Balwant Singh & others V. State of Punjab
Balwant Singh & others V. State of Punjab - Complete Judgment from the Digital Library of B&B Associates LLP. - Advocates & Legal Consultants.
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IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

To,

The Addl. Registrar,

High Court, Chandigarh

CRM-M _________________ of 2017

Balwant Singh others …Petitioners

Versus

State of Punjab …Respondent

Sir,

Will you kindly treat the accompanying petition as an urgent one in accordance with the provision of Rule 9, Chapter 3-A, Rules and Order High Court, Volume V.

The grounds of urgency are: prayer for stay has been made.

Place: Chandigarh,

Dated: -09-17

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82 P/2057/15 P/ /2016

Advocates

Counsel for Petitioners

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

Balwant Singh others …Petitioners

Versus

State of Punjab …Respondent

INDEX

Total Court Fee: 29.00

Place: Chandigarh,

Dated: -09-17

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82 P/2057/15 P/ /2016

Advocates

Counsel for Petitioners

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

Balwant Singh others …Petitioners

Versus

State of Punjab …Respondent

COURT FEE

Place: Chandigarh

Dated: 30-08-17

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82 P/2057/15 P/ /2016

Advocates

Counsel for Petitioners

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

MEMO OF PARTIES

Balwant Singh s/o Mahendra Singh, aged about 75 years, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

Nilmani Singh w/o Balwant Singh, aged about 70 years, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

Balbir Singh s/o Balwant Singh, resident of Kumhar Para, Near Ayurvedic Hospital, Jagdalpur, Distt. Bastar, Chhattisgarh.

Kuldeep Kaur w/o Lt. Sh. Bittu Singh, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

Hardeep Kaur w/o Lt. Sher Singh, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

Vikram Singh s/o Lt. Sher Singh, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

Surinder Kaur w/o Raj Rajinder Singh r/o Telibanda, near Marine Drive, Gehind Gurudwara, Raipur, Chattisgarh.

…Petitioners

Versus

State of Punjab …Respondent

Place: Chandigarh

Dated: 28-12-15

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82 P/2057/15 P/ /2016

Advocates

Counsel for Petitioners

Petition under section 482, CrPC for quashing of FIR No. 58, dated 01.12.2016 under section 498A 406, IPC, Police station Women Cell against petitioners.

And

It is further prayed that the trial pending before the court of Ms. Parul JMIC, Mohali may kindly be stayed during the pendency of this case in the interest of justice.

And

Any other order or direction as this Hon’ble Court may deem fit in the facts and circumstances of the case.

Respectfully Showeth: –

That the instant petition is being presented for kind consideration of anticipatory bail to the petitioner who is a law-abiding citizen and falsely implicated in FIR No. 58/2016, u/s 406 498A, IPC, registered on 12.11.2016 at Police Station: Women cell, Mohali, by the complainant, Kiratjot Kaur, alias ‘Jyoti’. The petitioner is accused in FIR and apprehends arrest which is unwarranted and unjustified. The impugned FIR is annexed as Annexure P-1.

That the marriage of the complainant and petitioner was solemnised in 2002 (approx. 15 years ago), and a son was born in 2003. A simplistic non-traditional marriage was solemnized in 2002 where only family members were invited from the petitioner’s side, thus, the traditional concept of marriage Barat and dowry, is missing in the matter. In the afore-mentioned FIR, the petitioner along with seven other family members were falsely implicated as accused u/s 498-A 406, IPC. The petitioner along with all other family members/ accused are permanent residents of Chhattisgarh and the alleged events mentioned in FIR took place in Chhattisgarh.

That a perusal of FIR will dispel all doubts regarding guilt of the petitioner and vindictive nature of the complainant. Three incidents dated 09.08.2016, 10.08.2016 and 22.08.2016, mentioned in FIR are fabricated, highly imaginative and result of an illusionary mind. No iota of evidence like MLR, or any other independent witness has been produced by the complainant to corroborate these incidents, and yet the police has given weight to the hollow and vague statement of the complainant. FIR, in its fundamental perversity, and the generalized allegations therein, make it evident that the following family of the petitioner have been falsely implicated and pulled on broad on the basis of vague and frivolous allegations levelled by the complainant: – Neelmani Singh (mother-in-law), 73 years old, Balwant Singh (father-in-law), 75 years old, Balbir Singh (brother-in law), lives separately, Kuldeep Kaur (sister-in-law), widow, Hardeep Kaur (sister-in-law), widow, living separately, Vikram Singh (nephew), 22 years old, and Surinder Kaur (sister-in-law), lives separately.

That on 27.05.2017, the police went to Chhattisgarh and arrested two most vulnerable family members– Balwant Singh, 75-year-old (father-in-law) and Vikram Singh, 22-year-old son of another accused, Hardeep Kaur (sister in-law). Both the accused had absolutely no connections with the present FIR. All the names of accused were baselessly incorporated in FIR and there was no substantial reason to conduct arrest of any of the member. Yet, to put pressure on the entire family the arrest was conducted. Such grave violation of the constitutional rights of the accused reflects serious bias, malfunction and arbitrariness of police party and invites appropriate action by the concerned administrative and judicial authorities.

