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HC (Delhi):Brilliant Judge Dhingra Used Physics in under Sections 498A/304B/302/34 Bail

November 26, 2011 1 comment

 

IN THE HIGH COURT OF DELHI AT NEW DELHI
http://courtnic.nic.in/dhcorder/dhcqryd … 58&yr=2010

Bail Application No.1104 of 2010

Ram Babu
….Petitioner
Through: Mr. C.M. Verma and Mr. A.K. Gupta, Advocates

versus

State (NCT of Delhi) …..Respondents
Through: Mr. Pawan Sharma, Additional Standing Counsel for State

CORAM:
JUSTICE SHIV NARAYAN DHINGRA

O R D E R
17.06.2010

This petition under Section 439 Cr.P.C has been made by the petitioner/
accused for bail in a case FIR No.954 of 2007 under Sections 498A/304B/302/34
IPC.

The earlier bail application of the petitioner was dismissed on 2nd
February, 2010. This is a fresh bail application after examination of one
witness i.e. the doctor who recorded dying declaration. The first dying
declaration was made by the deceased in presence of the doctor and her brother
wherein she made no allegations about involvement of accused or any other person
in burning her. The deceased stated that while cooking meal in the morning, she
got burnt due to leakage of gas. However, in the later statement made before the
SDM, she stated that her father-in-law and mother-in-law put her on fire.
The prosecution was asked about the investigation done so far on the fact
as to how the father-in-law and mother-in-law put her on fire with the help of
cooking gas since there was no kerosene stove. To this query, prosecution relied
upon the disclosre statement of the accused/petitioner wherein it is stated that
the gas pipe of the cylinder was taken off and the pipe was pointed towards the
deceased and the deceased was set on fire. This disclosure statement per se is
inadmissible under law as nothing was recovered in pursuant of the disclosure
statement made by the accused. The gas cylinder pipe and the other articles were
already lying in the kitchen in burnt condition.

Thus, this disclosure statement cannot be the basis of the story put forth by the prosecution. Even otherwise, if the pipe of a gas cylinder is removed from the gas stove, then the gas stored in the cylinder is free to come out of the pipe without regulating
knob attached to the stove. The gas is stored in gas cylinder in liquefied form
under high pressure and the moment the gas comes out of the cylinder where it is
in liquefied form under high pressure, into atmosphere, it is bound to expand
and spread all around. Any person holding a gas pipe if tries to lit a match
stick, the gas will catch fire instantly and spread in the entire room and the
person trying to burn other will have to burn himself too. He can save himself
only if he is protected by fire resistant clothes. It is not the case of the
prosecution that any other person got burnt in this incident of burning of the
deceased because of cooking gas.

It is submitted by the learned APP for State that the Court should not
appreciate the evidence at this stage while granting bail and CFSL expert was
yet to be examined. He also submits that if a gas pipe attached with the gas
cylinder is aimed at a person then that person only will get burnt. I consider
that this argument must fail. A person holding the pipe cannot control either
the flow of gas or spreading of gas into the area where gas pipe is opened.

As per laws of physics, the gas coming from high pressure to atmospheric pressure
or low pressure area will expand immediately and it will spread into the entire
area and it cannot be aimed like a water or kerosene oil stream and the person
lighting match stick will have to burn himself also. This theory of burning by
gas pipe, therefore, must be discarded.

The examination of CFSL expert is to prove the report. The report given
by CFSL expert is that there was no traces of kerosene, petrol or diesel in the
clothes sent to the CFSL. This does not help the prosecution in any manner and I
am sure that any expert having knowledge of science would also discard the
theory put forth by the prosecution that the gas pipe can be aimed towards one
particular person and he alone can be burnt, saving other person present in the
room.

In view of this fact, coupled with the fact that the first dying
declaration made by the deceased that she made no allegations that she was burnt
by the accused, I consider that the accused is entitled for grant of bail. The
petitioner/accused be released on bail on his furnishing personal bond in the
sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the
Court concerned.

