Jharkhand High Court
Tara Shahdeo ... ... Informant / vs Union Of India Through C.B.I on 1 February, 2021
Cr. M. P. No. 3880 of 2019
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 3880 of 2019
Tara Shahdeo ... ... Informant / Petitioner
Versus
1. Union of India through C.B.I.
2. Ranjeet Singh Kohli
@ Rakibul Hassan ... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
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For the Petitioner : Mr. Ajit Kumar, Sr. Advocate
Miss. Aprajita Bhardhwaj, Advocate
Mr. Pankaj Kumar, Advocate
For the U.O.I. : Mr. Rajiv Sinha, Sr. Advocate
For the Opp. Party No.2 : Mr. B.M. Tripathi, Sr. Advocate
Mr. Naveen Kumar Jaiswal, Advocate
For the State : Mr. Ashok Kumar, Advocate
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CAV on: 22/01/2021 Pronounced on: 01/02/2021
H.C. Mishra, J.:- Heard learned senior counsels for the petitioner, for the Union
of India, as also for the opposite party No.2.
2. This application has been filed with a prayer for cancellation
of bail granted to the opposite party No.2, by order dated 12.10.2019,
passed in B.A. No.5667 of 2019.
3. The opposite party No.2, has been made accused and facing
trial for the offences under Section 120-B, read with Sections 496, 376,
323, 298, 354-A, 506 and 498-A of the Indian Penal Code, in S.T No.554
of 2017 in the Court of the learned Additional Judicial Commissioner-III-
cum-Special Judge, C.B.I., Ranchi, arising out of R.C Case No.9(S)
of 2015, which arose out of Kotwali (Hindpiri) P.S Case No.742 of 2014,
corresponding to G.R No. 4705 of 2014.
4. It is an admitted position that by the time, the opposite party
No.2 was granted bail by order dated 12.10.2019, only eight witnesses
could be examined in the trial, out of 29 witnesses named in the
charge-sheet. Presently, in all nine witnesses have been examined as
informed by the learned counsels for the parties, and delay in trial, is being
caused due to the fact that in the meantime, the working of the Courts have
been badly affected due to the worldwide pandemic.
Cr. M. P. No. 3880 of 2019
5. There is allegation against the opposite party No.2 that he,
being a Muslim by faith, falsely representing himself to be Hindu by faith,
performed marriage with this petitioner, who is a Hindu by faith and a
State level athlete, who came close with the opposite party No.2, during
the practice of shooting in the Hotwar Shooting Range, Ranchi. It is
alleged that the opposite party No.2 married this petitioner
on 07.07.20014 according to Hindu rites, and after the marriage, the victim
petitioner was coerced by the opposite party No.2 to perform the marriage
in the Muslim manner also, and she was also asked to decry the Hindu
religion and to adopt the Muslim religion, for which, she was subjected to
cruelty and torture by various means, including physical assaults and
sexual abuses. She had to be rescued from her matrimonial home with the
help of the police.
6. Taking into consideration the allegations against the opposite
party No.2, his bail applications were rejected seven times on merits by
this Court. Ultimately, the opposite party No.2 filed B.A No. 5667
of 2019, in which, the opposite party No.2 prayed for granting bail on the
ground that he was in custody since 28.8.2014, and he had served more
than half of the sentence, even if he is convicted and sentenced to undergo
the maximum sentences for the offences charged. The said bail application
was pressed by the learned senior counsel for the opposite party No.2 on
that ground alone.
7. This Court, taking into consideration the period of custody of
the opposite party No.2, allowed the bail application by order
dated 12.10.2019, making it absolutely clear that the bail application was
not being considered on merits, rather it was only on the basis of the period
of custody undergone by the accused.
8. The plea of the learned counsel appearing for the C.B.I., that
the opposite party No.2 is an influential person and he might influence the
remaining witnesses during trial, was also duly taken care of by this Court,
directing that the opposite party No.2 shall keep himself aloof from the
remaining prosecution witnesses, yet to be examined, and if it is found that
he had tried to influence the witnesses, in any manner whatsoever, the
C.B.I. may move the Court below for cancellation of his bail, which shall
be considered by the Trial Court itself, without being prejudiced by the
order passed by this Court. In addition to that, the opposite party No.2 was
Cr. M. P. No. 3880 of 2019
also directed to deposit his passport in the Court below and was directed
not to leave the Country without the permission of the Trial Court. It is this
order, by which the present petitioner, who is the victim in the case, is
aggrieved, and she has filed this application for cancellation of bail of the
opposite party No.2.
