Sameer Khan @ Sami @ Sami Khan vs The State Of Bihar
2021 Latest Caselaw 3271 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No. 32861 of 2020
          Arising Out of Complaint Case No.-576 C Year-2019 Thana- WEST CHAMPARAN
                              COMPLAINT District- West Champaran
      ======================================================

Sameer Khan @ Sami @ Sami Khan, aged about 25 years, Male Son of Babu Jan Khan, Resident of Village-Lauriya, PS-Lauriya and District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2. Gulnaz Khatoon, Daughter of Akhtar Khan, Wife of Samir Khan, Resident of Village-Lauriya, PS and PO-Lauriya and District-West Champaran at present Haji Tola, PS and PO-Ram Nagar and District-West Champaran.

... ... Opposite Party/s ====================================================== Appearance :

      For the Petitioner/s           :      Mr. Mohammed Abu Haidar, Advocate
      For the State                  :      Mr. Nand Kishore Prasad, APP
      For the Opposite Party No. 2   :      Mr. Umesh Kumar Gupta, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 12-07-2021

The matter has been heard via video conferencing.

2. Heard Mr. Mohammed Abu Haidar, learned counsel

for the petitioner; Mr. Nand Kishore Prasad, learned Additional

Public Prosecutor (hereinafter referred to as the 'APP') for the

State and Mr. Umesh Kumar Gupta, learned counsel for the

complainant-opposite party no. 2.

3. The petitioner apprehends arrest in connection with

Complaint Case 576 (C) of 2019 dated 23.07.2019, instituted

under Sections 323, 341, 504, 506, 494, 498A and 406 of the

Indian Penal Code and 3/4 of the Dowry Prohibition Act, 1961. Patna High Court CR. MISC. No.32861 of 2020 dt.12-07-2021

4. The allegation against the petitioner, who is the

husband of the opposite party no. 2 is of torture, due to non-

fulfillment of demand of dowry of Rs. 1 lakh, Hero Honda

motorcycle, washing machine and attempt to kill her by the

accused persons and snatching of her belongings and finally

ousting her from the matrimonial home.

5. Learned counsel for the petitioner submitted that the

allegations are totally false and it is the opposite party no. 2

herself who was not willing to live in the matrimonial home right

from the beginning and was pressurizing the petitioner to live with

the parents of the opposite party no. 2 and also sending all his

money to the opposite party no. 2. Learned counsel submitted that

prior to filing of the present case, the petitioner and his family

members had filed an informatory petition before the Sub

Divisional Officer, Bettiah, West Champaran on 16.12.2014, in

which it has been alleged that the opposite party no. 2 was

threatening the petitioner and his family members that she would

commit suicide and harass the family of the petitioner. It was

further submitted that the petitioner was working in Gulf and used

to send money to the opposite party no. 2, in support of which he

drew the attention of the Court to part Annexure 2, which shows

that at one point of time, Rs. 5,000/- was sent in the name of the Patna High Court CR. MISC. No.32861 of 2020 dt.12-07-2021

father of the opposite party no. 2. Learned counsel submitted that

finally when the opposite party no. 2, along with her son had left

the matrimonial home, he had married again. It was submitted that

the petitioner is ready to give Rs. 60,000/- to the opposite party

no. 2, but she has refused for any such settlement. It was further

submitted that the petitioner has come back to India due to the

pandemic and is now earning a meager amount doing private job.

It was submitted that the opposite party no. 2 had herself left the

matrimonial home and her father has given in writing that his

complaint to the police be not acted upon and that he was taking

back the opposite party no. 2 with him and had no grievance on

which, the opposite party no. 2 and her sister had signed on

03.10.2018 and the same has been given to the Officer In-charge,

Lauria PS. Learned counsel submitted that on 03.10.2018, the

petitioner's father had also signed on a document stating that the

petitioner was leaving his house to live separately with the

opposite party no. 2 and shall have no claim over the property and

money of the father.

