Patna High Court - Orders
Rekha Harma vs State Of Bihar & Anr on 13 April, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.17608 of 2010
REKHA SHARMA, WIFE OF SRI MAYA KUMAR SHARMA,
RESIDENT OF MOHALLA-MANPURA, P.S. PATLIPUTRA,
DISTRICT-PATNA .....PETITIONER
Versus
1. THE STATE OF BIHAR.
2. MAYA KUMAR SHARMA, SON OF BINDESHWAR THAKUR,
RESIDENT OF MUKHIYA LODGE, MAHANTHA COLLEGE,
MAINPURA, P.S. PATLIPURTRA, DISTRIC-PATNA.
.........OPPOSITE PARTIES.
For the petitioner:- Shambhu Sharan Singh, Advocate.
For the State :- Z. Hoda, A.P.P.
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9. 13.04.2011Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. No body appears on behalf of opposite party no. 2 to oppose this application, though, opposite party no. 2 has already entered appearance through a lawyer and has filed his show cause.
2. The present petition has been filed under Section 439 (2) of the code of criminal procedure, 1973 on behalf of the petitioner for cancellation of bail granted to opposite party no. 2 by an order dated 1.4.2010 passed in Cr. Misc. No. 2603 of 2010 (Annexure-1) by this Court in connection with Patlipurtra P.S. Case No. 118 of 2009 dated 21.4.2009 registered under Sections 498A, 307,341, 323,354/34 of the Indian Penal Code.
3. While opposite party no.2 had prayed for grant of anticipatory bail in connection with the aforesaid criminal prosecution, giving rise to Cr. Misc. 2603 of 2010, notice was issued to the present petitioner, who is the informant of the aforesaid criminal case. In response to the notice issued by this court, informant-petitioner herein entered appearance in that criminal case, and on intervention of this Court and on persuasion of learned 2 counsel of the parties, matter ended in a compromise. Affidavits were filed by both sides in Cr. Misc. No. 2603 of 2010 stating therein that the matter has been compromised between them and they want to restore their matrimonial relationship. In view of the aforesaid compromise and stand taken by the parties, the prayer for anticipatory bail made on behalf of opposite party no. 2 was allowed by the aforesaid order dated 1.4.2010 passed in Cr. Misc. No. 2603 of 2010. The aforesaid factual aspects were noticed by this court, while passing the aforesaid order dated 1.4.2010 and for ready reference, the relevant portion is reproduced herein below:-
"The petitioner is husband of the informant. Though, effort of compromise made by the learned Sessions judge while considering the prayer for grant of anticipatory bail made on behalf of the petitioner, had failed, but fortunately, in view of sincere endeavour made by both the counsel representing the petitioner and O.P. No.2 and in view of willingness of petitioner and O.P. 2, the matter has been amicably sorted out before this court. The petitioner and opposite party no. 2 are physically present in the Court and they have been duly identified by their respective lawyers. The petitioner and opposite party no. 2 have also stated before this Court that matrimonial relationship have been restored between the parties. They are willing to live together.
In that view of the matter, in terms of compromise, petitioner is directed to take O.P. N0.2 along with him to his house and shall keep her and her minor daughter with all dignity and honour. It is expected that O.P. 2 shall also try to have cordial relation with the petitioner.
In the aforesaid back ground, the petitioner, namely, Maya Kumar Sharma, in the event of his arrest/surrender within a period of four weeks from today, shall be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of 3 the Chief Judicial Magistrate, Patna, in connection with Patliputra P.S. Case No. 118 of 2009, subject to the conditions as laid down under section 438(2) of the Cr.P.C.
Any of the condition mentioned in the compromise petition filed by the parties, if violated then that may be construed as misuse of privilege of bail. It is hoped that if cordial relationship between the husband and wife continues for some months, then they shall file a compromise petition before the court below regarding the present criminal case. Learned court below shall be obliged to dispose of the case expeditiously in accordance with law."
4. In the light of order dated 1.4.2010, opposite party no. 2 has been enlarged on bail by the learned court below and is still enjoying the privilege of bail.
5. Since, opposite party no. 2 violated the terms and conditions of compromise arrived at between the parties, while the prayer for anticipatory bail was being considered, the petitioner has filed the present application for cancellation of his bail bonds on the grounds stated in the petition.
