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.
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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
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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
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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
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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
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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.
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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
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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
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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