IT Enquiry for Allegations,Bail, Stridhan and maintenance

IN THE HIGH COURT OF DELHI AT NEW DELHI

Bail Application No.1711/2007

Smt.Surjit Kaur Chopra …….. Petitioner
VERSUS
State and Anr. …….Respondents

Bail Application No.1716/2007

Sh.Harbhajan Singh Chopra …….. Petitioner
VERSUS
State and Anr. ……. Respondents

Present: Mr.K.T.S. Tulsi, Senior Advocate with
Mr.Karan Singh, Mr.Santosh Chaurihar,
Mr.Miraj Kain and Mr.Ravinder Singh, Advs. for the petitioner.
Mr.Anil Soni for the State.

Mr.K.K.Manan, Mr.Tarun Goomber,
Mr.Rishikesh Choudhary and
Mr.Gaurav Goswami for respondent No.2.

21.08.2007
DATE OF DECISION: 21.08.2007

CORAM:Hon’ble Mr.Justice Pradeep Nandrajog

1. Whether reporters of local papers may be allowed to see the judgment? Y

2. To be referred to the Reporter or not? Y

3. Whether judgment should be reported in Digest? Y

: PRADEEP NANDRAJOG, J.

FIR No.6/2007 dated 3.1.2007
under Section 498-A/406 IPC
PS Hazrat Nizamuddin.

1. Vide Bail Application No.1711/2007, Smt.Surjit Kaur Chopra seeks anticipatory bail. Vide Bail Application No.1716/2007, Sh.Harbhajan Singh Chopra seeks anticipatory bail. The 2 applicants are the mother-in-law and father-in-law respectively of the complainant, Arti.

2. At the outset, I must refer my displeasure at the manner in which Bail Application No.1711/2007 has been drafted by learned counsel for the petitioner.

3. The same is a verbatim copy of Bail Application No.1716/2007.

4. Use of computers does not mean that learned members of the Bar would not apply their mind. Human beings cannot become computers and start operating themselves by clicking a mouse.

5. Little realizing that in Bail Application No.1716/2007 reference to the applicant was made as father of the husband of the complainant i.e. as father-in-law of the complainant, even Smt.Surjit Kaur Chopra has been referred to as father of the husband of the complainant i.e. father-in-law of the complainant.

6. In the instant case, the misdescription may be trivial. But in
large number of cases I notice that the misdescription is not trivial, more so,
when disputes relate to complaints under Section 138 of the Negotiable
Instruments Act 1881. In said cases description of the accused with reference
to the role assigned becomes relevant. Precious judicial time is wasted in
identifying who is being referred to and in what context reference is being made
pertaining to persons accused of offence and who have filed quashing petitions
challenging the summoning order.

7. It is hoped and expected that learned members of the Bar would justify them being referred to as ‘learned counsel’. Their being learned must be reflected in their pleadings.

8. Referring to the facts, why else would a father-in-law and mother-in-law be seeking bail? Of course, when their daughter-in-law has filed a complaint resulting in registration of FIR under Section 498-A/406/34 IPC.
This has happened in the instant case.

