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IN THE HIGH COURT OF DELHI
Amit Mahajan, J.
Akshay Dhingra - Appellant
Versus
State (Govt. of NCT of Delhi) - Respondent
Bail Appln. 3754 of 2022
Decided On : 30-12-2022
Pre-arrest bail under Section 438 is not granted when the accusations are serious and the applicant has acted unlawfully by removing household articles without consent in a marital dispute.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 438 - Indian Penal Code, 1860 - Section 380 - Bail application for pre-arrest bail in theft case - Applicant seeks bail alleging marital discord, court highlights the illegality of removing household articles without consent - Pre-arrest bail denied; the allegations are not frivolous. (Paras 1, 13, 16, 17)
(B) Jurisprudence of bail applications - The court asserts that judicial discretion under Section 438 must be exercised sparingly and only when accusations are made with malicious intent, and that the law does not allow one spouse to unilaterally take household items. (Paras 11, 16, 17)
Facts of the case:
The applicant is the husband of the complainant, who filed an FIR alleging theft of household articles during her absence from their rented home. Tensions stemmed from a marital dispute, with the husband allegedly surrendering tenancy and removing items without informing her.
Findings of Court:
The investigation is in its preliminary stage; the husband’s actions are deemed illegal as no spouse can take household items without mutual consent.
Issues: Key questions include the illegal removal of household articles by the husband and the appropriateness of granting pre-arrest bail under current circumstances.
Ratio Decidendi: The court ruled that the act of one spouse taking household items without consent constitutes a violation of rights, emphasizing that marital disputes do not give precedence to such actions.
Result: Bail application dismissed.
| Table of Content |
|---|
| 1. application for pre-arrest bail in a theft case (Para 1 , 2) |
| 2. arguments regarding matrimonial discord and property ownership (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 3. assessment of evidence and implications of husband’s actions (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 4. denial of pre-arrest bail application (Para 17) |
| 5. clarification on observations made in the order (Para 18) |
JUDGMENT
1. The present application under Section 438 of the Code of Criminal Procedure, 1973 is filed by the applicant seeking pre-arrest bail in FIR No. 826/2022 dated 24.09.2022 under Section 380 of the Indian Penal Code, 1860 registered at police station K.N. Katju Marg, Rohini.
2. The FIR was registered on a complaint made by Mrs. Ashka Kholi alleging that the household articles have been stolen while she was away from her house.
3. Learned counsel for the applicant submits that the applicant is married to the complainant and the FIR was registered due to matrimonial discord.
4. He submits that the parties are litigating and the house from where the articles are alleged to be stolen was taken on rent by the applicant.
5. He submits that the complainant, on her own, had left that house. The applicant was left with no other option but to surrender the tenancy of the house and the articles were removed.
6. Learned counsel for the complainant submits that the complainant has gone to her parents' house for three days and when she returned, the house was found to be locked and the household articles were found to be stolen which led to filing of the complaint.
7. He submits that the parties have been litigating and in order to pressurise the complainant, the applicant surreptitiously, in the absence of complainant, surrendered the flat to the landlord. The house was the matrimonial home and the complainant, in this manner, could not have been thrown out of the house.
8. He submits that prior to the present incident, another complaint was given to the SHO, PS-K.N. Katju Marg, Rohini, against the petitioner and his family members, in relation to the theft of the diamond ring and in relation to physical and mental torture.
9. He further submits that the household articles include the television, refrigerator, washing machine, laptop, cash, jewellery, etc. He submits that the said articles were purchased by the complainant on her own and these articles have nothing to do with the litigation pending between the parties, which relates to istridhan.
10. Learned counsel has also handed over a brief note along with supporting documents to show that the household articles were bought by the complainant. The same is taken on record.
REASONING
11. It is pertinent to note that the FIR was lodged on the report of theft by the complainant on 25.09.2022. At that stage, she had not given the name of suspect and in the column for `details of known/suspect/unknown accused', it was mentioned as `not known'.
12. The Investigating Officer is present in Court. On being asked, informed that the statement of landlord has been recorded who stated that the applicant came to the house and took all the household articles. The statement of witness `Pawan' has also been recorded who admits to have helped the complainant in removing the articles. He had specifically mentioned that a Godrej Fridge, Washing Machine, Mixer Grinder were removed by the applicant with his help.
13. At this stage, it is apparent that the applicant has surrendered the tenancy and has removed the articles without informing the complainant and without her consent and knowledge. Even though the applicant is the husband of the complainant, the law does not permit even the husband to take the household articles including the jewellery in this manner. No person can be allowed to take law in his own hands with an excuse that the parties are litigating. Only because a complaint of wife in relation to istridhan is pending, does not mean that the husband can be allowed to surreptitious