6. Learned APP submitted that the petitioner and his

family have very cleverly engineered and planned the whole thing

with the intention to oust the opposite party no. 2 and not accept

her as his wife. It was submitted that in the note of the father of Patna High Court CR. MISC. No.32861 of 2020 dt.12-07-2021

the opposite party no. 2 dated 03.10.2018, before the Officer In-

charge, Lauria PS, it was written that there was a complaint which

he had lodged and, thus, taking back the opposite party no. 2 with

him and saying that he has no grievance clearly indicates it was

under duress as there was no occasion for him to give such an

undertaking before the police and such conduct is highly unnatural

and further that if there was no complaint, there was no occasion

for him to take back his daughter. It was submitted that the falsity

of such settlement and having no complaint would also be obvious

and clear from the fact that on the same day, it is claimed that the

father of the petitioner also gave in writing that the petitioner

wanted to live separately with his wife and that he shall have no

claim on the property or money of the father on which the

signature of the petitioner and the opposite party no. 2 is said to

have been made. It was submitted that if that was true, there was

no occasion for the father of the opposite party no. 2 to give in

writing before the Officer In-charge that he was taking his

daughter to his house when the petitioner had already separated

from his father with the intention to live separately with the

opposite party no. 2. Thus, it was submitted that from such

conduct, it is obvious that under duress, the father of the petitioner

had to give such undertaking before the Officer In-charge, Lauria Patna High Court CR. MISC. No.32861 of 2020 dt.12-07-2021

PS which is fully incorrect. As far as the informatory petition is

concerned, it was submitted that the same is before the Sub

Divisional Magistrate, Bettiah and not before the Court and

further that neither it has been numbered nor any steps have been

taken and it is a common ploy to file such petition for creating a

record for future as no other party is aware of what has been done

and only later, as a surprise, it is shown and taken use by the party

who has made such complaint. Learned counsel submitted that

had the petitioner been serious in keeping his wife and the minor

son with him, the first course of action should have been to file a

case for Restitution of Conjugal Rights and not straightaway go

and marry someone else. It was submitted that even the father of

the petitioner getting a document signed in which it is said that the

petitioner shall have no claim over the property or money of the

father clearly show that all the time the petitioner and his family

members were trying to create record and were preparing to

somehow ensure that the opposite party no. 2 neither is able to

come back to the matrimonial home nor is able to get her due

from the petitioner.

7. Learned counsel for the opposite party no. 2

submitted that the offer is very meager and the petitioner and his

family has sufficient means whereas, she does not have any means Patna High Court CR. MISC. No.32861 of 2020 dt.12-07-2021

of livelihood and has to support her son also for whom no

provision has been made by the petitioner till date despite the son

having a right to being fully provided for and also over the

petitioner's property. It was further submitted that the allegations

are very natural and it cannot be said that it is a counter blast for

the reason that there was no occasion for the opposite party no 2

not to live in the matrimonial home knowing fully well that she

was the mother of a minor boy and that all other avenues and

options were closed for her except to live with her husband who

was the father of her child.

8. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

finds substance in the contention of learned APP and learned

counsel for the opposite party no. 2. At least, for the present, it

cannot be said that the allegations made in the complaint are

totally untrue and further the Court finds substance in the

contention of learned APP with regard to both the informatory

petition as well as the undertaking given by the father of the

opposite party no. 2 before the Officer In-charge of Lauria PS

read with the document to show that the petitioner had undertaken

to live separately and would have no claim over the property or

money of his father, that too, on the same day, when the father of Patna High Court CR. MISC. No.32861 of 2020 dt.12-07-2021

the opposite party no. 2 is giving a written undertaking before the

police that he is taking away the opposite party no. 2 with him.

9. For reasons aforesaid, the Court is not inclined to

grant pre-arrest bail to the petitioner and accordingly, the petition

stands dismissed.

10. The interim protection granted to the petitioner

earlier under order dated 17.03.2021, stands vacated.

(Ahsanuddin Amanullah, J.) P. Kumar

AFR/NAFR U T