BEFORE THE HON’BLE HIGH COURT OF DELHI

In the matter of

SECTION 498A,304B,34 OF IPC

SECTION 3 AND 4 OF DOWRY PROHIBITION ACT

In matter of

STATE OF NCT DELHI ……………………………………………PLAINTIFF

V.

DEEPAK SHARMA AND ORS.…………………RESPONDENT

MEMORIAL FOR THE RESPONDENT

DEEPAK SHARMA AND ORS.

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Table of Contents

List of Abbreviations 4

Index of Authorities 5-6

 Table of Cases 5

 Books 5

 Websites 6

 Statutes 6

Statement of Jurisdiction 7

Statement of Facts 8

Summary of Arguments 10

Arguments Advanced 11-14

Issue-I: : whether the anticipatory bail given to alleged accused should be cancelled 11-12

or not?

Issue-II: whether Deepak and his family were demanding for dowry and torturing 13-14

Diksha ?

Prayer 15

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LIST OF ABBREVIATIONS

& And
AIR All India Report
Anr. Another
BPC Barat Penal Code
CrPC Code of Criminal Procedure
E.g. Example
Hon’ble Honorable
IPC Indian Penal Code
No. Number
Ors. Others
r/w Read with
Retd. Retired
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
St. State
U.P. Uttar Pradesh
u/s Under Section
v. Versus

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INDEX OF AUTHORITIES

TABLE OF CASES:

1. Adri Dharan Das vs State of West Bengal AIR 2005

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

3. Balchand Jain v.State of Madhya pradesh

4. Bansi lal vs State of Haryana

5. BS joshi vs State of Haryana

6. Devi lal v. State of Rajasthan

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

8. Gurbaksh Singh Sibbia Vs. State of Punjab

9. Gurbaksh Singh vs State of Punjab AIR 1980 SC 1632

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

11.Hansraj v. State of Punjab

12.Kundula Bala Subrahmanyam v.State of Andhra Pradesh

13. Puran vs Rambilas and Anr. AIR 2001 SC

14.Rajayyan v. state of kerala

15.Satvir singh vs State of Harayana

16.Savitri Agarwal &ors v. State of Maharashtra & Anr

17. Savitri Agarwal &Ors v State of Maharashtra &Anr2009

18. Shanti vs State of Haryana

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19.State of AP v. Raj Gopal Asawa

20.Sunita devi v.State of bihar

21. Sunita devi vs State of BiharAiR 2005 SC 498

22.Vedda rama rao vs state of Andhra pradesh

23.Vidya Devi v. state of Ha ryana

BOOKS:

1. RatanlalandDhirajlal,TheIndianPenalCode,33rdEd.(2011)

2. P.S.A. Pillai, Criminal Law (13th Ed. 2017)

3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4. Gupta and Dighe, Criminal Manual, (7th Ed. 2007)

5. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

6. Harris, Criminal Law, (22nd Ed. 2000)

WEBSITES:

1. http://www.scconline.com

2. http://www.manupatrafast.com

3. http://www.indiankanoon.com

STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860)

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STATEMENT OF JURISDICTION

The Hon’ble High Court of has the jurisdiction in this matter under Article 226 of the

Constitution of India which reads as follows:

“226.Power of High Courts to issue certain writs.-

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.(2) The power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action , wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories.(3) Where any party
against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause (1), without-(a) furnishing to
such party copies of such petition and all documents in support of the plea for such interim
order; and(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the party in
whose favor such order has been made or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or , as the case may be, the expiry of the aid next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause (2) of Article 32

The Counsels for the Respondent most respectfully submit to this jurisdiction of the
Hon’ble High Court.

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STATEMENT OF FACTS

1. Deepak SHARMA and Diksha sharma belonged to Lucknow in the state of Uttar Pradesh of

India. They got married in 23.10.2012 as per Hindu Rites and Rituals at a farm house

situated in New Delhi. Their marriage was arrange marriage. In October, 2012 Deepak and

Diksha shifted to New Delhi along with their parents Raman Sharma (Father-in-law of

Diksha) Devi Singh (Mother-in-law of Diksha) and Shiv Singh (Brother-in-law of Diksha).

