Kanhaiya Lal Gupta vs The State Of Jharkhand
2021 Latest Caselaw 4712 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2299 of 2021

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Kanhaiya Lal Gupta, 38 years, s/o Lakshmi Das @ Laxmi Das, presently residing at 4626 Tuttles Woods Dr., Dublin, Ohio, USA-43016 ..... Petitioner

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The State of Jharkhand ...... Opposite Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Kaushik Sarkhel, Advocate For the State :- Mr. Shekhar Sinha, P.P For the O.P.No.2 :- Mr. Gautam Kumar, Advocate

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4/09.12.2021 Heard Mr. Kaushik Sarkhel, the learned counsel appearing on behalf of the petitioner, Mr. Shekhar Sinha, the learned counsel appearing on behalf of the respondent State and Mr. Gautam Kumar, the learned counsel appearing on behalf of the Opposite Party No.2.

2. I.A. No.6540 of 2021 has been filed for amendment in the prayer portion of the petitioner.

3. The learned counsel for the petitioner submits that in this petition an order for proclamation under section 83 Cr.P.C has been issued is not challenged and during pendency of this petition, the subsequent order of proclamation under section 82 Cr.P.C has been directed to be issued by order dated 11.10.2021 and that is why this I.A. has been filed. It has been admitted by the learned counsel for the informant as well as respondent State that during pendency of this petition, this further order dated 11.10.2021 has been filed.

4. In view of the above facts and considering that the order dated 11.10.2021 has been passed later on during pendency of this petition, the prayer made in the I.A is allowed.

5. Let this I.A be treated as part of the petition.

Cr.M.P. No. 2299 of 2021

6. This petition has been filed for quashing the order dated 15.12.2020 whereby non-bailable warrant of arrest against the petitioner has been directed to be issued. It is also made for quashing the order dated 02.08.2021 whereby learned A.C.J.M., Ranchi was pleased to issue process under section 82 Cr.P.C. By way of I.A. it has been prayed to allow the I.A. wherein process under section 83 Cr.P.C has also been challenged.

7. A written report of the informant on 06.01.2020 has been filed before the Officer Incharge of Sadar Police Station alleging therein that:

The informant was married with Kanhaiyalal Gupta on 22.05.2013 according to Hindu rites and customs at Allahabad. At the time of marriage, her father had given an amount of Rs.10,50,000/- in cash and Rs.4,51,000/- through Bank Transfer in the account of the father of the petitioner. It was also alleged that the entire expenses of the marriage was borne by the father of the informant and several gifts like chain, ring and chothes were given to the accused on demand.

That the informant went to his matrimonial home on 23.05.2013 after marriage and the accused misbehaved with her being not satisfied with the articles given in the marriage and complained of payment of meager dowry particularly because of the husband of the informant was settled in USA and is a software Engineer and therefore they expected more dowry and a car.

That the husband of the informant thereafter left for USA leaving her behind at Kanpur.

That the father of the informant having came to know that she had not been taken to USA applied for her urgent passport and gave her Rs.1,00,000/- and only thereafter she could leave for USA on 23.09.2013.

That the informant returned to Kanpur with her husband after one year and was again sent to USA in November, 2014 alone. On 04.06.2015 she gave birth to a son Aarav at USA and she was thereafter sent back to Kanpur in August, 2015 where she was again tortured by the accused in connection with demand of dowry. She was again taken back to USA by her husband in November, 2015 when her father threatened to take police action for torture.

That on 08.02.2017 the informant gave birth to her second son Pranav and she was thereafter forcibly sent to Kanpur by her husband where the torture continued and after mediation it was decided that the informant would reside with her husband.

That it is further alleged that on 18.02.2018 the accused in laws and brother in law came to Ranchi, assaulted her and tried to abduct her and her two children.

That on 10.03.2018 in the birthday party of Pranav, her brother in law tried to rape her tore her upper body clothes and when she complained to her in laws they suggested her to keep live in relationship with Akash, Brother in law.

That it is further alleged that the accused person assaulted her and tried to burn her and she was saved onlyafter she raised alarm. The mother in law took Rs.1,00,000/- from her father and took her to USA and she was tortured badly. At USA her husband got her implicated in two false cases somehow she could return to India on 20.12.2019.

