IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 850 OF 2009 CRIMINAL APPLICATION NO. 850 OF 2009 CRIMINAL APPLICATION NO. 850 OF 2009 1. Beena Shrivastava, 2. Mr.Manoj Nigam ...Applicants vs. The State of Maharashtra ...Respondent Mr.A.M. Saraogi for the Applicants. Mr.Vijendra Jabra for the Original Complainant. Mr.S.S. Pednekar, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : MARCH 2, 2009 DATED : MARCH 2, 2009 DATED : MARCH 2, 2009 P.C. :- P.C. :- P.C. :- 1. This is an application for anticipatory bail. 2. A complaint had been lodged by Dr.Ranjana Shrivastav against all her in-laws for the offences punishable under Sections 498A, 406, 494, 34 of the IPC and under Sections 3(1)(ii) and 3(1)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act and under Section 7(1)(d) of the Protection of Civil Rights Act, 1955. A complaint was lodged on 8th April, 2008. In the said complaint, it was alleged the she was treated with physical and mental cruelty by her husband and by her in-laws and that she - 2 - was abused in the name of her caste and dowry was also demanded on 28th August, 2006. It was further alleged that the present applicants who are sister-in-law and brother-in-law and her husband from time to time abused her in filthy language and more particularly, in the name of her caste and had made monetary demands. It was also alleged that respondent no.2 by using his political clout gave protection to her husband and as a result, he was absconding after the complaint was filed and that he had given shelter to her husband. 3. The present applicant no.1 who is the sister-in-law who got married prior to 1991 i.e. prior to the marriage of the complainant with her husband was residing in her matrimonial house at Balrampur which is far away from the complainant’s matrimonial house. Applicant no.2 is permanently residing at Bhopal who is husband of another married sister who was also married prior to the marriage of the complainant and accused no.1. The application for anticipatory bail was filed by the applicant before the Sessions Court. During the course of the said proceedings, the learned Sessions - 3 - Judge was pleased to direct the present applicants to produce the husband of the complainant in the court on the next day failing which the anticipatory bail which was granted to the applicants herein would be rejected. The Roznama of the court makes a reference to the said order passed by the Court. The Roznama reads as under :- "Police submit that though the applicant-accused no.2 has come with them to search the main accused Mr.Rajendra Shrivastav, husband of the complainant, he had shown the addresses on which the accused was residing in 2006. Police prayed for cancellation of anticipatory bail of applicant-accused no.2 and other relatives of the main accused Mr.Rajendra Shrivastav. Mr.Bhupendra Shrivastava, complainant’s brother-in-law, present. Adv.Tiwari for the applicants-accused made a statement at bar that one week’s time be granted to produce the main accused Mr.Rajendra Shrivastav before the Court. If the applicants-accused have not produced the main accused Mr.Rajendra Shrivastav by next date then anticipatory bail granted to them will be cancelled. Adjd.to 12/2/2009 for orders." 4. The applicants, therefore, preferred an application for anticipatory bail in this court for continuing the interim protection till the hearing of - 4 - the main application in the Sessions Court. This court by order dated 12th February, 2009 in Criminal Application No.709/2009 observed that such a condition of producing the co-accused could not be imposed by the court and therefore, granted interim protection pending the disposal of the anticipatory bail. 5. Thereafter, the learned Sessions Court heard the main application and dismissed the application for anticipatory bail on the ground that applicant no.2 had not remained present in the court by relying on provisions of Section 438(4) of the Cr.P.C. The Court did not consider the application of the applicant on merits, however, rejected the application for anticipatory bail solely on this ground. 6. Being aggrieved by the aforesaid order, the present application has been filed in this Court. 7. The learned Counsel for the applicants submitted that applicant no.2 had remained present in the court on almost all days which fact has been acknowledged by this - 5 - court in para 13 of this order. It was submitted that on the said day, applicant no.2 could not remain present since he had missed the train. 