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IN THE HIGH COURT JUDICATURE AT DELHI HIGH COURT

APPLICATION NO ____/2018

CASE FILED SEEKING WRIT OF CERTIORARI UNDER SECTION 438 OF THE CODE
OF CRIMINAL,PROCEDURE,1973

MR.PAWAN WASON …APPLICANT

VERSUS

STATE OF DELHI …RESPONDANT

MOST RESPECTFULLY SUBMITTED BEFORE THE HON`BLE CHIEF JUSTICE

AND OTHER JUDGES OF HIGH COURT OF JUDICATURE AT DELHI

MEMEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON THE BEHALF OF RESPONDENT (1)

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TABLE OF CONTENTS

S.NO HEADING PAGE NO..

1 LIST OF ABBREVIATIONS 4

2 INDEX OF AUTHORITIES 5

3 STATEMENT OF JURISDICTION 9

4 STATEMENT OF FACTS 11

5 STATEMENT OF ISSUES

5.A ISSUE NO. 1

WHETHER THE HUSBAND AND HIS RELATIVES

ARE GREEDY?

5.B ISSUE NO. 2

WHETHER THE ANTICIPATORY BAIL SHOULD BE

GRANTED TO THE ACCUSED?
ISSUE NO. 3

5.C WHETHER DEMANDING MONEY IS THE ONLY

INTENTION OF GETTING MARRIED? 12

5.D ISSUE NO. 4

WHETHER CRUELTY DONE BY HUSBAND OR

RELATIVES WAS INTENTIONALLY
PERFORMEDTO GET RID FROM HIS WIFE?

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6 SUMMARY OF ARGUEMENT 13

7 WRITTEN SUBMISSION 15

8 PRAYER FOR SUBMISSION 25

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LIST OF ABBREVIATIONS

Abbreviations Actual terms

SC SUPREME COURT

SCC SUPREME COURT CASES

U/S UNDER SECTION

V. VERSUS

Ed.N EDITION

ORS OTHERS

ANR ANOTHER

AIR ALL INDIA REPORTER

I.E THAT IS

IPC INDIAN PENAL CODE

SEC SECTION

HON`BLE HONORABLE

HC HIGH COURT

FIR FIRST INFORMATION REPORT

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INDEX OF AUTHORITIES

A.TABLE OF CASES

SL.NO NAME OF CASES AND CITATION

1 Shobha Rani v. Madhukar, AIR 1988 SC121

2 Prakash Kaur v. Harijinderpal Singh, AIR 1999 Raj 46

3 Adarsh Prakash v. Sarita,AIR 1987 Del 203

4 State of Punjab v. Daljit Singh Cr LJ 2723

5 State v. K. Sridhar, 2000 Cr LJ 328 (Kant)

6 Rishi Kumar v. State of Haryana, Criminal appeal No 335- of 1985

B. TREATIES, BOOKS, REORTS AND DIGEST

SN.NO NAME OF THE TREATIES,BOOKS,REORT AND DIGEST

WITH THE NAME OF THE AUTHOR OR PUBLISHER

1 Family Law Manual, Sumeet Malik 1st Ed`N

2 BARE ACT The Indian Penal Code ,UNIVERSAL Law Publishing

3 ANTICIPATORY BAIL LAW AND PRACTICE By Naryan

Laxmanrao , Asia Law House

4 Supreme Court on Penal Code BY Sudeep Malik

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C. DYNAMIC LINKS

1 https://indiankanoon.org/

2 https://www.lawctopus.com/

4 https://www.manupatrafast.com/

5 https://www.vakilnon.com

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STATEMENT OF JURISDICTION

THE HON`BLE HIGH COURT OF JUDICATURE AT DELHI EXERCISES

JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER UNDER
SECTION 438 OF THE CODE OF CRIMINAL,PROCEDURE,1973

UNDER SECTION 438 0F THE CODE OF CRIMINAL PROCEDURE WHEN ANY

PERSON HAS REASON TO BELIEVE THAT HE MAY BE ARRESTED ON AN
ACCUSATION OF PLAINTIFF COMMITTED A NON-BAILABLE OFFENCE ,THE
HIGH COURT OR THECOURT OF SESSION MAY,IF IT THINKS FIT,DIRECT
THAT IN THE EVENT OF SUCH ARREST,HE SHALL BE RELEASED ON BAIL
AND IN PASSING THAT ORDER ,IT MAY INCLUDE SUCH CONDITIONS
HAVING REGARD TO THE FACTS OF THE PARTICULAR CASE ,AS IT MAY
DEEM APPROPRIATE ,ANTICIPATORY BAIL IS GRANTED IN ANTICIPATION
IN NON-BAILABLE CASES.

