Mohinder Kaur Vs. State of
Punjab  INSC 474 (14 March 2008)
Dr. Arijit Pasayat & P.
CRIMINAL APPEAL NO. 490 OF 2008 (Arising out of SLP (Crl.) No. 8213 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge
of the Punjab and Haryana High Court dismissing the petition filed in terms of
Section 438 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.').
3. The appellant had sought for protection in terms of aforesaid provision
in FIR No. 105 dated 15.8.2007 registered at the Police Station Bhogpur,
District Jalandhar. The complainant had alleged that she was married to Ranjit
Singh, son of the appellant on 23.10.2002. The said Ranjeet Singh went abroad
in February, 2002 and came back after about one year. Alleging that the
complainant was harassing her for brining insufficient dowry, the complaint was
lodged in the police station. The appellant filed a petition under Section 438
Cr.P.C. for protection. The High Court observed that ordinarily in such cases
the court is inclined to grant protection against arrest to family members of
husband of the complainant, however the facts of the present case were
different. It was stated that the appellant herself was a retired police
officer who was serving as an inspector of Punjab police.
Her son was residing abroad and she had transferred/bequeathed her property
in favour of her grand son who is born to another son who is settled abroad. No
part of the immovable property has been given to grand daughter born to the
complainant. The High Court, therefore, concluded that the complainant and her
minor daughter were left without any source of livelihood. It was noted that
serious allegations were made against the appellant. The hostile treatment
meted out to the grand daughter speaks loudly that the allegations leveled
carry prima facie substance. After making these observations, the High Court
also accepted the contention that the appellant being a recently retired police
officer, the local police were hob-nobbing with her and the investigations were
not being done properly. The High Court therefore, dismissed the petition. But
at the same time it directed the Senior Superintendent of Police, Jalandhar to
depute a fairly senior police officer to monitor the on-going investigation and
take all lawful measures to interrogate the appellant and recover the dowry
articles. Her passport was also seized and she was not to be permitted to go
abroad without the permission of the Court.
4. Learned counsel for the appellant submitted that the conclusions of the
High Court are clearly without any foundation. The appellant was serving
neither as an inspector nor was she retired recently. She was serving as a
constable and had retired nearly 10 years back i.e. in May, 1999.
Further it is inconceivable that a retired constable who had retired 10
years back would have influence over the police officials to render the
investigation ineffective. It is printed out after death of her husband, she
was inducted as a Constable on compassionate grounds.
5. The direction for recovering dowry articles clearly means as if certain
dowry articles were there. It is therefore submitted that all the directions
6. Learned counsel for the State on the other hand submitted that looking
into the gravity of the accusation order has been passed.
7. As rightly submitted by learned counsel for the appellant the High Court
seems to have completely acted on materials which do not support the
conclusions. By way of illustration, it can be said that the appellant was not
serving as an inspector but was a constable who had retired about a decade
back. Therefore the conclusion of the High Court that she was in a position to
make the investigation ineffective does not have any foundation. The other
directions given like recovery of dowry articles etc. need not have been given
while dealing with an application under Section 438 Cr.P.C. filed by her.
The directions for seizing the appellant's passport also could not have been
given a petition under Section 438 Cr.P.C. filed by her.
8. The directions regarding deputation of a senior police officer to monitor
the investigation and/or recover the dowry articles to seize her passport stand
9. The parameters for exercising of power under Section 438 Cr.P.C. has been
highlighted by this Court in Adri Dharan Das v. State of W.B. (2005(4)SCC 303).
10. Keeping in view the parameters highlighted in Adri Dharan Das's case
(supra), we direct in case the appellant surrenders before the concerned court
and moves for bail the application shall be disposed of expeditiously
preferably on the date it is filed. We make it clear that we have not expressed
any opinion on the acceptability of the prayer for bail to be made in terms of
the aforesaid direction.
11. The appeal is allowed to the aforesaid extent.
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