IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No. 45837 of 2007 SUBHASH KUMAR KANODIA son of Sri Prahlad Prasad Kanodia Versus THE STATE OF BIHAR with Cr. Misc. No. 33503 of 2009 SUBHASH KUMAR KANODIA son of Sri Prahlad Prasad Kanodia Versus STATE OF BIHAR & ANR ----------- 18/ 19.04.2010 Both the cases are taken up together for hearing, as they arises out of the common complaint case. In Cr. Misc. No. 45837 of 2007, the petitioner, who is husband, prays for anticipatory bail in Complaint Case No. 1207 of 2007 under Sections 406/323/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. In Cr. Misc. No. 33503 of 2009, the petitioner prays for modification of order dated 18.05.2009 passed by this Court in Cr. Misc. No. 45837 of 2007. The complainant, Punam Devi, wife of petitioner Subhash Kumar Kanodia, filed a complaint case bearing no. 1207 of 2007 for the offence under Section 406, 323, 498 (A) / 34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The learned Magistrate took cognizance under Sections 406, 498 (A) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. In the beginning, both the parties expressed their willingness to live together. As the conciliation failed, they decided to part ways on certain terms and conditions. A supplementary affidavit was filed on behalf of the petitioner on 18.05.2009 expressing his willingness to pay a sum of - 2 - Rs. 6,00,000/- (Six lacs) as final settlement between the parties to resolve all matrimonial dispute. The petitioner had agreed to pay the aforesaid amount by June, 2010. As the complainant expressed some reservation regarding sufficiency of amount, the petitioner agreed to enhance it to Rs. 7,00,000/- (Seven lacs). The complainant on her part had undertaken to withdraw the instant criminal case as well as maintenance case bearing no. 104 of 2007 pending before the Principal Judge, Katihar. Solely in view of the compromise arrived at between the parties, this Court granted anticipatory bail to the petitioner subject to the parties adhering to the commitment made before this Court. This Court observed that in case, if either of the parties did not adhere to the commitment, the other side (the affected party) may file an application for reviving this anticipatory bail application. The opposite party no.2, Poonam Devi, has since then filed an Interlocutory application bearing I.A. No. 81 of 2010 for revival of the bail application, as the petitioner did not make any payment, in spite of commitment before this Court. In view of such assertion of the complainant, this Court by order dated 19.02.2010 issued notice to the petitioner fixing 12.04.2010, as the date in this case. It is relevant to state that petitioner had also filed a modification application bearing Cr. Misc. No. 33503 of 2009 for modification of order dated 18.05.2009 passed in Cr. Misc. No. 45837 of 2007 for reducing the lump sum amount of Rs. 7,00,000/- to Rs. 3,00,000/- earlier agreed by him to pay. - 3 - Both the counsels as well as the petitioner and complainant appeared before this court on 12.04.2010. Opposite party No.2 was not agreeable to reduction of amount from Rs. 7,00,000/- to 3,00,000/- . It was stated on her behalf that some time back, the petitioner himself had agreed on affidavit to pay a sum of Rs. 6,00,000/- and subsequently further agreed to enhance this amount to Rs. 7,00,000/-. Thus, by filing the modification application, the petitioner was going back on its own assurance and affidavit filed before this Court. As all was bad on conciliation front, the case was kept on 15.04.2010 for hearing on merit itself. The petitioner states that marriage took place on 07.06.2005. He filed a Matrimonial suit bearing no. 365 of 2006 before Principal Judge, Family Court, Patna on 09.09.2006 for restitution of conjugal rights under Section 9 of the Hindu Marriage, Act. The father of the petitioner had filed an informatory petition on 26.09.2006 stating therein that opposite party no.2 is having affair with another person and she may commit problem. The petitioner submits that the complainant had filed the instant Complaint case no. 1207 of 2007 by way of retaliation of aforesaid cases, making false allegations. Furthermore the allegations are omnibus and general in nature and all other co-accused have been granted anticipatory bail. Learned counsel for the complainant, opposite party no.2, submits that the petitioner has gone back on his commitment before this Court by offering only Rs. 3,00,000/- in case of Rs. 7,00,000/- earlier agreed. Learned counsel submits that it appears that a false - 4 - affidavit was filed on behalf of the petitioner earlier only to secure bail knowing fully well that he would not honour the commitment. The opposite party no.2 contends that though the Matrimonial case was filed on 09.09.2006, it was defective and was admitted nearly after four months of filing of complaint by opposite party no.2. According to her the Matrimonial case was filed only, as a defence. Learned counsel submits that on one hand the petitioner files a petition for restitution of marriage on 09.09.2006, whereas his father filed an informatory petition making all sorts of allegations on her character. He further submits that in paragraph 5 of the complaint she has made specific allegation that petitioner no.1 as well as 5 and 6 not only abused assaulted, but also kept hungry. The complaint petition does disclose allegations of demand of dowry and torture. The case of the petitioner stands on different footing than that all the other accused persons, who have been granted anticipatory bail, as the former being the husband has a larger responsibility to keep his wife with all due care and affection. The allegation of character in the Informatory petition filed by the father of the petitioner is not in line with the averments made in the Matrimonial suit, in which the prayer was made for restitution of conjugal rights. In view of the aforesaid circumstances, the anticipatory bail granted to the petitioner, which was conditional and subject to the terms of adherence and conditions agreed before this Court, is withdrawn. The petitioner should surrender and pray for regular bail, - 5 - which would be decided on its own merit without being prejudiced by any observation made in this order. For the reasons stated above, the modification application vide Cr. Misc. No. 35503 of 2009 filed by the petitioner is too dismissed. Uday/ (Samarendra Pratap Singh, J.)