Gaurav Kumar vs The State Of Bihar
2021 Latest Caselaw 2058 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.34528 of 2020
        Arising Out of PS. Case No.-80 Year-2020 Thana- MOJAHIDPUR District- Bhagalpur
     ======================================================

Gaurav Kumar, aged about 31 years, Male, son of Late Vinay Kumar Yadav, resident of Village and Post Office - Shankarpur, Police Station- Muffasil, District- Munger. Presently posted at Military Hospital, Gaya, Police Station- Sherghati, District- Gaya.

... ... Petitioner/s

Versus

1. The State of Bihar.

2. Sarita Bharti, aged about 26 years, wife of Gaurav Kumar and daughter of Nandan Singh Yadav, resident of Mohalla - Shailbagh, Aliganj, Post Office- Aliganj, Police Station - Babarganj, District- Bhagalpur - 812005 ... ... Opposite Party/s ====================================================== Appearance :

     For the Petitioner/s    :        Mr. Rajendra Narain, Senior Advocate with
                                      Mr. Alok Ranjan, Advocate
     For the State           :        Mr. Md. Arif, APP
     For the OP No. 2        :        Mr. Praveen Kumar, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 21-05-2021

The matter has been heard via video conferencing.

2. Heard Mr. Rajendra Narain, learned senior counsel

along with Mr. Alok Ranjan, learned counsel for the petitioner;

Mr. Md. Arif, learned Additional Public Prosecutor (hereinafter

referred to as the 'APP') for the State and Mr. Praveen Kumar,

learned counsel for the informant.

3. The petitioner apprehends arrest in connection with

Mojahidpur (Babarganj) PS Case No. 80 of 2020 dated

21.03.2020, instituted under Sections 498-A, 406/34 of the

Indian Penal Code and 3/4 of the Dowry Prohibition Act, 1961. Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

4. The opposite party no. 2, who is the informant of

the case and wife of the petitioner, has alleged that her marriage

took place when the petitioner was pursuing study of MBBS and

in the marriage, rupees twenty two lakhs cash was given besides

gift of rupees four lakhs. It is further alleged that on persistent

demand and pressure from the petitioner, Rs.14,24,600/- was

transferred in the account of the petitioner in the name of

expenses. Thereafter, in the year 2016, he completed his MBBS

course and in the meantime, she was blessed with a girl child on

07.03.2014. It is alleged that the petitioner was employed in

Indian Army on 01.06.2016 and he started pressurizing the

informant for purchasing two Kathas of land due to which the

father of the informant transferred two Kathas of land, but in the

name of the informant. Thereafter, it is said that in October,

2019, the petitioner was transferred to Military Hospital, Gaya,

and on 03.10.2019, she along with her daughter had gone to

Gaya and lived there in the residence allotted to the petitioner,

but on 06.10.2019, she was assaulted and driven out of the

house and it is alleged that the petitioner has relationship with

another boy and he had told her that only for the purpose of

meeting the expenses during studies, he has married the

opposite party no. 2. It is alleged that on the occasion of Chhath, Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

the mother, the sister and the brother of the petitioner started

torturing her that remaining two Kathas of land be also

transferred by the father and further demand of money was

made due to which Rs. 1, 20,000/- was transferred in the

account of the petitioner on 6th, 7th and 8th of November, 2019. It

is further alleged that when she went on 13.01.2020, to the

Commanding Officer with her father and daughter to complain,

the petitioner agreed to keep her and on 14.01.2020 had taken

them to his residence and the father of the informant along with

her daughter returned to Bhagalpur, but the petitioner is alleged

not to have maintained any conjugal relationship and, in fact, it

is alleged that he used to sleep with Dr. Pradeep and had taken

her mobile phone so that he could not talk anywhere and on

02.02.2020, she was sent to Bhagalpur by train. It is said that

again, after the examination of the daughter was over, she had

gone to Gaya on 19.02.2020. It has further been stated that on

20.02.2020, when the father of the informant went to update her

Pass Book of UCO Bank, he found that the balance was nil even

though she had Rs. 7,46,669/- in the account and then it

transpired that the petitioner had got the amount transferred in

his three accounts. It has been stated that when she confronted

the petitioner, initially, he denied but later assured her that he Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

would return the money and the petitioner is said to have called

his mother on 29.02.2020 and took the informant to his native

village on the pretext that he has taken one month's leave and

would come there and return the money. It is alleged that on

20.02.2020, the mother of the petitioner, after assaulting and

abusing her and taking her jewellery had forcibly made the

informant to go Aliganj on a motorcycle with the nephew of the

mother of the petitioner. Finally, it has been alleged that the

petitioner was living in Gurgaon (Haryana) in his house where

he has also married another lady. Accordingly, prayer has been

made for seeking appropriate legal action in the matter resulting

in institution of the FIR.

