Sushil Jain v. State of Not of Delhi

1. This is an application for grant of anticipatory bail in respect of FIR no. 99/2011 under Section 498A/304B/34 IPG registered by P.S. Kirti Nagar, New Delhi.

2. Briefly stated the prosecution case is that on 28.03.2011 Smt. Kamini Tandon, w/o Amar Nath, r/o H. No. 3063 Charkhe Walan Chowk, Chawri Bazaar, Delhi got her statement recorded before SDM (Rajouri Garden) under Section 176 Cr.P.C. wherein she has stated that her daughter Priya Jain (since deceased) was married on 31.10.2006 with Abhishek Jain, S/o Lalit Kumar Jain, R/o 22/7 Double Storey, Ramesh Nagar, Delhi and after falling in love both of them got married. It was a court marriage. It is alleged that after marriage she was not allowed to talk to her family member's including her sister Shobhita. It is alleged that demands 2011:DHC:6993 were made from time to time including a demand for transfer of ^ property of Kamini Tandon in the name of deceased husband. It is further alleged that on 27.03.2011, Kamini Tandon was asked to reach the P.S. Kriti Nagar, New Delhi. After reaching at the police station, she was accompanied with a police officer to Kalra Hospital where she was informed that Priya Jain has died. On the night of 26.03.2011, it is alleged that Priya Jain deceased talked to her sister Shobhita at about 11.12 P.M. and seemed to ^ happy. It was also alleged that Priya Jain was never sick during those days she she died. On 28.03.2011 a statement was made to the police by Kamini Tandon and she attributed the death to take place on account ofthe demand for dowry and the consequent cruelty to which she was subjected to. On the basis of the aforesaid statement, an FIR got registered.

3. The present petitioner is the mother-in-law ofthe deceased. She has claimed the grant ofanticipatory bail on the ground that she is V working as a Class-I Gazzetted Officer as Assistant Director in Sangeet and Natak Academy, Ministry of Culture, Government of India and that she is in a respectable position. It is stated that she is having only one kidney as the other was donated the other in the year 2008 to her husband on account of his kidney failure, however, the husband of the petitioner could not survive despite the kidney transplant. It has been stated that by her in the petition that her son's marriage was a love marriage and there was absolutely no question of giving of dowiy much less the demand of dowry or subjected her to cruelty.

4. On the contrary, it has been stated by her that the deceased had given in writing to the police station in the year 2006 itself that she was not happy with her mother/Kamini Tandon and other family members on account of the matrimonial alliance and consequently she was living with Sushil Jain the present petitioner. She has ^ also complained to the police against the ill-treatment of her mother. A copy of the report purported to have been lodged by the deceased with the local police is placed on record. In addition to this, a copy of the affidavit of the complainant Kamini Tandon the mother of the deceased has also been placed on record. She has stated on affidavit that she has not spent a single penny on the marriage of her daughter/Priya Jain and it could hardly be accepted to given any dowry much less the demand being made to v the deceased. It is stated that as a matter of fact, the deceased was carrying a false impression that her husband was having some kind of alliance with a girl Neha who was working in the private office of the deceased husband, and therefore, being a suspicious person she had voluntarily without any rhyme or reason, committed suicide and it could not be attributed to any other person including the petitioner. V v'

5. I have heard the learned senior counsel Mr. Arun Bhardwaj and Shr. Rakesh Tikku who advanced his arguments on different dates for the grant of anticipatory bail to the present petitioner and I have also heard the learned APP.

6. The main contention of the learned senior counsel for the petitioner is that despite the fact that the death of the deceased has taken place in less than seven years from the date of her marriage, it could not be assumed to be a case of dowry death on account of the fact that it was a love marriage and that there is ample prima facie evidence that no member of the family of the deceased had participated in the marriage and had not given dowry and consequently there was no action for on the part of the petitioner/ mother-in-law and the" husband of the deceased subjected to cruelty with a view to demand dowry. It was stated that as a matter of fact, the deceased was having a feeling that her husband was carrying an affair with a girl named Neha who was -7' working in his office and that they were talking to each other on the telephone frequently and this resulted in upsetting the deceased because of which she has taken her own life. In order to buttress this contention, the petitioner has placed on record, the call details of the telephone belong to Abhishek Jain/husband and the said girl Neha apart from the text of SMS messages that were exchanged between the two. Both the call details and the SMS a messages were sought to be relied as sufficient to be prima facie show that the deceased was having a lingering doubt about her husband having an affair which is the actual reason because of which she took her life.

