Nikita Kumari vs The State Of Bihar
2021 Latest Caselaw 4722 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                   CRIMINAL MISCELLANEOUS No. 34225 of 2020
       Arising Out of PS. Case No.-561 Year-2019 Thana- MUFFASIL District- West Champaran
      ======================================================

1. Nikita Kumari, aged about 34 years, Female Wife of Ranjan Kumar @ Ranjan Jha, Daughter of Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad, Resident of Sant Kabir Road, Banuchhapar, PS Banuchhpara OP, District West Champaran. At Present resident of Village Dharahara, PS Banmankhi, District Purnia.

2. Sudha Rani Jaiswal, aged about 65 years, Female Wife of Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad.

3. Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad, aged about 70 years, Male, Son of Late Harihar Prasad Jaiswal.

4. Niraj Jaiswal @ Niraj Nayan, aged about 45 years, Male Son of Nirmal Prasad Jaiswal @ Nirmal Jaiswal.

Petitioner No. 2 to 4 are residnt of Village Dharahara, PS Banmankhi, District- Purnia.

... ... Petitioner/s Versus The State of Bihar

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

      For the Petitioner/s    :        Mr. Bimlesh Kumar Pandey, Advocate
      For the State           :        Mr. Jagdhar Prasad, APP
      For the Informant       :        Mr. Yogesh Chandra Verma, Senior Advocate with
                                       Mr. Anand Kumar Mishra, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 20-09-2021

The matter has been heard via video conferencing.

2. Heard Mr. Bimlesh Kumar Pandey, learned counsel

for the petitioner no. 1, the sole petitioner after withdrawal of the

petition on behalf of the petitioners no. 2 to 4; Mr. Jagdhar Prasad,

learned Additional Public Prosecutor (hereinafter referred to as the

'APP') for the State and Mr. Yogesh Chandra Verma, learned Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

senior counsel along with Mr. Anand Kumar Mishra, learned

counsel for the informant.

3. The petitioner no. 1 apprehends arrest in connection

with Bettiah Muffasil (Banuchhapar) PS Case No. 561 of 2019

dated 05.10.2019, instituted under Sections 406, 420, 380 and

120B/ 34 of the Indian Penal Code.

4. The allegation against the petitioner, who is the wife

of the informant is of concealing the fact of being already married

and also taking huge amount of the informant which was not

returned and thereafter that her brothers had abused and assaulted

the informant and finally that the petitioner no. 1 and her other

relatives had taken away jewellery worth Rs. 50 lakhs, Rs. 1 lakh

cash and the son of the informant who is born to the petitioner no.

1, with them.

5. Learned counsel for the petitioner no. 1 submitted

that the entire FIR is based on falsehood. It was submitted that it

was the informant who was instrumental in the separation of the

petitioner no. 1 from her first husband and, in fact, it was he who

was pursuing the matter relating to her divorce. It was submitted

that when the petitioner no. 1 had filed a case against her previous

husband which was finally compromised on 17.01.2012. He

submitted that thereafter the parties had separated and in fact, it Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

was the informant who had assured the petitioner no. 1 that they

could marry and to his full knowledge, the marriage was

performed between the petitioner no. 1 and the informant on

26.07.2012. Learned counsel submitted that the petitioner no. 1

had got, by way of alimony, about Rs. 7 lakhs from her previous

husband and upon marriage, she had taken the money to the

matrimonial home and the same was fully appropriated by the

informant. Learned counsel submitted that continuously the

demand for dowry/money kept on pouring from the informant and

his relatives. It was submitted that later on, formal decree of

divorce was also obtained between the petitioner no. 1 and her

previous husband. Learned counsel submitted that on the previous

occasion, an objection was raised by learned counsel for the

informant with regard to maintainability of the present petition in

view of processes under Sections 82 and 83 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as the 'Code')

being issued against the accused, including the petitioner, in the

present case. Learned counsel submitted that the Hon'ble Supreme

Court in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730,

especially paragraph no. 10, which has clearly laid down that

when the accused is 'absconding' and declared as 'proclaimed

offender' there was no question of granting anticipatory bail. It Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

was submitted that in the same stroke, the Hon'ble Supreme Court

has stated that when a person against whom a warrant had been

issued and is 'absconding or concealing himself in order to avoid

execution of warrant' and is declared as a 'proclaimed offender' in

terms of Section 82 of the Code is not entitled the relief of

anticipatory bail.