That the approach adopted by the police regarding the arrest of 75-year-old (father-in-law), and 21-year-old (nephew), and the manner in which the investigation is being conducted is contrary to the mandate laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, and another recent judgement delivered by Hon’ble Supreme Court Rajesh Kumar vs. State of Uttar Pradesh, Criminal Appeal No. 1265 of 2017. After arrest, both the accused were granted regular bail by the Hon’ble Court of Joshika Sood, JMIC, Mohali on 05.06.2017. All the remaining 5 accused named in FIR were granted the concession of pre-arrest/ anticipatory bail on 16.06.2017. The stereotypical allegations of dowry and its demand are not sufficient to register an FIR, let alone arrest of any. Not a single financial transaction, gold or of any other valuable item, has been placed on record by the complainant to corroborate her vague assertions of dowry and its demand.

That the petitioner had moved an anticipatory bail application before the Hon’ble Court of Ms. Girish, Addl. Sessions Judge, Mohali and impugned order passed on 20.07.2017 is annexed as Annexure P-2. The learned Addl. Sessions Judge overlooked the fact that complainant had failed to produce iota of evidence regarding alleged violence, reason of violence, dowry and its demand. The learned judge ought to have adequately considered peaceful duration of marriage i.e. more than 15 years, petitioner’s possibility of fleeing from justice, age of the child custody. Moreover, no list of dowry items was given to police till the date of arguments of anticipatory bail i.e. 20.07.2017 (FIR registered on 01.12.2016), this is a case where no recovery is to be made out. The learned judge ignored all the above-mentioned facts, medical ailment of the petitioner and passed a stereotypical order dismissing the anticipatory bail of the petitioner.

That during the advancement of the arguments in anticipatory bail, dated 20.07.2017, a fabricated list of dowry items was prepared by the complainant and handed it over to the police. It is important to mention here that in the ordinary course of proceedings, the list of dowry articles is provided to the police before the of registration of FIR. The so-called list prepared by the complainant alleged dowry items including gold, marriage expenditures, and other miscellaneous expenses produced in the court on 20.07.2017, no evidence was supplemented with the list. Her assertions pertaining to dowry items, marriage expenditures, and other miscellaneous expenses are wholly unreliable. The conduct of the complainant speaks volumes about her dubious character, especially in absence of any medical records directly related to her alleged incidents and receipts of dowry articles. The purpose of dowry laws will be frustrated in the absence of any credible evidence pertaining to dowry articles and harassment.

That in order to check miscarriage of justice in cases as such, the Hon’ble Apex Court expressed grave concern in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273, with the relevant part of the judgment reproduced herein: –

“There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.”

That the police in this case should have acted as per the mandate laid down by the Hon’ble Apex Court in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273. The relevant extract of the judgment is reproduced below: –

“We are of the opinion that if the provisions of Section 41, Cr.P.C, which authorizes the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasize that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.P.C for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is 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.”

That considering the rampant abuse of dowry laws in recent years, the Hon’ble Apex Court in the case of Rajesh Sharma vs. State of U.P., Criminal Appeal No. 1265 of 2017, held that: –

“16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable. Just and fair procedure being part of fundamental right to life, interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.

We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.

To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.

Thus, after careful consideration of the whole issue, we consider it fit to give following directions: –

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given suchhonorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.”

That conduct of the police in the present case brings utter setback to the evolution of the criminal justice system. The non-conformity of the police with the Apex Court’s expressed intentions and directions in cases of 498-A, IPC; the plotted implication and arrest of the two most vulnerable innocents throws us back to the primitive age of 498-A laws and the barbaric age of arbitrary police regime. The actual reason for filing FIR by the complainant is well known and recorded in the statements of accused, Balwant Singh and Vikram Singh (police ‘Zimmini’). This FIR depicts travesty of justice based on the facts and circumstances of this case.

That the petitioner is suffering from a medical ailment called Mild Global Cerebral Atrophy. It affects brain of the patient and definition of Mild Global Cerebral Atrophy is reproduced below:

Atrophy of any tissue means a decrement in the size of the cell, which can be due to progressive loss of cytoplasmic proteins. In brain tissue, atrophy describes a loss of neurons and the connections between them. Atrophy can be generalized, which means that all of the brain has shrunk; or it can be focal, affecting only a limited area of the brain and resulting in a decrease of the functions that area of the brain controls.”

The petitioner’s CT scan report and bill of the CT scan, dated 16 September 2016 are attached as Annexures P-3 P-4. He is experiencing from health issues like headache, dizziness, seizures, and unconscious, due to Mild Global Cerebral Atrophy. The government Hospital treatment card of the petitioner dated 16.9.2016 and medical prescription receipt dated 17.12.2016 are annexed as Annexure P-5 (Colly). The treatment card shows admission of the petitioner on 16.09.2016 due to ‘self fall on ground injury over head’, he suffered wound over right forehead 5 cm x 1cm and was shivering at the time of admission. The petitioner was discharged on 17.09.2016.

