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2007 DIGILAW 844 (RAJ)

Mohammad Iqbal Khan v. State of Rajasthan

2007-04-24

DALIP SINGH

body2007
JUDGMENT 1. - Heard learned counsel for the petitioner and the learned counsel for the complainant and the learned Public Prosecutor and perused the case diary of both the cases. 2. The instant case is directed against the FIR No. 185/2006 registered at Police Station Kotwali, Jaipur and the earlier complaint No. 178 of 2005 dated 28.05.2005 which has been extracted at Page No.5 of this petition. 3. As per the case of the petitioner on 28.05.2006, one Naeem, the father of Smt. Ruksana who was married to one Ayub & Idrish son of Ibrahim, lodged a complaint at Police Station Kotwali, Jaipur in which it was mentioned that Smt. Ruksana being in a disturbed state has been abducted by one Sonu @ Anwar son of Asgar Ali, who used to often visit the house of the informant and that he had abducted his daughter Smt. Ruksana and she is being missing since 6:00 AM of 26.05.2005. It was also mentioned that Smt. Ruksana had taken with her one mobile phone bearing No. 9829062996, one gold chain, gold bangles and earrings; in all about 12 tolas of gold and Rs. 25,000/- in cash and had left with Sonu. On this complaint dated 28.05.2005 lodged by the father of Smt. Ruksana, the police made an entry with regard to missing person at Serial No. 178 dated 28.05.2005, Smt. Ruksana has so far not been found nor has Sonu & Anwar been found despite best efforts. 4. Thereafter, on 26.04.2006, an FIR came to be lodged by Naeem Khan, the father of Smt. Ruksana for the offence under Section 498A I.P.C. against the accused petitioner who is the elder brother of the husband of Smt. Ruksana and other family members alleging therein that the marriage of Smt. Ruksana had taken place with Ayub @ Idrish about 5 1/2years ago and all the family members who have been accused used to maltreat her and used to ask her to get more dowry and used to threaten her that in case she did not bring more dowry, she would have to loose her life. It is also mentioned in the said FIR that about eleven months ago, the accused persons had somehow been able to conceal her daughter and he suspects that she may even have been murdered. It is also mentioned in the said FIR that about eleven months ago, the accused persons had somehow been able to conceal her daughter and he suspects that she may even have been murdered. It is also mentioned that Ayub in spite of the fact that he is married is intending to get married with one Shahnaaz Bano daughter of Nawab Khan who is, resident of Jodhpur. The police registered a case under Section 498A, I.P.C. as FIR No. 185/2006 at Police Station Kotwali Jaipur and started investigation. During the course of hearing, the Investigating Officer was called with the case diary in respect of the FIR No. 185/2006 and the Circle Officer, who was the Investigating Officer, informed this court that in the absence of the statement of Smt. Ruksana, the police has not been able to verify the allegations with regard to the cruelty and demand for dowry and at present is proceeding against the accused for the offence under Section 406 I.P.C. 5. With regard to the report of missing person in respect of Smt. Ruksana dated 28.5.2005, which was lodged at Serial No. 178 at Police Station Kotwali, Jaipur on the said date, the Investigating Officer submitted that in spite of the best efforts they have not been able to trace either Smt. Ruksana or Sonu @ Anwar, who is alleged to have abducted Smt. Ruksana, as per the report of her father Shri Naeem. It is submitted that at Itawa in District Kota, whereof Sonu is alleged to be a resident of, his wife Smt. Zarina has lodged an FIR under Section 498A and 406 I.P.C. against Sonu @ Anwar in which challan has been filed but since Sonu @ Anwar could not be arrested or found, the same is being proceeded with under Section 299 Cr.PC. 6. Learned counsel for the petitioner submitted that in the light of the report No. 178/2005 lodged by Shri Naeem, the father of Smt. Ruksana, who is the informant in the present case in the FIR No. 185/2006 Smt. Ruksana is alleged to have left her parental house i.e. house of the informant along with Sonu @ Anwar son of Asgar Ali and she had, as per the aforesaid report, left with about 12 tolas of gold, a mobile phone and Rs. 25,000/- cash and has not been traceable since then. 25,000/- cash and has not been traceable since then. It is contended that Smt. Ruksana know Sonu and on account of her relationship with Sonu @ Anwar, she had of her own accord left her parental home on 26.05.2005 and the subsequent story regarding the demand of dowry etc. is an afterthought. It was contended that it has come in the investigation that after Smt. Ruksana had run away along with Sonu her husband Ayub is alleged to have divorced her and had sent a Talaqnama to Smt. Ruksana at her father Shri Naeem's house and on receipt of the same it is contended by the learned counsel for the accused that the present report has been filed. It has also been submitted that in the instant case the accused petitioner is the elder brother of the husband and so far as FIR is concerned, the only allegations are with regard to the alleged offence under Section 498A, I.P.C., which the Investigating Officer has not found to be substantiated and is only proceeding under Section 406 I.P.C. It is contended that the report does not make any mention with regard to the offence under Section 406 I.P.C. 7. The learned counsel for the complainant, on the other hand, has pointed out that an application had been filed on 09.05.2006 by the informant with the police in which specific case for the offence under Section 406 I.P.C. was alleged with regard to the belongings of Smt. Ruksana and the dowry items given to her which had been illegally retained. 8. Having heard learned counsel for the complainant, the Investigating Officer was asked to produce the copy of the said application and the said application was examined by this court and on reading the same, the entire allegations with regard to the offence under Section 406 I.P.C. are qua the husband of Smt. Ruksana namely Ayub and not against the accused petitioner. This fact was conceded by the learned counsel for the complainant also. 9. In the facts and circumstances of the present case as they exist at present, without expressing any opinion on the merits of the case, I deem it just and proper in the light of the facts which have come hereinabove to grant the benefit of Section 438 Cr.PC. to the accused petitioner. 10. Accordingly, the bail application under Section 438 Cr.P.C. is allowed. to the accused petitioner. 10. 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 Mohammad lqbal Khan son of Shri Ibrahim Khan, in connection with FIR No. 185/2006, Police Station Kotwali, Jaipur 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 its 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. 11. However, it may be stated that in case if at any point of time, the Investigating Officer finds any material with regard to the involvement of the accused in respect of the disappearance and subsequent murder of the daughter of the informant namely, Smt. Ruksana daughter of Shri Naeem, the Investigating Officer shall be at liberty to apply for the cancellation of this order. 12. It is also directed that the Investigating Officer, in Report No. 178/2005 of missing person shall take steps to trace the missing Smt. Ruksana and accused Sonu @ Anwar and the I.G., Jaipur Range concerned, shall constitute a special team for this purpose or even consider transferring the case to C.I.D. (Crime Branch). 13. This bail application filed under Section 438 Cr. RC. by Mohammad Igbal Khan stands allowed, subject to the above.Anticipatory Bail Granted on Usual Conditions. *******