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33 06.03.2019 C.R.M. 2299 of 2019
Aloke Court 28
In Re : An application for anticipatory bail under Section 438 of the
Code of Criminal Procedure filed on 22.02.2019 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: Rishi Agarwal
…Petitioner
Mr. Sekhar Kr. Basu, Sr, Adv,
Mr. Sourav Chatterjee
Mr. Rohan Ojha
Mr. Souvik Bera
… for the petitioner
Mr. S.S. Imam
Mr. Arabinda Manna
Allowed … for the State
Mr. Ayan Bhattacharya
Mr. Kunal Ganguly
… for the de facto complainant
Petitioner being the husband of the de facto complainant before
us praying for pre-arrest bail. It has been contended on behalf of the
petitioner that there is a matrimonial dispute between the parties and
number of proceedings are pending inter se.
The instant case is a counter blast to an earlier matrimonial
suit pending against the de facto complainant by her husband and it is
alleged that there is delay in lodging the first information report. The
allegations of ill-treatment and torture are generic and afterthought to
add criminal profile. It is also contended that pursuant to an interim
order passed by this Court on 18.02.2019 the petitioner had sought to
render assistance in the course of investigation. However, they were ill-
treated and humiliated. Supplementary affidavit in support of his
contention is placed on record.
Learned counsel for the State submits report and hotly disputes
the contention raised on behalf of the petitioner and it is submitted that
petitioner did not cooperate with the investigation. On the other hand,
separate bank lockers were opened by the husband and father-in-laws
behind the back of the investigating agency. It is also contended that the
allegations against the petitioner 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 petitioner had subjected her
to torture and humiliation.
We have considered the rival submissions made on behalf of the
parties while on the one hand 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 petitioner have narrated the manner and
circumstances in which they sought to extend their cooperation which
were not only rebutted. On the other hand, the investigation agency it is
alleged that petitioner subjected the victim particularly women folk to
unnecessary harassment and humiliation. This however, denied and
disputed by the investigating agency who claimed that bank lockers were
opened during the course of investigation behind their back.
In the faced with such allegations and counter allegations
relating to non-cooperation in the course of investigation we queried the
investigating agency with regard to their generic and plenary powers
under Sections 94 and 102 of the Cr.P.C. we are informed that the
residence of the petitioner in fact have been sealed but no articles
belonging tot he de facto complainant was recovered. Bank lockers
opened by the petitioner have also been sealed.
In the backdrop of the steps taken by the investigating agency
particularly the sealing of the bank lockers, we are of the opinion that
the possibility of mis-appropriation or removal of ‘streedhan’ articles, if
any, in 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 the lady the latter has made allegations with regard
to the misdemeanor on the part of the father-in-law. We however note
that there was no contemporaneous complain lodged with regard to the
alleged incident on 23.11.2018. Although, the de facto complainant
claims that she left the matrimonial home immediately thereafter.
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It appears that a matrimonial suit was filed by the petitioner
and thereafter the instant criminal case has been registered. Allegations
and counter allegations is the subject matter of investigation and the
present proceeding and, therefore, we do not choose to make any
comment with regard to the truthfulness thereof which may be
adjudicated in 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 that
custodial interrogation of the petitioner may not be necessary. It is
essential that he is 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 petitioner
shall be released on bail upon furnishing bond of Rs.10,000/-(Rupees
Ten Thousand only) with two sureties of like amount each, to the
satisfaction of the arresting officer and he shall meet the investigating
officer once in a week until further orders and also be subject to the
conditions as laid down under Section 438(2) of the Code of Criminal
Procedure, 1973 and he 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.)