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2003 DIGILAW 467 (PAT)

Madhuri Keshri v. State Of Bihar

2003-04-22

M.L.VISA

body2003
Judgment M.L.Visa, J. 1. This application by petitioner has been filed for cancellation of anticipatory bail granted to opposite party Nos. 2 and 3 by learned Sessions Judge, Saharsa in Anticipatory Bail Application No. 42 of 2002 (S) on 27.5.2002. 2. The case of petitioner, in short, is that she had filed a Complaint Case No. 218 of 2001 against opposite party Nos. 2 and 3, who are her in-laws, her husband Gopal Keshri and others, namely, Vijay Keshri, Madhuri Devi and Vinay Kumar Keshri Under Secs. 323, 387, 379, 498A, read with sec. 34, Indian Penal Code following her torture by aforesaid persons for the demand of a sum of Rs. 50,000.00 and a scooter as dowry from her father. The case of petitioner is that in her complaint petition, she gave the details of her torture including assault on her, stoppage of meal and finally snatching her articles including cloths, ornaments and pushing her out from their house. The further case of the petitioner is that opposite party Nos. 2 and 3, by order dated 27.5.2002 passed by learned Sessions Judge, Saharsa, have been granted anticipatory bail who, in spite of the fact that cognizance of the case after inquiry u/s. 202, Code of Criminal Procedure was taken by learned Sub-Divisional Judicial Magistrate and without considering materials on record, granted anticipatory bail to opposite party Nos. 2 and 3. The further case of the petitioner is that on the very first day after the institution of case by petitioner, they began to threaten her with dire consequences and after issuance of attachment order against them and other accused persons, they, with other accused persons of the case, started making threats on telephone to petitioner for her murder and petitioner then filed a petition (Annexure-3) in the Court of Sub-Divisional Judicial Magistrate, Birpur, stating all these facts in which she also stated that her husband had connection with anti-social elements and in conspiracy with opposite party Nos. 2 and 3 was threatening her that evidence of case would be demolished. According to petitioner on 8.6.2002, according persons came at her parents house in the morning and they stated that they have been granted anticipatory bail and they would teach a lesson to petitioner for lodging case against them and on 11.6.2002, opposite party Nos. 2 and 3 was threatening her that evidence of case would be demolished. According to petitioner on 8.6.2002, according persons came at her parents house in the morning and they stated that they have been granted anticipatory bail and they would teach a lesson to petitioner for lodging case against them and on 11.6.2002, opposite party Nos. 2 and 3 along with other miscreants having deadly weapons in their hands entered the house of petitioner and threatened her that her entire family will be ruined if she does not compromise the case with them and informatory petition (Annexure-4) was filed by petitioner. The petitioner has stated that she has all apprehensions that accused persons may tamper the evidence and her witnesses may be killed by them. Petitioner has prayed for cancellation of bail granted to opposite party Nos. 2 and 3. 3. Opposite party Nos. 2 and 3 have appeared through their Counsel by filing Vakalatnama and have opposed the prayer of petitioner for cancellation of their anticipatory bail. 4. From the impugned order, it appears that prayer of anticipatory bail of opposite party Nos. 2 and 3 was heard along with the prayer of anticipatory bail of Gopal Keshri, husband of petitioner and by the same impugned order although opposite party Nos. 2 and 3 were granted anticipatory bail by Court below but the prayer of Gopal Keshri, husband of petitioner, for anticipatory bail was refused and he was directed to surrender before the Court below with an observation that the Court below will consider all the submissions advanced on his behalf without being prejudiced by the order rejecting his prayer for anticipatory bail. The impugned order further shows that after considering the fact that opposite party Nos. 2 and 3 filed affidavit in the Court below that they were ready to keep the petitioner with all honour and comforts and also considering the submissions that opposite party Nos. 2 and 3 are old persons and there is no specific overt act attributed against them, granted anticipatory bail to them. I further find that on the date when order for grant of anticipatory bail to opposite party Nos. 2 and 3 was passed by Court below, petitioner was produced by learned Public Prosecutor before the Court below and she refused to go to the house of her husband on account of danger to her life. I further find that on the date when order for grant of anticipatory bail to opposite party Nos. 2 and 3 was passed by Court below, petitioner was produced by learned Public Prosecutor before the Court below and she refused to go to the