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2002 DIGILAW 596 (RAJ)

Shyam Sunder Kathpal v. The State of Rajasthan

2002-03-18

A.C.GOYAL

body2002
JUDGMENT 1. - Heard learned counsel for the parties, on an application under Section 438 Cr.P.C. 2. The brief facts are that Smt. Meena Kumari lodged a written report to S.P. Alwar on 28.9.2001 with the averments that the she was married to Sanjay Kumar on 2.12.2000. Prior to her marriage, one advertisement at the instance of Shyam Sunder was published in Hindustan Times dated 13.8.2000, according to which Sanjay Kumar was unmarried. This fact was further reiterated by her in-laws. Sanjay Kumar, his father Subhash Chandra, mother Kanchan Devi, sister-in-law Smt. Divya, Smt. Kamla mother of Divya, his uncle S.P. Pawa, uncle-in-law Om Prakash and friend Shyam Sunder were present when they came to see her. Even after marriage, Sanjay Kumar was shown as unmarried earlier in application for registration of the marriage with complainant Meena Kumari. This fact that Sanjay Kumar was earlier married came to knowledge on 26.5.2001, when, her husband and in-laws left for Bankok and her sister-in-law Smt. Divya filed a suit for permanent injunction against her and in that suit also Sanjay Kumar was earlier shown as unmarried while lateron by way of amendment it was added in the plaint that Sanjay Kuamr was divorcee. Thereafter, a notice was sent to Smt. Divya and Shyam Sunder for disclosing the particulars of earlier marriage but no response was received. It is also averred that all 'stridhan' given to her by her parents at the time of marriage was taken by her in-laws and after marriage they demanded dowry for Rs. 5 lacs and started harassing and beating her. Thereafter on 30.12.2000, she was sent with her brother to her parents house and her 'stridhan'; was not delivered to her inspite of the demand. 3. A Criminal Case under Sections 498A, 406, 420 and 506 IPC was registered. Challan has not been filed so far. Learned counsel for the accused Shyam Sunder argued that this accused happens to be tenant of other accused persons and other accused persons except Smt. Divya are residing in Bankok, therefore, the name of Shyam Sunder was given in the advertisement only for contact purposes and as a matter of fact this advertisement was not given by Shyam Sunder. Learned counsel for the accused Shyam Sunder argued that this accused happens to be tenant of other accused persons and other accused persons except Smt. Divya are residing in Bankok, therefore, the name of Shyam Sunder was given in the advertisement only for contact purposes and as a matter of fact this advertisement was not given by Shyam Sunder. It was next argued that Sanjay Kumar has not been shown as bachelor or unmarried in this advertisement and even according to the prosecution the marriage took place on 2.12.2000 while the advertisement relates back to 13.8.2000 and this advertisement was sent to Hindustan Times by father of Sanjay Kumar. It was next argued that offence under Section 420 IPC is not made out because it is not a case of the prosecution that the accused dishonestly included Smt. Meena Kumari or her father to deliver any property and at the most offence under Section 417 IPC can be made out which is non-cognizable as well as bailable and even if the offence is cheating by personation is taken to be made out as provided under Section 419 IPC, the same is also bailable. It was also argued that this accused Shyam Sunder has been accused of only offence under Section 420 IPC and for other offences, this accused has no concern. According to the learned senior counsel Shri Bajwa the real dispute arose when Smt. Divya filed a suit for restraining the complainant not to enter in the house. Reliance has been placed upon G.V. Rao v. L.H.V. Prasad and others ( AIR 2000 SC 2474 ) , Chandraswami and another v. Central Bureau of Investigation ( AIR 1997 SC 2575 ) and Gurbaksh Singh Sibbia etc. v. The State of Punjab, (AIR 1980) SC 1632) . Opposing this application, it was argued by learned Public Prosecutor and learned counsel for the complainant that accused Shyam Sunder took active part in this marriage from beginning to end and he was also present in the first marriage of Sanjay Kumar and this fact was concealed by him as the advertisement was issued at his instance. The statement of Prem Kumar, father of the girl recorded under Section 161 Cr.PC. was referred in support of this contention. The statement of Prem Kumar, father of the girl recorded under Section 161 Cr.PC. was referred in support of this contention. It was also argued that warrant of arrest has already been issued against this accused under Section 24 of the Police Act, therefore, anticipatory bail application is not maintainable. Reliance has been placed upon Bhoja Singh alias Bhoj Singh and others v. State of Rajasthan, (2001(1) WLC (Rajasthan) 669) 2001, Cr.L.R. (Rajasthan) 1 and Pankaj v. State of Rajasthan R.L.R. 1996(2) 303 . It was also argued that the husband of Smt. Meena Kumari and his parents are in Bangkok in view of these facts and circumstances, it is not a fit case for anticipatory bail. Replying the arguments, learned Senior Counsel Mr. Bajwa contended that no challan has been filed so far and warrant of arrest was issued only under Section 24 of the Police Act and, therefore, the judgments cited by learned Public prosecutor are not applicable and he has placed reliance upon an order of this Court passed in S.B. Cr. Misc. Bail Application No. 4280, Guru Charan Singh and others v. The State of Rajasthan, decided on 12.10.2001 . 4. I have given thoughtful consideration to the rival contentions. In G.V. Rao's case (supra), the accused respondent No. 1 furnished the particulars of his sister respondent No. 4 in pursuance of a marriage proposal and accused gave out that they belonged to higher community and lateron it was found that they belonged to some other community and under these circumstances, it was held that the person who induced the complainant into marrying that girl was held liable for punishment under Section 417 I.P.C. 5. In Gurbaksh Singh's case (supra) while dealing with the scope of Section 438 Cr.PC. Hon. Apex court held that it is not necessary to make out a special case for the exercise of the powers to grant anticipatory bail. 6. In Chandraswami's case (supra), the Hon. Supreme Court held that the accused is entitled for anticipatory bail for offence under Section 120B read with 420 IPC. circumstances of the case, it is just and proper to grant bail to the petitioner under Section 438 Cr.PC. 7. 6. In Chandraswami's case (supra), the Hon. Supreme Court held that the accused is entitled for anticipatory bail for offence under Section 120B read with 420 IPC. circumstances of the case, it is just and proper to grant bail to the petitioner under Section 438 Cr.PC. 7. In both the judgments of this Court relied upon by learned counsel for the complainant it has been held that after taking cognizance and after issuance of warrant of arrest the accused is not entitled to anticipatory bail. Both the judgments are not applicable to the facts and circumstances of the present case because challan has not been filed so far and no standing warrant of arrest has been issued and only warrant of arrest under Section 24 of the Police Act has been issued. 8. Without making any comments on the merits of the case and keeping in view the judgment of Hon. Supreme Court in G.V. Rao's case (supra), the accused Shyam Sunder should be released on anticipatory bail. 9. Therefore, the SHO/Arresting Officer/I.O. of Police Station Mahila Thana, Alwar, is directed that in the event of arrest of petitioner Shyam Sunder Kathpal in FIR No. 89/2001 of aforesaid Police Station be released on bail provided he furnishes a personal bond in the sum of Rs. 30,000/- with two sureties of Rs. 15,000/- each to the satisfaction of concerned SHO on the following conditions : 1. That the petitioner shall make himself/herself/themselves available for interrogation by a police officer as and when required. 2. That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or any police officer; and 3. That the petitioner shall not leave India without previous permission of the court. Anticipatory Bail Granted Subject to certain condition. *******