Maya Devi v. The State ( Govt of NCT Delhi)

JUDGMENT : SUNITA GUPTA, J. For detailed order see Bail Appln.352/2016. (SUNITA GUPTA) JUDGE APRIL 19, 2016/mb Bail Appin. 354-2016 V t> ^ IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 19^** April, 201j6 + Bail Appln. 352/2016 & Crl.M.A.No.3882/2016 MS. PREETI Appellajif Through: Mr.N.Hariharan, Sr.Advocate ^^|th Mr.Sidharth Singh Yadav and Mr.Sahil Paul, Advocates versus""""'' THE STATE,(GQVT, ;dF'Nc5t' OPE)EtHiy\ Respondent ' • Through: Mi-.Rajesh ®haj% A^fC for State alongwith InspeftprlSunder Singh, Police Station DIU/Quter Delhi. Mr.Mukesh Gupta, Special PP for V, Delhi Police. k j ; ye -"EMEAshokKurnar Singh, Sr.Advocatd :V E V: WithMs Mona TomSr, Mr.Ritesh V •/ ^ ^ -■■^•--H^ri and Ms.;^ ■ ■ . Advocates for t^e complainant. + Bail Appln. 354/2016 & Crl.M.A.No.3879/2016 SMT. MAYA DEVI Appellant Through: Mr.N.Hariharahi Sr.Advocate with Mr.Sidharth Singh Yadav and Mr.Sahil Paul, Advocates versus THESTATE(GOYT.OFNCTOFDEEHI) Respondent T •( Through: Mr.Raj esh Mahaj an, 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: Z,. HON'BLE MS. JUSTie^.SWl|l%® ""A;. /A '■■■gTJDGMRJiX r, -Z"' h Vj. .y. STTNTTA GUPTA, J_, 1, Maya Bevi and Preeti are the mother-in-law and|sister-in-law of deceased Deepa who met an pi^rfdhate death on 07.08|015. They seek anticipatory bail in case FIR'hio, 981/15 and^. Section 4|feA/304B/34 I|C registered with police station Prashant Vihar. , The FIR was rVgistefed on basis of ■hjjst'atement made by Brijesh Yadav, brother of the deceased to the Exec-te|yeiMagistrate. ^

¶3Learned senior advocate for the petitioners submits that deceased Deepa got married to Abhishek Kaushik on 07.11.2011 as per Hindu rifes 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 stateme|it that there were some petty disputes with the applicants. Therefore, tier husband was searching for a separate house for last ten days. Abhishek Kaushik, husband 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.lO 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.lO lacs and two' diamond sets were made oh the occasion of birth of the child which at the most is a customary gift. !^oreoyer,,quesft these items does not arise as the .complainant himself was facihg^^finahcial crisis and he approached the: .family of the applicants to help lim.lOut of love and. affection, Sh.B.K.Kaushik, father-imlaw of the deceasedl gave a sum of Rs.Slacs to the complainant Brijesh Yadav through RTGS|Prior to that, he had also gryen a sum of &:f5^1acs,.i^^ the cousin of complainant on

27.02.2013 throughRTQSYjp^^ made by the witnesses are ' afterthought. The.fetffion|-s.haye dready j myestrgation. They have roots rn the society. working |i,n'feacher in a Government school as such, there is no appfe'Hensron of fleeing from justice. They are still ready and willing to join investigation as such, they be granted the benefit of anticipatory bail.

¶4Initially, when the bail application was filed and transfeired to this Court, MnRajesh 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 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.

¶5Mr.Rajesh Mahajan, learned Additional Standing counsel submits that although FIR was initially registered under Section 498A/34IPC subsequently. Section 304B IPG was added. For invoking the provisions of Section 304B IPG, it is .incumbent upon the l^fOsecution to prove;

(i) The deceased'metiwith an unnataral death;: .