6. By order dated 22.6.2010, this court ordered for issuance of notice to opposite party no. 2 to show cause as to why his bail bond be not cancelled. In response to the notice opposite party no. 2 entered appearance through a lawyer and filed his show cause. In the show cause filed in the present proceeding, a stand was taken once again by opposite party no. 2 that he was prepared to keep the petitioner as his legally wedded wife and was also prepared to maintain her and their daughter with all dignity, safety and honour. However, the petitioner expressed her apprehension about her safety and safety of her girl child. In that background in presence of 4 petitioner and opposite party no.2 an order was passed on 10.11.2010 by this Court, which is relevant for disposal of the present proceeding and is reproduced herein below:-
"In compliance of order dated 27.10.2010, the petitioner as also O.P. No. 2 are physically present in the court and have been duly identified by their respective counsels. Though the present petition has been filed for cancellation of bail granted to O.P. No. 2 by an order dated 1.4.2010 passed in Cr. Misc. No. 2603 of 2010(Annexure-A), but it has been agreed upon by the parties that they want to live together as wife and husband. The O.P. No. 2 is prepared to keep the petitioner and their daughter in the joint family with all dignity, honour and safety, but the petitioner expresses her apprehension about her safety there. In that view of the matter, the case is kept pending for final disposal and in the meantime, as agreed by the parties, the petitioner along with her daughter shall go together in the company of O.P. No. 2 and they will live together. It will be duty of the O.P. No. 2 to keep the petitioner in his family with all dignity, safety and honour.
List this matter after three months under the same heading for further consideration of the matter and for its disposal."
7. As per the order dated 10.11.2010, matter was listed after expiry of three months for its consideration and for final disposal of the present proceeding by this Court.
8. A supplementary affidavit has been filed on behalf of the petitioner on 6.4.2011, wherein it has been categorically stated in paragraph 6 that after the order was passed by this court on 10.11.2010, the opposite party no. 2 abused the petitioner out side the court room itself and ran away from there leaving the petitioner in the lurch. Apparently undertaking given by opposite party no.2 5 before this court on the second time has been violated by him.
9. On 6.4.2011, learned counsel appearing on behalf of opposite party no.2 submitted that in spite of his persuasion opposite party no. 2 is not prepared to carry out the orders and directions issued by this court. In that background the matter was adjourned on 6.4.2011 and was ordered to be listed for today (13.4.2010). The order dated 6.4.2011 is also relevant and is reproduced herein below:-
"A supplementary affidavit has been filed today on behalf of the petitioner stating therein that despite order dated 10.11.2010, opposite party no.2 did not allow the petitioner to go to her matrimonial home in his company. It has specifically been stated in Paragraph 6 of the supplementary affidavit that opposite party no. 2, after going out from the Court, abused the petitioner and therefore, he has not only flouted the undertaking given before this court, but has violated the directions issued by this court.
Learned counsel appearing on behalf of opposite party no.2 submits that despite his persuasion, opposite party no.2 is not prepared to carry out the orders/directions issued by this Court, therefore, he is not in a position to defend opposite party no. 2 in the present proceeding.
Petitioner is physically present in the Court, but opposite party no.2 is not present in the Court.
In the aforesaid background, since opposite party no.2 is neither present in the court nor he is being defended by any counsel, therefore, matter is passed over for the day and shall be listed on 13th April 2011, on which date, the final order shall be passed in the present proceeding.
Physical presence of the petitioner is dispensed with."
10. When the matter has been listed today for its final disposal neither opposite party no.2 is present in the court nor any rejoinder/counter affidavit has been field on his behalf to the 6 supplementary affidavit filed by the petitioner, wherein certain specific allegations are there against him for deliberately flouting the orders and directions issued by this Court, as also about violation of his own undertakings given before this Court on affidavit. Even the counsel, who has filed power on his behalf, is not present today in the court
11. From the facts narrated above and on perusal of different orders passed by this court, some of which have been quoted above, it is apparent that opposite party no.2 has no respect either to the rule of law or to the judicial system of our country. He appears to be a man of criminal bent, who cannot reform himself. He has not only deliberately violated the orders and directions issued by this Court time to time, but has deliberately flouted his own undertakings given before this Court on oath.
12. This court is conscious of the fact that individual's liberty is very precious, but a balance has to be maintained between individual's liberty and social order. Rule of law has to prevail. No body, howsoever, big and mighty, he or she may be, is above law. For survival of strong and healthy democracy of our country, judicial institutions and its orders are required to be respected by one and all.
13. In the aforesaid facts and circumstances this court is left with no option, but to cancel the bail bonds of opposite party no. 2 in connection with Patliputra P.S. Case 118 of 2009 dated 21.4.2009 pending in the court of learned C.J.M. Patna. It is ordered accordingly. Learned C.J.M. Patna is hereby directed to take all 7 possible coercive steps for securing presence of opposite party no.2 in the Court and if he is not arrested by the police within a reasonable period of time, then a direction may also be issued to the Senior Superintendent of Police, Patna for arrest of opposite party no.2 in the present case. Once his presence is secured, an effort should be made to conclude his trial at an earliest possible time, preferably within a period of six months from the date of his production, so that he is brought to justice.
14. The present petition stands allowed with the observations/directions made above.
15 Let the present order be communicated to the court below through fax at the cost of the petitioner.
Devendra/ (Birendra Prasad Verma, J.) AFR