house of her husband on account of danger to her life. All these are circumstances in which opposite party Nos. 2 and 3 were granted anticipatory bail. 5. In the complaint petition, in para 5, there is general and omnibus allegation against all the six accused persons including opposite party Nos. 2 and 3 named in complaint petition for torturing on account of demand of dowry but in paras 6, 7 and 13, the allegation of assault to petitioner and snatching her child from her lap is specific against her husband. From Annexures 3 and 4, it appears that petitioner has filed petitions before Sub-Divisional Judicial Magistrate, Birpur stating therein that after filing of the case, she was receiving threats on telephone and on 8.6.2002, co-accused Goyal Keshri abused petitioner and her brother and gave threats that by sending criminals to her house, he would teach them a lesson and would not leave her and her witnesses in a position to give evidence in this case and in Annexure-4, petitioner has stated that her husband along with his parents, bahnoi and some unknown came to her house armed with weapons and gave her threatening to compromise the case and to give them a scooter and money otherwise she, along with her family members, would be finished and she further stated that her husband lives at Patna where he has got connections with noted criminals and he himself is a criminal. From Annexures 3 and 4, it appears that the main grievance of the petitioner is against her husband. Besides this, after grant of anticipatory bail to opposite party Nos. 2 and 3 who are, admittedly, in-laws of petitioner, her filing petitions with allegations that opposite party Nos. 2 and 3 along with their son are giving her threatening and are misusing the privilege of bail, cannot be considered to be a ground to cancel the anticipatory bail already granted to opposite party Nos. 2 and 3 without any material to prima facie prove such allegation against opposite party Nos. 2 and 3. 2 and 3 along with their son are giving her threatening and are misusing the privilege of bail, cannot be considered to be a ground to cancel the anticipatory bail already granted to opposite party Nos. 2 and 3 without any material to prima facie prove such allegation against opposite party Nos. 2 and 3. Here, I may mention that, as stated above, petitioner had filed complaint case against her husband, opposite party Nos. 2 and 3 and three other persons, namely, Vijay Prasad Keshri, bahnoi of her husband, Madhuri Devi, sister of her husband and Vinay Kumar Keshri, son of sister of her husband but the Court below, after inquiry u/s. 202, Code of Criminal Procedure took cognizance against her husband and opposite party Nos. 2 and 3 about remaining three co-accused persons named above, observed that allegation against them did not appear true as from their addresses given in the complaint petition itself, it appears that they were living at other places and discharged them (Annexure 2). 6. To grant bail and to cancel the same are two different matters. It is well settled principle of law that bail once granted, in rare cases can be cancelled if the Court is satisfied that the accused is abusing the liberty by making obstructions in the investigating of the case, or is attempting to tamper the evidence either by threatening witnesses or in any other way or is making attempt to do himself beyond the reach of Court or to hamper the trial, etc. In the present case, prayer of anticipatory bail of husband of petitioner was rejected by the same impugned order by which opposite party Nos. 2 and 3 have been granted anticipatory bail. It is true that petitioner has said that after grant of anticipatory bail, opposite party Nos. 2 and 3 are giving threats to her and her witnesses but at the same time from the averments made in para 11 of petition, it appears that petitioner is also aggrieved by the order of Court below granting anticipatory bail to opposite party Nos. 2 and 3 which, according to her, has been granted without considering the materials on record. 2 and 3 which, according to her, has been granted without considering the materials on record. To cancel and bail of an accused primarily depends on the conduct of accused after grant of bail but at the same time, conduct of petitioner who is seeking the cancellation of bail on an accused has also to be taken into account while considering her allegation against opposite party Nos. 2 and 3 that they are giving threatening to her and her witnesses particularly when her allegation against some of the other co-accused persons related to her husband has not prima facie been found true by Court below which resulted in their discharge. 7. Considering the entire materials on record, I find that petitioner has not been able to make out any case against opposite party Nos. 2 and 3 for cancellation of their anticipatory bail. The prayer of petitioner for cancelling bail of opposite party Nos. 2 and 3 is rejected and this application stands dismissed.