Anil Gera vs State on 4 December, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on: 17th November, 2017
Order pronounced on: 4th December, 2017

+ BAIL APPLN. 428/2017
ANIL GERA ….Petitioner
Through: Mr. Prashant Sharma, Mr. Kartik Khanna
Advocates.
Versus

STATE …..Respondent

Through: Mr. Mukesh Kumar, APP for the State
with W/ASI Parvati, P.S. Subhash Place
Mr. B.S. Rana, Mr. Satyam Sisodia and
Mr. Manish Awasthi Advocates for
Complainant.

+ BAIL APPLN. 429/2017
AKHIL GERA ….Petitioner

Through: Mr. Prashant Sharma, Mr. Kartik Khanna
Advocates.

Versus

STATE …..Respondent
Through: Mr. Mukesh Kumar, APP for the State

with W/ASI Parvati, P.S. Subhash Place
Mr. B.S. Rana, Mr. Satyam Sisodia and
Mr. Manish Awasthi Advocates for
Complainant.

CORAM:

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

1. By way of the present petition filed under Section 438 of the Code
of Criminal Procedure (hereinafter referred ‘Cr.P.C.’), the petitioner
seeks grant of Anticipatory Bail in FIR No. 35/2017 under

BAIL APPLN. 428/2017 429/2017 Page 1 of 7
Sections 498A/406/354/377/34 of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC’) registered at Police Station
Subhash Place, New Delhi.

2. The brief facts of the case are that after getting married to
Mr. Akhil Gera on 22.11.2015, the complainant was subjected to
mental torture by the petitioners for bringing insufficient dowry
and substandard articles. After returning from her honeymoon in
Australia, she was repeatedly asked to bring more cash, a Rolex
watch, plot, jewellery etc from her father. At the time of marriage,
the complainant was pursuing her architecture course from Pearl
Academy, Naraina, New Delhi and was assured that there would be
no objection in her study post marriage. However, the petitioners
refused to pay the college fees of Rs. 5.25 Lakhs which was
eventually paid by the father of the complainant. The complainant
also states that she was subjected to un-natural sex without her
consent by her husband and that her father in law, Mr. Anil Gera
tortured her physically, sexually and mentally.

3. Mr. Prashant Sharma, learned counsel for the petitioners contended
that the prosecution’s story is a concocted story which arose due to
the friendship of the complainant with Archit Kawatra, wherein
they chatted till late nights and he visited their house when the
complainant was alone at home, to which the petitioner had
objections; that Section 377 and 354 IPC is an afterthought and an
advancement to the F.I.R. which were registered when the family
of the petitioner declined to bow down to unreasonable demands of
money by the father of the complainant.

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4. The Counsel for the petitioner further submitted that the petitioners
live in a well knit family with their permanent residence in Delhi
due to which their chances of fleeing from the hands of justice are
negated and thus Anticipatory Bail be granted.

5. Per Contra, Mr. Mukesh Kumar, learned APP for the State
vehemently opposed the bail application and submitted the that the
petitioner is not liable to be granted Anticipatory Bail as he has
been actively involved in the commission of a serious offence
which is cognizable and non-bailable.

6. I have heard the learned counsel for the parties at length and
perused the material on record.

7. Section 498A of the Indian Penal Code, 1860 lays down the legal
provisions regarding Husband or relative of husband of a woman
subjecting her to cruelty:-

“Whoever, being the husband or the relative of
the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment
for a term which may extend to three years and
shall also be liable to fine.

Explanation.-For the purposes of this section,
“cruelty” means-

(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical)
of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security or

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is on account of failure by her or any person
related to her to meet such demand.”

8. The explanation to above section includes cruelty as any willful
conduct on the part of the husband or relative of husband of a
woman, which is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental
or physical) of the woman. It is settled by a catena of decisions that
mental cruelty can cause even more serious injury than the physical
harm and create in the mind of the injured appellant such
apprehension as is contemplated in the section. To amount to
cruelty, there must be such willful treatment of the party which
caused suffering in body or mind either as an actual fact or by way
of apprehension in such a manner as to render the continued living
together of spouses harmful or injurious having regard to the
circumstances of the case. The cruelty may be mental or physical,
intentional or unintentional. In such cases, the cruelty will be
established if the conduct itself is proved or admitted.

9. The statement of the Complainant recorded under Section 161
Cr.P.C has fully corroborated with her statement recorded under
Section 164 Cr.P.C. wherein she deposed as under :-

“When I was asleep in my room my father in law
entered my room and tried to outrage my modesty
and when I tried to raise my voice, he threatened me
of dire consequences and asked me to keep mum and
not tell anything about it to anyone especially to my
parents. When my father in law was sure that I had
not disclosed anything, he started coming inside my
room regularly at odd hours and tried to molest me.

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My father in law used to call me to the kitchen in the
garb of making food and tried to hold my hand and
molest me. He tried to be physically close to me in
public in the garb of showing affection to which I
was never comfortable but kept silent because of my
family and society.”

10. The statement made by the complainant under Section 161 Cr.P.C.

further finds support from her statement recorded under Section
164 Cr.P.C which reads as under:-

“From the very next day of marriage, I was
subjected to mental torture by my husband and in
laws in connivance with each other on account of
bringing insufficient dowry and substandard
articles. Even after coming back from Australia, I
was repeatedly asked to bring more cash from my
father as my in laws were in dire need of money for
their personal expenses ad repayment of loans. After
a few days of marriage, Akhil Gera took my phone
and removed the SIM Card from the handset and
kept the same with him. When I asked him the
reason for the same, no satisfactory reply was given
to me. On 18th May, 2016 at around 10P.M. my
father in law barged into my room and took away all
the jewelry from me.”

11. Reference may be made to the judgement of the Apex Court in
Bhadresh Bipinbhai Sheth v. State Of Gujrat reported in
(2016) 1 SCC wherein the principles for grant or refusal of
anticipatory bail have been laid down, which are reproduced here
as under:-

“(x) We shall also reproduce para 112 of the judgment
wherein the Court delineated the following factors
and parameters that need to be taken into
consideration while dealing with anticipatory bail:

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(a) The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;

(b) The antecedents of the applicant including the fact
as to whether the accused has previously undergone
imprisonment on conviction by a court in respect of
any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat
similar or other offences;

(e) Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her;

(f) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people;

(g) The courts must evaluate the entire available
material against the accused very carefully. The court
must also clearly comprehend the exact role of the
accused in the case. The cases in which the accused is
implicated with the help of and 149 of the Penal
Code, 1860 the court should consider with even
greater care and caution, because over implication in
the cases is a matter of common knowledge and
concern;

(h) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between
two factors, namely, no prejudice should be caused to
free, fair and full investigation, and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;

(i) The Court should consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt as

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to the genuineness of the prosecution, in the normal
course of events, the accused in entitled to an order of
bail.”

12. From the perusal of the material on record and relying upon the
principles laid down by the Apex Court, the allegations against the
petitioners and gravity of the alleged offence, this Court does not
deem it fit to grant discretionary relief of Anticipatory bail to the
petitioner.

13. Accordingly, the petition for Anticipatory Bail stands dismissed.

14. Before parting with above order, it is made clear that anything
observed in the present petition shall not have any bearing on the
merits of the case during trial.

SANGITA DHINGRA SEHGAL, J.

DECEMBER 4, 2017

/gr//

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