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Dr. (Prof) Shree Narayan Jha vs The State Of Bihar & Ors on 10 December, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.53963 of 2015
Arising Out of PS. Case No.-488 Year-2014 Thana- DARBHANGA COMPLAINT CASE
District- Darbhanga

Dr. (Prof) Shree Narayan Jha, S/o late Babu Hari Narayan Jha, R/o
Balbhadrapur, P.S. Laheria Sarai, District Darbhanga.

… … Petitioner/s
Versus

1. The State of Bihar

2. Sri Manmohan Chaudhary, Son of late Dhairya Narayan Chaudhary Resident
of Village- Jamsam, Police Station- Pandaul, District Madhubani,.At Present
R/o Plot No. 44 Shivkunjban, sanjay Nagar-B, Jhotwara Jaipur,State of
Rajashthan ,Posted in Air Force at Jaipur.

3. Pranay kumar Jha@Pikku, Son of late Ramanand Jha Resident of Village-
Bhawanipur, P.s Pandaul, Distt Madhubani.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Suresh Singh
Mr. Jai Prakash Verma
For the Opposite Party/s : Mr. Md. Aslam Ansari (App)
Mr. Rakesh Kumar Singh

CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
Date : 10-12-2018

Heard Mr. Suresh Singh, learned counsel for the

petitioner and Mr. Rakesh Kumar Singh, learned counsel for the

O.P. Nos. 2 and 3.

The present application has been filed for cancelling

the anticipatory bail granted to the O.P. Nos. 2 and 3 vide order

dated 10.8.2015 passed in Cr. Misc. No. 32838 of 2015 on two

grounds, firstly, that a statement was made in paragraph no. 3 of

the criminal miscellaneous application to the effect that the O.P.

Nos. 2 and 3 do not have any criminal antecedent and secondly,
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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that a wrong submission was made that the case lodged by the

daughter of O.P. No. 2, namely, Manisha Choudhary, being

Darbhanga Mahila P.S. Case No. 40 of 2014 was lodged on

22.4.2014, at earlier point of time and considering the same, O.P.

Nos. 2 and 3 were granted anticipatory bail by the impugned

order.

Learned counsel for the petitioner submits that the

petitioner is the father-in-law of the daughter of O.P. No. 2

whereas O.P. No. 3 is the brother-in-law (Sala) of O.P. No. 2.

Factual matrix of the case is that the petitioner filed

Complaint Case No. 488 of 2014 on 21.4.2014 against O.P. Nos.

2 and 3 and other family members levelling accusation under

Sections 147,323,341,452,384,379,380,427 and 504/34 of the

IPC, wherein ultimately process was directed to be issued after

congizance being taken for the offences punishable under

Sections 323,341 and 392/34 of the IPC. Thereafter, O.P. Nos. 2

and 3 preferred anticipatory bail in said complaint case vide Cr.

Misc. No. 32838 of 2015, wherein, in paragraph 3 of the petition,

specific statement was made that O.P. Nos. 2 and 3 do not have

any criminal antecedent, whereas, it is submitted by learned

counsel for the petitioner that on the day the bail application was

preferred, O.P. Nos. 2 and 3 were also accused in Laheria Sarai
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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P.S. Case No. 305 of 2014 which was registered on 7.7.2014

under Sections 376,354 and 120B/34 of the IPC and in Complaint

Case No. 734 of 2014 filed on 24.5.2014, wherein process was

directed to be issued after cognizance being taken under Sections

323,341 and 392/34 of the IPC.

It is submitted by learned counsel for the petitioner

that O.P. Nos. 2 and 3 have misused the privilege of bail as

subsequent to the grant of bail as they have been made accused in

Laheriasarai P.S. Case No. 176 of 2016 registered for the offences

punishable under sections 147, 148, 149,3 23, 452, 380,387,504

and 506 of the IPC and Laheriasaria P.S. Case No. 398 of 2016

registered for the offences punishable under Sections

384,327,380,427,500,501 and 507/34 of the IPC and Sections

66A, 84A ad 84C of the I.T. Act, 2000, wherein final report has

been submitted on completion of investigation, though

cognizance has subsequently been taken after differing with the

final form. It is further submitted that O.P. No. 2 and 3 have

evicted the petitioner from his own house which suggests that

they have misused the privilege of bail. Learned counsel for the

petitioner, in this regard, has relied upon an order passed in Cr.

