Respondent

IN THE HIGH COURT OF DELHI JUDICATURE NEW DELHI CRIMINAL JURISDICTION CRIMINALPETITION NO.__ OF 2017

UNDER SECTION(S) 



498-A,304-B READ WITH SECTION 34 ,INDIAN PENAL CODE SECTION 3 AND 4 OF THE DOWRY DOW RY PROHIBITION ACT,1961

IN THE MATTER OF:

THE STATE OF NCT DELHI …………………………………………...PETITIONER

VERSUS

PRADEEP SINGH AND OTHERS……………………………………...RESPONDENT

BEFORE SUBMISSION TO THE HONORABLE HIGH COURT OF O F DELHI

INTRA MOOT COURT COMPETITION 2017 THE FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY 1 MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENT S.NO

HEADING

PAGE.NO

1.

LIST OF ABBREVATIONS

2.

INDEX OF AUTHORITIES

3.

STATEMENT OF JURISDICTION

4.

STATEMENT OF FACTS

5.

STATEMENT OF ISSUES

6.

SUMMARY OF ARGUMENTS

7.

ARGUMENT ADVANCED

8.

PRAYER

2 MEMORIAL ON BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS

AIR

All India Reporter

CRPC

Code of Criminal Procedure

Del

Delhi High Court

Ed.

Edition

IPC

Indian Penal Code

SC

Supreme Court

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

Sec

Section

v.

Versus

govt.

Government

Art.

Article

Hon’ble

Honorable


r/w

Read with


INDEX OF AUTHORITIES

LIST OF CASES 

Baljit Singh vs State of Punjab and Ors.



Shanti vs State of Haryana



Gurcharan Singh vs State Of Punjab on 10 August, 1962



Gurbaksh Singh vs State of Punjab AIR 1980 SC 1632



Sunita devi vs State of BiharAiR 2005 SC 498



Balchand Jain v State of MP (1976) 4 SCC 572



Savitri Agarwal &Ors v State of Maharashtra &Anr2009 CrLJ 4290



Puran vs Rambilas and Anr. AIR 1980 SC 1632



Gurbaksh Singh vs state of Punjab AIR 1978 P&H 1



Adri Dharan Das vs State of West Bengal AIR 2005 SC 1057



Dolat Ram and ors. vs State of Haryana 1995(1) ALT(Cri)379



BS joshi vs State of Haryana



Bansi lal vs State of Haryana AIR 2

WEBSITES REFERRED 

www.manupatra.com



www.indiankanoon.com



www.highcourtcases.com



www.scconline.com



www.livelaw.in



www.supremecourtcases.com



www.supremecourtcaselaw.com

BOOKS REFERRED INDIAN PENAL CODE 

P.S.A PILLAI: CRIMAINAL LAW, 11 TH EDN…, 2012



K.D GAUR: THE INDIAN PENAL CODE, 4 TH EDN…,2009



RATANLAL AND DHIRAJLAL: THE INDIAN PENAL CODE 32 ND EDN...,2010



R.C. NIGAM: PRINCIPLES OF THE LAW OF CRIMES


LAW OF EVIDENCE



DR. AVTAR SINGH: PRINCIPLES OF THE LAW OF EVIDENCE



BATUK LAL: THE LAW OF EVIDENCE

CODE OF CRIMINAL PROCEDURE



ABHINAV PRAKASH;CODE OF CRIMINAL PROCEDURE



JUSTICE P.S.NARAYANA’S;CRIMINAL PLEADINGS AND PRACTICE



R.V.KELKAR’S;LECTURES ON CRIMINAL PROCEDURE

STATUTORY STATUTE



THE INDIAN PENAL CODE, 1860



THE INDIAN EVIDENCE ACT,1872



THE CODE OF CRIMINAL PROCEDURE,1973

DICTIONARIES REFERRED 

P. RAMANATHAAIYAR’S CONCISE LAW DICTIONARY (4TH ED. 2012) NEW DELHI: LEXIS NEXIS BUTTERWORTHS WADHWA



WHARTON’S LAW LEXISON( 15TH ED. 2011) NEW DELHI: UNIVERSAL LAW PUBLISHING CO.PVT. LTD.


STATEMENT OF JURISDICTION THE RESPONDENT HUMBLY SUBMITS TO THE J URISDICTIONAS INVOKED BY THE PETITINER UNDERSECTION 498-A, 304-B READ WITH SECTION 34 OF IPC,1860 AND SECTION 3 AND 4 OF THE DOWRY PROHIBITION ACT,1961.

__________________________________________________________________________________________

1.

2.

