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Kanheiya Kumar vs The State Of Bihar on 8 January, 2020

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4984 of 2019
Arising Out of PS. Case No.-528 Year-2018 Thana- BAHERA District- Darbhanga

Kanheiya Kumar, Son of Radha Sahu @ Radhe Sahu, Resident of Village –
Bahera, P.S. – Bahera, District – Darbhanga.

… … Appellant/s
Versus
The State of Bihar

… … Respondent/s

Appearance :
For the Appellant/s : Mr.Kedar Jha
For the Respondent/s : Mrs.Usha Kumari 1

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER

3 08-01-2020 Heard learned counsel for the appellant and

learned Spl. P.P. for the State.

The appellant in the present case is seeking

setting aside of the impugned order dated 25.07.2019

passed by learned 1st Additional Sessions Judge-cum-

Special Judge, SC/ST Act, Darbhanga in A.B.P. No.1159 of

2019 whereby and whereunder the learned court below has

been pleased to refuse to grant anticipatory bail to the

appellant who has been made accused in Bahera P.S. Case

No.528/2018 (G.R.No.247/2018) registered for the offence

punishable under Sections 376, 341, 323 and 504/34 of the

Indian Penal Code and Sections 3(1)(r)/3[1](s) of the

Scheduled Caste and Scheduled Tribe (Prevention of
Patna High Court CR. APP (SJ) No.4984 of 2019(3) dt.08-01-2020
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Atrocities) Act, 1989.

Learned counsel for the appellant submits that as

per the prosecution story the informant is a member of the

scheduled caste and she was allured by this petitioner to

establish physical relationship on the pretext of marrying

her. The informant alleged that for about four months, the

petitioner had been establishing relationship and on

29.11.2018 when he came to the house of the informant he

promised her to take to the court for marriage purpose but

on the very next day when the informant went to the house

of the petitioner, she was abused by father and wife of elder

brother of this petitioner in the name of her caste and the

informant as well as her mother were abused and beaten

which have been seen by the co-villagers.

Learned counsel for the appellant has

strenuously argued that on the face of the allegations it is to

be taken as a case of ‘consent’ on the part of the informant

and there being a consent on her part it cannot be said to be

a case covered under Section 376 I.P.C. In this connection,

he has also relied upon the judgments of the Hon’ble

Supreme Court in the case of Dr. Dhruvaram Murlidhar
Patna High Court CR. APP (SJ) No.4984 of 2019(3) dt.08-01-2020
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Sonar Vs. State of Maharashtra and Ors. reported in

2018 SCC Online SC and Dr. Pramod Suryabhan Pawar

Vs. The State of Maharashtra reported in AIR 2019 SC

4010 as also on the order dated 17.02.2016 passed by a

learned coordinate Bench of this Court at the relevant time

in Cr.Misc. No.124 of 2016. In Cr.Misc. No.124/2016,

anticipatory bail was granted to the petitioner taking note of

the facts and circumstances of the said case in which the

Court noticed the submission of the parties, the period of

relationship and then allowed the privilege of anticipatory

bail to the said accused. Learned counsel further submits

that now the appellant and the informant have compromised

their dispute and they have filed petition in this regard in

the court below.

Learned APP for the State has opposed the

prayer for anticipatory bail of the appellant. It is his

submission that there are serious allegations of establishing

physical relationship with the informant on the pretext of

marriage and it appears from the allegations made that at

the very inception the appellant had allured the informant

on the pretext of the marriage. Pointing out to the facts of
Patna High Court CR. APP (SJ) No.4984 of 2019(3) dt.08-01-2020
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the case which went to the Hon’ble Supreme Court and on

which reliance has been placed by learned counsel for the

petitioner, learned APP submits that the facts of the present

case are quite different and distinct from those cases. In the

case before the Hon’ble Supreme Court there were

clinching materials to establish that the parties were in

contact with each other for several years and they had been

establishing physical relationship despite there being

knowledge on the part of the girl that the marriage with the

boy was difficult because they belonged to different castes,

therefore, the Hon’ble Supreme Court was of the view that

for the girl perhaps marriage was not the immediate concern

and relevance for purpose of giving consent to establish the

physical relationship. Such is not the case here.

Considering the facts and circumstances of the

case as also on a careful perusal of the judgments of the

Hon’ble Supreme Court, this Court finds that the cases

before the Hon’ble Supreme Court has gone after the

Hon’ble High Court dismissed the petition under Section

482 Cr.P.C. for quashing of the FIR and the criminal

proceeding. Certain materials were there before the Hon’ble
Patna High Court CR. APP (SJ) No.4984 of 2019(3) dt.08-01-2020
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Apex Court which have been referred therein and taking

note of the undisputed facts showing that the parties were

having relationship for a quite long time and they were even

living together for some time the FIRs were quashed.

So far as the present case is concerned, the

matter is still under investigation and overall facts and

circumstances of the case do not show at this stage that the

informant had been giving consent to establish physical

relationship for a quite long time and/or any belief that the

marriage is not relevant for her.

The Hon’ble Supreme Court in the case of Dr.

Dhruvaram Murlidhar Sonar (supra) while referring

another judgment of Hon’ble Supreme Court in the case of

Uday Vs. State of Karnataka (2003) 4 SCC 46 quoted

paragraph 21 thereof which inter alia contains the following

observations:-

“21. ….. In the ultimate analysis, the tests laid
down by the courts provide at best guidance to the
judicial mind while considering a question of
consent, but the court must, in each case, consider
the evidence before it and the surrounding
circumstances, before reaching a conclusion,
because each case has its own peculiar facts which
may have a bearing on the question whether the
consent was voluntary, or was given under a
misconception of fact. It must also weigh the
evidence keeping in view the fact that the burden
Patna High Court CR. APP (SJ) No.4984 of 2019(3) dt.08-01-2020
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is on the prosecution to prove each and every
ingredient of the offence, absence of consent
being one of them.”

In the totality of the facts and circumstances of

the case, as noticed above, where there are specific

allegations against the petitioner of alluring and entering

into physical relationship with the informant in the name of

marriage, this Court is not inclined to grant privilege of

anticipatory bail to the appellant. This appeal is dismissed.

In case, the appellant surrenders and prays for

regular bail in the court below within a period of four weeks

from today, his prayer for regular bail shall be considered

on its own merit without being prejudiced by the order of

this Court.

(Rajeev Ranjan Prasad, J)
arvind/-

U T

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