9. Learned senior counsel appearing for the petitioner has
submitted that taking into consideration the facts of the case, the opposite
party No.2 could not have been released on bail irrespective of the fact of
undergoing custody since 28.8.2014. Learned senior counsel has pointed
out that one of the offences charged is Section 376 of the Indian Penal
Code, for which, the maximum sentence prescribed is imprisonment for
life, and in that view of the matter, the opposite party No.2 could not be
released on bail on the ground that he had served more than half of the
sentence.
10. Though the learned senior counsel appearing for the petitioner
has assailed the order, granting bail to the opposite party No.2, but he has
not made any allegation against the opposite party No.2 about any illegal
action after granting him bail, or misuse of the privilege of bail, so as to
disentitle him to the said privilege.
11. Learned senior counsel has placed reliance upon the decision
of the Hon'ble Apex Court in Gobarbhai Naranbhai Singala Vs. State of
Gujarat & Ors., reported in 2008 (3) SCC 775, wherein where, the bail
granted to the respondent on the grounds (i) that the respondent was in
judicial custody since March, 2004; (ii) that the trial had yet not
commenced and no prosecution witness had been examined; and (iii) that
the Court had tested the respondent twice by granting temporary bail to
him with stringent conditions for a duration of one month each, and on
both the occasions, the respondent had surrendered within time, without
breach of any of the conditions, was cancelled by the Hon'ble Apex Court,
laying dawn the law as follows :-
"24. This Court in Amarmani Tripathi had held that while
considering the application for bail, what is required to be
looked is, (i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the of
fence; (ii) nature and gravity of the charge; (iii) severity of
the punishment in the event of conviction; (iv) danger of the
accused absconding or fleeing if released on bail; (v)
Cr. M. P. No. 3880 of 2019
character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being tampered
with; and (viii) danger, of course, of justice being thwarted
by grant of bail.
25. In Panchanan Mishra v. Digambar Mishra this Court
while considering the question of cancellation of bail, ob
served: (SCC pp. 147-48, para 13)
"13. ... The object underlying the cancellation of bail is to
protect the fair trial and secure justice being done to the so
ciety by preventing the accused who is set at liberty by the
bail order from tampering with the evidence in the heinous
crime ... It hardly requires to be stated that once a person is
released on bail in serious criminal cases where the punish
ment is quite stringent and deterrent, the accused in order to
get away from the clutches of the same indulge in various ac
tivities like tampering with the prosecution witnesses, threat
ening the family members of the deceased victim and also
create problems of law and order situation."
26. We are of the view that the High Court has completely
ignored the general principles for grant of bail in a heinous
crime of commission of murder in which the sentence, if con
victed, is death or life imprisonment."
12. Learned senior counsel has again placed reliance upon the
decision of the Hon'ble Apex Court in Narendra K. Amin (Dr.) Vs. State
of Gujarat and Anr., reported in 2008 (13) SCC 584, wherein also in the
facts of that case, it was held that once it was found that bail was granted
on untenable grounds, the same can be cancelled. Placing reliance on these
decisions, it is submitted by the learned senior counsel for the petitioner
that it is a fit case, in which, the bail granted to the opposite party No.2, be
cancelled in the interest of justice, looking into the gravity of the
allegations against the opposite party No.2.
13. Learned senior counsel appearing for the C.B.I. has supported
the contention of the learned senior counsel for the petitioner and
submitted that only because of the fact that the opposite party No.2 had
remained in custody since 28.8.2014, he could not have been granted bail
in the facts of the case. Learned senior counsel for the C.B.I. also,
however, has not alleged any misuse of the privilege of bail by opposite
party No.2, so as to disentitle him of the privilege.
Cr. M. P. No. 3880 of 2019
14. Per contra, learned senior counsel appearing for the opposite
party No.2 has opposed the prayer, submitting that after being released on
bail, the opposite party No.2 has never misused the privilege of bail, and as
such, the bail granted to him cannot be cancelled, as no case is made out
for cancellation of his bail. Learned senior counsel submitted that if the
opposite party No.2 misuses the privilege of bail, ample precaution for that
has already been taken in the order dated 12.10.2019, granting him bail.
15. Learned senior counsel has also pointed out that out of the
offences, for which, the opposite party No.2 is facing trial, only
for Section 376 of the I.P.C, the maximum sentence prescribed is
imprisonment for life, and for all other offences the punishments are lesser.
