IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.28721 of 2010 UDAY PRASAD, son of Yogeshwar Prasad Versus THE STATE OF BIHAR ----------- 7/ 05.01.2011 Heard learned counsel for the petitioner and the Complainant/informant. The petitioner apprehends his arrest in a Protest-cum- Complaint case filed under Sections 376, 323/34 of the Indian Penal Code. Earlier the prayer for anticipatory bail of the petitioner was rejected by order dated 09.03.2010 with certain observations. The prosecution case is that the victim had mortgaged jewellry worth Rs.1,000/- in 2002. In the year, 2004 she time without number went to the house of Uday Prasad but learnt that now he stays at Ranchi, and seldom comes to Jehanabad. However, on 27.08.2004 at 8.00 A.M., she accidentally came across him near court premises. When she pleaded for redemption, he took her to a nearby house in a lane, and committed rape. In the meantime, the father and two sons of the petitioner too came. The husband of the complainant also happened to come to the house of accused immediately. All the accused abused her and her husband. The petitioner submits that initially the complainant filed police case namely Jehanabad P.S. case no. 325 of 2004 under Section 376, 341, 323, 354, 506/34 of the Indian Penal Code, which on investigation was found false. The police, as such submitted final form in favour of the petitioner and his family members, which was accepted by the Chief Judicial Magistrate, Jehanabad. However, the 2 case has now proceeded on Protest-cum-Complaint. The petitioner submits that on 17.05.2010 the complainant filed an affidavit in the court of Judicial Magistrate, 1st Class, in which she stated that on instigation of one Arun Prasad (brother of petitioner), she filed the present false case against the petitioner. A copy of affidavit dated 17.05.2010 has been annexed as Annexure-5 to this application. The husband of the complainant has also sworn an affidavit on 17.05.2010 that his wife had filed the present case under duress and coercion falsely implicating the petitioner. Copy of affidavit dated 17.05.2010 sworn by husband of the complainant has been annexed as Annexure-6 to this application. It is also submitted that a Partition Suit no. 127 of 2000 is going on between the petitioner and the said Arun Prasad in the court of Sub-Judge-IV, Jehanabad, who has set up the complainant to institute the present case. He further submits that Arun Prasad is also facing criminal prosecution in Ranhi Sadar L. Bazar P.S. case no. 54 of 2002 under Sections 448, 328, 341/34 of the Indian Penal Code. Further more, in the First Information Report the time of occurrence is stated at 8.00 P.M. in the night, whereas in the complaint the time of occurrence has been mentioned as 7.00 A.M. He further submits that one of the two prosecution witnesses of the complaint in course of enquiry under Section 202 of Cr.P.C. even went to the extent of stating that the petitioner and his two sons committed rape on the complainant, which is not even the complainant’s case. On these grounds, the petitioner has renewed the prayer for anticipatory bail. 3 Counsel for the complainant/informant submits that the complainant had subsequently filed affidavit stating that under threat and coercion she had filed earlier affidavit stating that she had filed a false case against the petitioner. He further submits that the petitioner has been threatening the complainant on many occasions. The petitioner submits that the correct fact can be verified from the complainant itself. Hearth the parties. It is true that the police on investigation found the case to be false and deposition of one of the two P.Ws. as at variance in prosecution case. However, cognizance has been taken on protest-cum-complainant where the complainant has supported her complaint. In my view, the petitioner should surrender before the court below and pray for regular bail. The petitioner can take all these points before the court below, who will dispose of the bail application, considering all these aspects without being prejudiced that earlier this Court has rejected the anticipatory bail application. With the aforesaid observation, the prayer for anticipatory bail of the petitioner is disposed of. Uday/ (Samarendra Pratap Singh, J.)