* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 135/2017
Date of Decision: February 16th, 2017
UDIT RAJ POONIA ..... Petitioner
Through: Mr. Viraj R. Datar, Mr.Bijan Singh,
Mr.Rajtilak Guha Roy and Mr.Jahangir
Ahmed, Advocates.
versus
STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through: Mr.Panna Lal Sharma, Additional Public
Prosecutor for the State with Mr.S.B.K.
Singh, Special Commissioner, Mr.Satish
Golcha, Special Commissioner, Inspector
Manish SHO and ASI Devender Kumar,
Police Station Madhu Vihar, Delhi.
` Mr.Sudhir Nandrajog, Senior Advocate
with Mr.Harsh K. Sharma, Mr.Manish
Tiwari, Ms.Ragini, Ms.Vaibhavi Sharma,
Mr.Rohit Gaur, Mr.Raghav Ghei,
Ms.Mehak Nakra, Mr.Ajay Aroraa,
Mr.Kapil Dutta, Ms.Diksha Lal,
Ms.Surbhi Gupta, Advocates for
Complainant.
CORAM:
HON’BLE MR. JUSTICE P.S.TEJI
P.S. TEJI, J
1. The present application has been filed under Section 438 of
the Code of Criminal Procedure by the petitioner/accused for the
grant of anticipatory bail in FIR No.413/2016, under Sections
498A/406/34 IPC, Police Station Madhu Vihar.
2. The facts emerging from the record are that the complainant
Bail Application No.135/2017 Page 1 of 27
Priyanka Sharma had made a complaint to the police alleging
therein that she got married with accused Udit Raj Puniya on
13.04.2010 according to Hindu rites and ceremonies. In the
marriage, the father of the complainant spent about Rs.75 lakhs
including 100 tolas of gold, a car and other expenses due to
pressure of her in-laws. After four days of marriage, all the
stridhan articles were taken by the father-in-law and other in-laws
of the complainant on the pretext that the same would be kept in
safe custody. It was further alleged that the husband and mother-
in-law of the complainant asked her to bring Rs.2 crores from her
parents for opening a petrol pump. The complainant and her
husband went to Goa where her husband asked her to pay for the
trip. The husband had a discussion with the complainant about
opening a petrol pump for his elder brother. The complainant
became pregnant and one day, she was pushed out of her
matrimonial house. Thereafter, the complainant stayed with her
parents and all the expenses relating to her treatment were borne by
her parents. On 14.02.2011, the complainant was blessed with a
girl child. The in-laws of the complainant were not happy with the
birth of a girl child. Husband of the complainant refused to keep
her and never supported his daughter.
3. Initially, the complaint was made by the complainant to the
Bail Application No.135/2017 Page 2 of 27
Crime Against Women Cell and when the mediation between the
parties failed, the matter was referred for registration of FIR.
4. Arguments advanced by the learned counsel for the
petitioner, learned Additional Public Prosecutor for the State and
learned Senior Counsel for the complainant were heard.
5. Arguments advanced by the learned counsel for the
complainant are that the marriage of the petitioner with the
complainant was a simple marriage in which no demand was made
by the petitioner and his family members. Only few gifts were
given by the relatives and friends of both the parties. At the time
of engagement, father of the complainant gave a cheque of Rs.10
lakhs which was never deposited as the petitioner did not want
anything from the complainant. Even the father of the petitioner
transferred a sum of Rs.9,98,500/- to the bank account of the
complainant as her father wanted to purchase a property. The
complainant used to fight with the petitioner on trivial issues and
she hardly remained with the petitioner for six months. All the
stridhan articles including the car have already been handed over to
the complainant.
6. On the other hand, learned APP for the State opposed the
bail application on the ground that all the stridhan articles have not
been returned to the complainant by her husband and in-laws. A
Bail Application No.135/2017 Page 3 of 27
raid was conducted at the house of the petitioner but he was not
found there and thus he is evading arrest. It is further submitted
that the custodial interrogation of the petitioner is required for the
purpose of investigation as the allegations are serious in nature and
there is strong possibility that he might jump bail.
7. Learned APP for the State has informed that during the
pendency of the instant bail application, a raid was conducted and
some alleged articles were recovered from the persons other than
the accused/applicant.
8. After going through the rival contentions of both the sides,
this Court has gone through various aspects involved in the instant
case.
BAIL IN MATRIMONIAL CASES
9. Article 21 of the Constitution of India reads as under :
“Protection of life and personal liberty.-
No person shall be deprived of his life or
personal liberty except according to
procedure established by law.”
