$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 14.01.2020

+ BAIL APPLN. 911/2019 CRL.M.(BAIL) 657/2019 CRL.M.A.
34196/2019 40070/2019

PRASHANT GUPTA ….. Petitioner
Through Mr.Mohit Gupta, Adv. with
Mr.Sidhant Nath, Mr.Divij Soni,
Mr.Shiven Khurana Mr.Sarvesh
Rai, Advs. with petitioner in person.

versus

STATE OF NCT OF DELHI ANR ….. Respondents
Through Mr. Hirein Sharma, APP for State.
SI Manoj Kumar PS Sarita Vihar.
Ms.Shilpa Sharma, Adv. with
Mr.Narender Singh, Adv. for R-2
with R-2 in person.

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T (ORAL)

1. The present petition is filed under section 438 of Cr.P.C. to grant

anticipatory bail to the petitioner in pursuance to FIR No.423/2018

registered at Police Station Sarita Vihar for the offences punishable under

sections 498A/406/34 of the IPC.

2. For the aforesaid relief, the petitioner moved three applications before

Bail Appln.911/2019 Page 1 of 8
the sessions court and the same were dismissed vide orders dated

24.01.2019, 12.03.2019 and 02.04.2019.

3. The case of the prosecution is that the petitioner and the complainant

were working in the same company based in Faridabad (Haryana) from

2012. In the year 2015, they came close to each other and became good

friends and finally they got married on 26.11.2016. After one year, certain

disputes arose between the petitioner and the complainant. The parents of

the petitioner made sarcastic remarks about the dowry items/stridhan given

in the marriage. The petitioner insulted the complainant, slapped her and

twisted her arms. Consequently, the complainant was mentally and

physically harassed by the petitioner and his parents. The petitioner had

filed a divorce petition before the family Court in the year 2018. Thereafter,

the complainant had filed a complaint by alleging certain allegations against

the petitioner and his parents before the Police Station Sarita Vihar, New

Delhi, which culminated into an FIR bearing No. 423/2018 dated

31.12.2018.

4. Counsel for the petitioner submits that the petitioner had already

joined the investigation on various dates i.e. on 31.01.2019, 13.03.2019,

23.03.2019 and 28.03.2019. The divorce petition is pending between the

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petitioner and the complainant since August 2018, and present FIR, which

was registered against the petitioner on 31.12.2018, is nothing but a counter

blast of the divorce petition to pressurise the petitioner and to create undue

pressure on whole family of the petitioner. The petitioner is working as

Civil Engineer in a company in Gurugram, Haryana. He is the only bread

earner of his old parents since his parents are living in Kota, Rajasthan and

petitioner is living in Gurugram, Haryana. Petitioner has already paid

Rs.6,60,000/- to the complainant. The arrest of the petitioner would destroy

his social status and he will lose his job also. He will join further

investigation as and when called by the IO.

5. In addition to above, the complainant had been using ATM credit card

of petitioner for the purchase of household items before filing the complaint.

Learned counsel further submits that as per allegations, the amount

transferred in the account of the petitioner is nothing but to share in the

household. Therefore, there was no demand from the petitioner for his

family and the said amount was paid by the complainant out of her own

wish, therefore, the present petition deserves to be allowed.

6. This Court has no hesitation to mention here that in the case of 498-

A/406 IPC, in majority of the cases, this court has granted anticipatory bail

Bail Appln.911/2019 Page 3 of 8
to the accused persons. In the present FIR, anticipatory bail of father and

mother of the petitioner has been dismissed by this court vide order dated

18.01.2019 in Bail Appln. Nos.109/2019 110/2019 by detailed order

which is reproduced as under:

“The petitioners seek anticipatory bail. They are accused
of the cruelties meted out to the complainants i.e. wife
and daughter-in-law of the petitioners respectively. The
latter alleged that approximately Rs. 40 lacs have been
spent on the marriage and many other articles were also
gifted to the petitioners. The petitioner-husband Rajendra
Prasad Gupta has since been absconding. However, the
learned counsel for the petitioners submits that the
husband is not absconding. His anticipatory bail
application is pending adjudication in the Saket Courts.
The learned counsel for the petitioners submits that the
innocent in-laws do not live with the young married
couple and charges against them are false and concocted.
Nevertheless, the petitioner/mother-in-law is ready and
willing to offer an amount of Rs. 5 lacs to prove her bona
fides.

