Delhi High Court: In a case wherein an application was filed by the husband under Section 438 of CrPC for pre-arrest bail, a Single Judge Bench of Amit Mahajan, J. dismissed the bail application and held that the law did not permit even the husband to take the household articles including the jewellery without the consent and knowledge of his wife.
In the present case, the FIR was registered by the complainant (wife) alleging that the household articles were stolen while she was away from her house. The applicant (husband) submitted that he was married to the complainant and the FIR was registered due to matrimonial discord. Further, it was stated that the house from where the articles were alleged to be stolen was taken on rent by the applicant and the complainant had left the house on her own, therefore, the applicant had no other option except to surrender the tenancy of the house and the articles were removed.
The complainant submitted she had gone to her parents’ house 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 and the house was the matrimonial home and therefore, the complainant could not be thrown out of the house like this. It was also mentioned that the household articles included the television, refrigerator, washing machine, laptop, cash, jewellery, etc. Further, it was submitted that the articles were purchased by the complainant on her own and these articles had nothing to do with the suit pending between the parties, which related to stridhan.
Analysis, Law, and Decision
As per the report of Investigating Officer, the landlord stated that the applicant had come to the house and took all the household articles and therefore, the Court opined that the applicant had surrendered the tenancy and removed the articles without informing the complainant and without her consent and knowledge.
The Court held that even though the applicant was the husband of the complainant, the law did not permit even the husband to take the household articles including the jewellery in this manner. Further, the Court held that no one could be allowed to take law in his own hands with the excuse that the parties were litigating and only because a complaint of wife in relation to stridhan was pending, did not mean that the husband could be allowed to surreptitiously throw the wife out of the matrimonial house and take away the articles.
The Court also opined that “the power under Section 438 of CrPC was not to be exercised in a routine manner. The power was to be exercised in case it was felt that an accusation had been made with the object of injuring or humiliating the applicant by having him arrested. Similarly, the order of bail in anticipation of arrest, could not be granted for it to be used as a shield. In the facts of the present case, it could not be said that at this stage that the allegations made were frivolous or had only been made with the object to injure or humiliate the applicant by having him arrested”.
Therefore, the Court dismissed the application as it found no reason to grant pre-arrest bail to the applicant.
[Akshay Dhingra v. State (Govt. Of NCT of Delhi), 2022 SCC OnLine Del 4646, decided on 30-12-2022]
Advocates who appeared in this case :
For the Applicant: Advocate V. Aggarwal;
For the Respondent: APP Priyanka Dalal;
Advocate Rajiv Bajaj.
*Simranjeet Kaur, Editorial Assistant has reported this brief.