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Bimla Devi Agarwal & Ors vs Unknown on 6 March, 2019

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31 06.03.2019 C.R.M. 1948 of 2019
Aloke Court 28
In Re: An application for anticipatory bail under Section 438 of the Code
of Criminal Procedure filed on 15.02.2019 in connection with Mallarpur
P.S. Case No.29 of 2019 dated 30.01.2019 under Sections
498A/406/323/325/354/354(C)/376/511/506/34 of the Indian Penal
Code read with Sections 3 and 4 of the Dowry Prohibition Act.

And

In the matter of: Bimla Devi Agarwal Ors.

…Petitioners
Mr. Sekhar Kr. Basu, Sr, Adv,
Mr. Sourav Chatterjee
Mr. Rohan Ojha
Mr. Souvik Bera
… for the petitioners
Mr. Avishek Sinha
… for the State
Mr. Ayan Bhattacharya
Allowed Mr. Kunal Ganguly
… for the de facto complainant

Petitioners being the in-laws of the de facto complainant are

before us praying for pre-arrest bail. It has been contended on behalf of

the petitioners that there is a matrimonial dispute between the parties

and number of proceedings are pending inter se. It is submitted that the

instant case is a counter blast to an earlier matrimonial suit instituted

against the de facto complainant by her husband. It is alleged there is

delay in lodging the first information report. The allegations of ill-

treatment and torture are generic and an afterthought to add criminal

profile to the dispute. It is also contended that pursuant to an interim

order passed by this Court on 18.02.2019 the petitioners had sought to

render assistance to the investigation of the case, but they were ill-

treated and humiliated. Supplementary affidavit in support of such

contention is placed on record.

Learned counsel for the State submits report and hotly disputes

the contention of the petitioners that they cooperated with investigation.

On the other hand, it is contended separate bank lockers were opened by

the husband and father-in-laws of the de facto complainant behind the

back of the investigating agency to hide ‘streedhan’ articles. It is also

contended that the allegations against the petitioners are serious and

prayer for pre-arrest bail ought not to be allowed.
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Learned counsel for the de facto complainant submits that

‘streedhan’ had not been recovered and the petitioners had subjected her

to torture and humiliation.

We have considered the rival submissions made on behalf of the

parties. By our earlier order dated 18.02.2019 in CRM 1948 of 2019 we

directed the accused persons to cooperate with the investigation

including recovery of ‘streedhan’, if any. Supplementary affidavit filed by

the petitioners disclose the manner in which they sought to extend their

cooperation but were humiliated. This is however, denied and disputed

by the investigating agency who claim that bank lockers were opened by

the accused persons behind their back to surreptitiously remove

‘streedhan’ articles.

In view of such claims and counter claims relating to non-

cooperation of the petitioners during investigation, we queried the

investigating agency with regard to exercise of statutory powers of search

and seizure under Sections 93 read with Section 162/165 of the Cr.P.C.

We were informed that the residence of the petitioners have already been

searched but no articles belonging to the de facto complainant was

recovered therefrom. Bank lockers opened by the petitioners have also

been sealed.

In the backdrop of the aforesaid steps taken by the investigating

agency particularly the sealing of bank lockers, we are of the opinion the

possibility of removal of ‘streedhan’ articles, if any, from the said lockers

have been effectively dealt with. Coming to the allegations in the first

information report including the statement of the de facto complainant

recorded under Section 164 Cr.P.C. we note that the allegations are

general and omnibus in nature. While the husband suspected fidelity of

his wife, the latter had levelled allegations with regard to misbehaviour

on the part of her father-in-law. We, however, note no contemporaneous

complaint was lodged with regard to the alleged incident.

It appears that a matrimonial suit was filed by the petitioners

and thereafter the instant criminal case has been registered. Allegations

and counter allegations are the subject matter of investigation in the
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present proceeding and, therefore, we choose not to make any comment

with regard to the truthfulness such allegations which may be

adjudicated at the appropriate stage of the proceeding. However, in the

fats and circumstances of the case and in the light of the fact that the

bank lockers have already been sealed, we are of the opinion though

custodial interrogation of the petitioners may not be necessary, it is

essential that they are subjected to strict conditions to ensure their

cooperation and to preempt them from intimidating witnesses or causing

dis-appearance of evidence.

Accordingly, we direct that in the event of arrest, the petitioners

shall be released on bail upon furnishing bond of Rs.10,000/-(Rupees

Ten Thousand only) each with two sureties of like amount each, to the

satisfaction of the arresting officer and also be subject to the conditions

as laid down under Section 438(2) of the Code of Criminal Procedure,

1973 and they shall appear before the court below and pray for regular

bail within a fortnight from date.

The application for anticipatory bail is, accordingly, allowed.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal

formalities.

(Manojit Mandal, J.) (Joymalya Bagchi, J.)

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