Delhi High Court

Ms. Preeti vs The State (Govt. Of Nct Of Delhi) on 19 April, 2016

Author:
Sunita Gupta

Bench:
Sunita Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 19th April, 2016

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

MS. PREETI ..... Appellant

Through: Mr.N.Hariharan, Sr.Advocate with
Mr.Sidharth Singh Yadav and
Mr.Sahil Paul, Advocates

versus

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

Through: Mr.Rajesh Mahajan, ASC for State
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.Ritesh
Bahri and Ms.Shivangi Aggarwal,
Advocates for the complainant.
AND

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

SMT. MAYA DEVI ..... Appellant

Through: Mr.N.Hariharan, Sr.Advocate with
Mr.Sidharth Singh Yadav and
Mr.Sahil Paul, Advocates

versus

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

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 1 of 12
Through: Mr.Rajesh Mahajan, ASC for State
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.Ritesh
Bahri and Ms.Shivangi Aggarwal,
Advocates for the complainant.
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J.

1. Maya Devi and Preeti are the mother-in-law and sister-in-law of
deceased Deepa who met an unfortunate death on 07.08.2015. They seek
anticipatory bail in case FIR No. 981/15 under
Section 498A
/
304B
/
IPC
registered with police station Prashant Vihar.

2. The FIR was registered on the basis of a statement made by Brijesh
Yadav, brother of the deceased to the Executive Magistrate.

3. Learned senior advocate for the petitioners submits that deceased
Deepa got married to Abhishek Kaushik on 07.11.2011 as per Hindu rites
and customs. It was an intercast love marriage in which no dowry was
given nor same was demanded by the applicants or any other family
member, as admitted by the complainant in his statement given to the SDM.
The complainant had specifically admitted in his statement that there were
some petty disputes with the applicants. Therefore, her husband was
searching for a separate house for last ten days. Abhishek Kaushik, husband

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 2 of 12

of the deceased was arrested on 24.01.2016 and thereafter he was released
on regular bail on 06.02.2016. Subsequently, a complaint was made
wherein also there were no allegations of demand of dowry. It was for the
first time when a complaint was made to Commissioner of Police on
02.09.2015 that it was alleged that demand of Rs.10 lacs and two diamond
sets was being made. Learned counsel further submits that the statement of
mother, brother and sister of the deceased and a maid servant were recorded
belatedly. Moreover, as per the statements, demand of Rs.10 lacs and two
diamond sets were made on the occasion of birth of the child which at the
most is a customary gift. Moreover, question of demanding these items does
not arise as the complainant himself was facing financial crisis and he
approached the family of the applicants to help him. Out of love and
affection, Sh.B.K.Kaushik, father-in-law of the deceased gave a sum of
Rs.5lacs to the complainant Brijesh Yadav through RTGS. Prior to that, he
had also given a sum of Rs.15 lacs to the cousin of complainant on
27.02.2013 through RTGS. The statements made by the witnesses are
afterthought. The petitioners have already joined investigation. They have
roots in the society. Maya Devi is working as a teacher in a Government
school as such, there is no apprehension of fleeing from justice. They are
still ready and willing to join investigation as such, they be granted the
benefit of anticipatory bail.

4. Initially, when the bail application was filed and transferred to this
Court, Mr.Rajesh Mahajan, learned Additional Standing Counsel appeared
for the State, however, on the date of hearing of the bail application,
Mr.Mukesh Gupta, Advocate also appeared and placed on record copy of
the order vide which he has been appointed as Special Public Prosecutor in

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 3 of 12

the bail application. The same was opposed by Mr.Rajesh Mahajan,
Additional Standing Counsel on the ground that he was appointed by the
State to contest these bail applications, however, without going into the said
controversy, since the bail applications are opposed by both the counsels, as
such, they were advised to assist each other.

5. Mr.Rajesh Mahajan, learned Additional Standing counsel submits that
although FIR was initially registered under
Section 498A
/34IPC
subsequently,
Section 304B
IPC was added. For invoking the provisions of

Section 304B
IPC, it is incumbent upon the prosecution to prove:

(i) The deceased met with an unnatural death;
(ii) The unnatural death had taken place within seven years of the
marriage;

(iii) Deceased was subjected to cruelty or harassment on account of
demand of dowry;

(iv) Soon before her death, the deceased was subjected to
cruelty/harassment on account of dowry.