10. The important components of Article 21 are the deprivation
of life, deprivation of personal liberty and the procedure
established by law. The scope of Article 21 demands that the
procedure must not only be established by law but it must be just,
fair and reasonable meaning thereby it shall be in conformity with
Bail Application No.135/2017 Page 4 of 27
justice, fairness and reasonableness. This Article becomes relevant
when a person is arrested and it remains relevant so long he
remains subject to a criminal prosecution which may result into
deprivation of his personal liberty. This Article also retains its
relevance when a person has already become a prisoner.
11. V.R. Krishnaiyer, J. has observed :
“The significance and sweep of Art. 21 make
the deprivation of liberty a matter of grave
concerned and permissible only when the
law authorising it is reasonable, even-
handed and geared to the goals of
community good and State necessity spelt
out in Art. 19. Indeed, the considerations I
have set out as criteria are germane to the
constitutional proposition I have deduced.
Reasonableness postulates intelligent care
and predicates that deprivation of freedom
by refusal of bail is not for punitive purpose
but for the bi-focal interests of justice to the
individual involved and society affected.”
[Gudikanti Narasimhulu and Ors. V.
Public Prosecutor, High Court of Andhra
Pradesh]
12. The procedure adopted in the matrimonial cases is that the
complainant/aggrieved first makes the complaint before the Crime
Against Women Cell where attempts are made to reach to an
amicable settlement. When such an amicable agreement fails
between the parties, the FIR is registered on the recommendation
of the Crime Against Women Cell.
Bail Application No.135/2017 Page 5 of 27
13. The Hon’ble Apex Court in the case of Joginder Kumar vs.
State of UP AIR 1994 SC 1349 has dealt with Article 21 of the
Constitution of India with regard to arrest of an accused. This
judgment was further relied upon in the case of D.K. Basu vs. State
of West Bengal (1997) 1 SCC 216 and guidelines were issued by
the Hon’ble Apex Court, which are reproduced as under :
(i) The police personnel carrying out the arrest and
handling the interrogation of the arrestee should
bear accurate, visible and clear identification and
name tags with their designations. The particulars
of all such police personnel who handle
interrogation of the arrestee should bear accurate,
visible and clear identification and name tags with
their designation. The particular of all such
personnel who handle interrogation of the arrestee
must be recorded in a
register.
(ii) That the police officer carrying out the arrest
shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by at least one
witness, who may be either a member of the family
of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also
be counter signed by the arrestee and shall contain
the time and date of arrest.
(iii) A person who has been arrested or detained and
is being held in custody in a police station or
interrogation centre or other lock up, shall be
entitled to have one friend or relative or other
person known to him or having interest in his
welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the
particular place, unless the attesting witness of the
memo of arrest is himself such a friend or a relative
of the arrestee.
Bail Application No.135/2017 Page 6 of 27
(iv) The time, place of arrest and venue of custody of
an arrestee must be notified by the police where the
next friend or relative of the arrestee lives outside
the district or town through the Legal Aids
Organization in the District and the police station of
the area concerned telegraphically within a period
of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of his
right to have someone informed of his arrest or
detention as soon as he is put under arrest or is
detained.
(vi) An entry must be made in the diary at the place
of detention regarding the arrest of the person
which shall also disclosed the name of the next
friend of the person who has been informed of the
arrest and the names land particulars of the police
officials in whose custody the arrestee is.
(vii) The arrestee should, where he so request, be
also examines at the time of his arrest and major
and minor injuries, if any present on his /her body,
must be recorded at that time. The Inspector Memo’
must be signed both by the arrestee and the police
officer effecting the arrest and its copy provided to
the arrestee.
(viii) The arrestee should be subjected to medical
examination by the trained doctor every 48 hours
during his detention In custody by a doctor on the
panel of approved doctor appointed by Director,
Health Services of the concerned State or Union
Territory, Director, Health Services should prepare
such a panel for all Tehsils and Districts as well.
(ix) Copies of all the documents including the memo
of arrest, referred to above, should be sent to the
Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout theBail Application No.135/2017 Page 7 of 27
interrogation.
(xi) A police control room should be provided at all
district and State headquarters where information
regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should be
displayed on a conspicuous notice board.
14. In view of the increasing incidence of violence and torture in
custody, the Supreme Court of India had laid down the above 11
specific requirements and procedures that the police and other
agencies have to follow for the arrest, detention and interrogation
of any person. The judgment lays down the manner in which a
person can be detained or arrested. The Apex Court laid stress that
transparency of action and accountability are the two possible
safeguards which the Court must insist upon.
