Jharkhand High Court
Chandan Kumar Goswami vs The State Of Jharkhand on 5 August, 2022
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 2181 of 2022
Chandan Kumar Goswami, son of Madhusudan Goswami, r/o Road No. 4,
Jharia, PO and PS Jharia, District Dhanbad. ......Petitioner
Versus
1. The State of Jharkhand
2. Anita Kumari Goswami, d/o late Prithvinath Goswami, r/o House No.
2190/F8, Ekta Nagar, Booty More, PO Bariatu, PS Sadar, District Ranchi.
..... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Ms. Aprajita Bhardwaj, Advocate Mr. Suraj Singh, Advocate For the State : Mr. Abhay Kumar Tiwari, APP For OP No.2 : Mr. Arun Kumar Dubey, Advocate
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Order No.05/ Dated: 05th August 2022 This is second attempt by the petitioner seeking anticipatory bail in connection to Complaint Case No. 3467 of 2019 which was drawn against him and five other persons on a complaint submitted by Anita Kumari Goswami who is OP No.2 in the present proceeding.
2. By an order dated 20th May 2020, A.B.A. No. 395 of 2020 preferred by the petitioner seeking anticipatory bail in the said case was dismissed on merits in the following terms:
"6. In "Gurbaksh Singh Sibbia Vs. State of Punjab" reported in (1980) 2 SCC 565, it has been held that section 438 (1) Cr.P.C has to be read in the context of Article 21 of the Constitution of India and no doubt section 438 Code of Civil Procedure which was first introduced in the Code of Civil Procedure, 1973 is intended to save a person from unnecessary harassment and humiliation on account of vengeful criminal proceeding launched against him and the normal rule that bail not jail is also applicable under section 438 Cr.P.C as also it is not necessary that a person seeking anticipatory bail must make out a case of extraordinary nature, but then, while entertaining an application under section 438 Cr.P.C the Court is required to carefully assess the materials brought on record.
7. Section 493 IPC provides that it is an offence if a man deceitfully causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief. The offence under section 493 IPC is punishable with imprisonment for a term which may extend to ten years and also with fine. O.P. No.2 in her complaint case which has been instituted as Complaint 2 A.B.A. No. 2181 of 2022 Case No.3467 of 2019 has alleged that she became friendly with the accused-petitioner through Facebook and Whatsapp. They were constantly in touch with each other. In April, 2016, other accused persons came to her house and discussed marriage of the petitioner and they demanded Rs.5 Lacs as dowry. In the meantime, the petitioner informed her that he has got a private job in a company at Agartala and he insisted her coming over there. In paragraph no.8 of her complaint, the complainant has stated that on 17.05.2016 the petitioner forcibly put vermilion on her head and told her that now she is legally married and deceitfully made sexual relationship with her. Section 496 of the Indian Penal Code provides that if a person dishonestly or with a fraudulent intention goes through the ceremony of marriage knowing that he is not thereby lawfully married commits the offence under section 496. Various incidents have been narrated in the complaint case and the petitioner has produced voluminous records; mainly chats between both of them, running into about 90-pages in the present anticipatory bail application which would go to show that they were in constant touch and there was relationship between them. On such facts, I am of the opinion that by no stretch of imagination it can be said that no prima-facie case is made out against the petitioner. Whether O.P. No.2 was a consenting party or under some misrepresentation she had agreed for sexual relationship with the petitioner and whether the various allegations made against the petitioner are supported by some evidence or not, are the matters for investigation. The learned court below has taken cognizance of the offence under section 493 and 496 of the IPC and at this stage the allegations against the petitioner made by the O.P. No.2 cannot be said to be frivolous and made with an intention to harass, humiliate and injure the petitioner; no plausible defence is coming forth from the petitioner.
8. In the above facts, I am not inclined to grant anticipatory bail to the petitioner and, accordingly, A.B.A. No.395 of 2020 is dismissed. Interim order dated 07.02.2020 stands vacated.
However, if the petitioner moves an application for regular bail with a copy of the bail petition atleast two days in advance served upon the learned APP, his petition for regular bail may be heard and decided on the same day."
3. Mr. Arun Kumar Dubey, the learned counsel for OP No.2 raises a preliminary objection to maintainability of 2nd anticipatory bail application by producing a copy of the order dated 7 th June 2022 passed in Special Leave to Appeal (Crl.) No. 5425 of 2022 titled "Chhatrapal vs. The State of Madhya Pradesh" by the Hon'ble Supreme Court.