6. Learned counsel submitted that in the present case,

the informant has filed a counter affidavit bringing on record the

orders passed by the Court below which do not show that it has

been held against the petitioner no. 1 that she is 'concealing

herself and absconding' and further that she has not been declared

a 'proclaimed offender'. Learned counsel submitted that in the

case which the petitioner no. 1 has filed against the informant and

his family members, being Bettiah Muffasil PS Case No. 693 of

2019 dated 13.12.2019, the Investigating Officer of the present

case and the said case is the same person. It was submitted that the

petitioner no. 1 is the informant of the other case and on

13.12.2019, the same Investigating Officer had taken the

restatement of the petitioner no. 1, which clearly indicates that she

was not trying to evade the process of law or absconding for the

reason that the order of the Court below in the present case had

already issued non-bailable warrant of arrest and the same was Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

handed over to the Investigating Officer on 05.12.2019 itself.

Thus, learned counsel submitted that for the purposes of

consideration of the prayer for anticipatory bail, as far as the

instant case is concerned, there is no legal impediment to the

same. For the same proposition, learned counsel relied upon the

decisions of the Hon'ble Supreme Court in State of MP v.

Pradeep Sharma, (2014) 2 SCC 171; Jharkhand High Court in

Mahendra Kumar Ruiya vs. The State of Jharkhand and

Another (A.B.A. No. 4674 of 2012) dated 27.06.2013; a co-

ordinate Bench of this Court dated 07.02.2019 in Cr. Misc. No.

62208 of 2017 (Shiv Shankar Prasad Sinha vs. The State of

Bihar) as also order dated 20.08.2020 of the High Court of

Chhattisgarh, Bilaspur in MCRCA No. 19 of 2020 (Suresh

Chandra Khandelwal vs. State of Chhattisgarh).

7. Learned counsel submitted that besides being a lady,

the petitioner no. 1 also has an infant son to look after. It was

submitted that the informant is out to humiliate the petitioner no. 1

and her family members as it was an intercaste love marriage

which would be clear from the fact that by exerting undue

influence on the police, he had got the petitioners no. 2 to 4, who

are the parents and brother of petitioner no. 1, arrested.

Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

8. Learned APP submitted that the allegation of cheating

has been made against the accused, including the petitioner no. 1.

9. Learned counsel for the informant submitted that the

present petition is not maintainable as processes under Sections 82

and 83 of the Code have been issued. However, he was not in a

position to substantiate his contention, as from the orders brought

on record of the Court below in the counter affidavit, there is no

order to show that the petitioner no. 1 has been declared as a

proclaimed offender. However, he further submitted that the

conduct of the petitioner no. 1 is such that she does not deserve

the privilege of anticipatory bail as she has suppressed the fact

that she was already married before marrying the informant.

10. Having considered the facts and circumstances of

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

Court finds that the petitioner no. 1 cannot be said to have evaded

the process of law or concealed herself. The same Investigating

Officer of both the cases, after obtaining non-bailable warrant of

arrest against petitioner no. 1 in the present case, has taken

restatement in the case filed by her after one week of receiving the

non-bailable warrant of arrest, which clearly indicates that the

petitioner no. 1 was available for any interrogation or otherwise

which may have been required. Further, if the law being strict in Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

nature, requires its strict compliance also and in the present case,

the Court has not come to a finding that the material which the

Investigating Officer may have produced before the Court

indicated that she was absconding or concealing herself to avoid

execution of warrant of arrest and further, petitioner no. 1 has not

been declared a proclaimed offender. Thus, the Court does not find

that there is any legal bar for consideration of the present case on

merits.

11. Coming to the merits also, the Court finds that since

the petitioner no. 1 has performed intercaste Court marriage and

there is an infant son born, the same is sufficient to indicate that

the parties were well aware of the status of each other at the time

of marriage. Thus, the Court is inclined to allow the prayer for

pre-arrest bail.

12. However, any discussions in the present order shall

not have any effect on the case of either side during trial.

13. According, in the event of arrest or surrender before

the Court below within six weeks from today, the petitioner no. 1,

namely, Nikita Kumari be released on bail upon furnishing bail

bonds of Rs. 25,000/- (twenty five thousand) with two sureties of

the like amount each to the satisfaction of the learned Chief

Judicial Magistrate, Bettiah, West Champaran in Bettiah Muffasil Patna High Court CR. MISC. No.34225 of 2020 dt.20-09-2021

(Banuchhapar) PS Case No. 561 of 2019, subject to the conditions

laid down in Section 438(2) of the Code of Criminal Procedure,

1973 and further that the petitioner no. 1 shall co-operate with the

Court and police/prosecution. Failure to co-operate shall lead to

cancellation of her bail bonds.

14. It shall also be open for the prosecution to bring any

violation of the foregoing conditions by the petitioner no. 1, to the

notice of the Court concerned, which shall take immediate action

on the same after giving opportunity of hearing to the petitioner

no. 1.

                      15.     The     petition      stands     disposed         of   in   the

           aforementioned terms.


                                                 (Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR
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