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Mayank Kumar vs The State Of Bihar Through Principal … on 21 December, 2023

Patna High Court

Mayank Kumar vs The State Of Bihar Through Principal … on 21 December, 2023

Author: Rajeev Ranjan Prasad

Bench: Rajeev Ranjan Prasad

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.229 of 2023
Arising Out of PS. Case No.-102 Year-2022 Thana- MAHILA P.S. District- Patna

Mayank Kumar, Son of Vinay Kumar Pal, Resident of House No.-89, Budh
Marg, New Police Line, P.S.- Buddha Colony, District- Patna

… … Petitioner
Versus
1. The State of Bihar through Principal Secretary, Home Department,
Government of Bihar, Patna
2. The Director General of Police, Bihar, Patna
3. The Inspector General of Police, Central Range, Patna
4. The Deputy Inspector General of Police, Central Range, Patna
5. The Superintendent of Police, Patna
6. The Station House Officer, Mahila Police Station, District- Patna
7. Usha Sinha, Assistant-Sub Inspector, Mahila Police Station, District- Patna
8. Archana Kumari, Wife of Mayank Kumar, Resident of Village- Ranauli,
P.S.- Bhatnaha, District- Sitamadhi, presently resident of- C/o Ram Babu,
Bank Road, New Police Line, Police Station- Buddha Colony, District-
Patna

… … Respondents

Appearance :
For the Petitioner/s : Mr. Shashank Shekhar, Advocate
Mr. Rajeev Ranjan, Advocate
Mr. Anurag Kumar, Advocate
Mr. Mukul Kumar, Advocate
For the State : Mr. S.D. Yadav, AAG-9
Mr. Sheo Shankar Prasad, SC-8
Mr. Sanjay Kumar, AC to SC-8
For the R. No.7 : Mr. Sudhir Kumar Singh, Advocate
Mr. Amit Kumar Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 21-12-2023

Since the serial number of parties in the respondent

column have been incorrectly numbered, learned counsel for the

petitioner is permitted to make necessary correction in the

petition.
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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2. This writ application has been filed seeking a

direction restraining respondent no. 6 from harassing the

petitioner in the garb of Mahila P.S. Case No. 102 of 2022 and

further to ensure a fair investigation in the matter as also to

grant appropriate compensation to the petitioner and for grant of

any other suitable relief/reliefs for which the petitioner may be

found entitled to in the eyes of law.

Brief facts of the case

3. The petitioner is an employee of the State Bank of

India at Exhibition Road Branch, Patna. It is his case that he

came in contact with respondent no. 8, who was posted as a

Female Constable in Patna District Force. They became good

friends and got involved in a love affair. On 19.09.2020, the

private respondent approached Mahila Police Station,

Gardanibagh, Patna and lodged a complaint alleging that she has

been sexually exploited by the petitioner on the pretext of

marriage.

4. It is further case of the petitioner that on having

been pressurized, he with an intention to move ahead in his life,

married the private respondent on 11.11.2020, however, soon

after the marriage, the differences started to arise and that led to

filing of a Matrimonial Case bearing No. 1506 of 2021 by the
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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petitioner seeking a decree of divorce.

5. It is stated that respondent no. 8 did not cooperate

in the matrimonial case and with an intention to falsely

implicate the petitioner, she lodged Mahila P.S. Case No. 102 of

2022, dated 16.08.2022, registered under Sections 498A and 34

of the Indian Penal Code read with Sections 3 and 4 of the

Dowry Prohibition Act. A copy of the F.I.R. has been brought on

record as Annexure ‘1’ to the writ application.

6. It is stated that the petitioner applied for

anticipatory bail in the court of learned Sessions Judge, Patna,

vide A.B.P. No. 7307 of 2022, in which he got interim

protection by virtue of the order dated 14.09.2022, wherein the

learned court directed that no coercive steps shall be taken

against the petitioner till next date. The court called for the case

diary along with criminal antecedent of the petitioner, if any,

from the Investigating Officer of the case as well as issued

notice to the informant. The case was posted for further hearing

on 11.10.2022.

7. It is the case of the petitioner that the interim

protection was extended from time to time, which would be

evident from the orders dated 11.10.2022 and 16.11.2022. On

16.11.2022

, the learned court directed that no coercive step shall
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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be taken till next date, which was fixed on 13.12.2022. It is

stated that before the next date of hearing on 13.12.2022, the

respondent nos. 6 and 7 in connivance with the private

respondent no. 8 arrested the petitioner on 04.12.2022 and

dragged him all the way from his house to Mahila Police Station

while keeping him handcuffed. The petitioner has enclosed

Annexure ‘4’ to the writ application, which is a photograph.

