Patna High Court - Orders
Nazish Hussain @ Mahvish Hussain @ ... vs The State Of Bihar & Anr. on 2 August, 2013
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12186 of 2012
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Nazish Hussain @ Mahvish Hussain @ Mahvish w/o Shakir Hussain D/o
Sayed Ashfaque Hussain presently residing at 27 Sharif Colony, P.S.
Pirbahore, District- Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Shakir Hussain s/o Haider Hussain Khan, resident of H-5, Sapna
Apartment-II, Naya Tola, P.S.- Pirbahore, District Patna. At P.O. Kotack
Mahendra Life Insurance, 7th Floor, Ambadeep Building, K. G. Marge, Bara
Khamba, Road, New Delhi. 110001.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Sangeet Deokuliar, Adv.
For the Opposite Party No.2 : Mr. Shree Nandan Prasad, Adv.
For the State : Mr. Shantanu Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C. A. V. ORDER
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18. 02-08-2013This application has been filed under Section 439(2) of the Code of Criminal Procedure for cancellation of anticipatory bail granted to Shakir Hussain (opposite party no.
2) vide order dated 15.2.2012 passed by this Court in Cr. Misc. No. 6942 of 2012 in connection with Pirbahore P.S. Case No. 242 of 2011 registered for the offence punishable under Section 498(A)/34 IPC and section 3/4 of Dowry Prohibition Act.
2. At the instance of the petitioner Pirbahore P.S. Case No. 242 of 2011 was registered against her husband (opposite party no. 2) and his relatives for the offence punishable under Sections 498(A)/34 IPC and 3 / 4 of Dowry Patna High Court Cr.Misc. No.12186 of 2012 (18) dt.02-08-2013 2/6 Prohibition Act. Opposite party No. 2 filed Cr. Misc. No. 6942 of 2012 for grant of anticipatory bail. In the aforesaid case, anticipatory bail was granted on the following conditions vide order dated 15.2.2012:-
"(i) One of the bailors will be the close relative of the petitioner.
(ii) The petitioner will not indulge in similar or in any other offence.
(iii) The petitioner will appear before the court on each and every date fixed in the case except for any cogent reason.
(iv) In case of absence for two consecutive dates or in case of violation of the terms of the bail, his bail bond will be liable to be cancelled by the concerned court and he will be taken into custody forthwith."
3. The grievance of the petitioner is that in course of argument it was submitted on behalf of husband-opposite party no. 2 that he is still eager to lead conjugal file with the petitioner (informant) and he will also take steps for redressal of the dispute between wife and husband. But no step has been taken by opposite party no. 2 for leading conjugal life. It has further been submitted that the Opposite Party No.2 has suppressed the fact before this Court that prior to submission made above opposite party no. 2 had sent a registered/ordinary letter (Annexure-3) to the petitioner stating therein that he has given divorce to her on 7.9.2011 and message has also been Patna High Court Cr.Misc. No.12186 of 2012 (18) dt.02-08-2013 3/6 sent through SMS on the mobile of the petitioner on 8.9.2011. It has also been submitted that since opposite party no. 2 has been granted anticipatory bail on the aforesaid submission, which is not correct, his anticipatory bail should be cancelled.
4. Counter affidavit has been filed on behalf of opposite party no. 2. It has been submitted that the informant- petitioner has also filed maintenance case before the learned Principle Judge, Family Court, Patna vide Maintenance Case No. 78(M) of 2012 and she has not mentioned about the allegation of divorce. It has also been submitted that no such statement in the petition for grant of anticipatory bail was made that the opposite party no.2 is ready to keep his wife, rather, it was the submission of the learned counsel for opposite party no.2 without taking any instruction from opposite party no.2.
5. This fact has been disputed by learned counsel for the petitioner by referring paragraph 8 of the counter affidavit dated 7.02.2013 that the submission was made on the instruction of opposite party no.2 and this stand was also taken before the learned Sessions Judge at the time of hearing of anticipatory bail application.
6. The learned counsel for the opposite party no.2 has further submitted that violation of terms of compromise is not Patna High Court Cr.Misc. No.12186 of 2012 (18) dt.02-08-2013 4/6 the ground for cancellation of bail. There is no material on the record to show that the opposite party no.2 has ever misused the privilege of bail. There is no allegation that he has caused any act of tampering with the evidence or delayed the proceeding of the trial court, as such, this petition is fit to be dismissed.
7. In support of his contention, he has relied upon the decisions; in the case of Bhagirathsinh Judeja vs. State of Gujarat, reported in AIR 1984 SC 372 and in the case of Biman Chatterjee vs. Sanchita Chatterjee & Anr. reported in 2004(2) PLJR (SC)201.
8. After hearing learned counsel for both the parties and on perusal of material on the record, it appears that opposite party no. 2 was granted anticipatory bail on the conditions referred to above. It has not been disputed that any of the conditions for granting anticipatory bail has been violated nor there is any material to show that opposite party no.2 has been found in tempering with the evidence or abused the discretion granted in his favour or caused any act to delay the proceeding of the trial court. The only dispute is that opposite party no.2 could not fulfill its assurance by way of submission before this Court.
9. In case of Biman Chatterjee (supra) it has been Patna High Court Cr.Misc. No.12186 of 2012 (18) dt.02-08-2013 5/6 held by the Hon'ble Supreme Court in paragraph 7 as follows:-
"7. ......That apart non-fulfilment of the terms of the compromise cannot be the basis of granting or canceling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law."
10. In the case of Bhagirathsinh Judeja (supra) it has been held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie Patna High Court Cr.Misc. No.12186 of 2012 (18) dt.02-08-2013 6/6 case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence."
11. Considering the facts and circumstances stated above, I do not find any cogent ground for cancellation of anticipatory bail granted to opposite party no. 2.
12. In the result, this petition has got no merit and it is, accordingly, dismissed.
(Amaresh Kumar Lal, J) N. A. F. R. (Kanchan)