15. In compliance of the directions issued by the Hon’ble Apex
Court in the case of Joginder Kumar (supra) and in the case of
D.K. Basu (supra), Delhi Police issued Standing Order
No.330/2008 regarding arrest of an accused. Same is reproduced
as under :
“The Hon’ble Supreme Court of India in the
matter of Joginder Kumar Vs State of UP ( Crl.
WP No. 9 of 1994 ) made the following
observations:-
1. No arrest can be made because it is lawful for
the Police Officer to do so. The existence of the powerBail Application No.135/2017 Page 8 of 27
to arrest is one thing. The justification for the
exercise of it is quite another. The Police Officer must
be able to justify the arrest apart from his power to
do so.
2. No arrest can be made in a routine manner
on a mere allegation of commission of an offence
made against a person……… no arrest should be
made without a reasonable satisfaction reached
after some investigation as to the genuineness and
bona fides of a complaint and a reasonable belief
both as to the person’s complicity and even so as to
the need to effect arrest.
3. A person is not liable to arrest merely on the
suspicion of complicity in an offence. There must be
some reasonable justification in the opinion of the
Officer effecting the arrest that such arrest is
necessary and justified.
The following requirements also prescribed in
the judgement:-
1. An arrested person being held in custody is
entitled, if he so requests to have one friend relative or
other person who is known to him or likely to take an
interest in his welfare told as far as is practicable that
he has been arrested and where is being detained.
2. The Police Officer shall inform the arrested
person when he is brought to the police station of this
right.
3. An entry shall be required to be made in the
Diary as to who was informed of the arrest. These
protections from power must be held to flow from
Articles 21 and 22 (1) and enforced strictly.
The Hon’ble Supreme Court of India in
the case of D.K. Basu Vs. State of West Bengal
issued the following requirements to be followed in
all cases of arrest or detention:-
1. The police personnel carrying out the
arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear
identification and name tags with their
designations. The particulars of all such police
personnel who handle interrogation of the arrestee
must be recorded in a register and the case diary.
2. The police officer carrying out the arrest of
Bail Application No.135/2017 Page 9 of 27
the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested
by at least one witness, who may be either a
member of the family of the arrestee or a
respectable person of the locality from where the
arrest is made. It shall also be counter signed by
the arrestee and shall contain the time and date of
arrest.
3. A person who has been arrested or detained
and is being held in custody in a police station
or interrogation centre or other lock-up, shall be
entitled to have one friend or relative or the
person known to him or having interest in his
welfare being informed, as soon as practicable,
that he has been arrested and is being detained
at the particular place, unless the attesting witness
of the memo of arrest is himself such a friend or a
relative of the arrestee.
4. The time, place of arrest and venue of custody
of an arrestee must be notified by the police where the
next friend or relative of the arrestee lives outside of
the district or town through the Legal Aid
Organization in the District and the police station of
the area concerned telephonically/ telegraphically
within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this
right to have someone informed of his arrest or
detention as soon as he is put under arrest or is
detained.
6. An entry must be made in the diary at the
place of detention regarding the arrest of the person
which shall also disclose the name of the next
friend of the person who has been informed of the
arrest and the names and particulars of the police
officials in whose custody the arrestee is.
7. The arrestee should, where he so requests,
be also examined at the time of his arrest and
major and minor injuries, if any present on his/her
body, must be recorded at that time. The
“Inspection Memo” must be signed both by the
arrestee and the police affecting the arrest
and its copy provided to the arrestee.
8. The arrestee should be subjected to medical
Bail Application No.135/2017 Page 10 of 27
examination by a trained doctor after every 48
hours during his detention is custody by a doctor
on the panel of approved doctors appointed by
Director, Health Services of the concerned State
or Union Territory, Director, Health Services
should prepare such a panel for all Tehsils and
Districts as well.
9. Copies of all the documents including the
memo of arrest, referred to above, should be sent
to the Illaqa Magistrate for his record.
10 The arrestee may be permitted to meet his
lawyer during interrogation, though not through out
the interrogation.
11. A Police control room should be provided at
all district and state headquarters where information
regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should
be displayed on a conspicuous notice board.
The Supreme Court of India also directed
that failure to comply with the said requirements
shall apart from rendering the concerned official
liable for departmental action, also render him
liable to be punished for contempt of Court and
the proceedings for contempt of Court may be
instituted in any High Court of the country, having
territorial jurisdiction over the matter. These
instructions are to be notified at every police station
at a conspicuous place.