8. It was submitted that the provisions of the Atrocities Act were not attracted since the complainant though she belonged to Scheduled Caste prior to her marriage, her caste had merged in the caste of her husband which was "Kayastha". It is submitted that therefore, the provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act would not be applicable and the bar imposed by Section 12 of the Act was not applicable. It was further submitted that the complainant and the brother of the applicant no.1 got married in the year 1991 and according to the applicants, the complainant was residing separately since 2001. It was submitted that the belated complaint was filed by the present complainant and all the members of the family had been roped in. The applicants were married much prior to the marriage of the complainant and therefore, there was no allegation of harassment by them and a false and bogus - 6 - case had been filed to take revenge against all the members of the family. It was submitted that the custodial interrogation of the applicants is not necessary in the facts and circumstances of the present case. 9. The learned Counsel for the complainant, on the other hand, submitted that the applicant no.2 had misused his position as a member of Bahujan Samaj Party in shielding the husband of the complainant. The learned Counsel for the complainant invited my attention to the complaint and submitted that in view of the allegations which were made in the said complaint, no case is made out for grant of anticipatory bail. 10. After having heard the learned Counsel, for the applicant and the complainant and the learned APP for the State, in my view, prima facie case is made out by the applicants for grant of anticipatory bail. The complainant got married in the year 1991. In my view , prima facie provisions of Atrocities Act and Protection of Civil Rights Act cannot be made applicable in the - 7 - present case since the complainant’s caste merged with the caste of her husband and therefore, in my view, a complaint could not have been filed that she was abused in the name of her caste after her marriage and that it amounted to an offence under the Atrocities Act or under the provisions of Civil Rights Act. Prima facie, therefore, provisions of Section 12 of the Atrocities Act would not be attracted and the present application for anticipatory bail would be maintainable. So far as other allegations are concerned, general vague allegation has been made against all the members of the family. Unfortunately, the whereabouts of the complainant’s husband have not been traced. The Investigating Officer ought to have taken adequate steps to secure his presence. The Investigating Officer is at liberty to take such steps to ensure that the whereabouts of the complainant’s husband are traced and suitable steps are taken in that direction. However, merely because the complainant’s husband is not being traced, the other members of the family cannot be harassed. The averments in the complaint discloses that though the complaint had left the house in 2001 which - 8 - fact has been denied by the learned Counsel for the complainant and it was urged before me that the complainant used to go to the matrimonial house on and often, yet the fact remains that since 2001, she was staying separately with her son. In the complaint, allegations are made that on 21st August, 2006, her husband alongwith applicant no.1 came to her father’s house and started demanding Rs.2 lakhs, car and gold ornaments since they had come to know that her father was going to get money after his retirement and when the said demands were not met, the complainant was assaulted and abused. Though this incident had taken place allegedly on 21st August, 2006, complaint has been lodged in 2008. She also alleged that the complainant’s husband has married to another lady and a non-cognisable complaint also has been filed under Sections 494, 504. Another complaint has been filed on 2nd August, 2006 and thereafter, the present complaint has been filed. It is difficult to imagine that the after the complainant had left the house and was staying separately, a demand of dowry was made almost after 15 years after the marriage of the complainant with her husband and almost after - 9 - five years after they had left the matrimonial house. In my view, the complaint has been lodged against the present applicants alongwith husband of the complainant as an arm twisting method to secure the presence of the complainant’s husband. Under these circumstances, therefore, in my view, the custodial interrogation of the applicants is not necessary. 11. The applicants, therefore, in the event of their arrest in connection with the offences which is registered with Nehrunagar Police Station, Mumbai, vide C.R.No.125/2008 for the aforesaid offences be released on bail in the sum of Rs.5000/- each with one or two sureties in the like amount. The applicants shall, however, co-operate with the police and if they came to know about the whereabouts of the complainant’s husband, shall inform the address of the main accused Dr.Rajendra Srivastav. The Investigating Officer is at liberty to take such steps to secure the presence of the accused. 12. The application is disposed of. - 10 - (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)