Jharkhand High Court

Md. Azad Khan @ Azad Khan vs The State Of Jharkhand on 10 May, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No.285 of 2022
                                      ------

Md. Azad Khan @ Azad Khan, aged about 40 years, Son of Neyaz Khan, Resident of Vill- Gorsara, P.O. And P.S.- Gorsara, Distt- Gazipur, At Present, Posted in Police Line, P.O. + P.S.- Gonda, Distt-

            Ranchi                                       ...              Petitioner
                                            Versus
            1. The State of Jharkhand

2. Benazir Khanam, wife of Md. Arshad @ Pappu, Resident of Village- Bharahi, P.O. - and P.S.- Pratappur, District- Chatra.

                                                         ...           Opposite Parties
                                            ------
             For the Petitioner        : Mr. Rakesh Kumar, Advocate
             For the State             : Mrs. Vandana Bharti, Addl. P.P.
             For the O.P. No.2         : Md. Azam, Advocate
                                              ------
                                        PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to quash the entire criminal proceedings of Mahila (Ranchi) P.S.

Case No.33 of 2020 registered for the offence punishable under Sections 376 (2)

(n), 323, 417, 379, 506 of the Indian Penal Code as well as the order dated

17.01.2022 passed by the learned Additional Judicial Commissioner in Criminal

Miscellaneous Case No.160 of 2021 by which the learned Additional Judicial

Commissioner-VII-cum-Special Judge, CBI (AHD) has cancelled the

anticipatory bail granted to the petitioner in terms of the order dated 15.01.2021

passed in A.B.P. No.2442 of 2020.

3. The allegation against the petitioner is that the petitioner sexually

exploited the informant and committed theft of Rs.10,000/- and a mobile phone

and criminally intimidated her. On the basis of the written report, police

registered Mahila (Ranchi) P.S. Case No.33 of 2020 for the offence punishable

under Sections 376 (2) (n), 323, 417, 379, 506 of the Indian Penal Code and took

up the investigation of the case and police submitted charge-sheet against the

petitioner for having committed the offences punishable under Sections 376 (2)

(n), 417, and 506 of the Indian Penal Code to be true. On 17.01.2022, the

opposite party No.2 filed a petition for cancellation of the bail of the petitioner.

The learned Magistrate after perusal of the case record of A.B.P. No.2442 of

2020 found that the petitioner was given the privileges of anticipatory bail

consequent upon a mediation before the Mediator as per which the petitioner

was to pay 40% of his basic salary to the informant per month. But as the

petitioner did not abide by the said condition of mediation settlement, hence,

the learned court below cancelled the bail granted to the petitioner.

4. Learned counsel for the petitioner submits that the informant is the

legally married wife of one Arshad Khan. The informant has also filed

Complaint Case No.187 of 2018 against her husband the copy of which has

been kept at Annexure-4. It is then submitted that the allegation against the

petitioner is false. After investigation of the case, police could not found the

allegation against the petitioner under Section 379 of the Indian Penal Code to

be true and submitted charge-sheet only for the commission of the offences

punishable under Sections 376 (2) (n), 417, and 506 of the Indian Penal Code.

5. Learned counsel for the petitioner relies upon the judgment of this Court

in the case of Sudhir Kumar Sahu vs. The State of Jharkhand & Another

passed in W.P. (Cr.) No.656 of 2023 dated 13th December, 2023 and submits that

this Court in the said case relied upon the judgment of the Hon'ble Supreme

Court of India in the case of Biman Chatterjee vs. Sanchita Chatterjee &

Another reported in (2004) 3 SCC 388 paragraph-7 of which reads as under:-

"7. Having heard the learned counsel for the parties, we are of the opinion that the High Court was not justified in cancelling the bail on the ground that the appellant had violated the terms of the compromise. Though in the original order granting bail there is a reference to an agreement of the parties to have a talk of compromise through the media of well-wishers, there is no submission made to the court that there will be a compromise or that the appellant would take back his wife. Be that as it may, in our opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfilling the terms of such compromise does not arise. That apart, non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law."