8. The bone of contention in the present writ

application is that despite the petitioner producing the order

granting interim relief to him by the learned Sessions Judge,

Patna, the respondents were adamant and paid no heed to the

same. The petitioner was produced before the learned Judicial

Magistrate, 1st Class Patna on 05.12.2022 for purpose of

remand, but after perusal of the records of the case, the learned

Magistrate found that the interim order of no coercive step to be

taken was available in the record, hence he was not remanded. It

is one of the submissions of the learned counsel for the

petitioner that the arrest of the petitioner was in deliberate

violation of the judgment of the Hon’ble Supreme Court in the

case of Arnesh Kumar vs. The State of Bihar Anr. reported

in (2014) 8 SSC 273. It is submitted that in this manner, the

respondent no. 8 harassed the petitioner despite there being an
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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order of the competent court.

Stand of the Respondents

9. A counter affidavit has been filed in this case on

behalf of respondent nos. 5 and 6. The allegation of harassment

has been denied by the answering respondents. It is stated that in

fact, in course of investigation, the case has been found true

under Section 377 of the Indian Penal Code against the

petitioner and it is stated that the offence being punishable for a

period more than seven years, the police officer was competent

to arrest the petitioner. On 4th December 2022, when the arrest

was effected, neither the petitioner nor his learned counsel

produced any order showing extension of the no coercive step

order which was passed on 14th September, 2022. It is stated that

in the Station Diary vide Entry No. 79 dated 04.12.2022, it has

been duly entered that the petitioner was asked to produce the

order of the court, if any, but he did not produce any order of the

court.

10. This case was heard on various dates and having

noticed the kind of submissions on behalf of the petitioner, this

Court, vide its order dated 12.10.2023, directed to bring this

matter to the notice of the Director General of Police, Bihar,

Patna (Respondent No. 2), who will constitute an inquiry in the
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administrative side in the present matter and submit a report to

this Court within four weeks. The petitioner was given an

opportunity to place the photographs in which he has been seen

handcuffed.

11. On 23.11.2023, learned counsel for the State

placed before this Court a copy of the report of the Senior

Superintendent of Police, Patna as contained in Letter No. 2595

dated 22.11.2023, addressed to the Deputy Inspector General of

Police, Central Range, Patna. This Court has briefly taken note

of the contents of the report in its order dated 23.11.2023. The

crux of the report is that the subsequent orders of extension of

no coercive steps to be taken against the petitioner were not

made available to the Investigating Officer and the same was

not available in the Office of the Senior Superintendent of

Police, Patna. This Court being prima-facie of the view that the

report is not convincing, called upon the Senior Superintendent

of Police, Patna to say as to who would be responsible for this

lapse, if the order of the court was not known to the

Investigating Officer and the Office of the Senior

Superintendent of Police, Patna.

12. Pursuant to the said order, a supplementary

counter affidavit has been filed on behalf of respondent no. 5
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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which has been sworn by Senior Superintendent of Police, Patna

himself. By this affidavit, it has been placed before this Court

that the office of the deponent deputed a nodal officer to

monitor and communication of the order passed by each and

every concerned learned court vide District Order No. 4771 of

2023 dated 25.09.2023. It is also stated in paragraph ‘6’ of the

supplementary counter affidavit that even the Public Prosecutor,

Civil Court, Patna is duty bound to communicate the orders of

no coercive steps passed by learned Session Judge, Patna or the

learned Additional Sessions Judge, to whom the case was

transferred for final hearing.

13. It is further stated that the deponent vide his

Memo No. 2625 dated 26.11.2023 sought information from the

Public Prosecutor, Civil Court, Patna as to whether the order of

no coercive steps passed in A.B.P. No. 7307 of 2022 was sent or

communicated to any concerned authority for its compliance. In

response, the learned Additional Public Prosecutor, Civil Court,

Patna has vide Letter No. 355 dated 28.11.2023 informed the

deponent that the order granting no coercive steps had not been

communicated by him but the court of learned A.D.J.-XXV,

Patna, had communicated the order to the learned Judicial

Magistrate, 1st Class, Patna.

Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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14. The S.H.O. (Respondent No. 6) and the I.O. of the

case have taken identical stand. The S.H.O. has brought on

record a copy of the supervision note of the City S.P., Central,

Patna issued on 30.09.2022 in which while agreeing with the

opinion of the Deputy Superintendent of Police (Law and

Order), Patna, that this case is true under Sections

377/498A/341/323/504/506/34 Indian Penal Code and 3/4 of the

Dowry Prohibition Act against the petitioner, he issued further

directions to the I.O. and the very first direction was to arrest the

accused-petitioner and, in case he is not arrested, then steps for

attachment (kurki/japti) be taken. It is the stand of the

Investigating Officer that she had obeyed the command of her

supervising authority and, as the petitioner could not produce

the order extending interim protection to him, he was arrested

and brought to the Police Station, but when the order of the

learned Additional Sessions Judge-XXV, Patna was found in the

records of the learned Judicial Magistrate, 1 st Class, Patna, the

petitioner was not remanded to judicial custody and he was

released.

