IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRM-M No.41565 of 2016 (OM)
Date of decision: 5th December, 2018

Bhoomika Saroha
… Petitioner
Versus
State of Haryana another
… Respondents

CORAM: HON’BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. KDS Hooda, Advocate for the petitioner.
Mr. Gaurav Bansal, Asstt. Advocate General, Haryana
for respondent No.1/State.
Mr. Alok Mittal, Advocate for respondent No.2.

FATEH DEEP SINGH, J.

This is a petition by the aid of Section 439(2) Cr.P.C. having

been moved by the petitioner complainant/wife Bhoomika Saroha

through which she has sought cancellation of anticipatory bail granted to

respondent No.2 Rahul Malik, her husband, vide orders dated 11.08.2016

(Annexure P4) in case bearing FIR No.84 dated 14.10.2015 under

Sections 323, 498A, 406, 506, 34 IPC pertaining to Police Station

Women, Sonepat.

The brief grounds that form her assailment are that the police

were biased during the investigation and even upon presentation of report

under Section 173 Cr.P.C. all the accused were directed to appear in the

Court and though all the accused appeared but accused Rahul Malik

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respondent No.2 failed to put in appearance. It is contended that

respondent No.2 is trying to seek exemption from his personal

appearance and it is alleged that the claim of the husband that he is

posted in Kargil under the Indian Army is not substantiated and there is

no question of law and order situation in the region of his posting and

thus, is bent upon misusing the concession of anticipatory bail so granted

to him and thus, seeks its cancellation.

State respondent No.1 filed reply by way of affidavit of

Mukesh Kumar, HPS, Deputy Superintendent of Police, Head Quarter,

Sonipat taking the stand that impartial and searching investigation has

been conducted by the investigating agency on the complaint of the

complainant and report under Section 173 Cr.P.C. has already been filed

in Court for commission of offences under Sections 498A, 406, 506, 323,

34 IPC. It is claimed that the accused No.2 was allowed anticipatory bail

by the Hon’ble High Court vide orders dated 11.08.2016 and he has duly

joined the investigations and has been released on bail. It is further

claimed that it was on the application of the accused because of

exigencies of duty, exemption of personal appearance was allowed by the

Court concerned and denied each and every allegation. It is the stand of

respondent No.1 that the articles recovered during the investigations were

handed over to complainant who has received some of them and denied

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to receive the remaining for her own reasons, and sought dismissal of the

application.

Respondent No.2 took the similar stand by way of

preliminary objections that it was a counterblast to his divorce petition

earlier filed against the complainant wife and that investigation in this

case has already been finalized and report under Section 173 Cr.P.C. has

been filed in Court. On merits, the husband respondent No.2 has denied

the allegations levelled by the wife claiming that neither any demand of

dowry was ever made by the family including respondent No.2 nor any

such article was received in lieu of the marriage and all these allegations

are an outcome of vengeance to seek mental and physical torture of the

in-laws by the complainant, terming each and every allegation to be false

and incorrect and that at no point of time he ever interfered in the

investigations or stifled the trial. It was further contended that on account

of his posting in a sensitive forward area he could not secure leave on

each and every date of hearing and thus, the prayer for seeking exemption

from personal appearance was made.

Heard Mr. KDS Hooda, Advocate for the petitioner;

Mr.Gaurav Bansal, Asstt. Advocate General, Haryana for respondent

No.1/State; Mr. Alok Mittal, Advocate for respondent No.2 and perused

the records.

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The petitioner has filed present petition seeking cancellation

of grant of anticipatory bail to respondent No.2, husband of the

petitioner/complainant. As is there in the own arguments of the two sides,

the husband is an IPS officer, presently posted in Kargil, a sensitive

forward area in the State of Jammu and Kashmir and it is the stand of

respondent No.2 that on account of exigencies of duty he could not

secure leave on each and every date of hearing. The learned counsel for

the petitioner could, by no means convince this Court how or by what act

of respondent No.2, there has been a prejudice caused to the complainant

which has also resulted in miscarriage of justice to her. Purely because

the parties are at loggerheads and cases are pending between them and as

a natural corollary insinuations are bound to be levelled against each

other on one pretext or the other. It is not either pleaded or proved by the

petitioner wife that the absence of respondent No.2 at the trial has

resulted in prolonging the same or there has been any element of coercion

or threat to any of the witnesses or they are not being allowed to appear

and testify. Merely because the husband is an officer in the Indian Police

Force and is posted in the State of Jammu and Kashmir, it is highly

unacceptable that he could have an influence upon the investigations or

trial in Sonipat where the same is pending, especially in the absence of

any tangible evidence or an allegation to the contrary.

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Powers to dispense with personal attendance of the accused

under the provisions of Section 205 and 317 Cr.P.C. are wide enough and

where a Court is satisfied that it is necessary in the interest of justice,

where a person is represented by a pleader, it may dispense with his

attendance and proceed with the inquiry or the trial as the case may be,

and therefore, does not in any manner appears to be an influence upon the

trial. The Hon’ble Supreme Court in ‘Dolat Ram vs. State of Haryana’

1995 (1) SCC 349 considering such an aspect for cancellation of bail of

an accused has held that very cogent and convincing overwhelming

circumstances are necessary and essential for an order directing the

cancellation of bail already granted.

Learned counsel for the petitioner wife could not convince

how there has been any interference by the husband respondent No.2

either in the investigations, trial or is evading his presence to protract the

trial. Respondent No.2 is a gazetted officer of All India Services and

being posted in a sensitive place in the States of Jammu and Kashmir

where the situation of law and order is highly volatile and therefore, the

Court has to strike a balance between his exigencies of duties towards the

Nation as well as in the dispensation of justice. There is nothing

substantial brought to the notice of the Court of any such circumstance

which is not conducive to fair trial to the petitioner. Rather it appears to

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the mind of this Court that this is a mere ploy by the petitioner wife as an

act of overawing respondent No.2 and the Court needs to ensure that it is

not used as a tool to satisfy such a personal element of revenge or

vengeance of a party and plays in the hands of the petitioner. There being

no merit in the present petition, the same stands dismissed.

(FATEH DEEP SINGH)
JUDGE
December 5, 2018
rps
Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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