9. Since issue of anticipatory bail has to be decided, reference to the FIR becomes necessary.

10. Touching upon the salient features of the FIR, complainant
Arti, stated that she met Jitender Singh Chopra, son of the applicants in London
in July 2004 through common friends. She states that the two met a number of
times and around 3rd week of September 2004 decided to get married in Dubai on
30.9.2004 She stated that she and Jitender Singh Chopra came to Delhi and got
engaged. That at the time of engagement presents worth Rs.15 lakhs were gifted
by her parents to the in-laws and relatives of Jitender. That her in-laws gave
her jewellery worth Rs.40 lakhs. That at the asking of her prospective mother-
in-law, for relatives who were not present at the engagement, her mother sent
additional gifts worth Rs.5 lakhs. That marriage between the complainant and
Jitender was solemnized at Dubai on 27.10.2004 as per Hindu rites and customs.
At the time of marriage her mother, relatives and friends gave gifts worth Rs.70
lakhs. Her in-laws gifted her jewellery worth Rs.90 lakhs. Next day her
mother-in-law took away the jewellery for safe keeping. She and her husband
came to Delhi on 3.11.2004 and stayed at the farm house of the in-laws. The
couple celebrated their first Deepawali. On said function her relatives gave
gifts worth Rs.40 lakhs to her husband. That her mother and her relatives gave
her ancestral jewellery worth Rs.1.75 lakhs at said function. That her in-laws
gave her expensive gifts and jewellery worth Rs.80 lakhs. That when they were
at Delhi her brother-in-law tried to force himself upon her. That she was
disgraced by the family of her in-laws who stated that they expected that she
would bring a Mercedes car in her dowry. That when the couple left for their
honeymoon her husband compelled her to drink excessively as also to indulge in
vulgar sexual acts. That since it was her second marriage she did not speak to
anyone. That on 18.1.2005 she and her husband went back to Dubai. For said trip
her husband demanded Rs.25 lakhs from her mother. Her mother arranged Rs.5
lakhs and gave the same to her husband. That her husband demanded more money.
Her mother paid Rs.15 lakhs. That she came back to Delhi on 29.12.2005 and in
spite of requests to hand over her jewellery, none was being returned to her.
That her father-in-law wanted her parents to transfer ownership rights of 2
floors of their house in name of her husband. That her mother-in-law had
retained her jewellery.

11. According to the petitioners the marriage at Dubai was financed
by the petitioners. Entire stay of the family of the bride was paid for by the
petitioners. That after the wedding, the newly wed came to Delhi to celebrate
their first Deepawali and went back to Dubai in February 2005. They took on
rent a villa and resided separately from the petitioners. That the couple
separated due to temperamental differences. That their son sought divorce in
London due to irreconcilable differences. That the FIR was a counter blast to
the divorce petition filed by their son.

12. Before dealing with the rival submissions on the issue whether
petitioners should be granted anticipatory bail or not, it has to be noted that
petitioners as also their second son i.e. the brother-in-law of the complainant
sought anticipatory bail before the learned Additional Sessions Judge. Attempts
were made to compromise the matter and in full and final satisfaction of all
claims of the complainant not only the FIR be withdrawn but the couple could
agree for an amicable settlement. Order dated 29.3.2007 passed by the learned
Additional Sessions Judge records that a settlement was arrived at pursuant
whereto complainant would be paid Rs.4 crores in cash and a flat at DLF Gurgaon
worth Rs.60 lacs would be transferred in her name. Thereafter, the talks broke
down inasmuch as offer was reduced to Rs.2 crores.

13. Petitioners when charged with attempting to wriggle out of an
agreed settlement explained that their younger son was briefing the counsel and
he was receiving instructions from the husband of the complainant for the reason
any payment under the settlement had to be financed by the husband of the
complainant. That unfortunately, their son i.e. husband of the complainant
could not firm up his mind and for said reason settlement failed.

14. Shri K.T.S. Tulsi, learned senior counsel for the applicants
urged that proceedings for grant of anticipatory bail cannot be converted into a
recovery proceedings. Learned senior counsel urged that the anxiety of the
Court to try and effect a settlement between the warring couple may be a
laudable act but is alien to the exercise of jurisdiction while deciding an
application seeking grant of anticipatory bail. Learned senior counsel urged
that the well known parameters viz. gravity of the offence, seriousness of the
allegations constituting the offence, possibility of the accused absconding or
threatening witnesses of the prosecution, inherent probabilities, for and
against the accused are some of the factors which have to be considered by the
Court while deciding an application for grant of anticipatory bail.