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 When any person has reason to believe that he may be arrested on an accusation
of having committed a non- bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section; and that Court may, if it
thinks fit, direct that in the event of such arrest, he shall be released on bail.
 When the High Court or the Court of Session makes a direction under sub-
section it may include such conditions in such directions in the light of the
facts of the particular case, as it may think fit, including-

 a condition that the person shall make himself available for interrogation by a
police officer as and when required;
 a condition that the person 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 any police
officer;
 a condition that the person shall not leave India without the previous permission
of the Court;
 such other condition as may be imposed under sub- section (3) of section 437, as
if the bail were granted under that section.
 If such person is thereafter arrested without warrant by an officer in charge of a
police station on such accusation, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give bail, be shall be released
on bail; and if a Magistrate taking cognizance of such offence decides that a
warrant should issue in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the Court under sub-section
(1).

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STATEMENTS OF FACTS

 Mrs.Neelam Wason aged -23yrs,married to Mr.PawanWason on 23rd May 2016 as per

Hindu Rites and Rituals ,has proceeded with a legal complaint against her husband
and her In-laws.

 An FIR was lodged by the complainant (No.91/18) at Dwarka Police Station against
her husband ,her Father-in-law ,her Mother-in-law and the Aunt-in-law.

 Since the day of the Complainant`s ceremony as the food provided in the ceremony
was deemed insufficient for the relatives of the husband .The complainant has been
repeatedly harassed mentally and physically.

 An expenditure of Rs 3,20,00,000/- and a BMW X6, along with 100 tolas of gold as
`STREEDHAN`

 Further the complainant has been harassed by all four accused because the parents of
the complainant were not able to pay a sum of 70,00,000/-

 Husband of the complainant found out about her alleged affair in April 2017 with one
Mr. Pankaj .

 After amicable settlement between her father and her in-laws, she was taken back to
her matrimonial house on the condition that she would give in writing that she would
not commit suicide.

 In May 2017 ,the accused fed up with her constant threats to commit suicide,filed a
non-cognizable case against the Complainant .

 The complainant submitted that about 4:00.p.m on the very same day, she received a
call from her Brother-in-law; one M r. Manu Anil was on informing her that her
husband has left their house at Palam leaving behind a letter explaining the same.

 Subsequently ,the complainant has filed an FIR on 27th March 2018 at 14.15.hrs for
offences punishable under Sections 498(A), 406, 323, 34, 504, 506 of the IPC,1860

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.
STATEMENTS OF ISSUES

ISSUE NO. 1

WHETHER THE HUSBAND AND HIS RELATIVES ARE GREEDY?

ISSUE NO. 2

WHETHER PROVIDING ANTICIPATORY BAIL TO THE ACCUSED CAN

CAUSE LIFE RISK TO THE RESPONDENT?

ISSUE NO. 3

WHETHER DEMANDING MONEY IS THE ONLY INTENTION OF GETTING

MARRIED?

ISSUE NO. 4

WHETHER CRUELTY DONE BY HUSBAND OR RELATIVES WAS

INTENTIONALLY PERFORMEDTO GET RID FROM HIS WIFE?

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SUMMARY OF ARGUMENT

ISSUE NO. 1

WHETHER THE HUSBAND AND HIS RELATIVES ARE GREEDY?

Having an expenditure of Rs.3,20,00,000/-and getting a BMW X6 ,along with 100 tolas

of goldAfter getting all these things the husband`s family again demands for more
money amount 70,00,000/- this type of behaviour clearly shows the greediness of the
family.

ISSUE NO. 2

WHETHER PROVIDING ANTICIPATORY BAIL TO THE ACCUSED CAN

CAUSE LIFE RISK TO THE RESPONDENT?

Since the day of marriage the complainant has been repeatedly harassed
mentally and physically .she had been coerced to bring in the same amount
failing which she has been physically and mentally harassed by all the four
accused.she had been abused by the applicant who also thratend to kill her on
6th Dec 2017 as she insisted on going to her Niece`s Birthday.

ISSUE NO.3
WHETHER DEMANDING MONEY IS THE ONLY INTENTION OF
GETTING MARRIED?

MONEY IS THE ONLY THING FOR WHICH APPLICANT MARRIED THE

RESPONDENTAS AFTER GIVING RS3,20,00,000, BMWX AND 100X GOLD,
HE AGAIN DEMANDED FOR RS70,00,000. THIS PROVED HE IS GREEDY.

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ISSUE NO. 4

WHETHER CRUELTY DONE BY HUSBAND OR RELATIVES WAS

INTENTIONALLY PERFORMEDTO GET RID FROM HIS WIFE?