(ii) The unnatural death.-had Takem,|)lac^ within spven years of the marriage; '

¶1- . IT;.-. y _

(iii) Deceased was subjected-toyc^py or harassment^ on account of demand of dowry; : ' k i y

(iv) Soon before her foeatR..; -'1116 4; deceased was subjected to cruelty/harassment on account pTdpAryyy-Rv. ,4-Gounsel submits- ;that.: in the instant .case-' ..all the four essential ingredients are there as therelis^no'disputeThaf got married with Abhishek Kaushik on 07.11.2011'arid 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 \7 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.lO 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 investigatiqn ^as^trmsfe^^ to DIU/OD, the investigating officer recorded the^ ^atemeht of iriothe^ and sister of the victim as well as Kusum/ nraid^^sefyM wa|seiit|o the house of the deceased after the/birth of t®el!fiifo^^ after tfe/cHM as well as the deceased expenses of which Merd; borne by the mother pf the deceased. Counsels submits that in the statements jull the witnesses have clearly stated that the deceased was being cOristantly/hhrassed for bringing Rs.lO lacs and two diamond sets and eyen On fhdfiatefdTMayq^ had talked to her mother as well as sister and feitefated,, these demands. Lear^ Additional Public Prosecutor further refers &^the' stafdmbrduf fi^^ brother and sister of the deceased recorded under Section f61 Cr.P.C where there are allegations of harassment to the deceased and demand of Rs.lO 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 hous6 of tho dcccs^sod. Sho a.lso 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 MaU'i^^^^^^^^ was registered. A complaint under SectioiCl56(3) Cr.H.C was'al|6ji^e by the complainant before the learnfed-Me^ Magistrate RohmiAnAhis regard. Due to security reasonsvifihe mothef and'brother of the depdased had shifted to Gurgaon where their statements were recorded by the investigating, officer of - n the case aftef transfer of investigation to DIU. Learned AS® further submits ^ . . that during investigation, it has?been found that twice abortibnAermination of pregnancy waS;, got,/done from Kalra Hospital Kirti l^agar, Delhi. Cash withdrawal of RsAMacs. on.^^ 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 Aatements 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 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 m 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. Rehance^iivas^pjaced vs. State NCT of Delhi Bail Appl.No.l6dl^^01|||^aM'''lfly^s/i of Delhi Bail Appl.No.l602/20U^wiiich was also a case undefRectfen 498A/304B IPG and the petitioners/ were the real sister 'and brother oflhus^and of deceased. Application dor grant of anticipatory bail was filed by ||iem which was dismissed by this Court on 05.M20h" by placing reliii^ on Samunder Singh vs. State ofRajasthatM Ors. (19§7) 1 SCC 466. ^P was preferred against that order whtdrwast-Hls^ dismis§dd vide order dtted 31.08.2012 by observing that while-considering such a^reqiiest for gmit of anticipatory bail, the Court has to talceir^jinto consi"derhtidn7^h^^^ and gravity of the accusations, antecedents, possibility of the applicant to flee jfrom 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. Pagp 7 of 12

¶6Samimder Singh (supra) was an appeal and the same was dismissed with the following observations:-"The widespread belief that, dowy deaths ^Lrt has granted --mess a. all l-^s to be w.l .Wed. « C WdTofhave exereised its Cwr bail in disregard °f "^^ndude regarding the unnatural death of th § law was still under investigation an PP .,.l" uwg of the material before the concerned magistrate to deal with the same on the ^as. the court at the point of time o p ^ed anticipatory bail Subject to these nbservationSi.the:.aroehlda msmissed.p --

¶7Reliance was also placddl^pi/a^^/' Sani vs. State Assam (2002) 10 see 277 where also the; n initial fcomplaint was lacking m certain particulars regarding demand 7pf. dp^ and it was si^mitted that the evidence of demand.forjdowrymouldhtot bcM ^iall. Repelling the contention, Hon'ble' Supreme Court observd&hdi^'Jraman nature is very complex. Different persons: react :4iff^erhiy:mh<ief>ressur or in times of sudden bereavement or grinh^ddie-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.