15. Expanding the argument, learned senior counsel submitted that
documents annexed as Annexure-C to the petitions conclusively establish that the
petitioners paid the entire bill at Dubai when marriage took place. Drawing
attention to Annexure-D, learned senior counsel urged that the same evidences
that the newly married couple set up separate residence in Dubai. As regards
the petitioners, learned senior counsel urged that they were residents of Delhi.
Their son was settled abroad. Except for participating in the joyous occasion
of the marriage of their son and showering their blessings and gifts upon the
newly wed as also to finance the marriage, the two had no role to play in the
matrimonial life of the couple. Learned senior counsel further urged that
allegations in the FIR are alien to the social norms of the society from which
complainant, her family and the petitioners come from. Learned senior counsel
explained that main items are gifted to the couple at the time of their
marriage. Thereafter, as and when festive occasions occur, small gifts are
exchanged. Learned senior counsel urged that it was unbelievable that at the
time of Deepawali celebrations after the couple got married, complainant’s
family members would gift to their daughter and her in-laws, gifts worth Rs.1.75
crores. Learned senior counsel further submitted that the allegations of dowry
demand are against the husband i.e. the son of the petitioners. Allegations of
mental and physical cruelty are against the husband save and except a vague
allegation that on one occasion father-in-law threw a plate at the complainant
and abused her as a bitch. Learned senior counsel stated that the two
allegations pertaining to dowry demand against the father-in-law viz that he
expected his daughter-in-law to bring a Mercedes car and a demand for ownership
rights of 2 floors in her parent’s house at Sunder Nagar are false. Learned
senior counsel submitted that the gravement of the allegation against the
mother-in-law is that she retained the jewellery of the complainant.

16. Learned senior counsel urged that in view of the fact that the
complainant and her husband had set up their matrimonial house at Dubai, a
residence separate from that of the petitioners, considering the social
background of the family of the complainant as also the petitioners it was
unbelievable that the complainant would have handed over her jewellery to her mother-in-law.

17. Fulcrum of opposition by learned counsel for the complainant
centered around the orders passed by the learned Additional Sessions Judge
regarding a settlement between the parties from which petitioners back tracked.
Learned counsel submitted that the said settlement evidenced the acknowledgment
by the petitioners that the complainant had to be recompensed. Learned counsel
submitted that the jewellery articles of the complainant have yet to be
recovered. Counsel submitted that the complainants have started dissipating
their assets. Thus, counsel urged that no case is made out to grant
anticipatory bail to the petitioners.

18. It is not in dispute that the instant marriage was the second
marriage of both parties. Thus, both would be presumed to be aware of not only
their matrimonial obligations but even the matrimonial laws. Judicial
authorities are replete with a caution by the Courts that the unfortunate
tendency to rope in all family members of the in-laws is a growing trend which
has two side effects. Firstly, innocent persons suffer the trauma of a criminal
prosecution and secondly, even the accused get acquitted for the reason, false
implication of innocent persons is followed by presentation of fabricated
evidence before the Court. So inextricably interwoven is truth with lies that
truth cannot be segregated from lies resulting in benefit of doubt being given
even to the accused persons.

19. More often than not, pertaining to dowry, Courts are faced with
a dilemma inasmuch as tax avoidance is the norm in India. Huge volume of black
money in circulation finds expression in ostentatious marriages. But when
called upon to prove that the family had enough assets to justify the stated
gifts gifted at the time of marriage, family members of the girl side have no
answers. They cannot establish the means to justify their capacity to shower
gifts worth crores.

20. In the instant case, before the in-laws of the complainant can
be called upon to account for the gifts given by the parents of the girl, the
parents of the girl would have to establish their means and their capacity to
gift items worth Rs.3 crores to their daughter and her in-laws.

21. As noted above, gravement of the allegations are directed
principally against the husband. No doubt, there is reference against the
petitioners pertaining to dowry demand and retention of jewellery, but, as noted
above, allegations of dowry demand are against the father-in-law and not against
the mother-in-law. Vice versa, allegations pertaining to retention of the
jewellery of the complainant is against the mother-in-law and not the father-in-
law. Thus, if at all, father-in-law may be answerable to a charge under Section
498-A IPC. If at all, mother-in-law may be answerable for a charge under
Section 406 IPC.

22. Qua the mother-in-law a circumstance which stands out is that
her son and her daughter-in-law had a separate residence at Dubai. The couple
was married at Dubai. Whatever may be the jewellery gifted to the complainant
at the time of marriage, there is no material on record that when she along with
her husband came to India they made a declaration to the Customs Authority that
personal jewellery worth crores was being brought by her i.e. the complainant to
India. Greater probability would be that either jewellery of the value alleged
to be gifted to her by the complainant was not gifted to her, or if gifted, the
same was in her custody at Dubai.

23. Pertaining to the father-in-law I find that the allegations are
general. It is not stated in the complaint that because father-in-law desired
that the complainant should bring a Mercedes car he i.e. the father-in-law took
vengeance against the complainant. What is stated in the FIR is that the
father-in-law commented that he expected that the complainant would bring as
part of dowry a Mercedes car.

