96/09 . 2] It is contended by the applicant that the applicant and the original complainant have been married 2 since last 16 years and they have three children out of the said wedlock. The original complainant is bad tempered and abusive lady and has caused great hardship and pain to the applicant due to her suicidal attempt by taking sleeping pills . Due to this behaviour the applicant has decided to scissor the nuptial knot and has filed divorce petition on the ground of cruelty against the wife. The original complainant has falsely involved the applicant in this case and the applicant denies all the allegations in toto. 3] The learned counsel appearing for the applicant has submitted that the original complainant did not give the specific instances of the cruelty when she has filed her affidavit in reply in marriage petition. She mentioned nothing in her say about the character of the applicant or the instances of physical assault when she had an opportunity to place her grievance before the Court . The learned counsel has further submitted that both the parties as on today also are residing in the same flat with their 3 three children. He has further submitted that filing this criminal case is a counter blast to the divorce petition filed by the applicant and is motivated with vengeance .The learned counsel has further submitted that the applicant is a person of good reputation and if he is arrested then there will be a permanent injury to him as the allegations made by the wife are totally baseless. The learned counsel has further submitted that in fact this case does not fall under section 498-A of the Indian Penal Code . The Legislature has enacted the section to protect the women who are the victim of dowry and physical and mental cruelty arising therein. In the present case both the parties are literate and such cruelty is very less in upper strata of the society hence the applicant is entitled to anticipatory bail. 4] The learned A.P.P.appearing for the State and learned counsel Mr.Ponda appearing for the original complainant have submitted that the applicant has been physically assaulting and mentally torturing his wife throughout their married life for 16 years. She has 4 tolerated it, but now it is not possible for her to bear it so she has lodged criminal complaint against him in the month of June,2008, however,the police did not register the offence and did not take immediate steps hoping that reconciliation would be possible.The physical assault and her torture and humiliation of children in front of their friends and public had occurred throughout and therefore,she ultimately lodged this complaint against him on 29/5/2009. 5] The learned counsel appearing for the original complainant has further submitted that the affidavit in reply filed before the Family Court was only in interim application and it was not a written statement with all the details and denials . It is not correct that in the said affidavit in reply the original complainant did not narrate the instances of cruelty. It is submitted that the original complainant was fair enough to mention that the applicant used to provide some amount regularly for few months and she had peaceful married life with him for certain period. It is further submitted that the applicant is having illicit 5 relations with other women, the applicant’s behaviour is deplorable and so does not deserve to get anticipatory bail. 6] In the present matter the original complainant lodged the complaint in June,2008 ,however,since then the police did not take steps to arrest him. On query made by the Court the learned Prosecutor has made statement that the investigating officer has tried his level best to patch up the things. Unfortunately the matter is not settled but flared up . The present offence is registered not on the complaint given in the month of June,2008 but on the basis of the FIR dated 20/5/2009. In the said FIR the original complainant has mentioned that on 14/8/2008 the accused in anger has tried to throttle their eldest daughter . On 27/2/2009 he assaulted his two daughters who are teenagers and on 2/3/2009 she was beaten up and he tried to throttle her too. It is further alleged that the applicant puts unreasonable restrictions on the daughters when they go to play and he on many occasions throws away cooked food. On 19/5/2009 at 11 p.m. there was an an incident of 6 beating and therefore she lodged complaint. The allegations are made about mental and physical cruelty and constant humiliation throughout the married life. In the affidavit in reply she has narrated the similar instances. 7] All these facts and circumstances in the present matter disclose that the original complainant has lodged the complaint against the accused on ground of cruelty simplicitor . She does not want to disrepute the accused or does not want to blackmail him for money or any property. She is not a working woman but a home maker looking after her three children including two teenager daughters. A statement of the learned counsel for the applicant that section 498-A is abused on number of occasions may be true in the cases where there are apparently false allegations . Each case is to be tested on its facts and especially when it is a matter between husband and wife and the family, it has many layers. The section is made to protect the weaker spouse and in the Indian patriarchal system it is the wife . While testing the truthfulness of the 7 allegations the Court has to consider the social,financial and cultural background of the wife i.e.the complainant. 8] In the present set of facts I do not find presence of malice to bring the applicant to disrepute but it is a cry of a haggard and battered wife to seek legal remedy against harassment and humiliation.It is important to bear in mind that the applicant and the original complainant are staying together with children of impressionable age, and it aggravates the seriousness of the offence. I hold opinion that this is not a false case against the husband with intention to malign his status and reputation. 9] The facts that there are no criminal antecedents against the accused and there is no possibility that accused is likely to run away from the country are taken into account by the Sessions Court while rejecting the anticipatory bail.The charges of violance and continuous cruel behaviour are not false and not made with an ulterior motive . The reasoning given by the Sessions Court that the 8 original complainant has waited patiently for a long time i.e.for 16 years and has quietly suffered the harassment and illtreatment that too in presence of the children is sound and correct. Violent and cruel behaviour of the spouse within the four walls is always controlled by the law. The said looming pressure of law and order will vanish if anticipatory bail is granted. Hence the application stands rejected. 10] In the present matter considering peculiar facts and circumstances police may consider whether police custody is required or not. 11] The learned counsel appearing for the applicant has prayed for stay of this order and in support of his submissions he has placed reliance on the judgment (Sukhwant Singh & Ors.Vs.State of Punjab , SLP (Cri.) 3529/ 2009 of the Hon.Supreme Court. In the said case the Supreme Court has expressed that they were not inclined to interfere the judgment and order of the High Court of 9 rejecting anticipatory bail application and has observed that grant of interim bail pending final disposal is available in regular bail application and so the said ruling cannot be attracted for the purpose of giving stay to the rejection of anticipatory bail application. The reasons of rejecting anticipatory bail are discussed in detail so prayer of stay is rejected. (MRS.MRIDULA BHATKAR,J.)