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^28l?)(common order)
HIGH COURT OF DELHI
BAIL APPLN.2415/2018
ARSHAD MALIK
Through:
STATE
HIGH COURT OF DELHI
BAIL APPLN.2415/2018
ARSHAD MALIK
Through:
STATE
VERSUS
Through:
BAIL APPLN.2448/2018
ISLAMUDDIN&ORS.
Through:
STATE
ISLAMUDDIN&ORS.
Through:
STATE
VERSUS
Through:
Petitioner Mr.VikasPahwa,Senior Advocate with Mr.Rajpal Kasana,Ms.Shaheen
Sheik,Ms.Aashita Khanna,& Mr. Sumer Singh Boparah,Advocates.
Respondent Mr.Kewal Singh Ahuja,APP forthe State with SI Dinesh Kumar,PS
Jamia Nagar. ..... Petitioners Mr.VikasPahwa,Senior Advocate with Mr.Rajpal Kasana,Ms.Shaheen
Sheik,Ms.Aashita Khanna,& Mr. Sumer Singh Boparah,Advocates.
Respondent Mr.Kewal Singh Ahuja,APP forthe State with SI Dinesh Kumar,PS
Jamia Nagar.
Petitioner Mr.VikasPahwa,Senior Advocate with Mr.Rajpal Kasana,Ms.Shaheen
Sheik,Ms.Aashita Khanna,& Mr. Sumer Singh Boparah,Advocates.
Respondent Mr.Kewal Singh Ahuja,APP forthe State with SI Dinesh Kumar,PS
Jamia Nagar. ..... Petitioners Mr.VikasPahwa,Senior Advocate with Mr.Rajpal Kasana,Ms.Shaheen
Sheik,Ms.Aashita Khanna,& Mr. Sumer Singh Boparah,Advocates.
Respondent Mr.Kewal Singh Ahuja,APP forthe State with SI Dinesh Kumar,PS
Jamia Nagar.
CORAM:
HON'BLE MR.JUSTICE R.K.GAUBA
22.01.2019 Both these bail applications have beenfiled in the contextofon going investigation into first information report (FIR) No.410/2018 of Police
Station Jamia Nagar, the offence under probe being one punishable under
Section 304-B/34 ofIndian Penal Code, 1860 (IPG). The case concerns
2019:DHC:7343 Malik (Bail Application No.2415/2018) is the husband of Sheeba Malik, while petitioners Islamuddin and Firdos(Bail Application No.2448/2018) are father-in-law and mother-in-law ofSheeba Malik. The backgroundfacts and the submissions made in the context of the prayer for grant of anticipatory bail were setout atlength in the first captioned matter by order dated 11,10.2018 which reads thus;- y "Sheeba Malik, the person whose death,presumably by suicide, on 25.08.2018, which is the subject matter of investigation into FIR no. 410/2018 ofpolice station Jamia
Nagar, involving offences allegedly committed, being punishable under Sections 304B/34IPC was statedly married to thepetitioner on 14.11.2016. At her instance earlier an FIR
No. 438/2017 had been registered by police station Jamia
Nagarfor investigation into offences allegedly committed, they being punishable under Sections 498A/406/34 IPC being presently underway. The said FIR had been lodged on
28.06.2017. It is the case ofthe petitioner that Sheeba Malik had left his company three days after the marriage. In the earlier FIR No. 438/2017, it seems to be the case of the deceased thatshe was.abandoned and made to leave the home
^ two or three days after the marriage.
Be that as it may, while the allegations ofSheeba Malik and members of her parentalfamily have been that she was subjected to harassmenton accountofillicitdemands ofdowry andcruelty, itis the case ofthepetitioner thatthe dispute arose on account ofsome revelations aboutprevious intimacy ofthe deceased with another person, material in which regard was received on social media chatfrom an unknown mobilephone on 16.11.2016 i.e. two days after the marriage, such material including certainphotographs ofthe deceased including one in partially nude state. The petitioner states that he had shared such material with the investigating officer of FIR NO. 438/2017, having even handed over his mobile phone
Neither thepetitioner nor the investigating officer ofFIR no. 410/2018from which thepresentapplication arises, nor the counselfor the complainant, who is alsopresent, are aware of the resultofinvestigation intosuch aspects as mentionedabove by the investigatingofficer ofthepreviouscase.
