Ashok Kumar vs State of Punjab

M.L. Singhal, J.—This is Crl. Misc. petition field under section 438 of the Code of Criminal Procedure by the petitioner (Ashok Kumar) whereby he has prayed for the grant of anticipatory bail to him in case FIR No. 128 dated 16.7.97 registered under sections 406/498A/506 of the Indian Penal Code at PS City Abohar.

Facts :

Smt. Suman (wife) was married to Ashok Kumar on 29.7.95 at Abohar. A sum of about Rs. 3 lacs was spent on her marriage by her, her parents and brothers. It may be mentioned here that she is M.A. B.Ed. and at the relevant time, she was a teacher in some school at Abohar and thus earning. Accordingly to her, number of articles were given in dowry. Some articles of dowry were meant to be used by her exclusively which were not handed over to her after she had reached the matrimonial home at Karnal. Articles namely one silken suit, one suit of mahroon colour, silk saree, etc. were entrusted to her motherinlaw Smt. Savitri Devi. One suit of white colour etc. were entrusted to Ashok Kumar. One suit of peach colour etc. were entrusted to Ashok Kumar''s daughter Meenakshi from the previous marriage. Four gold bangles weighing 5 tolas were entrusted to Smt. Savitri. Similarly one Matar Mala was entrusted to Smt. Savitri. Three Karas of gold weighing 4 tolas were entrusted to Meenakshi. One ring made of gold was entrusted to the accused Ashok Kumar. One gold chain weighing one tola was entrusted to Ashok Kumar. In the FIR, details of the dowry given and entrusted to each of the accused have been given. According to Smt. Suman, she was taken to Chandigarh after marriage and not to Karnal where Ashok Kumar was residing. She was kept in the house of her sisterinlaw Smt. Usha and her husband M.L. Behl. Articles of dowry were retained by Smt. Usha and her husband at Chandigarh. Smt. Savitri accused remained with her daughter at Chandigarh for a few days with view to misappropriate articles of dowry. No article of dowry was handed over to her. Ashok Kumar was a divorcee. She and her parents became persuaded to marry her to Ashok Kumar as he had shown a copy of divorce petition decided in his favour by a court at Panipat and assured them that there was no appeal pending and further she would be kept in the materimonal home as wife. After 10 days of marriage, Ashok Kumar confessed before her that his marriage with her had been induced through fraud committed upon her by him. She was married to Ashok kumar on 23.4.95 when limitation for filing appeal against the divorce decree had not expired. Appeal by the first wife was listed on 11.5.95 in FAO No. 74M of 1995 when operation of the judgment was stayed. Notice of motion was issued for 3.8.95. On 3.8.95, Ashok Kumar appeared and filed an affidavit before this court that he had got married on 23.4.95. Vide order dated 3.8.95, a D.B. of this court observed that Ashok Kumar had acted with undue haste and the counsel for the previous wife stated that the affidavit filed by Ashok Kumar was false and that in fact no marriage had taken place. Smt. Suman has stated in FIR that the petitionerAshok Kumar is a cheat. He had married her fraudulently with a view to earn dowry.

In this criminal miscellaneous petition, learned counsel for the petitioner has submitted that whatever articles of dowry, as mentioned in Annexure P4, given in marriage that had been produced at the Police Station and beyond those articles, there is no article said to have been entrusted to them. It has been further submitted by the learned counsel for the petitioner that Smt. Suman was 38 years old at the time of marriage and Ashok Kumar petitioner was still older 45 years old and it was his second marriage and he has a grown up daughter from his previous wife. In these circumstances, demand of dowry was not possible.

Vide order dated 10.10.97, S.S. Sudhalkar, J. had allowed adinterim anticipatory bail to the petitioner. In that order, it had been indicated that it would be open to the investigating officer to ask for the petitioner''s police remand if it was thought fit that police remand was feasible by the investigating officer and the Magistrate would decide such request if made on merits. No such request appears to have been made by the investigating officer to the Magistrate concerned.

It has been submitted by the learned counsel for the petitioner that whatever articles of dowry belonging to Smt. Suman and entrusted to them, have been taken into possession by the police and there are no more articles of dowry with them. It is not a case for the recovery of the articles of dowry, assuming, that it is a case for the recovery of the articles of dowry as well, declining anticipatory bail to the petitioner will not serve any purpose. Police have not asked for his police remand. If anticipatory bail is declined, he will be sent to judicial custody. His remaining in judicial custody will not serve any purpose so far as investigation is concerned. Whether Smt. Suman had been duped into marriage with the petitioner during the subsistence of the previous marriage of the petitioner with the daughter of one J.N. Bhandari is a question that can be adverted to only in investigation/trial. There are two versions. Smt. Suman says that she was married on 29.7.95 to Ashok Kumar while Ashok Kumar says that he was married to her on 23.4.1995 when the divorce decree had not been appealed against and limitation for filing the appeal had expired. Smt. Suman says that Ashok Kumar had to say that he was married on 23.4.1995 and not on 29.7.1995 so that he has not to face contempt of this court. As there is huge difference between the articles of dowry which had been given to the accused as per Smt. Suman visavis the articles of dowry alleged to have been given as per Ashok Kumar, it is difficult to say which of these versions is correct. Similarly as to whether she was married on 23.4.1995 or 29.7.1995, that is also a question of fact to be adverted to during investigation trial.

In the fitness of things, it is deemed proper to allow anticipatory bail to the petitioner. Declining bail will not serve any purpose when the police is in no mood to ask for his police remand.

It is ordered that in the event of arrest, the petitioner will be released on bail with personal bond of Rs. 15,000/ together with surety bond in the said amount.