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2018 DIGILAW 434 (MP)

State of Madhya Pradesh v. Akash Barediya

2018-05-01

G.S.AHLUWALIA

body2018
JUDGMENT : 1. This case under Section 439(2) of Cr.P.C. has been registered suo motu by this Court against the respondent – Akash Barediya for cancellation of his bail granted by the second Additional Sessions Judge, Dabra on 05.03.2018. 2. The necessary facts for the disposal of the present application, in short, are that the complainant Sapna, wife of Deepak Barediya, lodged a report at Police Station Antari District Gwalior for offence punishable under Sections 498-A, 323, 294, 506/34 of IPC in Crime No. 37/2018. The allegations made by the complainant Smt. Sapna (wife of Deepak Barediya) were that she was married to Deepak Barediya on 22.11.2017 as per Hindu rites and rituals. After her marriage, her husband Deepak, respondent Akash (younger brother-in-law/Devar of the complainant), father-in-law Balwant, sisters-in-law Smt. Rekha and Smt. Preeti started harassing her for not giving a car and an amount of Rs.1,00,000/- in the dowry. Their demand of dowry was not fulfilled, therefore, her in-laws left the complainant to her parental home. On 23.02.2018 at about 07:00 in the morning, when she was all alone in the parents house, at that time her father-in-law, husband, respondent and sisters-in-law came and scolded that her father has not arranged for a car and an amount of Rs.1,00,000/-. When she replied that her father is a poor person and is not able to make arrangement for fulfilling their demand, then her father-in-law by abusing her threatened that now they would not take her. When the complainant objected to it, then she was caught hold by sisters-in-law and her husband Deepak Barediya and respondent Akash started assaulting her by Lathi, as a result of which, she sustained various injuries and on hearing her shouts, her uncle Bachchu and maternal uncle Amratlal rescued her. Her father-in-law also threatened that in case, if demand of dowry is not fulfilled, then they would kill her. After her father came back to the house, the entire incident was narrated to him and, accordingly, the FIR was lodged. 3. The complainant was sent for medical examination and in the MLC report, following injuries were found:- “(1) Contusion with reddish over the lateral side of left arm (5 x 2.5 cm) (2) Abrasion 5x2.5 cm with reddish over the anterior side of neck. (3) Swelling with reddish over the left cheek. (4) Contusion 7x2.5 cm with reddish over the left side of left thigh. (3) Swelling with reddish over the left cheek. (4) Contusion 7x2.5 cm with reddish over the left side of left thigh. (5) Complaint pain over the back and head but no visible injury seen.” 4. Respondent Akash, his brother Deepak Barediya, his father and sisters filed an application for grant of anticipatory bail. The second Additional Sessions Judge, Dabra by order dated 05.03.2018 granted anticipatory bail to the respondent as well as to his father and sisters. However, the application for grant of anticipatory bail filed by Deepak Barediya was dismissed. Deepak Barediya filed an application for grant of anticipatory bail before this Court, which was registered as M.Cr.C. No. 10942/2018. That case was taken up for hearing on 21.03.2018 and the counsel for the applicant, while arguing the bail application of the co-accused Deepak Barediya, constantly submitted that since the case of Deepak Barediya is identical to that of case of the present respondent, and since the second Additional Sessions Judge, Dabra has granted anticipatory bail to the respondent, therefore, a glaring mistake has been committed by the second Additional Sessions Judge, Dabra by rejecting the bail application of Deepak Barediya, who is the husband of the complainant. As the counsel for Deepak continuously stressed upon his argument of incorrect rejection of bail application of Deepak Barediya specifically when respondent was granted anticipatory bail, whose case is identical to that of case of Deepak Barediya, therefore, this Court was compelled to look into the allegations against the respondent. Accordingly, this Court formed a prima facie opinion that the second Additional Sessions Judge, Dabra has erroneously granted anticipatory bail to the respondent in the light of the allegations made by the complainant because in Indian culture, sister-in-law (Bhabhi) enjoys the status equivalent to that of mother and assaulting her by lathi because of non-fulfillment of demand of dowry by her younger brother-in-law (Devar) would certainly be of a serious in nature and it cannot be said that the act complained of against the respondent was of minor in nature. Accordingly, show cause notice was issued to the respondent as to why the anticipatory bail granted to the respondent by second Additional Sessions Judge, Dabra by order dated 05.03.2018 be not cancelled. 5. Accordingly, show cause notice was issued to the respondent as to why the anticipatory bail granted to the respondent by second Additional Sessions Judge, Dabra by order dated 05.03.2018 be not cancelled. 5. When notices were issued, the said notice was received back with an endorsement by the process server that the respondent does not reside at the given address, but this Court found that in the bail application, which was filed by the respondent before the Sessions Court, the same address was given and, thus, by order dated 05.04.2018, it was held by this Court that it is clear that either the service report signed by the Peon is incorrect and has been obtained by the respondent or respondent had given an incorrect and misleading address in his bail application filed before the Sessions Court and in both circumstances, it was held that the conduct of the respondent cannot be tolerated and, therefore, he bailable warrant was issued against the respondent and SHO Police Station Antari was directed that he shall personally ensure that the bailable warrant issued against the respondent is served prior to 16.04.2018. 