That the latest treatment report of the hospital dated 04.03.2017 10.04.2017, pertaining to the petitioner is annexed as Annexures P-6 P-7. The bill receipt of the hospital dated 10.04.2017 is annexed as Annexure P-8. The petitioner is physically and mentally incapacitated due to the disease and grant of the anticipatory bail will be in the interest of justice as no recovery is to be made out in this case. The entire treatment history of the petitioner was placed on record before the Hon’ble Court of Ms Girish, Additional Sessions Judge. However, learned Additional judge overlooked the ailment of the petitioner and record produced by the petitioner.

That the petitioner earnestly wishes to participate in the investigation to clarify each and every detail. He shall cooperate with investigation and will not leave the country or the city without permission of the Hon’ble Court, and abide by all the terms and conditions imposed by this Hon’ble Court.

That the petitioner is a law-abiding citizen there is no case against the petitioner except the one camouflage by the complainant and nothing is to be recovered from the petitioner. The custodial interrogation of the petitioner is not required at all. The petitioner has old-age parents to look after and there are no chances of him fleeing the course of justice or tempering with the witnesses.

That petitioner had not filed any other anticipatory bail application or revision or appeal against the impugned orders dated 20.07.2017. That no such or similar petition has been filed by the petitioner before this Hon’ble Court or the Hon’ble Supreme Court of India.

P R A Y E R:

It is, therefore, most respectfully prayed that the petition may kindly be accepted for kind indulgence of the Hon’ble Court and the Hon’ble Court may be pleased to:

Grant anticipatory bail to the petitioner in FIR no. 58 of 2016, u/s 498A 406, IPC, registered on 01.12.2016, pending in the court of Ms. Parul, JMIC, Mohali.

To exempt from filing of the certified copies of the Annexure P- to P- and Annexure P- to P- which are duly readable legible.

Any other relief which the Hon’ble Court may deem fit in fact and circumstances of the case may kindly be granted in favor of the Petitioner.

Place: Chandigarh

Dated: 30-08-17 (Mrs. Savita Bhandari) (Rohit Samhotra)

D-275/82 P-2057/15

Advocates

Counsel for Petitioner

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

Dilip Singh …Petitioner

Versus

State of Punjab …Respondent

Dilip Singh S/o Balwant Singh, aged about 45 years, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh, I, the above-named deponent do hereby solemnly affirm and declare as under: –

That the petitioner/deponent is filing the accompanying Petition u/s 438 of Cr. P.C. for grant of Anticipatory Bail.

That the facts narrated in paras of the accompanying petition, which the deponent has read over, are true and correct to my knowledge. No part of it is false and nothing material has been concealed therein.

That no such or similar petition has earlier been filed by the petitioner/deponent in this Hon’ble Court or in the Hon’ble Supreme Court of India.

Deponent

Verification: Verified that the contents of para no. 1 to 3 of the above affidavit are true and correct to my knowledge. No part of it is false and nothing has been kept concealed. Deponent

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Case No. CRM-M ______________ of 2017

Dilip Singh … Petitioner

VERSUS

State of Punjab …Respondent

KNOW ALL to whom these presents shall come that I/We ……………………………………… do hereby appoint the Advocate(s), of the Punjab & Haryana High Court, Chandigarh, (hereinafter called the Advocate/s) named below to be my/our Advocate(s) and do all or any of the necessary acts, deeds and things are particularly:

To act, appear and plead in the above-mentioned cause in this Court or any other Court in which the same may be tried or heard in first instance or in Appeal or Letters Patent Appeal or Review or Revision or Execution or in any other stage of its progress until its final decision.

To sign, file and present Pleadings, Appeals, Letters Patent Appeals, Cross-objections or leave to appeal to Supreme Court review, revision, withdrawal, compromise or other Petitions or affidavits or other documents as shall be deemed necessary or advisable for the prosecution of the said cause in all its stages.

To with draw or compromise the said cause or submit to arbitration any differences or disputes, that shall arise touching or in any manner relating to the said cause.

To deposit, draw and receive moneys and grant receipts thereof and to do all other acts and things which may be necessary to be done for the progress and in the course of the prosecution of the said cause.

To employ any other Legal Practitioner authorizing him to exercise the powers and authorities hereby conferred upon the Advocate whenever he may think fit to do so.

AND I/We hereby agree to ratify whatever the Advocate/s or his substitute shall do in the premises and in this connection.

AND I/We hereby agree not to hold the Advocate/s or his substitute responsible for the result of the said cause in consequence of his absence from the Court when the said cause is called up for hearing.

AND I/We hereby agree that in the event of the whole or any part of the fee agreed by me/us to be paid to the Advocate/s remaining unpaid, he shall be entitled to withdraw from the prosecution of the said cause until the same is paid.

IN WITNESS WHEREOF, I/We do hereunto set my/our hands to these presents, the contents of which have been explained to and understood by me/us, this the …………………… day of ………201………

(Signature/thumb impression of Client/s)

(Ambransh Bhandari) (Mrs. Savita Bhandari) (Rohit Samhotra)

P-3970/16 D-275/82 P-2057/15

Advocates for petitioner