The Delhi High Court in Crl. M (M)
3875/2003 in ‘Court On Its Own Motion Vs CBI’
made the following observations/ directions
regarding arrests under section 498A/406 IPC.
The Court observed that Sections 498A/406 IPV
which “are much abused provisions and exploited
by the police and the victims to the level of
absurdity……………….every relative of the husband,
close or distant, old or minor is arrested by the
police…………………unless the allegations are very
serious nature and highest magnitude arrest
should always be avoided”.
In a recent judgement in criminal appeal
Bail Application No.135/2017 Page 11 of 27
Nos. 696/2004, 748/2004, 787/2004 and 749/2004
pronounced on 1.11.2007, the Delhi High Court
observed that “…………. In all these cases in the
name of investigation, except recording statement of
complainant and her few relatives nothing is done by
police. The police does not verify any circumstantial
evidence nor collect any other evidence about the
claims made by the complainant. No evidence about
giving of dowry or resources of the complainant’s
family claiming spending of huge amounts is collected
by the police. This all is resulting into gross misuse
of the provisions of law………….”.
The Hon’ble Mr. Justice Kailash Gambhir,
High Court of Delhi, in Bail Application
No.1627/2008 titled “Chander Bhan Anr. Vs
State” passed, inter-alia, the following guide lines
to be strictly followed by the police authorities:-
“(A) (i) No case under Section 498-A/406 IPC
should be Registered without the prior
approval of DCP/Addl. DCP.
(ii) Arrest of main accused should be made
only after thorough investigation has been
conducted and with prior approval of the
ACP/DCP.
(iii) Arrest of the collateral accused such as
father-in -law, mother-in-law, brother-in-law
or sister-in-law etc. should only be made after
prior approval of DCP on file.
(B) Police should also depute a well trained and a
well behaved staff in all the crime against women cells
especially the lady officers, all well equipped with the
abilities of perseverance, Persuasion, patience and
forbearance.
(C) FIR in such cases should not be registered in a
routine manner.
(D) The endeavour of the police should be to
scrutinize complaints very carefully and then register
FIR.
(E) The FIR should be registered only against those
persons against whom there are strong allegations of
causing any kind of physical or mental cruelty as well
as breach of trust.
(F) All possible efforts should be made, before
Bail Application No.135/2017 Page 12 of 27
recommending registration of any FIR, for
reconciliation and in case it is found that there is no
possibility of settlement, then necessary steps in the
first instance be taken to ensure return of stridhan and
dowry articles etc. by the accused party to the
complainant.”
16. After the law laid down by the Hon’ble Apex Court with
respect to framing guidelines regarding arrest of an accused and
the consistent view adopted by this Court, amendment in the Code
of Criminal Procedure was made by the Amendment Act of 2009
in Section 41 of the Cr.P.C. It reads :
41.When police may arrest without warrant-
(1)Any police officer may without an order from a
Magistrate and without a warrant, arrest any person,-
(a)who commits, in the presence of a police officer, a
cognizable offence;
(b)against whom a reasonable complaint has been
made, or credible information has been received, or a
reasonable suspicion exists that he has committed a
cognizable offence punishable with imprisonment for
a term which may be less than seven years or which
may extend to seven years whether with or without
fine, if the following conditions are satisfied, namely:-
(i)the police officer has reason to believe on the
basis of such complaint, information, or suspicion
that such person has committed the said offence;
(ii)the police officer is satisfied that such arrest is
necessary,-
(a)to prevent such person from committing any
further offence; or
(b)for proper investigation of the offence; or
Bail Application No.135/2017 Page 13 of 27
(c)to prevent such person from causing the
evidence of the offence to disappear or tampering
with such evidence in any manner; or
(d)to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the
Court or to the police officer; or
(e)as unless such person is arrested, his presence in
the Court whenever required cannot be ensured,and the police officer shall record while making
such arrest, his reasons in writing:
Provided that a police officer shall, in all cases
where the arrest of a person is not required under
the provisions of this sub-section, record the
reasons in writing for not making the arrest.