Section 498A. 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 s hall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. —For the purpose of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to co mmit 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 he r 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. Section 304B. Dowry death. — (1) Where the death of a woman is caused by any burns or bo dily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation. — For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

3. 34 Of IPC Acts done by several persons in furtherance of common intention. — 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

.

4. Section 3 of Dowry Prohibition Act,1961 Penalty for giving or taking dowry


.

STATEMENT OF FACTS

Pradeep Singh and Preeti Singh belonged to Lucknow in the state of Uttar Pradesh of India.Their marriage was solemnised on 23.10.2011 as per Hindu Rites and Rituals according to Hindu Marriage Act ,1955 at a farm house situated in New Delhi. Their marriage was arrange marriage. In October, 2011 Pradeep and Preeti shifted to New Delhi along with theirparents Ram Singh (Father-in-law of Preeti) Devi Singh (Mother-in-law of Preeti) and Shiv Singh (Brother-in-law of Preeti). On 12th June, 2012, Pradeep and Preeti were blessed with a baby boy (Shyam Singh). On 1st September, 2017 at about 4.30 p.m., Ram Singh (father-in-law) has heard the cries of Preeti and when he rushed to the second floor of the house, he saw her burning. He tried to douse the fire. Preeti told him that her son Shyam is lying in the bathroom. He rushed to the bathroom and found that the child also had burns. Preeti and her child were taken to the hospital. At about 6.40 p.m., her statement was recorded by the doctor wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of them got burnt. On receiving the intimation,father of Preeti(Yogesh Kumar) reached the hospital on the same night. At about 10.55 p.m.,the minor child shyam expired. On 19th September, 2017, father of Preeti lodged a complaint with Police against Pradeep his father (Ram Singh) mother (Devi Singh) and brother (Shiv Singh), inter alia, alleging that after the marriage of his daughter, Pradeep and his family were torturing her for not meeting dowry demand of Rs10 lakhs and on 15th July, 2012, due to torture she had left the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned back. On the said complaint, the police registered an FIR (183/17) against Pradeep and his famil y for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. In the initial investigation of police it was found that both Pradeep and Preeti use to fight on petty issues but no angle of dowry came into the picture till now. On 7th September, 2017 the applicants applied for grant of anticipatory bail before the Sessions Judge, Saket, who, vide order dated 10th September, 2017, granted anticipatory bail to them from arrest till the next date of hearing i.e. 18th September, 8 MEMORIAL ON BEHALF OF RESPONDENT

2017. On 17th September,2017, Preeti expired and offence under S ection 304-B IPC came to be added against theaccused. On 18th September, 2017, after hearing both sides and upon taking into consideration the said statement and witnesses, the learned Sessions Judge confirmed the anticipatory bail granted to the appellants. Aggrieved by the judgment of session court the state of NCT Delhi filed a petition before the Hon’ble High Court of Delhi for cancellation of anticipatory bail granted to Pradeep and his Family.


STATEMENT OF ISSUES

ISSUE: I 

WHETHER THE ANTICIPATORY BAIL SHOULD BE ALLOWED TO THE ACCCUSED?

ISSUE: II 

WHETHER PRADEEP ANDHIS FAMILY WERE DEMANDING FOR DOWRY AND TORTURING PREETI?


SUMMARY OF ARGUMENTS

ISSUE: I 

WHETHER THE ANTICIPATORY BAIL SHOULD BE ALLOWED TO THE ACCCUSED? Anticipatory bail granted to the Pradeep and his family who were accused of commiting offences punishable under sections 498-A, 304-B r/w section 34 of IPC and sections 3 and 4 ,Dowry Prohibition Act,1961 Should not cancel Anticipatory bail.

ISSUE: II 

WHETHER PRADEEP ANDHIS FAMILY WERE DEMANDING FOR DOWRY AND TORTURING PREETI? In the facts given Preet’s father (Yogesh kumar) lodged a complaint against Pradeep anf his family ,inter alia,alleging that after the marriage of his daughter,pradeep and his family were torturing her for not meeting dowry demand.On the said complaint,the police registed an FIR(183/17)Against Pradeep and his family for offences under 498A read with section 34,IPC and 4 of the Dowry Prohibition act ,1961.A


ARGUMENTS ADVANCED ISSUE: I WHETHER THE ANTICIPATORY BAIL SHOULD BE ALLOWED TO THE ACCCUSED? 1. To the hon’ble HC the respondent has come to this court for the petion filed against

Pradeep and his family for cancellation of anticipatory bail grated to them. 2. In this session court of saket the court does not found any special evidence that

proves that Pradeep and his family murdered and torturing him for dowry. 3. Keeping in view the reports of the Law Commission, Section 438 was inserted in the

