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2007 DIGILAW 448 (RAJ)

Syed Zakir Hussain v. State of Rajasthan

2007-02-28

DALIP SINGH

body2007
JUDGMENT 1. - Heard learned Counsel for the petitioner and the learned Counsel for the complainant and the learned Public Prosecutor. In the present case, the complaint has been filed by the wife before the Court which was sent for investigation alleging that the marriage between the accused petitioner-husband and the complainant-wife took place in the month of March, 2004. It was alleged that as is customary, the complainant, by her family, was given items, as mentioned in para 2 of the complaint. It is alleged that the accused petitioner-husband as well as the other accused persons continued their persistence for the demand of dowry and as a result of the non-fulfilment of those demands which included the grant of plot at Jaipur. the relation between the parties became strained. It is also alleged that as a result of the non fulfilment of the demand, the accused petitioner and other accused persons used to treat the complainant with cruelty. It has been stated that out of the wed lock a child was born to the complainant on 10.12.2004 but the said child died on or about 11.9.2005. The complainant alleged that the child died as a result of the fact that the accused petitioner as well as his family members did not provide sufficient funds for the treatment of the child though the complainant-wife and her family members tried to give the child the best possible treatment. However, in spite of these efforts, the said child died on 11.9.2005. It has then been alleged that the complainant-wife came from the house of her in-laws and started living at Malpura with her mother and other family members. It has been alleged in the complaint that on 9.7.2006 all the accused persons including the petitioner came to Malpura and again reiterated their demand for being given a plot at Jaipur as well some money and that only on those conditions and demands being met the husband would agree to take the complainant with him. It is alleged that these demands were made in the presence of Abdul Rahim, Asgar and Khurshid and other members. 2. As a result of the aforesaid, the complaint under sections 498-A and 406, I.P.C. was lodged by the complainant-wife. 3. Learned Counsel appearing on behalf of the petitioner primarily contended that the accused petitioner and the complainant had entered into a compromise on 9.7.2006. 2. As a result of the aforesaid, the complaint under sections 498-A and 406, I.P.C. was lodged by the complainant-wife. 3. Learned Counsel appearing on behalf of the petitioner primarily contended that the accused petitioner and the complainant had entered into a compromise on 9.7.2006. The said compromise has been executed on a judicial stamp which has been duly notarized which, as per the case of the petitioner, bears the signature of the complainant and as per the terms of the compromise the complainant was given a sum of Rs. 50.000/-, all her personal belongings and other articles which were given to them during the time of the marriage were returned to the complainant. It was alleged that since the parties had compromised the matter, the present complaint is a false one. 4. During the course of the pendency of this petition under section 438, Cr. P.C., which was filed on 14.08.2006 after the dismissal of the application by the learned District Judge, this Court taking into consideration various aspects involved including the fact that the petitioners is an Advocate gave opportunity to both the parties to resolve the matter amicably. The Court would like to record the fact that both the learned Counsels made sincere efforts that the parties may come to some amicable Clement. Nonetheless, in spite of the efforts being made an amicable settlement could not take place, though the same is still not ruled out. As a result of the above, the matter has been heard on merits. 5. So far as the merits of the case are concerned prima facie there are allegations against the accused No. 1 in the complaint of treating the complainant with cruelty at his instance on account of non-fulfilment of the demand of dowry. So far as the compromise which is dated 9.7.2006 is concerned, the said is alleged to have been executed at Sikar and there is allegation by the complainant on the other side in the complaint in pars 6 that on 9.7.2006 all the accused persons came to Malpura and it is on that day itself that the demand was reiterated for payment of Rs. 30,000/- as well as being given a plot at Jaipur by the accused including the petitioner. This is the only allegation about the demand/cruelty being perpetuated against the complainant at Malpura where the complaint was lodged. 