Since theplea tosuch efiecthasa bearingnotonlyon the previous case but also on the case at hand it is essential to ascertain the result ofinvestigation into thesefactsfrom the investigating officer ofthe previous case. The investigating officer ofcaseFIR no. 438/2017ofpolicestation Jamia Nagar shall remain present with the case diary and submit a status reportin its regard on the nextdate.
Belistedon 75'^November,2018.
Meanwhile, there shall be no coercive steps against the petitioner in the case FIR no. 410/2018 ofpolice station Jamia
Nagar, subject to hejoining investigation as and when called upon to do so.
Dasti under thesignatures ofCourtMaster." The second captioned matter was filed subsequently and in view of the above mentioned interim order dated 11.10.2018 similar interim protection was extended to the other two petitioners by order passed on
22.10.2018.
The State has filed status report dated 16.01.2019 in the first captioned matter,which upon perusalindicates thatthere has been no report made with regard to the status ofinvestigation ofFIR No.438/2017,atleast to the extent it was required for consideration ofthe prayer in the present applications.
The learned senior counsel forthe petitioners submitsthathe has filed copy ofthe anticipatory bail application which had been moved bythe first r petitioner Arshad Malik on 27.07.2017in the previous FIR(No.438/2017), he having broughtto the notice ofthe court,as indeed ofthe investigating agency that his defence was that the deceased,(complainant wife) was engaged in extra marital affairs.He having shared the requisite proofin that regard even at that stage, yet no probe worth the name has been made into the genuineness ofthe said material. Rather,it would be Correctto assume atthisstageforpresentpurposesthatthepolice doesnothave anyreasonsto make an attempt to pursue this court to disbelieve the material which has been shared bythefirstpetitionerinsupportofhis application.
Need this coirrt remind the investigating agency that it would be obliged to carry outproperinvestigation in all fairness in the above aspects on both the FIRs.
In view ofthe above facts and circumstances, both the petitions are allowed. Thus, it is directed that in the event of the petitioners being arrested, they shallbereleased on bailbythe arresting officeronfurnishing personal bond in the sum ofRs.20,000/- each with one surety each in the like amount,subjecttothefollowing furtherconditions
(f) The petitioners shall continue cooperating with the investigation andjointhesame asand when called uponto do so;
(ii) The petitioners shall not come in contact with or try to influence any ofthe witnesses connected tothe case;
(iii) Prior to their release,they shall give the telephone numbers of selfand ofat least one other responsible family member besides that ofthe suretyto the investigating officer;
(iv) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts ofthe case so asto dissuade him/her from disclosing such facts to the Court or to any police officer ortamper with the evidence;and
(v) They shall not leave India without the prior permission ofthe court of cognizance orthe trial court,asthe case may be,and to ensure due compliance with this condition and shall deposit their passport(s),if they holds one,with the said court.
This order will inure only till the date of first appearance of the petitioners in the event of a charge-sheet being filed on conclusion ofthe investigation,and process being issued against them by the court of cognizance.
Both the petitions stands disposed ofin above terms.
Dastiunderthe signature ofCourt Master.
GA A,J JANUARY 22,2019 vk BAILAPPLN.2415/2018etc. p^ge5of5
22.01.2019 Both these bail applications have beenfiled in the contextofon going investigation into first information report (FIR) No.410/2018 of Police
Station Jamia Nagar, the offence under probe being one punishable under
Section 304-B/34 ofIndian Penal Code, 1860 (IPG). The case concerns
2019:DHC:7343 Malik (Bail Application No.2415/2018) is the husband of Sheeba Malik, while petitioners Islamuddin and Firdos(Bail Application No.2448/2018) are father-in-law and mother-in-law ofSheeba Malik. The backgroundfacts and the submissions made in the context of the prayer for grant of anticipatory bail were setout atlength in the first captioned matter by order dated 11,10.2018 which reads thus;- y "Sheeba Malik, the person whose death,presumably by suicide, on 25.08.2018, which is the subject matter of investigation into FIR no. 410/2018 ofpolice station Jamia
Nagar, involving offences allegedly committed, being punishable under Sections 304B/34IPC was statedly married to thepetitioner on 14.11.2016. At her instance earlier an FIR
No. 438/2017 had been registered by police station Jamia
Nagarfor investigation into offences allegedly committed, they being punishable under Sections 498A/406/34 IPC being presently underway. The said FIR had been lodged on
28.06.2017. It is the case ofthe petitioner that Sheeba Malik had left his company three days after the marriage. In the earlier FIR No. 438/2017, it seems to be the case of the deceased thatshe was.abandoned and made to leave the home
^ two or three days after the marriage.