Counsel submits that in the instant case all the four essential
ingredients are there as there is no dispute that the deceased got married with
Abhishek Kaushik on 07.11.2011 and she met an unnatural death on
07.08.2015. As regards the cruelty or harassment to the deceased on account
of dowry, although it was admitted that in the initial complaint made by
Brijesh Yadav, he had stated that the in-laws never demanded dowry from
his sister but in the subsequent complaint the reasons for this omission was
duly explained where it was stated that Abhishek Kaushik is a practicing
lawyer in Rohini court. When Deepa was taken to hospital several lawyers
from legal fraternity were present in the hospital and they pressurized the

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 4 of 12

complainant not to make a correct statement before the Executive
Magistrate. Moreover, under their influence even the local police was not
investigating the matter properly, therefore, complainant was compelled to
make a complaint to the Commissioner of Police on 02.09.2015 wherein it
was specifically stated that the deceased was being harassed for fulfillment
of demand of Rs.10 lacs and two diamond sets. Reference was also made to
the status report that the investigation was thereafter transferred to DIU/OD
on 02.12.2015 and till then even the statement of relatives of the deceased
were not recorded. After the investigation was transferred to DIU/OD, the
investigating officer recorded the statement of mother, brother and sister of
the victim as well as Kusum, maid servant who was sent to the house of the
deceased after the birth of the child to look after the child as well as the
deceased expenses of which were borne by the mother of the deceased.
Counsels submits that in the statements all the witnesses have clearly stated
that the deceased was being constantly harassed for bringing Rs.10 lacs and
two diamond sets and even on the fateful day, she had talked to her mother
as well as sister and reiterated these demands. Learned Additional Public
Prosecutor further refers to the statement of the mother, brother and sister of
the deceased recorded under
Section 161
Cr.P.C where there are allegations
of harassment to the deceased and demand of Rs.10 lacs and two diamond
sets. Mother of the deceased further alleged that her statement was not
recorded by the police and SDM since on 08.08.2015 some of the advocates
and one retired police officer kept pressurizing them. She further stated that
on 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 worked
to take care of the child of the victim for about two months in the in-laws

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 5 of 12

house of the deceased. She also stated that deceased was being regularly
tortured by her mother-in-law, sister-in-law and husband for demand of
dowry. She used to describe these things to the victim's mother on her
mobile. As per the status report, the analysis of CDR of deceased Deepa
shows that soon before her death she had talked to her mother and sister and
the CDR details confirms talks of Smt.Kusum with the mother of the
deceased. Counsel further submits that the relatives of the deceased alleged
that they are being threatened by the relatives of the accused persons
therefore FIR No.563/15 at police station Maurya Enclave was registered. A
complaint under
Section 156(3)
Cr.P.C was also made by the complainant
before the learned Metropolitan Magistrate Rohini in this regard. Due to
security reasons, the mother and brother of the deceased had shifted to
Gurgaon where their statements were recorded by the investigating officer of
the case after transfer of investigation to DIU. Learned ASC further submits
that during investigation, it has been found that twice abortion/termination of
pregnancy was got done from Kalra Hospital, Kirti Nagar, Delhi. Cash
withdrawal of Rs.4 lacs on 03.07.2014 and Rs.5 lacs on 21.10.2014 as
alleged to have been paid by cash to the father-in-law and husband of the
victim is found in the account statements of complainant. In addition to it,
Rs.2 lacs RTGS transaction on 05.07.2014 is also found in favour of victim
after her marriage from the account of the complainant. It is further stated
that the deceased had found a CD allegedly an obscene CD of sister-in-law
which was one of the cause of quarrel however the mobile phone of the
victim, her computer, CD and money could not be recovered. Although the
petitioners were granted interim protection but they are not cooperating in
the investigation. Local enquiry also revealed that there used to be abusive

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 6 of 12

arguments among family members prior to the incident specially between
the petitioners on the one side and victim on another side.
As such, it is
submitted that the investigation is at initial stage, the allegations are serious
in nature, viscera report is yet to be received; recovery of mobile phone of
deceased, laptop, CD etc. is yet to the effected. Possibility of tampering with
evidence and influencing independent witnesses cannot be ruled out in view
of the past complaints of the family members of the deceased as such, it is
submitted that the petitioners are not entitled to be granted benefit of
anticipatory bail. Reliance was placed on
Sangita vs. State NCT of Delhi
Bail Appl.No.1601/2011
and
Lavesh vs. State NCT of Delhi Bail
Appl.No.1602/2011
which was also a case under
Section 498A
/
304B
IPC
and the petitioners were the real sister and brother of husband of deceased.