Code. Sub-section (1) of Section 438 enacts that 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 to the Court of Session for a dir ection that in the event of his arrest he shall be released on bail, and the Court ma y, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub- section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police st ation on such accusation, he shall be released on bail. 4. In Savitri Agarwal &Ors v State of Maharashtra &Anr the Leave was granted by the

session court.Challenge in the appeal is to the judgment and order dated 2nd July, 2008 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Applications No.250 and 2081 of 2008, whereby the s aid two applications filed by the State and thecomplainant respectively, have been allowed and the protection granted to the appellants by the Sessions Judge, Amravati vide order dated 18th December, 2007 in terms of Section 438of the Code of Criminal Procedure, 1973 (for short `the Code') has been withdrawn. The appellants herein are the mother-inlaw, father-in-law, husband and the younger brother of the father-in-law of the deceased-Laxmi. They are accused of having committed offences punishable under Sections 498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961. 5. In the case Balchand’s jain The observations regarding the nature of the power

conferred by Section 438 and regarding the question whether the conditions 12 MEMORIAL ON BEHALF OF RESPONDENT

mentioned in Section 437 12 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. 6. The Anticipatory bail granted to Pradeep and his family may not be cancelled as

reffered to the cases discussed above.


ISSUE- II WHETHER PRADEEP AND HIS FAMILY WERE DEMANDING FOR DOWRY AND TORTURING PREETI? 1. It is humbly submitted before Hon’ble HC that In the FIR lodged by the Yogesh kumar against pradeep and his family was not completely investigated by the police. 2. Acc. to the facts , father of Preeti lodged a complaint with Police against Pradeep his father (Ram Singh) mother (Devi Singh) and brother (Shiv Singh), inter alia, alleging that after the marriage of his daughter, Pradeep and his family were torturing her for not meeting dowry demand of Rs10 lakhs and on 15th July, 2012, due to torture she had left the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned back. On the sai d complaint, the police registered an FIR (183/17) against Pradeep and his family for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.In initial investigation of police it was found that both praddep and Preeti use to fight on petty issues but no angle of dowry came into picture till now. 3. As the statement given by Preeti to the doctor she stated that “she and her son caught fire when she was pouring kerosene oil in the lamp which acci dentlly fell down;the oil got spilled over and both of them got burnt.”.The statement given by Preeti signifies that it was an accident that caused him and there was nothing done by Pradeep and his family. 4. In the initial investigation of the police it was found that Preeti and Pradeep use to fight on petty issues and there was no angle of dowry was found that poves that pradeep and his family were not torturing Preeti for dowry . 5. And death of his son(Shyam singh) also signifies that why would they try to kill Shyam whats the advantage they will get by killing shayam.This justifies that it was just an accident Nothing more. 6. The important point arises that why Father in law of Preeti try to save him if he wanted to kill Preeti he must have left Preeti buring and let him die but he saved him and rushed took him to the hospital. Hence Pradeep father has no intention of killing him.


7.

In the case of Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr LJ 1666 “

In this case, the accused himself has admitted that the deceased was his wife.

P.Ws. 1, 3 and 4 have categorically deposed that the marriage between the accused and deceased took place by exchanging garlands and reading out PRAMANA PATRIK, that they lived together, one pregnancy was got terminated and later the deceased also delivered a child who happened to die. In view of the admission of the accused and the evidence of P.W. 1, 3 and 4, for purposes of prosecution under S. 304B or 498A, I.P.C. it can safely be held that the prosecution has established the relationship between the accused and the deceased as husband and wife in terms of S. 50 of the Evidence Act. Mr. Padmanabha Reddy, the learned counsel submitted that Sections 304B and 498A, I.P.C. are new incorporations and by oversight the Parliament has not correspondingly amended the proviso to S. 50. of the Evidence Act by excluding prosecutions under Sections 304B and 498A in terms of S. 50. This argument cannot be countenanced for the simple reason that there is a presumption against the legislature that it enacts laws with a complete knowledge of all existing laws pertaining to the same subject, and the failure to bring in the corresponding amendment to S. 50 of the Evidence Act indicates that the intent was not to repeal existing legislation. For this proposition of law, it is relevant to notice the decision of the Supreme Court in Municipal Council v. T. J. Joseph, . There dealing with the question of implied repeal, the Supreme Court held :"It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation ......." 8.

As the points argued above Pradeep and his family were not demanding for dowry and were not torturing Preeti for dowry.


PRAYER

In the light of issued raised,Argument advance and authorities cited,may this Hon’ble court be pleased:The order of the Session court on the ground that the court has grated the anticipatory bail to Pradeep and his family shall not be cancel the bail and pass such order as this Hon’ble court may deemed fit and proper. All of which is respectfully submitted and for this Respondent as an duty bound,shall humbly pray.


Respondent

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