24. Prima facie, it is one thing to have a desire and express the
same. It is altogether another thing to raise a demand as per the desire.

25. Allegation of mental cruelty against the father-in-law pertains
to an alleged incident when according to the complainant she served cold food to
her father-in-law. Prima facie, said allegation of cruelty does not relate to a
dowry demand.

26. The only other allegation pertaining to transfer of 2 floors in
the house of the complainant’s parents at Sunder Nagar is without any
particulars i.e. the day or the month when said demand was raised.

27. In the report published as 2006 (6) SCC 736 Indian Oil
Corporation vs. NEPC India Ltd. in para 13 the Hon’ble Supreme Court lamented as
under:- 13. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely civil disputes into
criminal cases. This is obviously on account of a prevalent impression that
civil law remedies are time consuming and do not adequately protect the
interests o lenders/creditors. Such a tendency is seen in several family
disputes also, leading to irretrievable breakdown of marriages/families. There
is also an impression that if a person could somehow be entangled in a criminal
prosecution, there is a likelihood of imminent settlement. Any effort to settle
civil disputes and claims, which do not involve any criminal offence, by
applying pressure through criminal prosecution should be deprecated and
discouraged.?

28. In para 19 of the report published as (2005) 6 SCC 281 Sushil
Kumar Sharma vs. Union of India, the Supreme Court observed as under:-
?19. The object of the provision is prevention of the dowry menace.
But as has been rightly contended by the petitioner many instances have come to
light where the complaints are not bona fide and have been filed with oblique
motive. In such cases acquittal of the accused does not in all cases wipe out
the ignominy suffered during and prior to the trial. Sometimes adverse media
coverage adds to the misery. The question, therefore, is what remedial measures
can be taken to prevent abuse of the well-intentional provision. Merely because
the provision is constitutional and intra vires, does not give a licence to
unscrupulous persons to wreak personal vendetta or unleash harassment. It may,
therefore, become necessary for the legislature to find out ways how the makers
of frivolous complaints or allegations can be appropriately dealt with. Till
then the courts have to take care of the situation within the existing
framework. As noted above the object is to strike a the roots of dowry menace.
But by misuse of the provision a nw legal terrorism can be unleashed. The
provision is intended to be used as a shield and not as an assassin’s weapon.
If the cry of ?wolf? is made too often as a prank, assistance and protection may
not be available when the actual ?wolf? appears. There is no question of the
investigating agency and courts casually dealing with the allegations. They
cannot follow any straitjacket formula in the matters relating to dowry
tortures, deaths and cruelty. It cannot be lost sight of that the ultimate
objective of every legal system is to arrive at the truth, punish the guilty and
protect the innocent. There is no scope for any preconceived notion or view.
It is strenuously argued by the petitioner that the investigating agencies and
the courts start with the presumptions that the investigating agencies and the
courts start with the presumptions that the accused persons are guilty and that
the complainant is speaking the truth. This is too wide and generalized a
statement. Certain statutory presumptions are drawn which again are rebuttable.
It is to be noted that the role of the investigating agencies and the courts is
that of a watchdog and not of a bloodhound. It should be their effort to see
that an innocent person is not made to suffer on account of unfounded, baseless
and malicious allegations. It is equally undisputable that in many cases no
direct evidence is available and the courts have to act on circumstantial
evidence. While dealing with such cases, the law laid down relating to
circumstantial evidence has to be kept in view.?

29. In the decision dated 23.2.2007 in Crl.M.C. No.7262/2006 Neera
Singh vs. State and Ors. a learned Single Judge of this Court had pains to note
as under:-4. Now-a-days, exorbitant claims are made about the amount spent
on marriage and other ceremonies and on dowry and gifts. In some cases claim is
made of spending crores of rupees on dowry without disclosing the source of
income and how funds flowed. I consider time has come that courts should insist
upon disclosing source of such funds and verification of income from tax returns
and police should insist upon the compliance of the Rules under Dowry
Prohibition Act and should not entertain any complaint, if the rules have not
been complied with. Rule 2 of the Dowry Prohibition (Maintenance of List of
Presents to the Bride and Bridegroom) Rules, 1985 reads as under:

2. RULES IN ACCORDANCE WITH WHICH LISTS OF PRESENTS ARE TO BE MAINTAINED.- (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.