2. On 12th June, 2013, Deepak and Diksha were blessed with a baby boy (Shivam sharma). On

1st September, 2018 at about 4.30 p.m., Raman Sharma (father-in-law) has heard the cries of

Diksha and when he rushed to the second floor of the house, he saw her burning.

3. He tried to douse the fire. Diksha told him that her son Shivam was lying in the bathroom.

He rushed to the bathroom and found that the child also had burns. Diksha and her child

were removed to the hospital.

4. 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 Diksha (Yogesh Kumar) reached the hospital on the same night. At about 10.55 p.m., the

minor child shivam expired.

5. On 19th September, 2018, father of Diksha lodged a complaint with Police against Deepak

his father (Raman Sharma) mother (Devi Sharma) and brother (Shiv sharma), inter alia,

alleging that after the marriage of his daughter, DEEPAK and his family were torturing her

for not meeting dowry demand of Rs20 lakhs and on 15th July, 2013, due to torture she had
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left the matrimonial home, intending to commit suicide but due to intervention of the

relatives, she returned back.

6. On the said complaint, the police registered an FIR (183/17) against Deepak and his family

for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the

Dowry Prohibition Act, 1961.

7. In the initial investigation of police it was found that both Deepak and Diksha use to fight on

petty issues but no angle of dowry came into the picture till now. On 7th September, 2018

the applicants applied for grant of anticipatory bail before the Sessions Judge, Saket, who,

vide order dated 10th September, 2018, initially granted anticipatory bail to them from arrest

till the next date of hearing i.e. 18th September, 2018.

8. On 17th September, 2018, Diksha expired and offence under Section 304-B IPC came to be

added against the accused. On 18th September, 2018, 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, the NCT Delhi the

complainant filed petitions before the Hon’ble High Court of Delhi for cancellation of

anticipatory bail granted to Deepak and his Family.

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Summary of Arguments

I. I S S UE : WHETHER THE ANTICIPATORY BAIL GIVEN TO ALLEGED

ACCUSED SHOULD BE CANCELLED OR NOT?
It is humbly submitted that the instant case is maintainable in the High Court of Delhi because
of cause of action arises in Delhi under the jurisdiction of Section 438 of CRPC, 1973 which lays
down the Direction for grant of bail to person apprehending arrest that states 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 the Court of Session for direction under
this section and that court may, if it thinks fit, direct that in the even of such arrest, he shall be
released on bail.” Deepakand his family, the respondent deserves to continue the anticipatory
bail granted as Deepakand his family have the reasonable apprehension and their situation
doesn’t violate any of the factors which are to be taken care of and the court has considered and
have kept all the factors in mind while granting an application for anticipatory bail.

ISSUE II: WHETHER DEEPAKANDHIS FAMILY WERE DEMANDING FOR DOWRY

AND TORTURING DIKSHA ?
It is most humbly submitted before the Hon’able Court that the respondent can’t be held liable
for torturing dikshaand demanding dowry. As the circumstances of the case is not of conclusive
nature and chain of circumstances is not complete to show the guilty of the respondent. The
petitioner has failed to prove the necessity to establish the offence of section 498A of IPC to
prove the charges under section 304B IPC and also has failed to raise the presumption under
section 113B of Evidence Act as it can be drawn only when the ingredients of Section 304B of
IPC are fulfilled.Thus, the petitioner has failed to establish the ingredient of Dowry Death and
was also not able to prove necessary ingredients to raise the presumption under Section 113B of
Indian Evidence Act.Therefore, accused are not guilty of the offence u/s 498A read with sec 34
and 304B of IPC.

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ARGUMENTS ADVANCED

ISSUE 1:

WHETHER THE ANTICIPATORY BAIL SHOULD BE ALLOWED TO THE

ACCCUSED?

It is humbly submitted submitted before this Hon’ble Court that the Deepak and his family
would get anticipatory bail . There are some points explained as to why they would get bail-
1. The petition filled by the State of NCT Delhi regarding cancelation of anticipatory bail is
not maintainable. Since the session court of Saket on 18 September 2017, has granted
anticipatory Bail to respondent after hearing both sides and upon taking into
consideration all the facts and circumstances of the case.