Misc. No. 11273 of 2018 and 17470 of 2015 wherein for making

false statement with regard to criminal antecedent, the two co-
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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ordinate benches of this Court cancelled the bail of the petitioners

of the said criminal miscellaneous applications. Reliance has

further been placed on the case of Union of India Vs. Rajendra

Singh and Ors. reported in (2000) 3 Supreme Court Cases 581

wherein it has been held that fraud vitiates all the judicial acts.

The O.P. Nos. 2 and 3 were granted anticipatory bail

in Complaint Case No. 488 of 2014 on the sole ground that the

case lodged by the daughter of O.P. No. 2 namely Manisha

Choudhary, being Darbhanga Mahila P.S. Case No. 40 of 2014

was lodged prior in time whereas the Complaint Case No. 488 of

2014 was lodged on 21.4.2014 but in fact, Darbhanga Mahila P.S.

Case No. 40 of 2014 was registered on 22.4.2014, hence, on

behalf of O.P. Nos. 2 and 3, not only a false statement was made

in paragraph 3 of the bail application with regard to the criminal

antecedent but material fact was also suppressed that they were

also accused in two other cases being Laheria Sarai P.S. Case

No. 305 of 2014 registered on 7.7.2014 under Sections 376,354

and 120B/34 of the IPC and the Complaint Case No. 734 of 2014

registered on 24.5.2014. Hence, O.P. Nos. 2 and 3 have obtained

anticipatory bail by playing fraud and therefore, the bail bonds of

O.P. Nos. 2 and 3 be cancelled.

It is submitted by learned counsel for the O.P. Nos. 2
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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and 3 that daughter of O.P. No. 2, namely Manisha Choudhary

was married with the son of the petitioner, namely, Ashish

Narayan but subsequently she was tortured at the hands of the

petitioner and other in-laws family members, as a result,

Darbhanga Mahila P.S. Case No. 40 of 2014 was lodged against

the petitioner and other co-accused with accusation under

Sections 323, 494,498A and 504/34 of the IPC and Sections 3 and

4 of the Dowry Prohibition Act. The said FIR was registered on

22.4.2014 whereas the Complaint Case No. 488 of 2014 was filed

on 21.4.2014 but in paragraph 6 of the said written report, it was

specifically mentioned by the daughter of O.P. No. 2, namely,

Manisha Choudhary that she lodged a case in Mahila Police

station on 15.4.2014 when the Officer Incharge of the Mahila

Police Station took attempts to reconcile the issue. The said

statement in paragraph 6 reads as follows:

“MERE SASURAL AVAM PATI KE
KHILAF MAINE 15.4.2014 KO MAHILA THANA
ME EK AVEDAN PRASTUT KAR DIYA THA
JISPE THANA ADHYAKSH EVAM MAHILA
SAMITI DONO PAKSHO KI SULAH KARANE
ME LAGI HUI THI.”

It is further submitted by learned counsel for the O.P.

Nos. 2 and 3 that O.P. No. 3 Pranay Kumar Jha alias Pikku is not
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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accused in Complaint Case No. 734 of 2014.

So far as second case is concerned, the same got

initiated on the filing of Complaint Case No. 1014 of 2014 by one

Sakeela Khatoon on 3.7.2014, which was transmitted to the

concerned police station in exercise of jurisdiction under Section

156(3) of the Cr.P.C. and on the basis of that, Laheriasarai P.S.