(Emphasis supplied)

and submits that the trial court could not have cancelled the anticipatory

bail granted to the petitioner on the sole ground that the petitioner failed to

keep up his promise as made in the mediation which has got nothing to do in

the bail order and in the bail order of the anticipatory bail petition passed in

A.B.P. No.2442 of 2020, no condition was imposed upon the petitioner.

6. Learned counsel for the petitioner further submits that in the said case of

Sudhir Kumar Sahu vs. The State of Jharkhand & Another (supra), this Court

also relied upon the judgment of the Hon'ble Supreme Court of India in the

case of Pritpal Singh vs. State of Bihar reported in 2001 SCC OnLine SC 123

paragraphs-4 and 5 of which read as under:-

"4. The dispute raised in the case relates to eviction of the appellant who is the tenant from the premises of which the respondent is the owner. Previously, there was a compromise between the parties in which it was agreed inter alia that the appellant will pay certain amount to the respondent and vacate the premises by the time stipulated. On the allegation that the appellant has failed to comply with the terms of the compromise by not vacating the premises in question within the time stipulated, the petition for cancellation of bail was filed. It is stated by learned counsel for the appellant that neither was any averment made in the petition about misuse of liberty granted to the appellant nor was any difficulty alleged to have been faced by the prosecution in the case on the ground of the appellant being at large.

5. The Magistrate cancelled the bail granted to the appellant solely on the ground that the terms of the compromise had not been complied with. To say the least, the ground on which the petition for cancellation of bail was made and was granted is wholly untenable. It is our view that the order if allowed to stand will result in abuse of the process of court. The High Court clearly erred in maintaining the order. Therefore, the order passed by the Magistrate cancelling the bail and the order of the High Court confirming the said order are set aside. The bail order is restored. The appeal is allowed."

(Emphasis supplied)

and also referred to the grounds illustratively though not exhaustively

where the bail granted to an accused can be cancelled, as has been observed by

this Court in the case of Jyotshna Sharma @ Jyotsana Anand vs. The State of

Jharkhand & Others in order dated 01.04.2022 passed in Cr.M.P. No.2499 of

2021. It is next submitted that there is neither any allegation against the

petitioner of violating any terms and conditions of the bail nor the petitioner

committed any act, deed or thing which can remotely be referred to the

grounds for which the bail granted to the petitioner can be cancelled. Hence, it

is submitted that the learned Additional Judicial Commissioner-VII-cum-

Special Judge, CBI (AHD) committed a gross illegality in cancelling the

anticipatory bail granted to the petitioner.

7. It is next submitted that even if the entire allegations made against the

petitioner are considered to be true still the offence punishable under Section

376 (2) (n) or 417 or 506 of the Indian Penal Code is not made out against the

petitioner. Hence, it is submitted that the entire criminal proceedings of Mahila

(Ranchi) P.S. Case No.33 of 2020 as well as the order dated 17.01.2022 passed by

the learned Additional Judicial Commissioner-VII-cum-Special Judge, CBI

(AHD) in Criminal Miscellaneous Case No.160 of 2021 by which the learned

Additional Judicial Commissioner-VII-cum-Special Judge, CBI (AHD) has

cancelled the anticipatory bail granted to the petitioner in terms of the order

dated 15.01.2021 passed in A.B.P. No.2442 of 2020, be quashed and set aside.

