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2016 DIGILAW 78 (TRI)

Shyamal Malakar v. State of Tripura

2016-03-22

DEEPAK GUPTA

body2016
ORDER : This is an application for grant of anticipatory bail filed by the applicant, Sri Shyamal Malakar in respect of FIR No.0005 of 2016 registered with Police Station Pecharthal against the applicant under Section 498A IPC. 2. The applicant had moved the Sessions Judge, Unakoti, Kailashahar for grant of bail but he has rejected the bail application and while doing so he has observed as follows: “***I have carefully perused the CD produced by the I/O and also considered the progress of the investigation. This is a matrimonial dispute between the husband and wife, where the husband, an employee of the Govt., has been trying to show her supremacy upon her innocent wife, who has been taking care of the two children. It is a fact that at this stage the merit of the case should not be discussed, but it appears that it is only the husband, i.e., the accused-petitioner, who can bring peace in the family by giving up his alleged illicit relationship with another woman and in that case, the poor and innocent wife may not proceed further to take revenge against the husband. It is the duty of the court to see that matrimonial dispute, if arisen, should not be allowed to be continued further and if possible, the cause of dispute should be encouraged to be removed for the purpose of re-union. In this case, it is the allegation that the accused-petitioner, Shri Shyamal Malakar, has been trying to maintain illicit relationship with another woman and one day he was also caught red handed by the local people with the help of the police of Kumarghat police station and if it is true, the dispute between the husband and the wife cannot come to an end and if the accused-petitioner is encouraged by this Court to be released on bail in the event of his arrest, the effort or process of re-union cannot succeed, rather the accused-petitioner will be encouraged to maintain the present illegal act I am not sure at this stage whether there is any demand of Rs. 2,00,000/- made by the accused-petitioner upon her wife, Smti. Sikha Rani Malakar, but it appears that the accused-petitioner must be having illicit relationship with another lady and perhaps this must be the cause of dispute between the husband and the wife. 2,00,000/- made by the accused-petitioner upon her wife, Smti. Sikha Rani Malakar, but it appears that the accused-petitioner must be having illicit relationship with another lady and perhaps this must be the cause of dispute between the husband and the wife. From the CD, it appears that the investigation is in progress and so, at this stage, I am not inclined to pass any Order directing the concerned police authority to release the accused-petitioner As dictated on bail in the event of his arrest,****” 3. I am clearly of the view that the learned Sessions Judge should have avoided making the observations made therein. At the stage of grant of bail, the learned Sessions Judge was not go into the merits whether the applicant had an illicit relationship or not? 4. On the one hand, the learned Sessions Judge says that at this stage he is not go into the merits of the case but at a later stage he says that “if the accused-petitioner is encouraged by this Court to be released on bail then in the event of his arrest the effort or process of re-union cannot succeed.” I do not agree with this finding of the learned Sessions Judge. If a husband is sent to jail on the basis of a complaint of a wife there can be no chances of re-union. There are chances of re-union only if bail is granted and efforts are made for reconciliation between the parties. Once a spouse or his relatives are sent behind bars then the chances of reconciliation disappear. Therefore, I am of the considered view that the observations made by the learned Sessions Judge that in case bail is granted then there will be no reconciliation in my view is totally uncalled for. 5. Furthermore, the learned Sessions Judge has not taken into consideration the Judgment of the Apex Court in Arnesh Kumar Vrs. State of Bihar and another, (2014) 8 SCC 273 wherein the Apex Court in respect of offences under Section 498 IPC held as follows: “4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of the penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.” 6. The Apex Court clearly held that arrest brings humiliation, curtails freedom and cast scars forever. Judicial sensitivity requires that in matrimonial matters the approach of the Court should be to ensure that first an attempt at reconciliation is made. If a person has gone behind bars than chances of reconciliation will be very little, because arrest and detention of a person leads to humiliation and cast scars on his psyche which will can never be removed. The Apex Court in this very case also referred to Section 41 of the Cr.P.C. and held as follows: “7.1 From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.” 7. These are the conclusions, which one may reach based on facts.” 7. Further the Apex Court held as follows: “11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: 11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC; 11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4 The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 12. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.” 8. A copy of this judgment was forwarded to all the Chief Secretaries of the States and the Director General of Police as well as the Registrar General of all the High Courts and this judgment has been circulated on the administrative side vide Letter No.F.42(5) HC/2014 dated 02.07.2014. It is expected that in future this judgment is followed in letter and spirit by all concerned. 9. As far as present case is concerned, I am not going into the merits of the case but the allegation against the applicant is that he acting with cruelty because he is having an illicit relationship with some other woman. There is also an allegation that he has demanded some money. These allegations will have to be decided at the time of trial. 10. Without going into the merits of the case in view of the law laid down by the Apex Court in Arnesh Kumar (supra) I am of the considered view that this application for grant of anticipatory bail should be allowed and accordingly, it is directed that in the event of his arrest, the applicant, Sri Shyamal Malakar shall be enlarged on bail on his furnishing a bail bond in the sum of Rs.20,000/- (Rupees twenty thousand) with one surety in the like amount to the satisfaction of the Arresting Officer subject to the following terms and conditions:- (i) The applicant is directed not to tamper with or in any manner influence the prosecution witnesses; (ii) The applicant is further directed not to cause any hindrance in the investigation; (iii) The applicant shall not leave Tripura without permission of the appropriate Court; (iv) In case the applicant is even remotely involved in any other case of violence or is trying to influence the prosecution evidence, the State shall be at liberty to approach this Court for cancellation of bail. 11. 11. With these observations, the application is disposed of. 12. On the applicant filing application for supply of the copy on payment of appropriate fees, the copy of the same shall be supplied to the petitioner by tomorrow.