Petitioner no. 1 has performed inter-caste marriage therefore the parties were well aware of the status of each other at the time of marriage: High Court of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 342220 Arising Out of PS. Case No. 561 Year 2019 Thana MUFFASIL District West Champaran 1. Nikita Kumari aged about 34 years Female Wife of Ranjan Kumar Ranjan Jha Daughter of Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad Resident of Sant Kabir Road Banuchhapar PS Banuchhpara OP District West Champaran. At Present resident of Village Dharahara PS Banmankhi District Purnia Sudha Rani Jaiswal aged about 65 years Female Wife of Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad. 3. Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad aged about 70 years Male Son of Late Harihar Prasad Jaiswal. 4. Niraj Jaiswal @ Niraj Nayan aged about 45 years Male Son of Nirmal Prasad Jaiswal @ Nirmal Jaiswal Petitioner No. 2 to 4 are residnt of Village Dharahara PS Banmankhi District Purnia The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Bimlesh Kumar Pandey Advocate Mr. Jagdhar Prasad APP Mr. Yogesh Chandra Verma Senior Advocate with Mr. Anand Kumar Mishra Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 20 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Bimlesh Kumar Pandey learned counsel for the petitioner no. 1 the sole petitioner after withdrawal of the petition on behalf of the petitioners no. 2 to 4 Mr. Jagdhar Prasad learned Additional Public Prosecutorfor the State and Mr. Yogesh Chandra Verma learned Patna High Court CR. MISC. No.342220 dt.20 09 2021 senior counsel along with Mr. Anand Kumar Mishra learned counsel for the informant 3. The petitioner no. 1 apprehends arrest in connection with Bettiah MuffasilPS Case No. 5619 dated 05.10.2019 instituted under Sections 406 420 380 and 120B 34 of the Indian Penal Code 4. The allegation against the petitioner who is the wife of the informant is of concealing the fact of being already married and also taking huge amount of the informant which was not returned and thereafter that her brothers had abused and assaulted the informant and finally that the petitioner no. 1 and her other relatives had taken away jewellery worth Rs. 50 lakhs Rs. 1 lakh cash and the son of the informant who is born to the petitioner no 1 with them 5. Learned counsel for the petitioner no. 1 submitted that the entire FIR is based on falsehood. It was submitted that it was the informant who was instrumental in the separation of the petitioner no. 1 from her first husband and in fact it was he who was pursuing the matter relating to her divorce. It was submitted that when the petitioner no. 1 had filed a case against her previous husband which was finally compromised on 17.01.2012. He submitted that thereafter the parties had separated and in fact it Patna High Court CR. MISC. No.342220 dt.20 09 2021 was the informant who had assured the petitioner no. 1 that they could marry and to his full knowledge the marriage was performed between the petitioner no. 1 and the informant on 26.07.2012. Learned counsel submitted that the petitioner no. 1 had got by way of alimony about Rs. 7 lakhs from her previous husband and upon marriage she had taken the money to the matrimonial home and the same was fully appropriated by the informant. Learned counsel submitted that continuously the demand for dowry money kept on pouring from the informant and his relatives. It was submitted that later on formal decree of divorce was also obtained between the petitioner no. 1 and her previous husband. Learned counsel submitted that on the previous occasion an objection was raised by learned counsel for the informant with regard to maintainability of the present petition in view of processes under Sections 82 and 83 of the Code of Criminal Procedure 1973(2012) 8 SCC 730 especially paragraph no. 10 which has clearly laid down that when the accused is ‘absconding’ and declared as ‘proclaimed offender’ there was no question of granting anticipatory bail. It Patna High Court CR. MISC. No.342220 dt.20 09 2021 was submitted that in the same stroke the Hon’ble Supreme Court has stated that when a person against whom a warrant had been issued and is ‘absconding or concealing himself in order to avoid execution of warrant’ and is declared as a ‘proclaimed offender’ in terms of Section 82 of the Code is not entitled the relief of 6. Learned counsel submitted that in the present case the informant has filed a counter affidavit bringing on record the orders passed by the Court below which do not show that it has been held against the petitioner no. 1 that she is ‘concealing herself and absconding’ and further that she has not been declared a ‘proclaimed offender’. Learned counsel submitted that in the case which the petitioner no. 1 has filed against the informant and his family members being Bettiah Muffasil PS Case No. 6919 dated 13.12.2019 the Investigating Officer of the present case and the said case is the same person. It was submitted that the petitioner no. 1 is the informant of the other case and on 13.12.2019 the same Investigating Officer had taken the restatement of the petitioner no. 1 which clearly indicates that she was not trying to evade the process of law or absconding for the reason that the order of the Court below