Application for grant of anticipatory bail was filed by them which was
dismissed by this Court on 05.12.2011 by placing reliance on
Samunder
Singh vs. State of Rajasthan & Ors.
(1987) 1 SCC 466. SLP was preferred
against that order which was also dismissed vide order dated 31.08.2012 by
observing that while considering such a request for grant of anticipatory bail,
the Court has to take into consideration the nature and gravity of the
accusations, antecedents, possibility of the applicant to flee from justice etc.
Further, normally, the court should not exercise its discretion to grant
anticipatory bail in disregard and magnitude and seriousness of the matter,
the matter regarding unnatural death of the daughter-in-law at the house of
her in-laws is still under investigation and the appropriate course to adopt
was to allow the Magistrate concerned to deal with the same on the basis of
material before the Court.

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 7 of 12

6.
Samunder Singh
(supra) was an appeal and the same was dismissed
with the following observations:-

"The widespread belief that dowry deaths are even now treated with some
casualness at all levels seems to be well grounded. The High Court has granted
anticipatory bail in such a matter. We are of the opinion that the High Court
should not have exercised its jurisdiction to release the accused on anticipatory
bail in disregard of the magnitude and seriousness of the matter. The matter
regarding the unnatural death of the daughter-in-law at the house of her father-in-
law was still under investigation and the appropriate course to adopt was to allow
the concerned magistrate to deal with the same on the basis of the material before
the court at the point of time of their arrest in case they were arrested. It was
neither prudent nor proper for the High Court to have granted anticipatory bail
which order was very likely to occasion prejudice by its very nature and timing.
We therefore consider it essential to sound a serious note of caution for future.
The High Court is under no compulsion to exercise its jurisdiction to grant
anticipatory bail in a matter of this nature. So far as the present matter is
concerned, since it has become infructuous, we do not propose to pass any order.
Subject to these observations, the appeal is dismissed."

7. Reliance was also placed on
Alamgir Sani vs. State of Assam
(2002)
10 SCC 277 where also the initial complaint was lacking in certain
particulars regarding demand of dowry and it was submitted that the
evidence of demand for dowry could not be believed at all. Repelling the
contention, Hon'ble Supreme Court observed that "human nature is very
complex. Different persons react differently under pressure or in times of
sudden bereavement or grief. The shock suffered by a parent having seen
his daughter dead in an unnatural manner can in some cases prevent
immediate outpouring of reasons. Each case would have to be tested on its
own facts and no hard and fast rule can be
laid down in
this behalf.

8. Mr.Mukesh Gupta, learned Special Public Prosecutor supported the
submissions of learned Additional Standing Counsel and opposed the bail
application on the ground that custodial interrogation of the petitioners is
required for recovery of laptop, mobile, CD etc. Moreover, reference was

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 8 of 12

made to the conduct of the petitioners for submitting that due to threats
administered by the relatives of the petitioners, mother of the deceased was
compelled to shift to Gurgaon.