8. On these premises, it is an admitted fact that the petitioner was married with the O.P.No.2 on 22.05.2013 and the said marriage was an arrange marriage and further marriage of petitioner and O.P.no.2 was solemnized at Allahabad in Uttar Pradesh. After the marriage settled at Kanpur along with in-laws and her husband. The petitioner was residing in United States of America since 2009 and after marriage he took his wife to United States of America for which it is the petitioner who has actually applied and paid for her passport and VISA. The petitioner has also paid for the air tickets of the informant O.P.No.2. Out of this wed lock, two children were born. The conduct of the O.P.No.2 has been disclosed in so many paragraphs of the petition and for deciding the order those allegations are not required to be considered at this stage by this Court.

9. Mr. Kaushik Sarkhel, the learned counsel appearing for the petitioner submits that the petitioner has not evaded arrest or concealed in any manner. The petitioner has not received any notice in terms of Section 41A Cr.PC. He submits that the said notice was served upon the parents of the petitioner who are residing at Kanpur. When it was disclosed to the petitioner by his parents, the petitioner immediately contacted the higher officials of the Police as

well as the Investigating Officer which has been disclosed in paragraph no.42 of the petition. He submits that this statement made in paragraph no.42 has not been denied by the informant who has appeared and filed the counter. He further submits that the petitioner has filed petition under section 205 Cr.P.C on 14.12.2020. He submits that this petition is pending and the concerned court has adjourned the case for other dates for passing the order on the petition under section 205 Cr.PC. He further submits that on the date deciding the petition under section 205 Cr.P.C on 15.12.2020 itself, the N.B.W has been issued against the petitioner. He further submits that the petitioner was cooperating and was willing to cooperate in the investigation and there was no occasion to issue N.B.W. He further submits that these orders have been passed in violation of section 73 Cr.P.C. He draws the attention of the Court to the order passed in the Court of Common Pleas of Franklin County, Ohio and submits that de-facto termination of the marriage was held by the concerned court on 27.10.2020. He further submits that in divorce case summon was issued on 04.12.2019 and after issuance of the summons, F.I.R was lodged on 07.01.2020. He further submits that the said court of Franklin County, U.S.A has directed for permanently taking the minor child/children of the parties from the jurisdiction of that court, or concealing whereabouts of the minor children of the parties during pendency of this action. By way of referring the warning, he submits that it has been observed that order of the contempt of court, jail, fine can be passed by the concerned court. He further submits that the impugned orders are bad in law and not in accordance with law.

10. Per contra, Mr. Gautam Kumar, the learned counsel for the O.P.No.2-informant submits that there is no illegality in the impugned order and the petitioner was evading arrest and that is why the learned court has issued the N.B.W and passed the order of proclamation under section 82 and 83 Cr.P.C respectively. He further submits that before deciding section 205 petition it is well within the domain of the court to pass such orders and that is why the orders have been passed by the concerned court. He further

submits that now 205 petition has been decided by the court concerned by order dated 06.09.2021. He further submits that section 205 Cr.P.C order has not been challenged by the petitioner.

11. Mr. Shekhar Sinha, the learned counsel appearing for the respondent State submits that after providing all opportunities the order has been passed and there is no illegality in the impugned orders.

12. On these premises, the Court has gone through the materials on record. It is admitted that the marriage between the parties took place in the year 2013. The petitioner moved before the Franklin County court for termination of marriage which has been allowed by order dated 27.10.2020. The minor children were protected by the order dated 29.10.2019. The warning has also been issued in that order. The petitioner is looking after the welfare of the minor children who are also residing along with the petitioner in U.S.A. The petition under section 205 Cr.P.C was filed by the petitioner on 14.12.2020. However, in the order it has been recorded that on 15.12.2020 that petition has been filed and on 15.12.2020 itself N.B.W has been issued against the petitioner. By order dated 15.12.2020 petition has been filed under section 205 Cr.PC which was heard by the learned court. The matter was adjourned for 04.02.2021 due to Covid-19. The petition was again heard. The said petition under section 205 Cr.PC was again moved on 20.02.2021 and on that day the counsel for the petitioner concluded the argument. Due to virtual mode, on 05.03.2021 the case was adjourned. On 23.04.2021/14.06.2021 it has been recorded that none of the parties have filed attendance and it has been further ordered that the counsel submitted to pass the order on the petition filed under section 205 Cr.P.C and the matter was adjourned for order on the said petition to 23.08.2021. It is an admitted fact on the record that the petition under section 205 Cr.P.C was being heard and was posted for order on 23.08.2021. It was incumbent upon the learned Magistrate to first decide the petitioner under section 205 Cr.PC and thereafter pass any other order under section 82 Cr.PC. This case is arising out of a matrimonial dispute under section 498A IPC. This is not a case of