in the present case had already issued non bailable warrant of arrest and the same was Patna High Court CR. MISC. No.342220 dt.20 09 2021 handed over to the Investigating Officer on 05.12.2019 itself Thus learned counsel submitted that for the purposes of consideration of the prayer for anticipatory bail as far as the instant case is concerned there is no legal impediment to the same. For the same proposition learned counsel relied upon the decisions of the Hon’ble Supreme Court in State of MP v Pradeep Sharma 2 SCC 171 Jharkhand High Court in Mahendra Kumar Ruiya vs. The State of Jharkhand and Another dated 27.06.2013 a co ordinate Bench of this Court dated 07.02.2019 in Cr. Misc. No 622017as also order dated 20.08.2020 of the High Court of Chhattisgarh Bilaspur in MCRCA No. 19 of 2020 with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Bettiah West Champaran in Bettiah Muffasil Patna High Court CR. MISC. No.342220 dt.20 09 2021 Banuchhapar) PS Case No. 5619 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that the petitioner no. 1 shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of her bail bonds 14. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner no. 1 to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 15. The petition stands disposed of in the (Ahsanuddin Amanullah J 

Summary: The petitioner no.1 was arrested under Section 406 of the Indian Penal Code, “Punishment for criminal breach of trust”, Section 420, “Cheating and dishonestly inducing delivery of property”, Section 380, “Theft in dwelling house, whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment and fine,” Section 120B, “ Punishment of criminal conspiracy”, Section 34 IPC, “Acts done by several persons in furtherance of common intention.” The petition is in connection with Bettiah Muffasil (Banuchhapar) [PS Case No. 561 of 2019] dated 05.10.2019. In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 20th  of September  2021 in the case of Nikita Kumari and others Versus the State of Bihar, [Criminal Miscellaneous No. 34225 of 2020] Mr Bimlesh Kumar Pandey represented as the advocate for the petitioner, Mr Jagdhar Prasad represented the State of Bihar as the additional Public Prosecutor, and Mr Yogesh Chandra Verma,  represented as the advocate for the informant, the proceedings of the court were held via video conference. The case relates to the facts wherein the petitioner who is the wife of the informant was accused of concealing the fact of her already being married and she took a huge sum of money from the informant and failed to return the same. Further her brothers abused and assaulted the informant and the petitioner along with her relatives had taken away jewellery worth Rs. 50 lakhs, Rs. 1 lakh cash. The counsel representing the petitioner stated that the entire FIR is based on false accusations, the informant played a vital role in separating the petitioner no.1 from her first husband and the informant was helping her with her divorce therefore the petitioner’s first marriage was no secret. The petitioner legally has been separated from her first husband and the informant assured her of marriage. The petitioner had got by way of alimony, about Rs. 7 lakhs from her previous husband and after her second marriage she took the money to her matrimonial home and the informant was fully aware of the same. Further, the counsel held that there was a constant demand for dowry from the informant and his relatives. Petitioner no.1 has not been declared as a proclaimed offender therefore bail cannot be rejected. The petitioner has also lodged a complaint against the informant. The counsel further relies upon the following cases for the purpose of consideration of the prayer for anticipatory bail, Hon’ble Supreme Court in State of MP v. Pradeep Sharma, [(2014) 2 SCC 171]; Jharkhand High Court in Mahendra Kumar Ruiya vs. The State of Jharkhand etc. the counsel held that as the petitioner is a lady and also has an infant son to look after, the informant is caused such chaos to humiliate the petitioner no.1 and her family members because the marriage was an inter-caste love marriage. The additional public prosecutor held that the petitioner has been accused of cheating and the counsel for the informant held that it is not controverted that there is no order to prove that the petitioner is a proclaimed offender, however, the petitioner does not deserve anticipatory bail as she concealed the fact that she was already married. The Honourable Court concluded that “the petitioner no. 1 cannot be said to have evaded the process of law or concealed herself. Petitioner no. 1 was available for any interrogation or otherwise which may have been required. Petitioner no. 1 has not been declared a proclaimed offender. Thus, the Court does not find that there is any legal bar for consideration of the present case on merits. Petitioner no. 1 has performed inter-caste Court marriage and there is an infant son born, the same is sufficient to indicate that the parties were well aware of the status of each other at the time of marriage. Thus, the Court is inclined to allow the prayer for pre-arrest bail. Petitioner no. 1, will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) to the Judicial Magistrate. The petition stands disposed of in the aforementioned terms.”