¶8Mr.Mukesh Gupta, learned Special Public Prosecutor supported the submissions of levied Additional Standing Counsel and opposed the bail application on thei ground that custodial interrogation of the petitioners is required for recovei7 of laptop, mobile, CD etc. Moreover, reference was 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.

¶9Learned 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 heaff'attacl%WhemrhQth^ of the deceased informed him that she is coming fofthe house then she w^ she is being taken to Bhagwati .Hospital. When the mother bffthe'deceased alongwith younger brothervand other relatives reached the hospM, they noticed some spots on the throat of Deepa. On enquiry Abhishek Kaushik informed that she has committed suicide. It wqs further submitted that du|to the influence exerted by some advocates,ffnehds of Abhishek Kaushikf the complainant could not give the/coi^^letfe narration of facts before the Executive Magistrate ^Undbrftheir pressure.' E^ven 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 SCO 555, Gajanand A-garwui 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 Appin.352-2016 &. Bail Appin. 354-2016 vs. State of Maharashtra 1995 CRLJ 2782 and Sanjay Bahl vs. State of U.P. 1995 Crl.J 1658.

¶10Rebutting 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 IPG, the alleged demand of Rs. 10 lacs and two diamond jewellery^ was set up on the occasionfof Birth of son of the deceased who was bom in January and the customary.to took place in March, 2015 but the alleged demandds-ybeing stretched to August, 2015. ^

¶11I have carefully considered the. tomissions made by Jeamed counsels for the parties. , ;y 5;

¶12Neediest to say^fhe; alleg^ibnsgleveM petitioners are serious in nature. dealing with apphcatibmfqf grant of anticipatory bail, among other circumstahces,-the following factors have also to be considered before granting bair,ihey 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.

¶13The deceased has committed suicide within four and a half years from the date of her marriage. It is tme that in the initial complaint made by Bail Appin.352-2016 & Bail Appln. 354-2016 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.lO lacs and two diamond jewellery sets. It was Only" after the investigation' was transferred to DIU that the statement/of" motherEiahbthdr/brother,/sister-m maid of the deceased were recorded which unfolded the demand;of Rs.lO lacs and two diamond sets. All this materihlYblldet^jduring investigation will be subject to scrutiny at the trial, by the Sessions -Judge at the appropriate stage. As per the status report, there was soms-•money transaction n which reflected payment of Rs.4 - lacs/j/YhdcsfanE/v-JA whereas according to petitioners/a sum .of Rs.5 lac ahd -fS lac was given by father-in-law of deceased'to her'■ bfdth»:an#wdusiM 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 contkining 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 adhiinistered to the complainant and his family members Bail Appln.352-2016 & Bail Appln. 354-2015 Pag® H of I : which resulted in registration of FIR No. 563/2015 under Section 506 IPG ; at police station Maurya Enclave and it is alleged that because of security - reason, the complainEint and his family members were compelled to shift ; I 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 ; i the witnesses have been examined in the trial court. ; : 14. For the reasons mentioned above and since the case is still at the i n threshold, I do not think that it is a case where benefit of anticipatory bail I 1 deserves to be extendpftdbfthe petitioners,. Adbordingly, the applications are i dismissed. The interim ^pfotdctibn .granted t^ Ihf^'petftipners vide order dated

17.02.2016 an(Tbxtended thereafter stands:yacateS/T' ''iy

¶15It is clafifie.dfthat'expression of any opinion niapn^ be treated as an ' expression on merits of the case. ^ '-1 I n fill! S (SUNITAdUPTA) 'NT* judge 19,2016 n APRIL mb . i Bail Appln.352-2016 & Bail Appln. 354-2016

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 19"* April, 2016 + 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 : 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.Shivaiigi Aggarwal, Advocates for the, complainant. % ' ^ CORAM: HON'BLE MS. JUSTICE SUNITA. GUPTA'