moral turpitude and for that section 205 and 317 Cr.P.C has been attracted in the Cr.P.C. It is well settled that it is well within the powers to call the accused for appearance at any stage. In such case, when it was in the knowledge of the court that this petitioner is residing in U.S.A and due to pandemic, the travels were banned, which has been disclosed in paragraph no.43 of the petition, at least the court was required to consider that, because it will be too harsh, and on account variety of reasons, the court was required to consider that aspect of the matter. A reference may be made to the case of 'Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd.', (2001) 7 SCC 401. Paragraph no.13 of said judgment is quoted as under:

"13. Sub-section (1) envisages two exigencies when the court can proceed with the trial proceedings in a criminal case after dispensing with the personal attendance of an accused. We are not concerned with one of those exigencies i.e. when the accused persistently disturbs the proceedings. Here we need consider only the other exigency. If a court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of that accused. In this context, a reference to Section 273 of the Code is useful. It says that:

"273. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader."

If a court feels that insisting on the personal attendance of an accused in a particular case would be too harsh on account of a variety of reasons, can't the court afford relief to such an accused in the matter of facing the prosecution proceedings?"

13. The subsequent order by which the concerned court has rejected the petition under section 205 Cr.PC for dispensing with personal attendance and that is why the said petition was required to be decided before passing of subsequent order. In the light of the paragraph no.19 of the said judgment in case of 'Bhaskar Industries Ltd.'(supra), it was incumbent upon the learned court before passing the order under section 82 Cr.P.C to dispose the petition filed under section 205 Cr.PC. Paragraph no.19 in case of 'Bhaskar Industries Ltd.'(supra) is quoted hereinbelow:

"19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."

14. Section 73 of the Cr.P.C prescribed the manner when the order for N.B.W can be issued. The petitioner was already in contact with the Invistigating Officer as well as the higher officials which has been disclosed in paragraph no.42 of the petition. The letters were dispatched has also been disclosed in that paragraph which might have been denied by the informant but, it was the requirement of the State to submit that whether those documents are genuine or not and on that aspect nothing has been submitted on behalf of the respondent State. The order dated 02.08.2021 may be a reasoned order and the parameters has been disclosed in that order that does not mean that the said order can be passed without following the procedure laid down in Cr.M.P.No.2722/2019 and W.P.(Cr.)No.132/2020. The petitioner was also cooperating in the investigation as disclosed and he has already before the court by way of filing petition under section 205 Cr.PC. After hearing that petition, that petition was posted for orders by the concerned court on 23.08.2021, but, without passing any order on that petition, the processes were directed to be issued by order dated 02.08.2021 under section 82 Cr.PC. It is also well settled that for cooperating in the trial, warrant is not required to be issued as has been held by

the Hon'ble Supreme Court in the case of "State (C.B.I) v. Dawood Ibrahim Kaskar & Ors.", AIR 1997 SC 2494. On the date the N.B.W has been issued, the petition under section 205 Cr.PC was pending before the concerned Court, which has not been discussed, and in the finding of this Court, the impugned orders cannot sustain in the eye of law.

15. Accordingly, the impugned orders dated 15.12.2020,

02.08.2021 and 11.10.2021 are, hereby, quashed.

16. The matter is remitted back to the concerned court to

proceed afresh in accordance with law.

17. Cr.M.P. No.2299 of 2021 stands disposed of.

( Sanjay Kumar Dwivedi, J) SI/;