A.M. Badar, J.:— This is an application for grant of pre-arrest bail by the husband against whom Crime No. 346 of 2017 is registered at the instance of his father-in-law for offences punishable under Sections 498-A, 376-B, 377, 406, 323, 504, 506 read with Section 34 of the Penal Code, 1860 and under Section 3 and 4 of the Dowry Prohibition Act.
2. The learned Advocate for the applicant/accused has produced on record the copy of the order of the leaned Additional Sessions Judge, Greater Mumbai rejecting the application for anticipatory bail of the applicant passed on 23 November 2017. It is taken on record.
3. Heard the learned Advocate appearing for the applicant/accused. He argued that from 17 December 2015 onwards, the applicant noticed that his wife was talking on cellphone with someone stealthily. On 29/10/2016, he noticed his wife in compromising position with one person named Wasim Khan. Thereafter, from November 2016, wife of the present applicant is not residing with him, but she is residing at her parental house. It is further argued that there were talks in respect of settlement for taking divorce by mutual consent. The learned Advocate further argued that parents of his wife had gifted an apartment to her, but the applicant or his family members never resided in that apartment. They were residing in an apartment as a joint family. The gifted articles are already deposited in the apartment gifted to the wife of the present applicant during the talks of settlement between the parties. However, as the efforts for settlement of the matrimonial dispute failed, the FIR came to be lodged. It is further argued that Ibrahim is an estranged brother of the present applicant and he had never resided in the joint family of the applicant.
4. The learned Additional Public Prosecutor is seeking adjournment in the matter for want of instructions.
5. I heard the learned Advocate appearing for the intervenor/First Informant. By drawing my attention to the Order of the learned Sessions Judge rejecting the application for anticipatory bail moved by the present applicant, he argued that the articles were not deposited, but willingness is shown to return back those articles. He further argued that two cars gifted by the parents of the wife of the present applicant are sold out by the applicant. It is further argued that the applicant/accused modulated his version to suit his convenience by initially stating that his wife has illicit relations with a person named Wasim, but during the course of giving statement to the Investigating Officer, he has stated that she was having relations with four boys. It is further argued that statement of Ibrahim/brother of the present applicant was recorded by the Investigating Officer and he was to give his statement under Section 164 of the Code of Criminal Procedure before the learned Judicial Magistrate First Class. However, with passage of time he has not available. This fact, according to the learned Advocate for the intervenor, points out tampering of evidence by the present applicant. It is further urged that though it is alleged that from 17 December 2015, the applicant was knowing the fact that his wife was talking stealthily with somebody, it is not explained by the applicant as to why he kept mum in the matter since long.
6. I have carefully considered the rival submissions of the parties. The dispute is principally a matrimonial dispute. Even though there are allegations in respect of commission of offences punishable under Section 377, 376-B of the Penal Code, 1860, perusal of the FIR annexed to the Bail Application does not show that there was sexual intercourse by the applicant with his wife during the course of their separation. As the learned Additional Public Prosecutor is seeking adjournment it is not possible to assess whether averment regarding the offence punishable under Section 377 of the Penal Code, 1860 are substantiated by the report of medical examination of the victim or not. Considering the fact that the offence is principally a matrimonial offence and the fact that the applicant and his wife had resided together for a very brief period, I am of the opinion that liberty of the present applicant needs to be protected till the learned Additional Public Prosecutor is heard in the matter and evidence collected by the Investigating Officer is perused by this Court. Even otherwise, the Investigator seems to have interrogated the appellant in the past and the applicant was on interim anticipatory bail for a brief period during pendency of similar application before the Sessions Court. Therefore, the Order:
(i) Until further Orders, in the event of his arrest in Crime No. 346 of 2017, registered with Mahim Police Station, Mumbai for offences punishable under Sections 498-A, 376-B, 377, 406, 323, 504, 506 read with Section 34 of the Penal Code, 1860, the applicant/accused shall be released on bail on his executing P.R. Bond in the sum of 15,000/-, and on furnishing surety in like amount.
(ii) As a condition of this Order, the applicant shall not tamper with the prosecution evidence.
(iii) The applicants/accused shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court or to the Police Officer.
(iv) As a condition of this Order, the Applicant/accused shall attend the concerned Police Station on 4 and 8 December 2017 in between 11.00 a.m. to 1.00 p.m. and he should cooperate the Investigator in investigation of the crime in question.
(v) Stand over to 15 December 2017. To be heard along with Criminal Application No. 677 of 2017