Mr.G.M. Farooqui, the learned Additional Public
Prosecutor strongly opposes the bail on the ground that
the said amount being offered is dishonest because what
has been transferred by the complainant/ daughter-in-law
is about Rs. 11 lacs, by way of banking transactions. He
submits that there were demands of many items,
including, a Honda City car. The said vehicle has been
bought from the monies paid by the complainant and even
now it is in the custody of the husband and otherwise
being used for the benefit of the in-laws. Furthermore, the
complainant has been paying Rs.24,500/- per month for a
rented accommodation since November, 2017. Her
personal belongings valued at Rs. 16,55,000/- are still in

Bail Appln.911/2019 Page 4 of 8
the custody of the petitioners, however, the same have
been denied by them except to the value of Rs. 50,000/ .
He further submits that complicity of the petitioners is
writ large and custodial interrogation of the
petitioner/mother-in-law is necessary to know the
whereabouts of her son/husband of the complainant. The
learned counsel for the petitioners submits that these
allegations are nothing but in retaliation to the petition
filed by her son against the complainant. He also relies
upon the judgment of this Court in Chetan Kapoor
@Vikas vs. State in Bail APPLN. 501/2015 decided on
11.09.2015, to the effect that these proceedings under
section 438 Cr.PC. arc not in the nature of recovery
proceeding.

The Court is of the view that these proceedings can
hardly be considered as recovery proceedings. The
charges against the petitioners are serious in nature.
In view of the above, no case is made out for grant of
anticipatory bail. Accordingly, the petitions are
dismissed.”

7. The fact remains that this court had interacted with petitioner and

respondent no.2 in chamber on 05.09.2019 in the presence of Ms.Nidhi

Singh, Delhi Judicial Officer, who was on training and was attached with

this court. During interaction, petitioner stated that he was in love with

respondent no.2 for one year before marriage and either during that period or

after marriage, they did not have sexual intercourse and whenever he tried to

do so, she always refused and till date, no physical relations between them,

whereas, the respondent no.2 (wife) stated that during their affair and after

Bail Appln.911/2019 Page 5 of 8
marriage, they have had sexual relations and she is capable of doing so. She

further stated that when the petitioner made such allegation that she is not

capable of sexual intercourse, she approached AIIMS on the advice of IO

and got a medical certificate which is in possession of IO of the case.

8. It is pertinent to mention here that on asking the respondent no.2

whether she is interested to stay with the petitioner as wife, she replied in

affirmative, whereas, the petitioner stated that since she is not capable of

sexual intercourse, he cannot continue this relation.

9. Based upon the allegation made by petitioner, this Court directed the

Medical Superintendent of AIIMS to depute one lady gynaecologist to

examine respondent no.2 for the aforesaid purpose and the same direction

was issued to the Medical Superintendent of RML Hospital. Accordingly,

respondent no.2 was directed to appear before the Medical Superintendent of

AIIMS on 07.09.2019 at 10:00 a.m. and at 03:00 p.m. before the Medical

Superintendent of RML Hospital for examination. IO of the case was

directed to collect the report from the concerned Medical Superintendant

and produce the same before the court.

10. On 13.09.2019, matter was taken up and pursuant to order dated

05.09.2019, reports from both the hospitals were received, whereby it is

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reported that respondent no.2/complainant is capable of having sexual

intercourse.

11. On receipt of the report, petitioner agreed to stay with respondent no.2

as husband at the place where respondent no.2 was staying, i.e. E-84, Top

Floor, Sarita Vihar, Delhi. Thereafter, they stayed together for 24 days as

husband and wife.

12. The petitioner is personally present in court today and has admitted

that during stay of 24 days, they had sexual relations. If the petitioner is

admitting that they had sexual intercourse during aforesaid period, then this

court cannot believe that the petitioner and respondent no.2 did not have

sexual relations atleast after marriage. Thus, he has bluffed and misled this

court by making a wrong allegations against respondent no.2.

13. As stated above, in majority of the cases, this Court has granted

anticipatory and regular bail but keeping in view the conduct of the

petitioner, I am not inclined to grant anticipatory bail to the petitioner.

14. Moreover, dowry articles are yet to be recovered from petitioner.

15. The petition is dismissed.

16. It is made clear that the Trial Court shall not get influenced by the

observations made by this court in dealing with the present bail application.

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17. Pending applications stand disposed of.

(SURESH KUMAR KAIT)
JUDGE
JANUARY 14, 2020
ab

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