Case No. 305 of 2014 was registered on 7.7.2014 but it is being

claimed that the same were pending on the day when O.P. Nos. 2

and 3 were granted anticipatory bail. Moreover, O.P. No. 2 was

not aware of the same. The two cases lodged subsequent to the

grant of anticipatory bail are Laheriasarai P.S. Case No. 176 of

2016 and Laheriasarai P.S. Case No. 398 of 2016 which have

been lodged by the petitioner. It is further submitted that the

prosecution against O.P. No. 2 arising out of Complaint Case No.

734 of 2014 has been quashed by this Court vide order dated

5.1.2018 passed in Cr. Misc. No. 44675 of 2014, considering the

relationship between the petitioner and O.P. No. 2, while

Laheriasarai P.S. Case No. 305 of 2014 registered on 7.7.2014,

was actually lodged maliciously at the behest of the petitioner

wherein accusation was found false and on completion of

investigation, final form was submitted on 27.2.2015, though

later, differing with the final form, cognizance was taken by the
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learned Magistrate on 11.4.2016. Hence, on the day when the

privilege of pre-arrest bail was granted to the O.P. Nos. 2 and 3,

i.e. on 10.08.2015, final form was submitted against O.P. Nos. 2

and 3, finding the accusations not true, against them. Meaning

thereby that the accusations were dropped against the O.P. Nos. 2

and 3, by the police on conclusion of investigation. Though,

subsequently, after differing with the final form, the learned

Court, in seisin of the matter, took cognizance of the offences, as

against the O.P. Nos. 2 and 3. Hence, in the interregnum, between

the period when final form was submitted against the O.P. Nos. 2

and 3, whereby, they were not sent up for trial, till the date of

order taking cognizance being passed, the accusations or the

F.I.R. was inexistent. It was during this period when the privilege

of pre-arrest bail was granted to the O.P. Nos. 2 and 3.

The Criminal Miscellaneous application through

which O.P. Nos. 2 and 3 were granted anticipatory bail, was

supported with an affidavit swore by the mother of O.P. No.2,

being an old lady and it appears that by inadvertence statement

was made in paragraph 3 of the petition that O.P. Nos. 2 and 3

have no criminal antecedent. Virtually on the date of filing of Cr.

Misc. No. 32838 of 2015, only one case was pending, i.e.

Complaint Case No. 734 of 2014 in which prosecution has
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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already been quashed while the other case being Laheriasarai P.S.

Case No. 305 of 2014 was not pending on that day. Hence, it

cannot be said, keeping in view the relationship between the

petitioner and the O.P. Nos. 2 and 3, that any fraud has been

committed by the O.P. Nos. 2 and 3.

Considering the rival submissions of the parties, it

appears from the facts that both sides have lodged numerous cases

against each other in the background of the fact that the

petitioner’s son has been married with the daughter of O.P. No. 2.

It further appears that instead of resolving the domestic dispute,

they are multiplying the litigation by lodging cases against each

other. Hence, this Court is reluctant to interfere in the matter.

Moreover, it appears that on the day Cr. Misc. No. 32838 of 2015

was preferred on behalf of O.P. Nos. 2 and 3 for grant of

anticipatory bail, O.P. No. 3 was not accused in Complaint Case

No. 734 of 2014 and so far as O.P. No. 2 is concerned,

prosecution arising out of the said complaint case has now been

quashed.

It also appears from the rival submissions of the

parties that both the case against the O.P. Nos. 2 and 3 were

lodged at earlier point of time, before the filing of the

anticipatory bail application, being Cr. Misc. No. 32838 of 2015
Patna High Court Cr.Misc. No.53963 of 2015 dt.10-12-2018
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but there is nothing on record to suggest tht O.P. Nos. 2 and 3 had

the knowledge of the two cases or they appeared in those cases

prior to filing of the aforesaid Criminal Miscellaneous application

on 17.7.2015.

So far as the cases referred by the petitioner wherein

on the basis of false statement with regard to criminal antecedent

of the accused the bail has been cancelled, the litigation had not

arisen in the background of matrimonial dispute. There is

difference between the cases which are regular criminal cases and

the cases being filed as retaliatory measure by the husband’s

family when they apprehend that the wife is going to file or has

filed case with accusation under Section 498A of the IPC hence it

has to be considered in an altogether different perspective. As

such, cases are basically filed due to hatred developed between

the families due to matrimonial discord.