6. A reply has been filed by the respondent mentioning that, no employee had ever gone to his house to serve the notice and the address given by the respondent in his bail application before the Sessions Court was right. However, since no reply was given by the respondent on merits of the case, therefore, by order dated 24.04.2018, the respondent was granted further time to file reply to the allegations. However, no reply on the allegations has been filed in spite of the opportunity given to the respondent, then it is clear that the respondent has nothing to say in reply to the notice issued by this Court to show cause as to why anticipatory bail granted to the respondent by second Additional Sessions Judge by order dated 05.03.2018 be not cancelled. 7. It is submitted by the counsel for the respondent that the respondent was not a party in the bail application filed by his brother Deepak Barediya, which was registered as M.Cr.C. No. 10942/2018 and thus, if the counsel for Deepak Barediya had made some incorrect submissions, then he cannot be held liable for the submissions made by the counsel for Deepak Barediya. 8. 8. Counsel for the respondent was further asked to make submissions on the allegations made by the complainant and in reply, it was submitted by the counsel for the respondent that he has been falsely implicated and the allegations are false and since there is a growing tendency in the society to falsely implicate the near and relatives of the husband, therefore, the second Additional Sessions Judge, Dabra had rightly granted anticipatory bail to him. 9. Per contra, it is submitted by the counsel for the State that the allegations made against the applicant are corroborated by the medical evidence of the complainant as five visible injuries with various complains of pain on different parts of body of the complainant were found. The allegations against the respondent and his brother are that they had assaulted the complainant by lathi. The ocular evidence was supported by the medical evidence and it cannot be said that the complainant has tried to falsely and over implicate the respondent merely because he is a younger brother-in-law (Devar) of the complainant. Harassment and maltreatment of the brides in their matrimonial house is also increasing day by day and in every case, it cannot be said that every and each relative has been falsely implicated. When there are specific allegations against the respondent supported by the medical evidence, then second Additional Sessions Judge, Dabra committed a mistake in granting anticipatory bail to the respondent. 10. Heard the learned counsel for the parties. 11. So far as the submissions made by the respondent that if an incorrect argument has been made by the counsel, then the party should not be made to suffer is concerned, the same cannot be accepted. The lawyer is a personality knowing the pros and cons of every argument which is advanced by him in the Court. If a lawyer has consciously decided to press a particular question of fact/law, then it cannot be inferred that it was a submission of layman, but according to the Court, it is a conscious statement or submission by law knowing personality practicing as an Advocate in the Court of Law. Since professional incompetency of lawyer cannot be presumed, therefore, it cannot be said that the submission made by the counsel for Deepak Barediya, while arguing his anticipatory bail application was an irresponsible submission without realizing the consequences of the same. Since professional incompetency of lawyer cannot be presumed, therefore, it cannot be said that the submission made by the counsel for Deepak Barediya, while arguing his anticipatory bail application was an irresponsible submission without realizing the consequences of the same. Thus, the statement made by the respondent that the respondent should not be made to suffer because of the irresponsible submission made by the counsel for Deepak Barediya while arguing the M.Cr.C. No. 10942/2018 cannot be accepted. 12. Under these circumstances, when the counsel for co-accused Deepak was constantly pressing on the grant of anticipatory bail to the respondent, then this Court was right in re-considering the order passed by the second Additional Sessions Judge, Dabra. Thus, under these circumstances, it is necessary to consider the allegations, which have been made by the complainant Sapna wife of Deepak Barediya. 13. The complainant has been married to Deepak as per Hindu rites and rituals on 22.11.2017 and immediately after the marriage, the respondent, her husband Deepak Barediya and other in-laws of the complainant started making the demand of a car and an amount of Rs.1,00,000/- and because of non-fulfillment of the said demand, just within a period of three months from the date of the marriage, the complainant was beaten by the respondent as well as the husband of the complainant by lathi, as a result of which, she had sustained at least five visible injuries with complains of pain on various parts of body. 14. Under these circumstances, it is clear that the allegation of assaulting by the complainant against the respondent is corroborated by the medical evidence. It cannot be said that there is no specific allegation against the respondent. In Indian culture, sisters-in-law (Bhabhi) enjoys the status of a mother for the younger siblings of her husband. Under these circumstances, if the younger brother-in-law (Devar) of the complainant had raised his hand on his Bhabhi merely because her father is not in a position to fulfill their demand of dowry, then it cannot be said that the allegations made against the respondent are of simple in nature. 15. Considering the allegations made against the respondent, this Court is of the considered opinion that the second Additional Sessions Judge, Dabra has erroneously granted anticipatory bail to the respondent. 15. Considering the allegations made against the respondent, this Court is of the considered opinion that the second Additional Sessions Judge, Dabra has erroneously granted anticipatory bail to the respondent. Accordingly, the order dated 05.03.2018 passed by second Additional Sessions Judge, Dabra in B.A. No. 104/2018 qua respondent Akash Barediya is hereby set aside. The respondent – Akash Barediya is directed to immediately surrender before the Investigating Officer. 16. With aforesaid observations, this proceeding is finally disposed of.