Small child may be used as an instrument by the complainant to settle scores in matrimonial dispute

Small child may be used as an instrument by the complainant to settle scores in matrimonial dispute

Gaurav Arora Vs State of NCT Delhi

Delhi HC

22/03/2022

BAIL APPLN. 3252/2021

About/from the judgment:

The High Court was dealing with the petition seeking anticipatory bail in case FIR under Section 354 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 at PS Nihal Vihar.

Brief Facts:

The marriage of the applicant/accused with the complainant was solemnized in the year 2009. Out of this wedlock, two children were born. Since beginning, the behaviour of the complainant was not good towards the applicant and her mother. She was pressurizing the applicant to sell the matrimonial home, which was registered in the name of the mother of the applicant. On 23.06.2021, the complainant made a complainant to police that the applicant had kidnapped her son on which applicant was called to the police station where he had stated that he and his son had gone to a shop at the instance of his son. The matter was resolved. The complainant went away with the children after taking her jewellery on 24.06.2021 extending threat that she will drag the applicant and his family members by filing false cases. Thereafter, the complainant lodged a complaint alleging demand of dowry. The applicant attended CAW Cell on each and every date of hearing. The efforts for conciliation made at CAW Cell failed as complainant flatly refused to join the company of the applicant on 10.08.2021. Thereafter the complainant went to police station and she levelled allegation of sexual assault committed by the applicant. The applicant was telephonically called to the police station and the complainant was asked to give a written complaint. The applicant satisfied the queries made by the police officials and had joined the investigation.

Petitioner’s Contention:

Learned counsel for the petitioner submitted that as per the contents of the FIR, the alleged date of offence was 22.06.2021, and there is no valid explanation as to why the complaint was lodged with the police after passage of such a long time. It was further submitted that the petitioner has already joined investigation and no recoveries are to be made from him; statement of the victim has already been recorded under Section 164 Cr.P.C. and there is no apprehension of the petitioner influencing the victim/complainant or other witnesses as the witnesses no longer reside with him and an FIR under Sections 498A/406/34 IPC has already been registered against the petitioner at the instance of the complainant. It was also submitted that the complainant is in the habit of making false allegations against the petitioner as she had mentioned about an ever-teasing case against the petitioner but as per the Status Report filed by the police, no such case was ever registered against the petitioner.

Respondent’s Contention:

Learned Counsel for the respondent submitted that offences are serious in nature and there is every likelihood of the petitioner influencing the witnesses or not cooperating in investigation of the matter and of tampering with the evidence.

HC’s Observations:

After hearing both the sides Court noticed that the alleged incident is dated 22.06.2021, but the FIR was lodged on 14.08.2021 and as per the petitioner, the complainant had left the matrimonial home on 24.06.2021 along with both the children and her belongings and thereafter she had approached the CAW Cell, where the conciliation talks had failed and four days thereafter the present FIR was registered. HC observed that the allegation regarding eve-teasing against the petitioner and regarding misappropriation of gold jewellery made by the complainant against the petitioner have been found to be false as per the Additional Status Report filed by the police.

HC Held:

After evaluating submissions made by both the parties the Court held that “It, prima facie, appears to be a case of matrimonial discord where the small child may be used as an instrument by the complainant to settle scores with the petitioner. The prosecution has failed to point out as to why custodial interrogation of the present petitioner is required as no recoveries are to be made at the instance of the present petitioner, who has otherwise joined the investigation as and when called for by the police officials. In my view, it is prima facie a fit case for grant of anticipatory bail to the petitioner.”

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