After getting money and all the demands got completed the husband and
his family members starts misbehaving with the respondent .Her life becomes
like the life in a prison.

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WRITTEN SUBMISSION

In the present case of Mr. Pawan Wason v. State of DELHI, as is clear from the
FIR filed by the complainant, the complainant had been repeatedly and severely
caused hurt by her husband and her in-laws (the accused). There has been a
gross violation of her physical, mental and moral integrity and domestic violence
has been inflicted against her as per the PWDVA

All the vital conditions of Section 504 have been met with in the instance case as
the Accused clearly abused and tortured the complainant with an intention to
break public peace as any reasonable man would retaliate to such inhuman
treatment in such a manner essentially leading to breach of peace

From the above, it may be safely concluded the allegations made against the
accused are justifiable. The accused has not only committed offences under
Sections 498(A), 406, 323, 34, 504, 506 of the IPC, 1860 but has also infringed the
Fundamental Right to Life and Personal Liberty of the complainant guaranteed
under Article 21 of the Constitution of India and reinforced by the UDHR,

ICCPR and the Declaration on the Elimination of Violence against Women. It is

further submitted that the complainant is eligible for maintenance from her
husband as demanded by her.

 The allegations made against the accused are justifiable.

Section 34:
When a criminal act is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as
if it were done by him alone.

In case of S. 34, it is well established that a common intention presupposes prior

concert. It requires a pre-arranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been done in
furtherance of the common intention of all of them. Accordingly, there must
have been prior meeting of the minds. Several persons can simultaneously attack
a man. Each can have the same intention, that is, intention to kill, and each can
individually inflict a separate fatal blow and yet none would have the common
intention required by the section because there was no prior meeting of the
minds to form a pre-arranged plan.
Therefore S. 34, IPC, would apply even if no charge is framed under that section
provided of course from the evidence it becomes clear that there was pre-
arranged plan to achieve the commonly intended object. Thus where six persons
were charged under ss. 148, 302/149 and 307/149, IPC, but two were acquitted,
the remaining four accused could be convicted on the charges of murder and

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attempt to murder with the aid of S.34 of the Penal Code. This section really
means that if two or more persons intentionally do a thing jointly, it is just as
same as if each of them had done it individually.

Section 323: Whoever, except in the case provided for by section 334, voluntarily
causes hurt, shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to one thousand
rupees, or with both.

When the death is caused by blow on deceased by fist, there being no intention or
knowledge that death would be caused, conviction under Section 323 only is
proper.
The accused, who had a quarrel with his debtor over non-discharge of a loan
pelted brickbats at his house knowing that there were occupants in it, and hurt
one of them who was under medical treatment for ten days, it was held, that the
accused should be convicted under Section 323 and not under Section 326, as the
hurt caused was the natural and probable consequence of his act.

Section 406 – Whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three years,
or with fine, or with both.

To constitute this offence, there must be dishonest misappropriation by a person

in whom confidence is placed as to the custody or management of the property in
respect of which the criminal breach of trust is charged. The ownership or
beneficial interest in the property in respect of which the criminal breach of trust
is alleged to have been committed must be in some person other than the accused
and the latter must hold it on account of some person or in some way for his
benefit.

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As in the present case, the entrustment is apparent and the accused has failed to
account for the property when he is accountable and is not able to offer an
acceptable explanation for the loss, the onus to establish which is upon him, is
further offering a false explanation that the gold ornaments of the complainant
are in her possession, a criminal intention maybe readily inferred. It must be
noted that the said gold articles (of 100 tolas in total) were gifted to the
complainant on her marriage with accused as Streedhan..

Any property or valuable given to a woman at the time of her marriage or

during the marriage ceremony, any property conferred on her by way of a will,
any gift given to her by her parents, siblings and in-laws are all part of the
woman’s property (Streedhan). She is the rightful owner of all such property
and her husband or his relatives have no right over such property. With a view
to avoiding any likely future dispute regarding streedhan property, the Dowry
Prohibition Act, 1961 has provided that the presents made at the time of
marriage should be entered in the list to be maintained in accordance with the
rules made under the Act.

Section 498-A. Husband or relative of husband of a woman subjecting her to

cruelty.-- Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with imprisonment for
a term which may extend to three years and shall also be liable to fine.

Explanation - For the purposes of this section," cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or
is on account of failure by her or any person related to her to meet such demand.

Cruelty to wife: Offence: Provision Prospective –

In another case, husband harassed the deceased for non fulfillment of dowry demand and had even
threatened her with dire consequences. It was held that threat to life was unleased by the accused clearly
amounted to cruelty.