Consideration

15. This Court has heard learned counsel for the

parties and perused the records. The facts of the case are
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admitted to the extent that the petitioner was arrested on

04.12.2022 by respondent no. 7 and he was brought to the

Police Station from where he was produced before the learned

Magistrate but he was released after the learned Magistrate

found that there was an interim order of the learned Additional

Sessions Judge-XXV, Patna in A.B.P. No. 7307 of 2022

directing that no coercive step is to be taken against the

petitioner till next date which was fixed on 13.12.2022. From

the records, it is clear that the City S.P., Patna had supervised

the case and on finding that the case was found true under

Section 377 of the Indian Penal Code and other Sections of the

Indian Penal Code as well as the Dowry Prohibition Act, he had

directed the I.O. to arrest the accused, thus the I.O. was acting

as per the direction of the City S.P., Patna, who was the

supervising authority.

16. This Court further finds from the records that

although the learned Sessions Judge, Patna had ordered for

issuance of notice to the informant as back as on 14.09.2022

itself, learned counsel for the petitioner had not filed requisites

for issuance of notice to the informant and the court directed

once again on 03.01.2023 to the learned counsel for the

petitioner to file requisites for notice, the notice was issued to
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the informant on 03.01.2023, therefore, from the records, it also

appears that the informant was not appearing in the anticipatory

bail application on the various dates when the interim order of

no coercive action was being extended by the learned court.

17. Although, it is the statement of the petitioner that

he had produced the extension order granting interim protection

to him to the Investigating Officer at the time of his arrest, but

from the copies of the certified copies of the entire ordersheets

of the court of learned Additional Sessions Judge-XXV, Patna

passed in A.B.P. No. 7307 of 2022 placed on the record, it

appears that the certified copies of those orders were obtained

by the petitioner on or after 12.01.2023. It is the case of the

petitioner that he had produced copy of the order before the

Investigating Officer on 04.12.2022, but with the writ

application, at least, he has not enclosed any copy of the order

of interim protection, showing that he had obtained the certified

copy of the said order from the court prior to 04.12.2022.

18. Pursuant to the direction of this Court, the

Director General of Police, Bihar, Patna, has got the matter

inquired into in the administrative side and in the report

submitted by the Senior Superintendent of Police, Patna it is

stated that the copy of the order granting interim protection was
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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neither made available by the petitioner to the Investigating

Officer at the time of his arrest, nor there was any

communication to the Office of Senior Superintendent of Police,

Patna, in this regard, from the Office of the Public Prosecutor,

Civil Court, Patna. In this regard, the statements made in the

supplementary counter affidavit filed by Senior Superintendent

of Police, Patna have not been controverted, thus, in the given

facts and circumstances of the case and the materials it would

not be possible for this Court to come to a definite opinion that

the I.O. of the case (Respondent No. 7) had been acting in

connivance with the private respondent no. 8. As observed

above, she had been directed by the City S.P., Patna to arrest the

petitioner after the case was found true against him. This Court

cannot record a definite finding that the petitioner had produced

a copy of the order granting interim protection to him before the

I.O. at the time of his arrest because there is no statement in the

writ application that he had obtained the order passed by the

learned Additional Sessions Judge-XXV, Patna on 16.11.2022

and at the same time, the copy of the certified copy enclosed

with the writ application is showing that the same has been

obtained only on 12.01.2023.

19. In its’ writ jurisdiction under Article 226 of the
Patna High Court CR. WJC No.229 of 2023 dt.21-12-2023
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Constitution of India, this Court is of the considered opinion

that unless the facts are crystal clear and lead to an irresistible

conclusion that the arrest was in deliberate violation of the order

of the court, it would not be safe to indict the I.O. and record a

finding against her conduct.

20. This Court, therefore, finds that the reliefs prayed

in the writ application are not fit to be granted in its

extraordinary writ jurisdiction in the facts of the present case.

However, it will be open to the petitioner to seek his remedy

before a competent court in appropriate jurisdiction where he

may be allowed to adduce evidences in accordance with law.

21. This writ application is disposed of accordingly.

(Rajeev Ranjan Prasad, J)
Rishi/-

AFR/NAFR
CAV DATE 30.11.2023
Uploading Date 21.12.2023
Transmission Date 21.12.2023

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