4. Ms. Aprajita Bhardwaj, the learned counsel for the petitioner would refer to the orders passed in Special Leave to Appeal (Crl.) No. 9449 of 2021 titled "Md. Shamim Khan vs. The State of Jharkhand", Special Leave to Appeal (Crl.) No. 213 of 2021 titled "G.R. Ananda Babu vs. The State of Tamil Nadu and another", "Ravindra Saxena vs. State of Rajasthan" (2010) 1 SCC 684 and an order passed by a Single Judge of Patna High Court in 3 A.B.A. No. 2181 of 2022 "Rahul Mazaffarpuri vs. The State of Bihar and another" 2014 SCC Online Patna 25 to submit that there is no statutory bar in moving a second anticipatory bail application and in appropriate cases the Court can examine the matter on merits even in third round of litigation vide "Ravindra Saxena". It is submitted that after rejection of the anticipatory bail application by this Court and Special Leave to Appeal (Crl.) No. 3223 of 2020 by the Hon'ble Supreme Court certain developments have taken place which are required to be considered by this Court in this anticipatory bail application.
5. Submission of Ms. Aprajita Bhardwaj, the learned counsel for the petitioner is that marriage of both the parties after institution of the case is a subsequent development which would be a relevant consideration for grant of anticipatory bail to the petitioner.
6. On merits, the learned counsel for the petitioner would refer to the order passed by the Hon'ble Supreme Court in (Criminal Appeal No. 442 of 2022) titled "Mandar Deepak Pawar vs. The State of Maharashtra and another". It is stated that marriage was negotiated between the parties and as would appear from a glance at the complaint both parties were ready and willing to perform marriage, however, it was an intervening circumstance by reason of which the marriage between the parties could not be performed. It is submitted that age gap between the parties was the reason marriage between the parties could not be solemnized and, therefore, no criminality can be attached to the petitioner.
7. Normally a second bail application should not be entertained by the same Court and, that too, on merits of the matter. No doubt there is no statutory bar in moving an application for bail or anticipatory bail but then the Court is seriously required to see whether in the changed circumstance it can modify its own order in the second/third bail application, because the earlier dismissal of the bail application would be a relevant and material fact [refer, "Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another" (2004) 7 SCC 528].
8. The allegation against the petitioner is of playing deceit with OP No. 2 and enticing her to have sexual relationship with him. OP No.2 has alleged that after the petitioner got a better job he started avoiding her and declined to marry her.
4 A.B.A. No. 2181 of 20229. By an order dated 3rd October 2019, cognizance of the offence under sections 493 and 496 of the Indian Penal Code was taken by the Judicial Magistrate, Ranchi in Complaint Case No. 3467 of 2019 and process was issued to the petitioner - processes against other persons arrayed as accused in the complaint case are not issued.
10. The learned Magistrate has recorded a finding that on examination of statement of the complainant on solemn affirmation and pre-summoning evidences of Anup Kr. Goswami and Durgawati Devi under section 202 of the Code of Criminal Procedure, a prima facie case for the offences under sections 493 and 496 of the Indian Penal Code has been made out. From the records, it is revealed that the complainant has produced money receipt of Rs.1.5 lacs given to the father of the petitioner. Numerous whatsapp, chats, photographs of the parties have been brought on record by the petitioner himself - of course, to show good relations between the parties.
11. The first anticipatory bail application filed by the petitioner was dismissed by an order dated 4th January 2020 by the Additional Judicial Commissioner-V, Ranchi in A.B.P. No. 2593 of 2019 and against that order the application vide A.B.A. No. 395 of 2020 was dismissed by this Court on 20th May 2020. The Special Leave to Appeal (Crl.) No. 3223 of 2020 filed by the petitioner was dismissed by the Hon'ble Supreme Court on 30 th July 2022 and 2nd anticipatory bail application vide A.B.P. No. 16 of 2022 filed by the petitioner was dismissed on 3rd February 2022.
12. The aforesaid narration of facts would reveal that the petitioner has been avoiding process of the Court inasmuch as by the order dated 20 th May 2020 he was granted a liberty to move an application for regular bail with a copy of the bail petition served in advance at least by two days upon the learned APP and it was further indicated in the said order that the bail application if moved by the petitioner may be heard and decided on the same day, still, he has been avoiding processes and not appearing in the Court concerned, though cognizance of the offence has already been taken.
13. By the process issued to him vide order dated 3 rd October 2019 date of his appearance was fixed on 1st December 2019. This has also to be taken note of that about 1½ years after the Special Leave to Appeal (Crl.) No. 3223 of 2020 filed by the petitioner was dismissed by the Hon'ble 5 A.B.A. No. 2181 of 2022 Supreme Court he approached the Court of Additional Judicial Commissioner-X, Ranchi by filing A.B.P. No. 16 of 2022.
14. Having regard to the aforesaid facts and circumstances in the case, A.B.A. No. 2181 of 2022 is dismissed.
(Shree Chandrashekhar, J.) RKM