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
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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
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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
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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
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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
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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