The observations made hereinabove are prima facie observations and shall
not affect the merits of the case.

Dasti under the signatures of Court Master.

(SHIV NARAYAN DHINGRA)
Vacation Judge
June 17, 2010
rd

Mother of all Anticipatory bail judgements

November 25, 2011 Leave a comment

Recently Supreme Court has given judgement on 02 Dec 2010 in the case of Satlingappa Mhetre Versus State of Maharashtra and Others.

In this judgement court has reversed every other SC judgement which says that Anticipatory Bail shall be granted for limited duration only, and many similar points which are crucial for Anticipatory Bail order.

Please refer the following link.
http://indiankanoon.org/doc/1108032/

I am sure this can help a lot in securing Anticipatory Bail.

Anticipatory Bail GRANTED—FIR highly imaginative

November 25, 2011 Leave a comment

 

26.07.2005
Present: Mr.Narender Hudda for the petitioner.
Mr.M.N.Dudeja for the State.
Bail Application No.1638/2005
*
1. Ramnish Behl was married to Sarika on 26.6.2004 Withdrawing from her matrimonial house, Sarika lodged a complaint with the police pursuant whereto FIR No.515/05 P.S. Lajpat Nagar under Sections 498A/406/34 IPC stands registered. Needless to state, as would be evident from the sections attracted, there are allegations of dowry harassment, physical and mental abuse.
2. On enquiry from the counsel for the State, whether there was any material to
substantiate the allegations in the FIR, counsel for the State very fairly concedes that apart from the version of the complainant, no material was available to corroborate what the complainant had stated.
3. On an earlier occasion, I had opined that matrimonial offences being committed, if at
all, within the walls of the matrimonial house, not much independent evidence would be
forthcoming on record. I had opined that to decide on bail, probabilised truth in the complaint would have to be gathered from the complaint itself.
4. Truth has an uncanny habit of surfacing. Somewhere between the lines of a complaint,oasis of truth can be found.
5. When I look to the complaint, I find that Sarika writes that her husband is a cunning
and a cruel person. On the very first night, he gave her a beating. I find it a little odd. Man’sdesire for the opposite sex would over power the brute in him at least on the first wedding night. She then states that they went for honeymoon to Patni Top, a hill station. He gave her beating. She proceeds further to state that her motherin-law and father-in-law, who are Government employees, want that her husband should beat her. They treat her like a servant. She states in the complaint that while sitting on the toilet seat, whenever in need of a cigarette and light, he calls her.
6. I find it a little odd that a person answering the call of nature while sitting on the toilet seat would not put the latch and would call his wife to hand him over cigarette and lighter.
7. She states in the complaint that her husband is very unhygienic person and does not
even brush his teeth for as long as six months. She writes that her husband is a cheater, a jack of all and master of none. She states that her husband isa fraud. He sees blue films. She further states that he had sex with one Manisha to whom Rs.150/-was given. In the language of the complainant, I reproduce what she writes :
G€˜G€˜I paid Rs.150/- to Manisha who stays in Trilok Puri for sex.G€™G€˜
8. She further states in the complaint that her husband told her that one Juli would come to his house. She would open her blouse where his name was written with blood.
9. I find the complaint to be highly imaginative. The nature of the complaint probabilises exaggerated version.
10. There is no reference to the dowry articles in the complaint. No particulars of dowry have been given. The complaint is full of character assassination of the husband and his family.
11. Petition is allowed. In the event of arrest, on petitioner furnishing a personal bond in the sum of Rs.5,000/- with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail in FIR No.515/
2005 P.S. Lajpat Nagar.
12. It would be a condition of the present order that the petitioner would join the
investigation as and when required.
13. Needless to state that the anticipatory bail granted would be co-terminus with the
decision on the application for regular bail, if any,required to be filed by the petitioner, should a challan be presented against the petitioner.
14. Dasti.
July 26, 2005 PRADEEP NANDRAJOG, J.