It is submitted by the learned senior counsel that offence under Section 376
of the I.P.C. has been alleged, in view of the allegation that the opposite
party No.2, being a Muslim by faith, falsely representing himself to be a
Hindu by faith, married the petitioner, which marriage itself was void
ab-initio and accordingly, the offence under Section 376 of the Indian
Penal Code would also be made out. It is pointed out by the learned senior
counsel that in B.A No.5667 of 2019, the opposite party No.2 had brought
on record the Judgment passed by the learned Principal Judge, Family
Court, Ranchi, in Original Suit No.15 of 2017, which was filed by the
present petitioner against the opposite party No.2, for a decree of nullity of
marriage under Section 12(I)(c) of the Hindu Marriage Act, as also seeking
an alternative relief of decree of divorce on the ground of cruelty. It is
pointed out by the learned senior counsel that issue No. IV framed in the
said suit was -
"Whether consent of marriage was taken from petitioner by
playing fraud upon her and therefore is liable to be declared
null and void under Section 12 of the Hindu Marriage Act?"
And this issue was decided, holding that -
"------- no credible, trustworthy documentary evidence has
been produced before this Court to prove and establish that
the respondent is not a Hindu, rather he is a muslim by
birth or convert to muslim faith. In absence of any such
proof, it cannot be said that there had been any
concealment of material fact regarding religion of the
respondent. In the light of the above discussion, it is held
that the marriage between the parties was a valid Hindu
Marriage and it cannot be treated voidable on the ground
Cr. M. P. No. 3880 of 2019
under Section 12(I)(c) of the Hindu Marriage Act and no
decree of nullity can be passed. Issue No. IV is decided
accordingly."
16. Learned senior counsel has pointed out that the decree of
divorce has been granted in that case, on the ground of cruelty. It is
submitted by the learned senior counsel that in this view of the matter,
even though, the charge has been framed for the offence under
Section 376 of the Indian Penal Code also, but it cannot be said that the
opposite party No.2 could be denied bail even after remaining in custody
for more than five years during trial.
17. Having heard learned senior counsels for the parties and upon
going through the record, I find that by the time, the opposite party No.2
was granted bail by order dated 12.10.2019, he had served more than five
years of custody. Out of the offences charged, offence under Section 496
of the Indian Penal Code is punishable with imprisonment up-to seven
years and fine. Offences under Sections 323 and 298 of the Indian Penal
Code are punishable with imprisonment up-to one year each, and/or fine.
Offences under Sections 354-A and 498-A of the Indian Penal Code are
punishable with imprisonment up-to three years each, and/or fine, and
offence under Section 506 of the Indian Penal Code is punishable with
imprisonment up-to two years and/or fine. Accordingly, he had served
more than half of the sentence for the offence under Section 496 of the
Indian Penal Code, and had served the period of maximum sentences for
the other offences charged, except Section 376 of the Indian Penal Code.
18. So far as the offence under Section 376 of the Indian Penal
Code is concerned, there is no allegation against the respondent No.2 of
committing rape prior to the marriage with the petitioner, and whatever
allegations of sexual abuses are there, they are only after the marriage
between the parties.
19. In view of the finding of the competent Court in the
matrimonial suit between the parties, as quoted above, which had been
brought on record in B.A No.5667 of 2019, I do not see any reason as to
why taking into consideration the period of custody of more than five
years, the opposite party No.2 could not be granted bail for the alleged
offence under Section 376 of the Indian Penal Code.
Cr. M. P. No. 3880 of 2019
20. Section436-A of the Cr.P.C., reads as follows:-
"436A. Maximum period for which an undertrial prisoner
can be detained.-- Where a person has, during the period
of investigation, inquiry or trial under this Code of an
offence under any law (not being an offence for which the
punishment of death has been specified as one of the
punishments under that law) undergone detention for a
period extending up to one-half of the maximum period of
imprisonment specified for that offence under that law, he
shall be released by the Court on his personal bond with or
without sureties:
Provided that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period
longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties:
Provided further that no such person shall in any case
be detained during the period of investigation, inquiry or
trial for more than the maximum period of imprisonment
provided for the said offence under that law.
Explanation.--In computing the period of detention
under this section for granting bail, the period of detention
passed due to delay in proceeding caused by the accused
shall be excluded."
21. In the facts of this case, I also do not find any reason as to
why the opposite party No.2 could be denied the privilege of
Section 436-A of the Cr.P.C., particularly when nothing has been brought
on record to the knowledge of this Court, that the opposite party No.2 ever
misused the privilege of bail granted to him by order dated 12.10.2019 in
B.A No.5667 of 2019.
22. In that view of the matter, I do not find any illegality in the
order granting bail to the opposite party No.2, and no case is made out for
cancellation of the bail.
23. There is no merit in this application and the same is
accordingly, dismissed.
(H.C. Mishra, J.)
Jharkhand High Court, Ranchi.
Dated the 1st of February, 2021
N.A.F.R./ DS-BS/-