(2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom.

(3) Every list of presents referred to in Sub-rule (2)- (a) shall be prepared at the time of the marriage or as soon as possible after the marriage;

(b) shall be in writing;

(c) shall contain:

(i) a brief description of each present;

(ii) the approximate value of the present;

(iii) the name of the person who has given the present; and

(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship.

(d) shall be signed by both the brides and the bridegroom.

5. The Metropolitan Magistrate should take cognizance of the
offence under the Act in respect of the offence of giving dowry whenever
allegations are made that dowry was given as a consideration of marriage, after
demand. Courts should also insist upon compliance with the rules framed under
the Act and if rules are not complied with, an adverse inference should be
drawn. If huge cash amounts are alleged to be given at the time of marriage
which are not accounted anywhere, such cash transactions should be brought to
the notice of the Income Tax Department by the Court so that source of income is
verified and the person is brought to law. It is only because the Courts are
not insisting upon compliance with the relevant provisions of law while
entertaining such complaints and action is taken merely on the statements of the
complainant, without any verification that a large number of false complaints are pouring in.?

30. Admittedly, neither complainant nor her family members have
complied with Rule 2 of the Dowry Prohibition (Maintenance of List of Presents
to the Bride and Bridegroom) Rules 1985.

31. Since allegations in the complaint are to the effect that
jewellery and gifts worth crores were given by the parents and relatives of the
complainant, instant case would require a prior investigation by the
investigating officer before petitioners are made to account for the gifts,
whether at all the family of the complainant had the means to shower gifts of
such magnitude.

32. I note that the husband of the complainant is paying to her a
monthly maintenance of Rs.1 lakh.

33. Learned counsel for the State did not urge that the petitioners
are not cooperating with the IO.

34. The special circumstances of the case may be summarized:-
(a) Marriage is a love marriage and took place at Dubai. There is prima
facie evidence that marriage expenses were borne by the in-laws of the
complainant.
(b) The young couple took up separate residence at Dubai and stayed their
after the marriage till they came to India to celebrate their first Deepawali
festival. The complainant stayed with her in-laws for about 10 days. The
couple departed for their honeymoon.
(c) Allegations in the FIR are primarily directed against the husband.
Prima facie it appears to be a case of temperamental difference between the
husband and the wife.
(d) There are no allegations of dowry demand against the mother-in-law.
Allegation against her is of retaining the jewellery gifted by her parents as
stated by the complainant to be in the value of over Rs.2 crores. There is no
evidence that jewellery of such magnitude was gifted.
(e) Allegations of dowry demand against the father-in-law only relate to
transfer of ownership rights of 2 floors in a property at Sunder Nagar in the
name of the husband of the complainant. The allegation is of a general nature.
The time, date and month of demand has not been specified.
(f) The couple separated at Dubai. The petitioners did not have a joint
residence with the complainant and thus could not be in possession of her jewellery.

35. Case is thus made to admit petitioners to anticipatory bail.
While so directing, I am conscious of the failed compromise talks before the
learned Additional Sessions Judge but I cannot ignore the fact that proceedings
for bail cannot be converted into recovery proceedings. I find prima facie
justification of the petitioners that their younger son was briefing the counsel
and was informing the counsel what was being consented to by the son of the
petitioners. If the son of the petitioners back tracks from his commitment,
petitioners cannot be faulted with.

36. I additionally note that the complainant is being paid a monthly maintenance of Rs.1 lakh by her husband.

37. Petition stands disposed of directing that on the petitioners
surrendering their passport to the Investigating Officer and cooperating at the
inquiry to be conducted by the Investigating Officer, in the event of the
petitioners being arrested by the IO, the petitioners would be released on bail
by the IO on the petitioners furnishing a personal bond of Rs.1,00,000/- each
with one surety each in the like amount to the satisfaction of the IO in the
above captioned FIR.

38. Needless to state, the petitioners would join the investigation as and when required by the IO.

39. Copy of the order be supplied dasti to learned counsel for the petitioners.

21st August, 2007 PRADEEP NANDRAJOG, J.