5. Learned counsel for the petitioner submitted that

the dispute is only because of the attitude of the informant as

she is a Government Teacher at Bhagalpur and does not want to

live at the place where the petitioner is posted. It was submitted

that the petitioner is ever ready to keep her with him, but the

informant herself is not ready for the same. It was submitted that

the allegation with regard to taking of money, the same was

much prior to the lodging of the FIR, and whatever transaction

took place between the couple and the family is a matter of the

past. It was submitted that the immediate reason for lodging of Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

the FIR was the matrimonial case filed by the petitioner before

the Principal Judge, Family Court at Gaya, under Section 9 of

the Hindu Marriage Act, 1955, for restitution of conjugal rights

and upon notice in the same, she has lodged the present case. It

was further submitted that the brother and the father of the

informant are instrumental in not allowing her to continue good

relationship with the petitioner. Summing up his arguments, he

submitted that the petitioner denies any demand of dowry or

cash or assault alleged against him by the informant.

6. Learned counsel for the informant submitted that

the petitioner stands exposed, inasmuch as, all the allegations

made in the FIR are documentarily substantiated. It was

submitted that the amount of over rupees fourteen lakhs, rupees

one lakh twenty thousand and about rupees seven and a half

lakhs were transferred into the account of the petitioner from the

account of either of the informant or her father, which are

corroborated by bank statements. It was further submitted that

the informant had not once, but on a number of occasions made

serious attempt and she had gone to live with the petitioner at

the place of his posting, but due to conduct of the petitioner had

to return. It was further submitted that the denial of demand of

dowry and torture, as submitted by learned counsel for the Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

petitioner, has been belied by the fact that there is no denial of

the fact that such huge amounts were transferred and taken by

the petitioner, for which there is no explanation. It was

submitted that there was no occasion that after marriage such

heavy amounts would be transferred into the account of the

petitioner by the informant or her father. It was further

submitted that even before the Commanding Officer of the

Military Hospital, Gaya, the petitioner had undertaken to keep

the informant with him, which clearly shows that he was in the

wrong and he had not made any counter allegation against the

petitioner and, now, before the Court taking such stand is also an

attempt to mislead the Court by giving a totally wrong

impression. Learned counsel submitted that as far as the stand

taken on behalf of the petitioner that he is ready to keep the

informant, the same are only hollow words since, in the past she

had made repeated efforts, but the attitude of the petitioner and

his family members coupled with maltreatment and unending

greed for money made her to take the decision that she and her

daughter would never be happy going back to the petitioner as

never in the past any genuine attempt has been made to make

the informant feel that she is the wife or her due place in his life

and in the family members of the petitioner has been given to Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

her. Further, learned counsel submitted that though copy of the

restitution petition has not been annexed in the application or

the supplementary affidavit filed in the present case, but in the

case for the restitution of conjugal rights, the same was required

to be filed at Bhagalpur where the informant is residing, but it

was filed at Gaya only to harass her and most importantly, the

address given of the informant in the restitution petition was that

of District Banka, which is the old ancestral village of the

informant in which nobody lives for the last over twenty years,

which was well known to the petitioner and, thus, only to create

a record by way of formality and on professional advice,

restitution case has been filed so as to create a defence, as the

petitioner was well aware that things have reached the stage

when the informant will take stringent steps. It was further

stated that during the period when the informant was living in

the house of the petitioner, between 15.01.2020 to 02.02.2020,

at Gaya with the petitioner and he had taken her mobile and

from the same phone transfer of Rs. 7,46,449/- was made and

the record in the mobile was deleted so that the informant could

not be aware and only later, when the father of the informant

had gone to the Bank to update the Pass Book, it transpired that

such amount has been transferred in three different accounts in Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

the name of the petitioner, during the said period.

7. At this juncture, when the Court called upon

learned counsel for the petitioner to explain the circumstances

under which such huge amounts were transferred into the

account of the petitioner after marriage, he frankly submitted

that he cannot explain.

8. Learned APP submitted that the allegations in the

FIR are very natural and supported by documentary evidence

which the petitioner cannot explain and furthermore, no girl

having a daughter, in the present society, has any real option

other than to reconcile and live with the father of her daughter,

and still the informant being bold enough to lodge the FIR,

clearly indicates correctness of the allegation and the conduct of

the petitioner. He submitted that generally the Courts are liberal

with regard to matrimonial affairs, but once the complicity and

role of the husband is documentarily shown to be wanting and

conduct of greediness by periodically getting huge amounts

transferred in his account clearly brings home the allegation

under Section 498-A of the Indian Penal Code.

9. Having considered the facts and circumstances of

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

Court is not persuaded to grant pre-arrest bail to the petitioner.

Patna High Court CR. MISC. No.34528 of 2020 dt.21-05-2021

10. Accordingly, the application stands dismissed.

11. The interim protection given to the petitioner

under order dated 13.04.2021 stands vacated.

(Ahsanuddin Amanullah, J)

J. Alam/-

AFR/NAFR U T