Be that as it may, while the allegations ofSheeba Malik and members of her parentalfamily have been that she was subjected to harassmenton accountofillicitdemands ofdowry andcruelty, itis the case ofthepetitioner thatthe dispute arose on account ofsome revelations aboutprevious intimacy ofthe deceased with another person, material in which regard was received on social media chatfrom an unknown mobilephone on 16.11.2016 i.e. two days after the marriage, such material including certainphotographs ofthe deceased including one in partially nude state. The petitioner states that he had shared such material with the investigating officer of FIR NO. 438/2017, having even handed over his mobile phone
Neither thepetitioner nor the investigating officer ofFIR no. 410/2018from which thepresentapplication arises, nor the counselfor the complainant, who is alsopresent, are aware of the resultofinvestigation intosuch aspects as mentionedabove by the investigatingofficer ofthepreviouscase.
Since theplea tosuch efiecthasa bearingnotonlyon the previous case but also on the case at hand it is essential to ascertain the result ofinvestigation into thesefactsfrom the investigating officer ofthe previous case. The investigating officer ofcaseFIR no. 438/2017ofpolicestation Jamia Nagar shall remain present with the case diary and submit a status reportin its regard on the nextdate.
Belistedon 75'^November,2018.
Meanwhile, there shall be no coercive steps against the petitioner in the case FIR no. 410/2018 ofpolice station Jamia
Nagar, subject to hejoining investigation as and when called upon to do so.
Dasti under thesignatures ofCourtMaster." The second captioned matter was filed subsequently and in view of the above mentioned interim order dated 11.10.2018 similar interim protection was extended to the other two petitioners by order passed on
22.10.2018.
The State has filed status report dated 16.01.2019 in the first captioned matter,which upon perusalindicates thatthere has been no report made with regard to the status ofinvestigation ofFIR No.438/2017,atleast to the extent it was required for consideration ofthe prayer in the present applications.
The learned senior counsel forthe petitioners submitsthathe has filed copy ofthe anticipatory bail application which had been moved bythe first r petitioner Arshad Malik on 27.07.2017in the previous FIR(No.438/2017), he having broughtto the notice ofthe court,as indeed ofthe investigating agency that his defence was that the deceased,(complainant wife) was engaged in extra marital affairs.He having shared the requisite proofin that regard even at that stage, yet no probe worth the name has been made into the genuineness ofthe said material. Rather,it would be Correctto assume atthisstageforpresentpurposesthatthepolice doesnothave anyreasonsto make an attempt to pursue this court to disbelieve the material which has been shared bythefirstpetitionerinsupportofhis application.
Need this coirrt remind the investigating agency that it would be obliged to carry outproperinvestigation in all fairness in the above aspects on both the FIRs.
In view ofthe above facts and circumstances, both the petitions are allowed. Thus, it is directed that in the event of the petitioners being arrested, they shallbereleased on bailbythe arresting officeronfurnishing personal bond in the sum ofRs.20,000/- each with one surety each in the like amount,subjecttothefollowing furtherconditions
(f) The petitioners shall continue cooperating with the investigation andjointhesame asand when called uponto do so;
(ii) The petitioners shall not come in contact with or try to influence any ofthe witnesses connected tothe case;
(iii) Prior to their release,they shall give the telephone numbers of selfand ofat least one other responsible family member besides that ofthe suretyto the investigating officer;
(iv) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts ofthe case so asto dissuade him/her from disclosing such facts to the Court or to any police officer ortamper with the evidence;and
(v) They shall not leave India without the prior permission ofthe court of cognizance orthe trial court,asthe case may be,and to ensure due compliance with this condition and shall deposit their passport(s),if they holds one,with the said court.
This order will inure only till the date of first appearance of the petitioners in the event of a charge-sheet being filed on conclusion ofthe investigation,and process being issued against them by the court of cognizance.
Both the petitions stands disposed ofin above terms.
Dastiunderthe signature ofCourt Master.
GA A,J JANUARY 22,2019 vk BAILAPPLN.2415/2018etc. p^ge5of5
JUDGMENT