2. To the hon’ble HC the respondent has come to this court for the petiton filed against
Deepakand his family for cancellation of anticipatory bail grated to them.
3. In this session court of saket the court does not found any special evidence that proves
that Deepak and his family murdered and torturing him for dowry.
4. 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 direction that in the event of
his arrest he shall be released on bail, and the Court may, 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 station on such accusation, he shall be released on bail.

1 Central Government Act Section 438 in The Code Of Criminal Procedure, 1973
2DuyanuHariba Mail v State of Maharashtra (1970) 3 SCC 7

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5. In Savitri Agarwal &Ors v State of Maharashtra &Anr the Leave was granted by the
i
session court.Challenge in the appeal is to the judgment and order dated 2nd July,
200812passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
Criminal Applications No.250 and 2081 of 2008, whereby the said 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-in-law,
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.

6. In the case Balchand’s jain5 The observations regarding the nature of the power conferred
by Section 438 and regarding the question whether the conditions mentioned in Section
43712 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.

7. The Anticipatory bail granted to Deepak and his family may not be cancelled as refered
to the cases discussed above.

1. 1Barat Penal Code, 1860 (45 of 1860), Bare Act, Universal Law Publication
2. 2 Black’s Law Dictionary with Pronunciations
3. 1 John Salmond, Jurisprudence 378 (Glanville L Williams ed., 10th ed. 1947).

4. 1TarkeshwarSahu v. State of Bihar, (2006) 8 SCC 560

5. 1994 SCC OnLine Raj 161,

1
6. Deo Narain v State of Uttar PradeshAIR 1973 SC 473,
7. 1Kulwant Singh v State of Punjab(2004) 9 SCC 257,

8. Savitri Agarwal &Ors v State of Maharashtra &Anr

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ISSUE 2:

WHETHER DEEPAKAND HIS FAMILY WERE DEMANDING FOR DOWRY AND

TORTURING DIKSHA?

1. It is humbly submitted before Hon’ble HC that the FIR lodged by the Yogesh Kumar against
Deepakand his family was not completely investigated by the police.

2. According to the facts, father of Diksha lodged a complaint with Police against Deepak and
his family , inter alia, alleging that after the marriage of his daughter, Deepak and his family
were torturing her for not meeting dowry demand of Rs20 lakhs and on, 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 Deepak 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 Deepak and Diksha use to fight on petty issues and no angle of dowry
came into picture till now which also proves that Deepak and his family were not torturing
Diksha for dowry or for anything else.

3. As the statement given by Diksha to the doctor she stated that “she and her son caught fire when
she was pouring kerosene oil in the lamp which accidentlly fell down;the oil got spilled over and
both of them got burnt”. The statement given by Diksha signifies that it was an accident that
caused him and there was nothing done by Deepak and his family.

4. And death of his son also signifies that why would they try to kill him ,what’s the advantage
they will get by killing het son. This justifies that it was just an accident nothing more.

5. The important point arises that why Father in law of Diksha would try to save him if he wanted
to kill Diksha , he must have left Dikshai& her son buring and let them die but he saved them
and rushed took him to the hospital. Hence Deepak’s fathers’ action shows that he really cared
for them and has no intention of killing them.

1. S t a t e o f A P v . R a j G o p a l A s a wa
2. Sunita devi v.State of bihar
3. Sunita devi vs State of BiharAiR 2005 SC 498
4.Vedda r a m a r a o v s s t a t e o f An d h r a p r a d e s h

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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
......."

As the points argued above Deepak and his family were not demanding for dowry and
were not torturing Diksha for dowry.

1. Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr LJ 1666

2. Kaluram vs St. of Assam1977 CR LJ 98
8
3. Sarju Prasad v. State of Bihar, AIR (1965) SC 843
9
4. AbhiramMukhi v St. of Orissa, 1996 Cri LJ 2341
5. Municipal Council v. T. J. Joseph, 1986 Cri LJ 2478

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PRAYER

In the lights of facts stated, issues raised, authorities cited and arguments advanced, it is most
humbly prayed and implored before the Hon’ble Court, that it may be graciously pleased to
adjudge and declare that anticipatory bail remains sustain.

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity & Good Conscience.

All of which is most humbly and respectfully submitted

PLACE: New Delhi SD/-

DATE: 15-Oct-2019 COUNSELS FOR THE

PETITIONER

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