(ba) against whom credible information has been
received that he has committed a cognizable
offence punishable with imprisonment for a term
which may extend to more than seven years
whether with or without fine or with death sentence
and the police officer has reason to believe on the
basis of that information that such person has
committed the said offence;
(c)who has been proclaimed as an offender either
under this Code or by order of the State
Government; or
(d)in whose possession anything is found which
may reasonably be suspected to be stolen property
and who may reasonably be suspected of having
committed an offence with reference to such thing;
or
(e)who obstructs a police officer while in the
execution of his duty, or who has escaped, orBail Application No.135/2017 Page 14 of 27
attempts to escape, from lawful custody; or
(f)who is reasonable suspected of being a deserter
from any of the Armed Forces of the Union; or
(g)who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists, of his having been concerned in,
any act committed at any place out of India which,
if committed in India, would have been punishable
as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h)who, being a released convict, commits a breach
of any rule made under Sub-Section (5) of section
356; or
(i)for whose arrest any requisition, whether written
or oral, has been received from another police
officer, provided that the requisition specifies the
person to be arrested and the offence or other cause
for which the arrest is to be made and it appears
therefrom that the person might lawfully be
arrested without a warrant by the officer who
issued the requisition.
(2)Subject to the provisions of section 42, no person
concerned in a non-cognizable offence or against
whom a complaint has been made or credible
information has been received or reasonable suspicion
exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.
17. The amendment to Section 41 Cr.P.C. classifies the power of
police to arrest the accused persons involved in offences
punishable with imprisonment up to seven years. As per the
amendment, the Police Officer is empowered to arrest a person in
Bail Application No.135/2017 Page 15 of 27
all cases of cognizable offences only when it is committed in his
presence, in all other situations, if the offence is punishable with
imprisonment less than 7 years, the amendment requires the police
officer to record reasons in writing prior to effecting arrest and the
reasons may be to prevent commission of further crime; for proper
investigation; to prevent the tampering of evidence; to prevent the
accused from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to the police officer; to
ensure the presence of the accused in court.
18. Section 198A of the Cr.P.C. provides for protection to an
accused in matrimonial cases. It reads :
“198A. Prosecution of offences under section 498A
of the Indian Penal Code.- No Court shall take
cognizance of an offence punishable under section
498A of the Indian Penal Code except upon a police
report of facts which constitute such offence or upon a
complaint made by the person aggrieved by the
offence or by her father, mother, brother, sister or by
her father’s or mother’s brother or sister or, with the
leave of the Court, by any other person related to her
by blood, marriage or adoption.”
19. The Delhi Police in order to streamline the investigation and
conclude the same in an expeditious manner, issued certain
directions vide Standing Order No.444/2016. The said Standing
Order was mandated to supersede the previous Standing Order
Bail Application No.135/2017 Page 16 of 27
No.440/2015. The said guidelines which read as under are an
inherent reminder to the police department to carry out
investigations in a swift manner. Standing Order No.444/2016
reads :
STANDING ORDER No.444/2016
INSTRUCTIONS FOR EXPEDITIOUS
INVESTIGATION OF CASES IN DELHI
POLICEINTRODUCTION
The Hon’ble High Court of Delhi in Criminal
M.C. No.2621 of 2012 titled ‘Kanwar Sain Gupta Vs
State’ has observed that investigation of cases are
sometimes not concluded in an expeditious manner.
Moreover, Section 173 Cr.P.C. also provides that
investigation of any case shall be completed without
unnecessary delay and as soon as it is completed the
police shall forward the Final Report to the
Magistrate, empowered to take cognizance. Delhi
Police as a part of the ‘Criminal Justice System’ is
committed to provide speedy justice to enforce the
right to life with dignity guaranteed in Article 21 of
the Constitution of India and implement existing laws
as well as directions of the Hon’ble Courts.
INSTRUCTIONS:
In order to ensure speedy investigation of cases, the
following instructions are issued for meticulous
compliance:
1. The concerned Assistant Commissioner of
Police (ACP), immediately after registration of
FIR, shall issue a check-list containing detailed
instructions including timeline to be followed by
the Investigating Officers during the course of
investigation.
2. The Investigating Officers shall collect the
relevant evidences/ information by summoning
the concerned persons at the earliest under the
provision of section 91/160 Cr.P.C. In case ofBail Application No.135/2017 Page 17 of 27
disobedience of the notice and non-cooperation
by the concerned persons, the Investigating
Officers, after obtaining permission from the
concerned Deputy Commissioner of Police
(DCP), shall take steps for initiation of action
against the defaulters as envisaged in Section
174/175/176/177/179 I.P.C.
3. The Investigating Officers/SHO concerned shall
deposit all the relevant exhibits/documents for
examination with the Forensic Science
Laboratory (FSL) as early as possible, within
07 days from the date of its collection. Further,
in case of biological samples such as blood,
semen, etc., which putrefy/degenerate at a rapid
rate, should be sent on the same day/next day of
collection.