30,000/- as well as being given a plot at Jaipur by the accused including the petitioner. This is the only allegation about the demand/cruelty being perpetuated against the complainant at Malpura where the complaint was lodged. The aforesaid averments are said to have been corroborated by the testimony under section 161, Cr. P.C. which has been recorded by the Investigating Officer of Abdul Rahim, Asgar and Khurshid who have deposed and corroborated the averments in pars No. 6 of the complaint. 6. While considering the compromise, it was directed by this Court that the original compromise be sent to the Forensic Science Laboratory/ F P.B. for getting the signature of the complainant Rubina examined as she denied the same. The signature of the complainant were sent for being compared with the signature on the document which is the compromise dated 9.7.2006 but the Forensic Science Laboratory/F.P.B. has not been able to give any concrete report on the same and has mentioned in the report that certain more signatures are required to be taken from the complainant "at a fast speed so as to carry out the effective comparison. 7. Learned Counsel for the petitioner also submitted that so far as the recovery of the articles of the complainant are concerned, the Investigating Officer has already effected the recovery of some of the articles mentioned in the complaint which contains an exaggerated amount when the petitioner was directed to appear for interrogation before the Investigating Officer in pursuance of the orders dated 4.9.2006 and 29.1.2007. 8. I have considered the rival submissions and in the facts and circumstances looking to the fact that so far as the investigation is concerned, the same has virtually being completed. On account of the opportunities provided by this Court under the orders dated 4.9.2006 and 29.1.2007, the recovery of the articles mentioned in the complaint to whatever extent possible have been made. It was ordered by this Court that the Investigating Officer after preparing the inventory shall handover the articles to the complainant who may receive the same and in case she declines the Investigating Officer shall take the same in his custody as per seizure memo. It was ordered by this Court that the Investigating Officer after preparing the inventory shall handover the articles to the complainant who may receive the same and in case she declines the Investigating Officer shall take the same in his custody as per seizure memo. Another fact which further requires to be considered is that the petitioner-husband in fact in April, 2006 filed a suit for the restitution of conjugal rights which is said to be pending and it is alleged that since the complainant did not wish to rejoin the petitioner she has filed the complaint on 27.7.2006. 9. In the light of the above and the fact that the Forensic Science Laboratory has not been able to give any finding so far with regard to the signatures of the complainant on the compromise dated 9.7.2006 either holding the same to be genuine or otherwise, the fact remains that the petitioner-husband had made efforts to secure the presence of the complainant, his wife, in the matrimonial home and thereafter having not succeeded, an effort was also made for compromising the matter but for some reasons the efforts did not seem to have yielded any success though the margin of difference is very narrow and possibility of a compromise is till not ruled out 10. In view of the above facts and circumstances. I find that no useful purpose would be served by arresting the accused petitioner. Therefore, without expressing any opinion on the merits of the case, I deem it just and proper to grant the benefit of section 438, Cr. P.C. to the accused petitioner. 11. Accordingly, the bail application under section 438, Cr. P.C. is allowed. The concerned S.H.O. is directed that in the event of the arrest of accused petitioner Syed Zakir Hussain son of Shri Nohman Ahmed, in connection with F.I.R. No. 132/2006 Police Station, Malpura. District Tonk, he shall be released on bail on furnishing a personal bond in the sum of Rs. 20,000/- and two sureties in the sum of Rs. The concerned S.H.O. is directed that in the event of the arrest of accused petitioner Syed Zakir Hussain son of Shri Nohman Ahmed, in connection with F.I.R. No. 132/2006 Police Station, Malpura. District Tonk, he shall be released on bail on furnishing a personal bond in the sum of Rs. 20,000/- and two sureties in the sum of Rs. 10,000/- each to his satisfaction on the following conditions: (i) He shall make himself available for interrogation by the Investigating Officer as and when required; (ii) He 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/her from disclosing such facts to the Court or to the Investigating Officer; (iii) He shall not leave India without the previous permission of the Court: (iv) He shall not commit similar offence. Application Allowed. *******