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2007 DIGILAW 1629 (PAT)

Kaisar Jahan v. State Of Bihar

2007-10-04

SAMARENDRA PRATAP SINGH

body2007
Judgment 1. In the instant application the informant Kaisar Jahan, who is petitioner here, prays for cancellation of bail to Opposite Party No. 2 namely Aftab Ali granted by order dated 18.12.2006 passed by the learned Sessions Judge, Siwan in A.B.P. No. 516 of 2006 arising out of Siwan Town P.S. Case No. 67 of 2006 under Sections 366/34 of the Penal Code. 2. In the F.I.R. the informant alleged that taking advantage of absence of her husband, Opposite Party No. 2 Aftab Ali kidnapped her 14 years old daughter namely Sana Sahid, a student of D.A.V. School on 15.2.2006 from her house, 3. The learned Sessions Judge granted anticipatory bail to Opposite Party No. 2 mainly on the ground that the victim girl in her statement under Section 164 Cr.P.C. stated that she went out of her house on her own free will with Opposite Party No. 2 and though the learned Magistrate assessed her age to be 15 years, the Medical Board assessed her age to be 1616 to 17 years. 4. Learned counsel for the informant- petitioner prays for cancellation of the bail on the ground that Opposite Party No. 2 begin to threaten her and her husband to withdraw the case and also made serious attempt to kidnap her husband on 31.12.2006 for which a written information was filed to the Chief Judicial Magistrate, Siwan on 4.1.2007 (Annexure-4). A supplementary affidavit has been filed on behalf of the informant in which it has been stated that the learned Chief Judicial Magistrate, Siwan vide order dated 11.7.2006 (Annexure-7) has released the victim girl in favour of the informant with the condition that she will take full care of her and produce her in the court whenever required. Learned counsel further submits that the learned Chief Judicial Magistrate vide order dated 12.1.2007, as contained in Annexure-D filed by Opposite Party No. 2 itself, again after apprising the facts of the case handed over the victim girl to her parents. He further submits that on 24.6.2007 the Opposite Party No. 2 again kidnapped her daughter for which Complaint Case No. 1306 of 2007 dated 28.6.2007 (Annexure-5) for an offence under Sections 365, 363, 452, 506/34 of the Penal Code and under Section 27 of the Arms Act has been filed in the Court of learned Chief Judicial Magistrate, Siwan. He further submits that on 24.6.2007 the Opposite Party No. 2 again kidnapped her daughter for which Complaint Case No. 1306 of 2007 dated 28.6.2007 (Annexure-5) for an offence under Sections 365, 363, 452, 506/34 of the Penal Code and under Section 27 of the Arms Act has been filed in the Court of learned Chief Judicial Magistrate, Siwan. The learned Chief Judicial Magistrate, Siwan vide his order dated 27.7.2007 (Annexure-6 of the supplementary affidavit) took cognizance of offence and summoned the Opposite Party No. 2 and other accused persons to face trial. 5. Thus the main ground of the informant is that Opposite Party No. 2 misconducted and misused the privilege of bail in derogation of the courts orders dated 11.7.2006 (Annexure-7) and 12.1.2007 (Annexure-D) kidnapped her daughter and as such he has made himself liable for cancellation of bail. 6. Learned counsel for the Opposite Party No. 2 controverted the allegations of the informant and submitted that he has already married the victim girl and in support of the same he refers to certificate granted under the Special Marriage Act, as contained in Annexure-B dated 25.4.2006. He submits that the victim girl in her statement under Section 164 Cr.P.C. stated that she has gone with Opposite Party No. 2 on her own free will and has married. Learned counsel refers to Division Bench decision of this court in the case of Md. Idris V/s. State of Bihar & Ors. reported in 1980 Cr.L.J. 764 [: 1980 PLJR 115] wherein it has been held that as per the Mohammadan Law a girl who has attained the age of puberty can marry without the consent of the parents. He further submits that the victim girl Sana Sahid has filed Cr.W.J.C. No. 696 of 2007 in this court for redressal of her grievances. He submits that the Opposite Party No. 2 has not kidnapped the victim girl. He further submits that it would appear from the order dated 12.1.2007 that the victim girl has filed a petition stating that she had earlier ran away from the house on 15.2.2006 on account of assault by her father. As far as last submission is concerned, this court finds that it would appear from the order dated 12.1.2007 itself that subsequently the victim girl filed a petition that she wants to live with her parents. 7. As far as last submission is concerned, this court finds that it would appear from the order dated 12.1.2007 itself that subsequently the victim girl filed a petition that she wants to live with her parents. 7. The main issue in this application is whether Opposite Party No. 2 has misused the privilege of bail so as to warrant its cancellation and commit him to custody. 8. In view of the issue in hand the judgment cited by learned counsel for the Opposite Party No. 2 in the case of Md. Idris (supra) is not very relevant. 9. Granting of bail empowers privilege/liberty to an accused pending enquiry/trial. This privilege and liberty is very sacroscent and an accused would enjoy the same till he does not misuse this privilege or liberty. 