4. While conducting investigation, Section
467/468 of I.P.C. (in cases where it was not
invoked at the time of registration of FIR) shall
be added with the prior permission from the
concerned DCP. The supervisory officers shall
ensure that the addition of sections is justified,
and has not been done for the purpose of
delaying investigation.
5. Exhibits of cases relating to economic offences
(Criminal Breach of Trust, Cheating
Forgery) and other than economic offences
shall be forwarded to FSL after obtaining
permission from the concerned DCP and
concerned ACP, respectively. The concerned
Supervisory Officer shall ensure that the
Investigating Officers/SHOs forward the
essential and relevant material as well as
queries to the FSLs.
6. Any document having finger-prints as well as
signatures of the parties/executors should be
forwarded to the Finger Print Bureau (F.P.B.)
as comparison of finger-prints is an easy, less
time consuming and more authentic process. It
shall be ensured by the supervisory officers that
in all such cases, appropriate legal action
including arrest, chargesheet, etc., is taken on
the basis of finger-print expert’s opinion.
Bail Application No.135/2017 Page 18 of 27
However, if needed, further examination by the
FSL/handwriting expert may also be got
conducted, subsequently and report thereof may
be filed through a supplementary chargesheet.
7. Regular follow-up with the FSLs should be
made by the Investigating Officer/SHO to
provide any other assistant/material required
for examination. In case, the Investigating
Officer is transferred out, the concerned SHO/
Supervisory Officer shall depute a responsible
officer for the same and ensure compliance.
8. If the opinion from FSL is not received within a
reasonable time frame, the Investigating
Officer/SHO shall bring the matter to the notice
of the concerned DCP so that matter can be
taken up with the FSL authorities immediately.
9. On receipt of information from the FSL that the
report is ready, the Investigating Officer/SHO
shall collect the same immediately. It should be
scrutinized promptly and put-up by the
Investigating Officer before the concerned
Supervisory Officer for further action, within 15
days.
10. The FSL opinion shall be expeditiously
submitted in the Court concerned by the
Investigating Officer/SHO through a
chargesheet, after obtaining the requisite
administrative approvals.
11. Co-accused who cannot be traced and arrested
should be declared Proclaimed Offenders and
the case be chargesheeted after completing
investigation.
12. The cases, where sufficient evidence to
chargesheet the case has been collected, will be
forwarded to the Court for trial without delay.
The FSL reports and other evidences collected
subsequently should be filed before the Court
through supplementary chargesheet.
13. The formal investigations in Economic Offences
are necessary but sometimes it is used as a tool
to resolve the primarily civil disputes between
the parties. There may be hairline difference
between a matter of civil nature and casesBail Application No.135/2017 Page 19 of 27
falling under the Criminal Breach of Trust and
Cheating. Therefore, both the parties and their
documents must be examined thoroughly to
arrive at a conclusion as early as possible.
Expeditious investigation is need of the hour but
it should be ensured by the supervisory officers
that no erroneous decision under the garb of
the same is taken. However, in all those cases,
wherein the investigation has established the
commission of criminal offences or otherwise,
appropriate steps be taken for concluding the
investigation and filing the Final Report at the
earliest.
14. The DCP concerned shall ensure that for
improving the quality of investigation, the
workload of an Investigating Officer should not
be excessive.
15. It is a tendency of the accused not to co-operate
in investigation, if he/she gets bail and the
investigation is delay. In all such cases, the
concerned Investigating Officer shall
immediately take steps to move an application
for cancellation of bail.
16. Guidelines/instructions issued by the Hon’ble
Supreme Court of India in the matter of
‘Arnesh Kumar Vs. State another’,
regarding arrest of accused persons be
meticulously complied with by the
Investigating Officers.
As laid down by the Hon’ble Apex
Court, the Investigating Officers shall not
automatically arrest a person but have to
satisfy himself about the necessity of arrest.
Further, in all cases punishable with
imprisonment for a term up-to 7 years, the
decision not to arrest an accused shall be
forwarded to the concerned court within 2
weeks from the date of the institution of the
case. Notice for appearance of an accused
shall also be served within 2 weeks from the
date of institution of the case. The period of 2
weeks can be extended by the DCP concerned
for reasons to be recorded in writing.