Demand for Dowry –

The accused was found to have harassed the victim and subject her to cruelty in relation to demand for
dowry. It was held that conviction of accused under sec. 498 –A was proper.

Harassment caused to victim was considered cruelty and within the meaning of section 498-A.

The allegations made by a complainant were that she was being harassed for dowry and articles for
dowry were retained by her in-laws after turning her out of the house. Complaint was hence filed at the
place where was residing with her parents. It was held that the accused shall continue committing breach
of trust so long as the accused didn’t return the articles of dowry. Complaint was held to be maintainable.
The instant case is strikingly similar and therefore a complaint under Section 498-A must be held to be
maintainable.

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In an instant case, the husband was proved to be a habitual trouble maker and had developed the habit of
beating up his wife wherein his conviction under section 498-A was held proper.ection 504: Whoever
intentionally insults, and thereby gives provocation to any other person, intending or knowing it to be
likely that such provocation will cause him to break the public peace, or to commit any other offence,
shall be punished with imprisonment of either description for a term which may extend to two years, or
with fine or both.

Section 504: Whoever intentionally insults, and thereby gives provocation to any other
person, intending or knowing it to be likely that such provocation will cause him to
break the public peace, or to commit any other offence, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine or both

This section provides a remedy for using abusive and insulting language. Abusive language which may
lead to breach of the public peace is not an offence. There must be an intentional insult. Insult which may
be offered by words or conduct. If it is by words, the words must amount to something more than mere
vulgar abuse. It is not every insult that can be classified as “intentional insult” coming within the
purview of Sec 504. Mere breach of good manners does not constitute an offence under this section. If the
insult is of such nature that it may give provocation which might rouse a man to act either to break or the
public peace or to commit any other offence, the offence is committed. The offence contemplated in
Section 504 is a serious one. It is obviously intended to deal with persons who are responsible for breaches
of peace of the commission of offences as those who openly abet or incite them.

Section 506 – Punishment for criminal intimidation -- Whoever commits the offence of
criminal intimidation shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both;
And if threat be to cause death or grievous hurt, or to cause the destruction of any
property by fire, or to cause an offence punishable with death or imprisonment for life,
or with imprisonment for a term which may extend to seven years, or to impute
unchastity to a woman, shall be punished with imprisonment of either description for a
term which may extend to seven years, or with fine, or with both.
A bare perusal of section 506 makes it clear that Part II of the section deals with a graver form of offence
of criminal intimidation which is punishable with imprisonment of either description for a term which
may extend to seven years, or with fine, or with both.

GRANT OF BAIL TO CO-ACCUSED (PARITY):

When one co-accused is acquitted, on that ground alone the absconding co-accused is not entitled to
anticipatory bail. Where the allegations were that the petitioners harassed the complainant and beat her,
the co-accused sister-in-law who merely instigated the petitioner to beat the complainant was granted
anticipatory bail, but other petitioners were not granted anticipatory bail on the grounds of parity.

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In conclusion, it is humbly requested of the Court to deny the applicant an anticipatory bail so that he can
be brought to justice.

 The offence of criminal intimidation has been defined under section 503 of IPC
and Section 506 provides Punishment for the same –

• Threatening a person with injury-
•
 To his person, reputation and property; or

 To the person, or reputation of any one in whom that person is interested
 .
• The threat must be with the intent;
•
 To cause alarm to that person; or

 To cause that person to do any act which he is not legally bound to do as the means of
avoiding execution of such threat; or

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 In order to bring home the Accused under section 506, the complainant in the instant
case has asserted:

 That the accused threatened her;

 That this threatening was with injury to his person, reputation and property; or to the
person, reputation or property of another in whom the accused is interested;

 That this threatening was intended to cause alarm to the accused or to cause the
accused to do any act which is he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of avoiding execution of such
threat;

 That the accused has in fact been alarmed by the threat.

 From the above, it may be safely concluded the allegations made against the accused
are justifiable. The accused has not only committed offences under Sections 498(A),
406, 323, 34, 504, 506 of the IPC, 1860 but has also infringed the Fundamental Right
to Life and Personal Liberty of the complainant guaranteed under Article 21 of the
Constitution of India and reinforced by the UDHR , ICCPR and the Declaration on
the Elimination of Violence against women.It is further submitted that the
complainant is eligible for maintenance from her husband as demanded by her.

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Under section 34 of the IPC, when a criminal act is done by several persons, in furtherance of
the common intention of all, each of such persons is liable for the act in the same manner as if
it were done by him alone.

