SHYAM SUNDER KATHPAL Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the parties, on an application under Section 438 Cr.P.C.

(2.) The brief facts are that Smt. Meena Kumari lodged a written report to S.P. Alwar on 28.9.2001 with the averments that the she was married to Sanjay Kumar on 2.12.2000. Prior to her marriage, one advertisement at the instance of Shyam Sunder was published in Hindustan Times dated 13.8.2000, according to which Sanjay Kumar was unmarried. This fact was further reiterated by her in-laws. Sanjay Kumar, his father Subhash Chandra, mother Kanchan Devi, sister-in-law Smt. Divya, Smt. Kamla mother of Divya, his uncle S.P. Pawa, uncle-in-law Om Prakash and friend Shyam Sunder were present when they came to see her. Even after marriage, Sanjay Kumar was shown as unmarried earlier in application for registration of the marriage with complainant Meena Kumari. This fact that Sanjay Kumar was earlier married came to knowledge on 26.5.2001, when, her husband and in-laws left for Bankok and her sister-in-law Smt. Divya filed a suit for permanent injunction against her and in that suit also Sanjay Kumar was earlier shown as unmarried while lateron by way of amendment it was added in the plaint that Sanjay Kuamr was divorcee. Thereafter, a notice was sent to Smt. Divya and Shyam Sunder for disclosing the particulars of earlier marriage but no response was received. It is also averred that all 'stridhan' given to her by her parents at the time of marriage was taken by her in-laws and after marriage they demanded dowry for Rs. 5 lacs and started harassing and beating her. Thereafter on 30.12.2000, she was sent with her brother to her parents house and her 'stridhan'; was not delivered to her inspite of the demand.

(3.) A Criminal Case under Sections 498A, 406, 420 and 506 I.P.C. was registered. Challan has not been filed so far. Learned counsel for the accused Shyam Sunder argued that this accused happens to be tenant of other accused persons and other accused persons except Smt. Divya are residing in Bankok, therefore, the name of Shyam Sunder was given in the advertisement only for contact purposes and as a matter of fact this advertisement was not given by Shyam Sunder. It was next argued that Sanjay Kumar has not been shown as bachelor or unmarried in this advertisement and even according to the prosecution the marriage took place on 2.12.2000 while the advertisement relates back to 13.8.2000 and this advertisement was sent to Hindustan Times by father of Sanjay Kumar. It was next argued that offence under Section 420 I.P.C. is not made out because it is not a case of the prosecution that the accused dishonestly included Smt. Meena Kumari or her father to deliver any property and at the most offence under Section 417 I.P.C. can be made out which is non-cognizable as well as bailable and even if the offence is cheating by personation is taken to be made out as provided under Section 419 I.P.C., the same is also bailable. It was also argued that this accused Shyam Sunder has been accused of only offence under Section 420 I.P.C. and for other offences, this accused has no concern. According to the learned senior counsel Shri Bajwa the real dispute arose when Smt. Divya filed a suit for restraining the complainant not to enter in the house. Reliance has been placed upon G.V. Rao v. L.H.V. Prasad and others (AIR 2000 SC 2474), Chandraswami and another v. Central Bureau of Investigation (AIR 1997 SC 2575) and Gurbaksh Singh Sibbia etc. v. The State of Punjab, (AIR 1980) SC 1632). Opposing this application, it was argued by learned Public Prosecutor and learned counsel for the complainant that accused Shyam Sunder took active part in this marriage from beginning to end and he was also present in the first marriage of Sanjay Kumar and this fact was concealed by him as the advertisement was issued at his instance. The statement of Prem Kumar, father of the girl recorded under Section 161 Cr.P.C. was referred in support of this contention. It was also argued that warrant of arrest has already been issued against this accused under Section 24 of the Police Act, therefore, anticipatory bail application is not maintainable. Reliance has been placed upon Bhoja Singh alias Bhoj Singh and others v. State of Rajasthan, (2001(1) WLC (Rajasthan) 669) 2001, Cr.L.R. (Rajasthan) 1 and Pankaj v. State of Rajasthan R.L.R. 1996(2) 303. It was also argued that the husband of Smt. Meena Kumari and his parents are in Bangkok in view of these facts and circumstances, it is not a fit case for anticipatory bail. Replying the arguments, learned Senior Counsel Mr. Bajwa contended that no challan has been filed so far and warrant of arrest was issued only under Section 24 of the Police Act and, therefore, the judgments cited by learned Public prosecutor are not applicable and he has placed reliance upon an order of this Court passed in S.B. Cr. Misc. Bail Application No. 4280, Guru Charan Singh and others v. The State of Rajasthan, decided on 12.10.2001.