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SC Judgement: No article return in bail proceedings

CASE NO.:Appeal (crl.) 490 of 2008

PETITIONER:Mohinder Kaur

RESPONDENT:State of Punjab

DATE OF JUDGMENT: 14/03/2008

BENCH:Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:
CRIMINAL APPEAL NO. 490 OF 2008
(Arising out of SLP (Crl.) No. 8213 of 2007)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Punjab and Haryana High Court
dismissing the petition filed in terms of Section 438 of the
Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’).
3. The appellant had sought for protection in terms of
aforesaid provision in FIR No. 105 dated 15.8.2007 registered
at the Police Station Bhogpur, District Jalandhar. The
complainant had alleged that she was married to Ranjit Singh,
son of the appellant on 23.10.2002. The said Ranjeet Singh
went abroad in February, 2002 and came back after about one
year. Alleging that the complainant was harassing her for
brining insufficient dowry, the complaint was lodged in the
police station. The appellant filed a petition under Section 438
Cr.P.C. for protection. The High Court observed that
ordinarily in such cases the court is inclined to grant
protection against arrest to family members of husband of the
complainant, however the facts of the present case were
different. It was stated that the appellant herself was a retired
police officer who was serving as an inspector of Punjab police.
Her son was residing abroad and she had
transferred/bequeathed her property in favour of her grand
son who is born to another son who is settled abroad. No part
of the immovable property has been given to grand daughter
born to the complainant. The High Court, therefore,
concluded that the complainant and her minor daughter were
left without any source of livelihood. It was noted that serious
allegations were made against the appellant. The hostile
treatment meted out to the grand daughter speaks loudly that
the allegations leveled carry prima facie substance. After
making these observations, the High Court also accepted the
contention that the appellant being a recently retired police
officer, the local police were hob-nobbing with her and the
investigations were not being done properly. The High Court
therefore, dismissed the petition. But at the same time it
directed the Senior Superintendent of Police, Jalandhar to
depute a fairly senior police officer to monitor the on-going
investigation and take all lawful measures to interrogate the
appellant and recover the dowry articles. Her passport was
also seized and she was not to be permitted to go abroad
without the permission of the Court.

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4. Learned counsel for the appellant submitted that the
conclusions of the High Court are clearly without any
foundation. The appellant was serving neither as an inspector
nor was she retired recently. She was serving as a constable
and had retired nearly 10 years back i.e. in May, 1999.
Further it is inconceivable that a retired constable who had
retired 10 years back would have influence over the police
officials to render the investigation ineffective. It is printed out
after death of her husband, she was inducted as a Constable
on compassionate grounds.

5. The direction for recovering dowry articles clearly means
as if certain dowry articles were there. It is therefore submitted
that all the directions are insupportable.

6. Learned counsel for the State on the other hand
submitted that looking into the gravity of the accusation order
has been passed.

7. As rightly submitted by learned counsel for the appellant
the High Court seems to have completely acted on materials
which do not support the conclusions. By way of illustration,
it can be said that the appellant was not serving as an
inspector but was a constable who had retired about a decade
back. Therefore the conclusion of the High Court that she was
in a position to make the investigation ineffective does not
have any foundation. The other directions given like recovery
of dowry articles etc. need not have been given while dealing
with an application under Section 438 Cr.P.C. filed by her.
The directions for seizing the appellant’s passport also could
not have been given a petition under Section 438 Cr.P.C. filed
by her.

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8. The directions regarding deputation of a senior police
officer to monitor the investigation and/or recover the dowry
articles to seize her passport stand deleted.

9. The parameters for exercising of power under Section 438
Cr.P.C. has been highlighted by this Court in Adri Dharan Das
v. State of W.B. (2005(4)SCC 303).

10. Keeping in view the parameters highlighted in Adri
Dharan Das’s case (supra), we direct in case the appellant
surrenders before the concerned court and moves for bail the
application shall be disposed of expeditiously preferably on the
date it is filed. We make it clear that we have not expressed
any opinion on the acceptability of the prayer for bail to be
made in terms of the aforesaid direction.

11. The appeal is allowed to the aforesaid extents

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