I think this is hight of speaking lie by a lady looks like inspired by some D-grade film story

Guidelines and directions to social NGOs, police, lawyers and courts in 498a and 406 matters in order to salvage and save the institution of marriage – Delhi HC

November 24, 2011 Leave a comment

Guidelines and directions to social NGOs, police, lawyers and courts in 498a and 406 matters in order to salvage and save the institution of marriage – Delhi HC

 

1. Social workers/NGO

There is no iota of doubt that most of the complaints are filed in the

heat of the moment over trifling fights and ego clashes. It is also a matter of

common knowledge that in their tussle and ongoing hostility the hapless children

are the worst victims. Before a wife moves to file a complaint with the Women

Cell, a lot of persuasion and conciliation is required.

(a) The Delhi Legal Service Authority, National Commission for Women, NGO?s and

social worker?s working for upliftment of women should set up a desk in crime

against women cell to provide them with conciliation services, so that before

the State machinery is set in motion, the matter is amicably settled at that

very stage. But, if ultimately even after efforts put by the social workers

reconciliation seems not possible then the matter should be undertaken by the

police officials of Crime against Women cell and there also, serious efforts

should be made to settle the matter amicably.

 

2. Police Authorities:

(a) Pursuant to directions given by the Apex Court, the Commissioner of Police,

Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest

in the dowry cases registered under Sections 498-A/406 IPC and the said

guidelines should be followed by the Delhi Police strictly and scrupulously.

(i) No case under Section 498-A/406 IPC should be registered without the prior

approval of DCP/Addl. DCP.

(ii) Arrest of main accused should be made only after thorough investigation has

been conducted and with the prior approval of the ACP/DCP.

(iii) Arrest of the collateral accused such as father-in-law, mother-in-law,

brother-in-law or sister-in-law etc should only be made after prior approval of

DCP on file.

(b) Police should also depute a well trained and a well behaved staff in all the

crime against women cells especially the lady officers, all well equipped with

the abilities of perseverance, persuasion, patience and forbearance.

(c) FIR in such cases should not be registered in a routine manner.

(d) The endeavor of the Police should be to scrutinize complaints very carefully

and then register FIR.

(e) The FIR should be registered only against those persons against whom there

are strong allegations of causing any kind of physical or mental cruelty as well

as breach of trust.

(f) All possible efforts should be made, before recommending registration of any

FIR, for reconciliation and in case it is found that there is no possibility of

settlement, then necessary steps in the first instance be taken to ensure return

of stridhan and dowry articles etc. by the accused party to the complainant.

 

3. Lawyers:

Lawyers also have a great responsibility in this regard.

(a) While drafting pleadings/complaints, the lawyers should not unnecessarily

suggest incorporation of wild allegations, or in character assassination of any

of the parties or their family members whatever the case may be.

(b) Lawyers are also to endeavour to bring about amicable settlement between the

parties as they are expected to discharge sacred duty as social engineers in

such cases instead of making them target for monetary considerations by

multiplying their cases.

 

4. Courts:

Subordinate courts, be it trying civil or criminal cases concerning bail,

maintenance, custody, divorce or other related matters shall in the first

instance, in every case where it is possible so to do consistently with the

nature and circumstances of the case, to make every endeavour to bring about

reconciliation between the parties.

a) The first endeavor should be for possible reunion and restitution of the

parties and as a last endeavor to bring about peaceful separation.

b) If possible extra time should be devoted to such matters to restore peace in

the lives of rival parties be it by re-uniting them or even in case of their

parting ways.

c) Conciliatory proceedings by the court should preferably be held in camera to

avoid embarrassment.

d) Wherever, the courts are overburdened with the work, necessary assistance of

Mediation and Conciliation cells should be sought.

Apart from above directions it would not be out of place to ask parties

also to themselves adopt a conciliatory approach without intervention of any

outside agency and unless there are very compelling reasons, steps for launching

prosecution against any spouse or his/her in-laws be not initiated just in a

huff, anger, desperation or frustration.

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