This section makes admissible in evidence things, actions, said or done by a conspirator in
reference to the common design.

One of the objects of law of evidence is to restrict the investigation made by the courts within
the bounds prescribed by general convenience and this object would be completely frustrated
by the admission, on all occasions, of every circumstance of either side having some remote
and conjectural probative force.

The precise amount of which might itself by ascertainable only by a long trial and a
determination of fresh collateral issues, growing up in endless succession, as the inquiry
proceeds.

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The grounds on which the bail application has been filed are not tenable.

Grant of bail –

Accused constable husband set deceased on fire after his mother poured kerosene on
her. The fact was stated in the dying declaration made by the decreased and presence of
husband in the house was established by the evidence of witness and prima facie
material on record established involvement of both accused in the alleged offence.

It was held that bail granted to mother-in-law needed no interference but bail of
husband could be cancelled as being a police constable, he could influence prosecution
witness.

Section 438, CrPC –

Who can apply for anticipatory bail?

A person apprehending arrest by magistrate remanding him to custody under section

209 can apply for anticipatory bail under section 438.

Where the accused apprehends arrest in view of the fact that a non-bail able warrant
has been issued against him on the basis of charge- sheet filed against him, he can apply
for anticipatory bail

A person already on bail or apprehending an anticipatory bail can’t apply for

bail/anticipatory bail in respect of the same accusation.

“He” in the expression “he may apply to court” occurring in section 438 doesn’t
include a stranger or a tadbirkar or a tout of a middleman.

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Presence of the petitioner (Sub sec 1B) –

The presence of an applicant seeking anticipatory bail shall be obligatory at the time of
the final hearing of the application and passing of final order by the Court, if on an
application made to it by the Public Prosecutor, the Court considers such presence
necessary in the interest of justice.

This amendment in the section will come into force from the date of its notification.

Applicability to all non-bailable offences

Section 438 applies to all non-bailable offences; it is not confined to duly those non-
bailable offences which are punishable with death or imprisonment for life.

Applicability to cognizable and non-cognizable cases – Anticipatory bail can be granted

in respect of non-bailable offences whether they are cognizable or non-cognizable
offences.

The courts have the power to grant anticipatory bail even in cases where either
cognizance has been taken or charge sheet has been filed.

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The law makes punishable the insulting provocation which, under ordinary circumstances, would cause a
breach of the peace to be committed, and the offender is not protected from the consequences of his act
because the person insulted does not take the provocation in the manner intended , or exercises self-
control, or being terrified by the insult, or overpowered by the personality of the offender, does not
actually break the peace or commits another offence.

In judging whether a particular abusive language comes within the mischief of section 504, I.P.C., the
Court has to see what would be the effect of the language used in ordinary course of events and not how
the complainant actually behaved on being abused. Merely because a man of cool temperament did not
react violently or break the peace it does not follow that no offence was committed by the accused.

SCOPE AND OBJECT:

For an offence under S. 504, what is material is not the reaction of the complainant which might vary
according to the sensitiveness of the individual insulted but the intention of the offender to provoke or his
knowledge that he is likely to provoke the person insulted to commit an offence.

The offence punishable under S. 504 of the I.P.C. is a distinct offence which comes under the category of
misdemeanors. Using foul and provocative language against any person which has a tendency of
provoking a person to commit an offence is made punishable under this section.

INSULT: Intentional insulting giving provocation to cause breach of peace is an offence

answering S. 504, I.P.C. Thus would words used by the accused should not only give
insult but also must provoke a man to cause breach of peace or to commit any other
offence, or an offence under S.504, I.P.C.
An insult which under ordinary circumstances would be likely to provoke the person insulted to cause a
breach of peace is within the provisions of the section although the person insulted may have been
reduced to a state of abject terror so as to render improbable that he would commit a breach of peace.

The Court has merely to consider the standard of an ordinary reasonable man to see to
see if the insult offered is such as is ordinarily sufficient to arouse passions and provoke
retaliation by words or deed.
If the abusive language used or insult hurled, in the ordinary circumstances are such
that they ordinarily provoke the man or woman of his or her position to commit a
breach of the peace. The mere forbearance of the person insulted being provoked is not
sufficient to protect the offender.

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PRAYER

In the light of the raised,argument advanced and authorities cited ,the counsels for the
Applicant humbly and forever pray before this Hon`ble Court to kindly:

REJECT THE ANTICIPATORY BAIL APPLICATION

AND\OR

PASS ANY OTHER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,

EQUITY AND GOOD CONSCIENCE.

And for this the Respondent as in duty bound shall forever humbly pray.

(Counsels on behalf of the Respondent)

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