10. It would appear from Annexure-B that the victim girl Sana Sahid has been married to Opposite Party No. 2. Equally there is no denial of the fact that vide order dated 11.7.2006, as contained in Annexure-7 of the supplementary affidavit filed by the informant as well as Annexure-D filed by the Opposite Party No. 2 dated 12.1.2007 that the victim girl was handed over to her parents with condition to produce her in court whenever required. 11. After hearing the parties this court notices that the victim girl Sana Sahid in her statement under Section 164 Cr.P.C. dated 11.7.2006 stated that she was not kidnapped but has gone with Opposite Party No. 2 on her own free will and has married him as would appear from Annexure-B the Marriage Certificate. It would also appear that though the learned Magistrate had assessed her age to be 15 years, the Medical Board had assessed her age in between 16½ to 17 years. This court finds that after the recording of the statement of the victim girl under Section 164 Cr.P.C. the learned Magistrate vide his orders dated 11.7.2006 as well as 12.1.2007 handed over the possession of the victim girl to her parents with the conditions to produce her in the court as and when required. 12. Now in the face of the orders dated 11.7.2006 and 12.1.2007 can the Opposite Party No. 2 kidnap or take away the victim girl without the consent of her parents. 12. Now in the face of the orders dated 11.7.2006 and 12.1.2007 can the Opposite Party No. 2 kidnap or take away the victim girl without the consent of her parents. To my mind once there is an order of the court rightly or wrongly granting possession of victim girl to her parents, the Opposite Party No. 2 can not take her away forcibly or without their consent on the ground that he has married her. The matter would have been different if there was no order of the court to that effect. The remedy before the Opposite Party No. 2 was to move the higher courts against the order of the court below releasing the victim girl in favour of her parents. 13. Learned counsel for Opposite Party No. 2 has not produced any order setting aside the abovementioned order of the learned Chief Judicial Magistrate releasing the victim girl in favour of her parents. In such a situation the alleged kidnapping of the victim giri by Opposite Party No. 2 would amount to violating the orders/directions of the court and interfering with the justice delivery system and this will amount to gross misconduct and misuse of privilege of bail. 14. This court also finds that the learned Magistrate vide his order dated 27.7.2007, as contained in Annexure-6 has taken cognizance of offence and summoned the Opposite Party No. 2 to face trial in Complaint Case No. 1306 of 2007 filed on 28.6.2007. 15. The provisions of cancellation of bail finds place in Sections 437(5) as well as Section 439(2) of the Cr.P.C. Section 439(2) of the Cr.P.C. states that the High Court or the Court of Sessions may direct if any person who has been released on bail under this chapter be arrested and commit him to custody. Though the grounds for cancellation of bail is not mentioned therein but it definitely follows from the provisions of Sections 437, 439 and 441 of the Cr.P.C. that if the condition or privilege of grant of bail is misused the same can be cancelled. It is needless to say that the circumstances/grounds relevant for grant of bail and its cancellation are different. It is needless to say that the circumstances/grounds relevant for grant of bail and its cancellation are different. The grounds germane to the cancellation of bail has also been evolved through judicial pronouncements over the years some of which are; Raghubir Singh V/s. State of Bihar, reported in (1986)4 S.C.C. 481 ; Aslam Baba Lal Desai V/s. State of Maharashtra, reported in (1994)4 S.C.C. 272 and Mahboob Dawood Shaik V/s. State of Maharashtra, reported in (2004)2 S.C.C. 362 . 16. The Hon ble Supreme Court in the case of Mahboob Dawood Shaik (supra) amongst others has held that in the following circumstances the bail of an accused can be cancelled: (i) The accused misuses his liberty by indulging similar criminal activity. (ii) Interfered in course of investigation. (iii) Attempt to temper with the evidence or witnesses. (iv) Threatened the witnesses or investigation etc. 17. This court in the case of Babloo Singh V/s. State of Bihar, reported in 2004(2) P.L.J.R. 403 has observed that the bail can be cancelled if the accused has misused the conditions of bail or misconducted himself. 18. In the facts of the case the best person to make a statement whether she has been kidnapped or not by Opposite Party No. 2 giving rise to the second complaint bearing Complaint Case No. 1306 of 2007 dated 24.6.2007, as contained in Annexure-5, would be the victim girl Sana Sahid. The learned Sessions Judge, Siwan will take all coercive measures to ensure the appearance of the victim girl in the court and take her statement in regard to her kidnapping as complained by the informant. In case the victim girl states that she has been kidnapped or forcibly taken by the Opposite Party No. 2 as alleged he would consider cancelling the bail granted to Opposite Party No. 2 as the same would amount to rebuffing and undermining the orders of the learned court and would come within the purview of the grounds enumerated by the Hon ble Supreme Court for cancellation of bail. If the victim girl does not support the factum of kidnapping by Opposite Party No. 2 as alleged, then the impugned order granting bail to Opposite Party No. 2 be not interfered with. 19. With the aforesaid observations and directions, this application stands disposed of. Office to communicate order by Fax.