8. Learned Addl.P.P. appearing for the State and the learned counsel for the

opposite party No.2 on the other hand vehemently oppose the prayer of the

petitioner to quash and set aside the entire criminal proceedings of Mahila

(Ranchi) P.S. Case No.33 of 2020 as well as the order dated 17.01.2022 passed by

the learned Additional Judicial Commissioner-VII-cum-Special Judge, CBI

(AHD) in Criminal Miscellaneous Case No.160 of 2021 by which the learned

Additional Judicial Commissioner has cancelled the anticipatory bail granted

to the petitioner in terms of the order dated 15.01.2021 passed in A.B.P. No.2442

of 2020 and submit that though in the F.I.R. it has not been specifically

mentioned that the physical exploitation was made on the false promise of

marriage but during the investigation of case, it has come that the sexual

exploitation of the victim-girl was made on the basis of false pretext of

marriage which amounts to offence of rape as the consent for sexual

exploitation obtained by fraudulent means amounts to no consent.

9. It is next submitted that since the condition of paying 40% of the basic

salary has not been complied with by the petitioner, hence, the anticipatory bail

granted to the petitioner vide order dated 15.01.2021 passed in A.B.P. No.2442

of 2020, has rightly been cancelled by the learned Additional Judicial

Commissioner-VII-cum-Special Judge, CBI (AHD) vide order dated 17.01.2022

passed in Criminal Miscellaneous Case No.160 of 2021. Hence, it is submitted

that this Cr.M.P., being without any merit, be dismissed.

10. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, it is pertinent to mention

here that it is a settled principle of law as has been observed by this Court in

the case of Sudhir Kumar Sahu vs. The State of Jharkhand & Another (supra),

that the bail granted to an accused person ought not be cancelled for the sole

ground that the accused failed to keep up the promise made.

11. Now, coming to the facts of the case, there is absolutely no condition

imposed in the order dated 15.01.2021 passed in A.B.P. No.2442 of 2020

regarding payment of any amount. The learned Additional Judicial

Commissioner has referred to the proceeding of the mediation but the

proceedings of a mediation cannot be used in any court of law as Section 22(3)

of the Mediation Act, 2023 which reads as under:-

"22. Confidentiality.--(1) Subject to the other provisions of this Act, the mediator, mediation service provider, the parties and participants in the mediation shall keep confidential all the following matters relating to the mediation proceedings, namely:--

(i) acknowledgements, opinions, suggestions, promises, proposals, apologies and admissions made during the mediation;

(ii) acceptance of, or willingness to, accept proposals made or

exchanged in the mediation;

(iii) documents prepared solely for the conduct of mediation or in relation thereto;

(iv) any other mediation communication.

(2) No audio or video recording of the mediation proceedings shall be made or maintained by the parties or the participants including the mediator and mediation service provider, whether conducted in person or online to ensure confidentiality of the conduct of mediation proceedings.

(3) No party to the mediation shall in any proceeding before a court or tribunal including arbitral tribunal, rely on or introduce as evidence any information or communication set forth in clauses (i) to (iv) of sub-section (1), including any information in electronic form, or verbal communication and the court or tribunal including arbitral tribunal shall not take cognizance of such information or evidence.

(4) The provisions of this section shall not prevent the mediator from compiling or disclosing general information concerning matters that have been subject of mediation, for research, reporting or training purposes, if the information does not expressly or indirectly identify a party or participants or the specific disputes in the mediation.

Explanation.--For the removal of doubts, it is hereby clarified that nothing contained in this section shall apply to the mediated settlement agreement where its disclosure is necessary for the purpose of registration, enforcement and challenge." (Emphasis supplied)

prohibits introduction as evidence of any information or communication

and also debars inter alia the court from taking cognizance of such information

or evidence.

12. Under such circumstances, this Court is of the considered view that the

order dated 17.01.2022 passed by the learned Additional Judicial

Commissioner-VII-cum-Special Judge, CBI (AHD) in Criminal Miscellaneous

Case No.160 of 2021 by which the learned Additional Judicial Commissioner-

VII-cum-Special Judge, CBI (AHD) has cancelled the anticipatory bail granted

to the petitioner in terms of the order dated 15.01.2021 passed in A.B.P. No.2442

of 2020, is not sustainable in law and the same is liable to be quashed and set

aside.

13. Accordingly, the order dated 17.01.2022 passed by the learned