Bail Application No.135/2017 Page 20 of 27
17. Investigation of the cases be concluded at the
earliest and it shall be ensured that no undue
benefit is taken by the accused u/s 468 CrPC
(limitation of taking cognizance) u/s 167(5)
CrPC (investigation in summons-cases to be
completed within 6 months from the date of
arrest). The detailed instructions vide Standing
Order No.340/2009, issued in this regard
should be complied with.
18. In case the accused persons are arrested and
are in judicial custody, the Investigating
Officers and ACP shall ensure that
investigation of the case is completed
expeditiously and chargesheets are filed within
60/90 days of arrest, as per the requirements of
Section 167(2)(a) of Cr.P.C.
19. In such cases, the chargesheets should be sent
to the Prosecution Branch well in time as far as
possible within 45 days (in case chargesheet is
to be filed before 60 days of arrest) or 75 days
(in case chargesheet is to be filed before 90
days of arrest). Regular follow-up with the
concerned A.P.P./Prosecution Branch shall be
made by the Investigating Officer to provide
any other assistance required for scrutiny.
20. If the case file is not scrutinized by the
Prosecution Branch within 15 days, the
Investigating Officer shall bring the matter to
the notice of the concerned ACP/DCP so that
matter may be taken up with the Director of
Prosecution, immediately.
21. The ACsP must personally check the
investigation of the cases to ensure that the
same is being promptly and fairly conducted by
the Investigating Officers. The DCP shall also
ensure that investigation is being properly
conducted by the Investigating Officers as well
as monitored by the ACsP. The Investigating
Officer shall endeavour to complete the
investigation within one year.
22. In case investigation of a case relating to
economic offences cannot be completed within
one year, the Investigating Officer/SHO shallBail Application No.135/2017 Page 21 of 27
seek further time for investigation from the
DCP concerned alongwith reasons of delay,
whereas in cases relating to other than
economic offences, the Investigating Officer/
SHO shall seek further time for investigation
from the ACP concerned alongwith reasons of
delay. The concerned Supervisory Officer
(DCP/ACP), shall examine the reason of delay
as well as the case file and after satisfying
himself that sufficient steps are taken by the I.O.
to complete the investigation, shall accord the
same or take necessary corrective steps. In
case there is undue delay in completion of
investigation, the DCP/ACP concerned shall fix
the responsibility of concerned and initiate
appropriate action.
23. Similarly, if the investigation of any case (other
than economic offences) cannot be completed
within two years, the concerned ACP shall seek
further time for investigation from the
concerned Dy. Commissioner of Police (DCP).
The DCP shall then examine the reasons of
delay, reports and case file and shall accord
permission only after satisfying himself that
further investigation is essential and reasonable
steps have been taken by the I.O. and other
supervisory officers to complete the
investigation. In case, there is undue delay in
completing the investigation, then the DCP
shall fix responsibility for delay by concerned
officers and take appropriate action.
24. In the same way, if the investigation of any case
cannot be completed within three years, the
concerned DCP shall seek further time for
investigation from the concerned Joint
Commissioner of Police (Jt. CP). The Jt. CP
shall then examine the reasons of delay, reports
and case file and shall accord permission only
after satisfying himself that further investigation
is essential and reasonable steps have been
taken by the I.O. and other supervisory officers
to complete the investigation. In case there is
undue delay in completing the investigation,Bail Application No.135/2017 Page 22 of 27
then the Jt. CP shall fix responsibility for delay
by concerned officers and take appropriate
action.
25. In case the delay in investigation is noticed at
any of the above stages, a monthly report till
the finalization of the case shall be submitted by
the concerned Asstt. Commissioner of Police to
the Dy. Commissioner of Police with reason of
pendency and steps taken to expedite
investigation during the last month, for onward
transmission/examination by the other
supervisory officers.
Non compliance of these instructions will
be viewed adversely and appropriate
disciplinary action will be initiated against the
concerned officers.
20. As per the guidelines/directions contained in the judgment of
Hon’ble Apex Court in the case of Joginder Kumar (supra) and
D.K. Basu (supra) and the consistent view taken by this Court in
various cases, such directions have been issued to avoid undue
harassment to an accused. Standing orders nos.330/2008 and
444/2016 have been issued by the Delhi Police vide which
directions have been issued to the Investigating Officers not to
unnecessarily harass the accused persons. Every person needs to
be protected from undue harassment and detention for hidden
considerations. The arrest of the main accused in a matrimonial
case could be made only after obtaining permission of the ACP and
the other accused are to be arrested only after obtaining permission
from the DCP. As per the instructions issued, the Investigating
Bail Application No.135/2017 Page 23 of 27
Officers are firstly required to look into whether the alleged articles
are in existence rather than to rush for the arrest of the accused and
as a last resort, in the given circumstances, to arrest the accused
with the prior permission of the concerned ACP/DCP. The
standing orders are mandatory in nature.
