IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Cr.Misc. M 18788 of 2011 (O&M) Date of decision:17.8.2011 Konark ..... Petitioner vs State of Punjab .... Respondent Present:- Mr. K.S. Nalwa, Advocate for the petitioner. Mr. Kirat Singh Sidhu, A.A.G. Punjab. Mr. Rahul Rampal, Advocate for the complainant. M.M.S.BEDI, J. Petitioner through the instant petition under Section 438 of the Code of Criminal procedure seeks concession of pre-arrest bail in case FIR No.115 dated 20.5.2011 under Sections 406/498-A IPC registered at Police Station Division No.5, Civil Lines, Ludhiana, at the instance of his father- in-law namely Shri Sudesh Kumar Dhir alleging that his daughter Yukti Dhir was married to the petitioner on 20.2.2009. He had spent about Rs.45 lacs on the marriage but the petitioner and his family members caused mental torture for demanding more dowry and on 28.5.2010 when the daughter of the complainant was in advance stage of pregnancy, she was turned out of the matrimonial home after giving her beatings. The entire istridhan of Yukti had been misappropriated. A Skoda Laura Car had been given in dowry. Besides the above said allegations, it has been alleged in the FIR that on 4.5.2011, the petitioner had indulged in altercation with the daughter of the complainant as a result of which proceedings under Sections 107,151 Cr.P.C. were initiated by the police at Police Station Division No.2, Ludhiana. Mr. K.S. Nalwa, Advocate, learned counsel for the petitioner vehemently contended that the wife of the petitioner had left the Cr.Misc. M 18788 of 2011 (O&M) -2- matrimonial home voluntarily on 28.5.2010 and had also filed a complaint on 14.10.2010 before Commissioner of Police, Ludhiana, which was forwarded to ACP, South and SHO Women Cell wherein after a detailed inquiry, vide report (Annexure P-7) dated 28.12.2010 was submitted and the allegations were found to be false. The complainant filed application dated 6.1.2011 sought re-enquiry in the earlier complaint. The said complaint was forwarded by the Commissioner of Police to ADCP, Ludhiana, for fresh enquiry. He further submitted after conducting a fresh enquiry, the ADCP- I, Ludhiana, after recording the statements of family members of the petitioner and the complainant arrived at a conclusion that the petitioner wanted to save his matrimonial life and complaint was recommended to be filed. Copy of the report dated 21.2.2011 has been placed on record as Annexure P-13. It was urged in view of the two earlier complaints having been investigated by the police officers, the allegations against the petitioner were found to be false. On the other hand, he has also argued a civil suit for mandatory injunction had been filed by the petitioner prior to lodging of FIR for a direction to the respondents to take away the articles. List of which was appended with the civil suit as Annexure P-2. Further, reliance was placed on Annexure P-9 to contend that the petitioner had voluntarily produced the dowry articles before the Investigating Officer. It was contended that all the dowry articles have been taken away by the wife of the petitioner. On the other hand, learned counsel for the complainant has intervened and referred to number of receipts of Jewelary showing the gold ornaments which had been handed over to the wife of the petitioner which were entrusted to the petitioner but the said dowry items stand Cr.Misc. M 18788 of 2011 (O&M) -3- misappropriated by the petitioner and his family members. I have heard learned counsel for the parties as well as learned State counsel and gone through the record. The petitioner and his wife were directed to be present in the Court to explore the possibility of an amicable settlement. The petitioner and respondent both seem to be adamant in not resuming for cohabitation. The intention of the petitioner to treat his wife with cruelty by taking all the defensive means i.e. filing for civil suit for mandatory injunction for a direction to take away the dowry articles is indicative of the motive the petitioner. The action of the petitioner in ignoring his wife who has been blessed with a child out of the wedlock is matrimonial cruelty. Mere filing of civil suit will not absolve the petitioner of his act of cruelty. The act of indulging in breach of peace as is reflected from the Calendra under Sections 107/150 Cr.P.C. is an adverse factor weighing against the petitioner. I have also considered the circumstance that earlier enquiries prior to lodging of FIR have exonerated the petitioner and his family members. The said enquiries were conducted prior to the registration of the present FIR are also not sufficient enough to arrive at a conclusion that the petitioner is absolutely innocent or that the allegations of maltreatment and beatings are untrue. Both the parties have raised controversies regarding the dowry articles having been withheld by the petitioner and his family members. It will not be prudent to consider the averment made in the plaint of the petitioner as gospel truth. It appears that few dowry articles are still to be recovered. Even if it is presumed that it is not a case where the recoveries are yet to be effected, the serious allegations of beatings and torture do not permit to grant pre-arrest bail to the petitioner. The present case is not a case where extra ordinary Cr.Misc. M 18788 of 2011 (O&M) -4- exceptional circumstance can be said to be existing for grant of pre-arrest bail. Accordingly, the present petition is dismissed. However, this order will not prejudice the right of the petitioner to seek concession of regular bail. 17.08.2011 (M.M.S. Bedi) rajeev Judge