9. Learned Senior advocate for the complainant adopted the arguments
raised by learned Additional Standing Counsel as well as learned Special
Public Prosecutor for the State. In addition, it was submitted that at the
initial juncture a wrong information was given to the mother of the
deceased by Abhishek Kaushik, husband of the deceased by stating that
Deepa has suffered a heart attack. When mother of the deceased informed
him that she is coming to the house then she was informed that she is being
taken to Bhagwati Hospital. When the mother of the deceased alongwith
younger brother and other relatives reached the hospital, they noticed some
spots on the throat of Deepa. On enquiry Abhishek Kaushik informed that
she has committed suicide.
It was further submitted that due to the influence
exerted by some advocates, friends of Abhishek Kaushik, the complainant
could not give the complete and correct narration of facts before the
Executive Magistrate under their pressure. Even the local police did not
investigated the matter properly. It was only after the investigation was
transferred to DIU that the statement of some of the relatives and an
independent witness was recorded which reflects the circumstances under
which the unfortunate incident has taken place within four and a half years
of her marriage. Reliance was placed on
Samunder Singh vs. State of
Rajasthan
(1987) 1 SCC 466;
State vs. Jaspal Singh Gill
(1984) 3 SCC
555;
Gajanand Agarwal vs. State of Orissa
2007(14) SCC 537;
Central
Bureau of Investigation vs. V. Vijay Sai Reddy
2013 (7) SCALE 15;
Nassirudin vs. State of NCT 2014 (13) SCC 579;
Ramesh Arjan Thadani

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 9 of 12

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

10. Rebutting the submissions of learned counsels for the complainant as
well as the learned Public Prosecutor for the State, learned senior advocate
for the petitioners submits that the mother of the deceased had shifted to
Gurgaon because they were allotted a flat by Haryana Urban Development
Authority in the year 1987 and after the house was constructed they shifted
to 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" as
required under
Section 304B
IPC, the alleged demand of Rs.10 lacs and two
diamond jewellery was set up on the occasion of birth of son of the
deceased who was born in January and the customary function took place in
March, 2015 but the alleged demand is being stretched to August, 2015.

11. I have carefully considered the submissions made by learned counsels
for the parties.

12. Needless to say, the allegations levelled against the petitioners are
serious in nature. While dealing with application for grant of anticipatory
bail, among other circumstances, the following factors have also to be
considered before granting bail, they are:

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

ii) Reasonable apprehension of tampering with the witness or
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 a half years from
the date of her marriage. It is true that in the initial complaint made by

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 10 of 12

Brijesh Yadav, brother of the deceased, to the Executive Magistrate it was
alleged that there was no demand of dowry, however, the subsequent
complaints made by him reflect the circumstances under which such a
statement was made before the Executive Magistrate. Moreover, the local
police had not even recorded the statement of the near and close relatives of
the deceased. It was only subsequently a complaint was made by Brijesh
Yadav for inaction on the part of the police and subsequently another
complaint was made stating therein that the deceased was subjected to
harassment on account of constant demand of Rs.10 lacs and two diamond
jewellery sets. It was only after the investigation was transferred to DIU
that the statement of mother, another brother, sister and maid of the
deceased were recorded which unfolded the demand of Rs.10 lacs and two
diamond sets. All this material collected during investigation will be subject
to scrutiny at the trial by the Sessions Judge at the appropriate stage. As per
the status report, there was some money transaction which reflected
payment of Rs.4 lacs, 5 lacs and 2 lacs by the complainant whereas
according to petitioners a sum of Rs.5 lac and 15 lac was given by father-in-
law of deceased to her brother and cousin. All these transactions are
required to be investigated. Moreover, although the petitioners have joined
investigation pursuant to the interim protection granted to them however it
is alleged that they are not cooperating with the investigation. The CD
alleged to be containing obscene pictures of Preeti, video clip, mobile and
laptop of the deceased etc. are yet to be recovered. Despite the fact that
Abhishek Kaushik was arrested and his police custody remand was taken
but these things could not be recovered. Moreover, there are allegations of
threats being administered to the complainant and his family members

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 11 of 12

which resulted in registration of FIR No. 563/2015 under
Section 506
IPC
at police station Maurya Enclave and it is alleged that because of security
reason, the complainant and his family members were compelled to shift
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 after
the witnesses have been examined in the trial court.

14. For the reasons mentioned above and since the case is still at the
threshold, I do not think that it is a case where benefit of anticipatory bail
deserves to be extended to the petitioners. Accordingly, the applications are
dismissed. The interim protection granted to the petitioners vide order dated
17.02.2016 and extended thereafter stands vacated.

15. It is clarified that expression of any opinion may not be treated as an
expression on merits of the case.

(SUNITA GUPTA)
JUDGE
APRIL 19, 2016
mb

Bail Appln.352-2016 & Bail Appln. 354-2016 Page 12 of 12