It is well settled law that the parameters of grant of

bail and its cancellation are quite different. In the case of Biman

Chatterjee Vs. Sanchita Chatterjee and Anr. (2004) 3 Supreme

Court Cases 388, the bail was sought to be cancelled on the

ground that in spite of the undertaking, the husband failed to

compromise and did not keep the wife with him wherein the

Supreme Court held that the bail cannot be cancelled on the
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ground alien to the grounds mentioned cancellation under Section

437(3) of the Cr.P.C. Paragraph 7 reads as follows:

“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
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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.”

Rejection of bail when bail is applied for is one

thing, cancellation of bail already granted is quite another. It is

easier to reject a bail application in a non-bailable case than to

cancel a bail granted in such a cases. Cancellation of bail

necessarily involves the review of a decision already made and

can by and large be permitted only if, by reason of supervening

circumstances, it would be no longer conducive to a fair trial to

allow the accused to retain his freedom during the trial as has

been held in the case of State (Delhi Administration) Vs. Sanjay

Gandhi, AIR 1978 SC 961.

No doubt, it is well settled that bail can be cancelled

in case (i) the accused misuses his liberty by indulging in similar

criminal activity, (ii) interferes with the course of investigation,

(iii) attempts to tamper with evidence or witnesses, (iv) threatens

witnesses or indulges in similar activities which would hamper

smooth investigation, (v) there is likelihood of his fleeing to

another country, (vi) attempts to make himself scarce by going
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underground or becoming unavailable to the investigating agency,

(vii) attempts to place himself beyond the reach of his surety etc.

as has been held in the case of Mehboob Dawood Shaikh Vs.

State of Maharashtra, (2004) 2 Supreme Court Cases 362.

Though the two cases have been lodged subsequent

to the grant of bail to O.P. Nos. 2 and 3 but those cases have been

lodged by the petitioner himself who is none else than the father-

in-law of daughter of O.P. No. 2, which prima facie, suggests that

those cases have been lodged in sheer vengeance and in the

backdrop of seriously litigated relationship, having arisen out of

matrimonial discord. In the circumstances, this Court feels that

O.P. Nos. 2 and 3 were granted bail, primarily on considering the

fact that the complaint case was lodged as a retaliatory measure,

though an error has crept in the order to the effect that it was

recorded therein that the case lodged by the daughter of O.P. No.

2 was earlier in point of time, which is not a correct fact, but that

cannot be a ground for cancelling the bail since the FIR lodged by

the daughter of O.P. No. 2 clearly stipulates that she lodged a case

before the Mahila police station much prior to the complaint

lodged by the petitioner.

So far as other ground, whereby it is alleged that a

wrong statement was made in paragraph 3 of the bail petition of
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O.P. Nos. 2 and 3 to the effect that they do not have any criminal

antecedent, is concerned, there is nothing on record to suggest

that O.P. Nos. 2 and 3 were aware about those two cases lodged

against them. Moreover, O.P. No. 3 was not accused in one of the

cases. That apart, prosecution arising out of one of the cases has

been quashed keeping in view of the litigated relationship

between the parties and in other case on the day they were granted

bail the police submitted final form finding the accusation false

though differing with the final form, cognizance of the offences

was subsequently taken against the O.P. Nos. 2 and 3. Though it is

true that once the final form is submitted, whereby the police do

not send up the accused for trial, it gets concluded, only with the

acceptance or differing with such report by the learned Court in

seisin of the matter. But by any stretch of imagination, it cannot

be said that the accusations exist during the interegnum, so as to

be counted for the purpose of pendency of criminal case or as an

antecedent.

Accordingly, this application is dismissed.

(Dinesh Kumar Singh, J)
anil/-

AFR/NAFR
CAV DATE
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