21. Certain directions were issued by the Hon’ble Apex Court in
the case of Joginder Kumar (supra) regarding arrest to be made by
the police officers. It has been observed that the police officer
must justify the arrest after arriving at a reasonable satisfaction
after investigation as to the legitimacy of the complaint. The said
judgment has been relied upon in the case of D.K. Basu’s case
(supra) in which guidelines regarding arrest, investigation and
interrogation of an accused have been issued such as manner of
arrest, right of an accused during arrest, investigation and
interrogation, his right to be medically examined and to be
counselled by his lawyer during the period of investigation.
Several precautions have been issued by the Hon’ble Apex Court
after the arrest of an accused by the above said judgments.
22. It is due to issuance of guidelines by the Hon’ble Apex
Court, Standing Order No.330/2008 was issued by the Delhi
Bail Application No.135/2017 Page 24 of 27
Police. This Standing Order was issued in compliance of
directions contained in Joginder Kumar’s case (supra), D.K.
Basu’s case (supra) and other judgments/orders of this Court. It is
after the issuance of Standing Order No.330/2008, the police
officers were directed that no case under Section 498A/406 IPC
should be registered without the approval of DCP/Additional DCP.
It was also directed that the arrest of the main accused or the
husband should be made only with prior approval of the ACP/DCP,
whereas the arrest of the other in-laws of the bride should be made
only after obtaining prior permission of the DCP. Before
according approval for the arrest of the main accused in
matrimonial cases, the ACP needs to see whether there is any case
property which is to be required to be recovered and whether there
is reasonable and justifiable grounds for the arrest of the main
accused for effecting recovery of any such article.
23. This Court is of the considered opinion that in matters of
matrimonial cases, the Investigating Officer is required to first
make out whether any article is to be recovered. In case, he is of
the view that any article is to be recovered then he is to decide
whether the custodial interrogation of any of the accused is
required for the purpose of recovery of article. Without reaching to
Bail Application No.135/2017 Page 25 of 27
the conclusion with regard to recovery of article, whether it is
stridhan article or any other article, the Investigating Officer is not
to arrest the person for the recovery of the same.
24. Similarly, the bail application ought not to be rejected for
settling the scores between the parties.
25. As per the discussion made above, this Court is of the view
that :
*Provision of Section 41 Cr.P.C. and the guidelines issued
vide Standing Order Nos.330/2008 and 444/2016 are
mandatory in nature and must be complied with.
*The DCP/ACP shall ensure that the alleged articles are in
existence and the recovery/seizure could take place without
the arrest. In other words, that arrest is the only mode in
the facts and circumstances to effect the recovery before
granting the sanction to arrest.
*Similarly, the Courts while considering the bail under
Section 437, 438, 439 Cr.P.C. shall refuse the bail in
exceptional circumstances.
*The exceptional circumstances may be assessed by the
Court concerned and the bail application must be decided
expeditiously.
*In matrimonial cases bail is a rule and refusal is an
exception.
26. In view of the above discussion, facts and circumstances of
the case and the parameters laid down above, this Court is of the
considered opinion that the bail should be granted to the applicant
and the instant bail application is allowed. It is hereby ordered that
Bail Application No.135/2017 Page 26 of 27
in the event of arrest of the petitioner/accused, he shall be released
on bail on furnishing the personal bond in the sum of Rs.15,000/-
with one surety in the like amount to the satisfaction of the
arresting officer. The petitioner is directed to join the investigation
as and when required, he shall not tamper with the evidence and
influence the prosecution witnesses. He is further directed not to
leave the country without prior permission of the court concerned.
27. Before parting with the order, this Court would like to place
it on record by way of abundant caution that whatever has been
stated hereinabove in this order has been so said only for the
purpose of disposing of the present petition. Nothing contained in
this order shall be construed as expression of a final opinion on any
of the issues of fact or law arising for decision in the case which
shall naturally have to be done by the Trial Court seized of the
trial.
28. A copy of this order be sent to the Learned District
Sessions Judges of Delhi to circulate it to all the criminal courts of
Delhi.
29. Bail application is disposed of accordingly.
P.S.TEJI, J
FEBRUARY 16, 2017
dd
Bail Application No.135/2017 Page 27 of 27