7. The learned senior counsel for the petitioner has very heavily relied upon recent thfe judgment of the Apex Court wherein it was observed that bail should be the rule and the jail an exception because denial results in violation of rights to Article 21 of the Constitution. Further, it is observed that in the case of a lady it is an imperative under the proviso of Section 437 unless and until there is a serious reason to believe that she has committed an offence punishable with death or life imprisonment such an order depriving her of the grant of anticipatory bail may not be done.

8. As against this, the learned APP has taken the Court through the averments made in the FIR as well as the statement recorded under Section 161 Cr.P.C. before the learned SDM wherein definite allegations have been made of subjecting the deceased to demand of dowry and the consequent cruelty. It has been contended by the learned APP that merely because the marriage was solemnized without the participation of the family members of the deceased orthat it was a love marriage does not in itself show that a woman could not be subjected to cruelty with a view to demand dowry. It has been urged that as armatter of fact as the death was taken place in less than seven years from the date of her marriage, there is a statutory presumption against the petitioner and her husband that it is a case of dowry death and thereby the onus shifts on to the petitioner and her son to show that it is not a case of homicide but a case of suicide. The learned APP has also contended that so far as the call details are concerned, between the son of the petitioner and the girl Neha it was also investigated. So far as the messages are concerned, which have been filed by the petitioner herein Court they too will be analysed along with the messages which have been demanded by the I.O. from the service provider of the office of Abhishek Jain, the son of the petitioner. It has been stated that at this point of time, in view of the nature of allegations and the gravity of the offence, it will not be conducive to grant the anticipatory bail to the petitioner as it may seriously impede a fair investigation. The learned counsel has also placed reliance on the judgment of Samunder Singh Vs. State of Rajasthan AIR (1987) SC 737.

9. I have carefully considered the respective submissions of the parties and have also gone through the record.

10. There are definite allegations made by the mother of the deceased against the present petitioner and her son Abhishek Jain that her daughter who had no doubt contracted the love marriage without the consent of her parents yet she was subjected to demands of \A r dowry after the marriage. A definite allegation has been levlled that a demand for transfer of property in the name of the husband of the deceased which actually belonged to the mother of the deceased/complainant was also made. At this hat point of time when the case is at a crucial stage of the investigation, the allegations levelled against the petitioner cannot be said as false. So far as the contention of the learned counsel for the petitioner that suicide was committed by the deceased on account of the fact ^ that she was carrying an impression that her husband Abhishek Jain was having an affair with the girl named Neha is concerned there may be some grain of truth in the same but the call details which have been placed on record shows that invariably these calls have been exchanged between Abhishek Jain and the girl Neha during the day time except once or twice which had taken place at a time which was questionable. Even the SMS messages which have been placed on record by the petitioner also it cannot be said conclusively at this point of time that it was because of the feeling which the deceased harbouring that her husband was having an illicit relation with the girl Neha which could have resulted in instigating her to take her own life. This aspect needs to be investigated though there may be some probability in actuating the same by creating a matrimonial discord.

11. Be that as it may, keeping in view the enormity of allegations and ".V, B the gravity, the total sentence which the offence under Section 304-B IPG carried and the fact that the investigation is at the crucial stage, I feel that it will not be conducive to grant the benefit of anticipatory bail to the petitioner, notwithstanding the fact that she is a woman and is only having one kidney. The judgment which has been relied upon by the petitioner does not lay down the general proposition that in every case of Section 304 B IPG a person must be granted anticipatory bail, all it laid down is that while passing a bail order the Gourt has to bear in mind the personal liberty of the petitioner is being put to restrictions and certainly in case the facts of a case so warrant the fetters have to be put to the personal liberty of a person. Thus for the foregoing reasons, I am of the considered opinion that it is not a fit case where the petitioner is grant anticipatory bail. Accordingly, the bail application is dismissed. X V V.K. SHALI,J JUNE 03,2011 KP