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2013 DIGILAW 918 (JHR)

Shabana Parveen @ Sabana v. State of Jharkhand

2013-07-30

JAYA ROY

body2013
Judgment Jaya Roy, J. Heard the learned counsel for the petitioner and the learned counsel for the Opposite party no.2 and the State counsel. 2. This case has a very chequired history which I am going to nearate in short that the opposite party no.2 Md. Rizwan Ahmad filed an application under section 438 and 440 of the Cr. P.C. for his anticipatory bail in connection with the complainant Case No. 71 of 2011 registered under Section 498A of the I.P.C. against the present opposite party no.2 namely Md. Rizwan Ahmad, in which the petitioner of present Cr. M.P. namely Sababna Parveen was opposite party no.2 (the aforesaid application was registered as A.B.A. No. 3781 of 2011) and she appeared in the said anticipatory bail application through her counsel. After hearing both the parties, this court by the order dated 5.3.2012 granted anticipatory bail to the petitioner on the condition stated in the said order, which were as follows:- “The report of the Conciliator has come which shows that the parties have compromised the matter and they are ready to reside together at the petitioner's house. Both the parties have agreed to fix a date in the court below from where the petitioner will take the O.P. No. 2, the complainant with her child with him to his house”. 3. In pursuant of the above noted order dated 5.3.2012, the petitioner Md. Rizwan Ahmad after furnishing bail bond on 29.3.12 got the bail and opposite party no.2 wife of the petitioner with her child was present on that date in the court, the petitioner/husband took his wife and child to the Shrista of his (husband's) counsel and he fled away all of a suddenly leaving his wife and child (Opposite party no.2 in A.B.A. No. 3781 of 2011) there. 4. It is significant to mention here that very next day on 30.03.2012, she filed a petition before the court of Sri Y.C. Verma J.M. Ist Class at Bermo at Tenughat (the trial court) narrating all the facts happened on 29.03.2012 in details which is Annexure-1 to the present Cr. M.P. No. 1857 of 2012 which read as follows:- “Para-2-That, after released from court the above named accused took her wife and child from court and she was taken to the Shrista of his advocate viz. M.P. No. 1857 of 2012 which read as follows:- “Para-2-That, after released from court the above named accused took her wife and child from court and she was taken to the Shrista of his advocate viz. Sri K.P. Singh, Advocate, Tenughat and therefore fled away with the brother of the accused viz. Md. Jabed, leaving the complaint and her daughter in the Shrista Sri K.P. Singh, Advocate and went back to Daltonganj by Train from Gomia and they are at Daltonganj at present. Para-3- That, it is submitted here that after furnishing bail bonds in the court and acceptance, the accused viz. Rijwan Ahmad on the investigation of his brother Md. Jabed committed fraud upon the court and also disobeyed the order/direction given by Honourable High Court as above referred.” 5. Again in para 5 of the said petition (Annexure-1) which reads as follows:- “Para-5-That, the accused viz. Rijwan and his brother viz. Md. Jabed with a preplanned conspiracy and knowingly duped the court in getting the order of release from custody on surrender on 29.03.2012 and thus put himself alongwith his brother to be punished by court for their fraud committed on Court”. 6. Immediately, the opposite party no.2 came to Ranchi and narrated this fact to his counsel of Ranchi as such his counsel filed I.A. No. 598 of 2012 in the aforesaid A.B.A. No.3781 of 2011 on 3.4.2012 stating all the relevant facts i.e. the opposite party no.2 was surprised to find that her husband took her to his learned lawyer's Shrista along with her child but he fled away all on a sudden leaving his wife (O.P.No.2) and her child there and she prayed for quashsing the order dated 5.3.2012 granting him anticipatory bail on the condition mentioned in the said order as stated earlier. She clearly stated in the petition that the accused husband Rizwan Ahmad has not only cheated the learned court below but also flouted the terms of the compromise by not giving her Shelter. She clearly stated in the petition that the accused husband Rizwan Ahmad has not only cheated the learned court below but also flouted the terms of the compromise by not giving her Shelter. But the said I.A. No.598 of 2012 was dismissed by this court by the order dated 10.7.2012 with the observation:- “In view of this, I dismissed the I.A. No. 598 of 2012 because the same has been filed after disposal of A.B.A. No. 3781 of 2011 and liberty is given to the Opposite party no.2 to file a fresh Criminal Miscellaneous petition for the same relief sought in the present interlocutory application i.e. No. 598 of 2012, with the aforesaid direction I.A. No. 598 of 2012 was dismissed.'' 7. Thereafter, after the petitioner Sabana Parveen came to Ranchi to file fresh Cr. Misc. Petition which was filed on 07.09.2012 stating all the facts stated in I.A. No. 598 of 2012 petition. The aforesaid Criminal Miscellaneous Petition was registered as Cr. M.P. No. 1857 of 2012. It is significant to mention here that when her husband (Opp. Party No.2) Md. Rizwan after getting the anticipatory bail on 29.03.2012 as per order of this Court dated 5.3.2012 and fled away after leaving his wife and child at the shrista of his counsel at Tenughat, the complainant Sabana Parveen filed an application in the court of Mr. Y.C. Verma, Judicial Magistrate, Ist Class Tenughat on 30.03.2012 stating all the facts which has been annexed as Annexure-1 in the present Cr. M.P. No. 1857 of 2012 which is mentioned in detail earlier at para 3 of this order. She prayed for quashing the order dated 5.3.2012 passed in A.B.A. No. 3781 of 2011 and also prayed for cancellation of the bail bond of the accused Md. Rizwan Ahmad. 8. I find the Cr. Misc. Petition No. 1857 of 2012 has been filed under Section 482 of Cr. P.C. but prayer has been made to quash the order passed by this court on 5.3.2012 passed in A.B.A. No. 3781 of 2011 and to cancel the bail granted to the opposite party no.2. Therefore, I treat this petition, as petition under Section 439 (2) of the Criminal Procedure Code 1973. 9. The opposite party no.2 Md. Rizwan appeared in the present Cr. Misc. Petition No. 1857 through his counsel and filed counter affidavit denying all the statements made in Cr. Misc. Petition. Therefore, I treat this petition, as petition under Section 439 (2) of the Criminal Procedure Code 1973. 9. The opposite party no.2 Md. Rizwan appeared in the present Cr. Misc. Petition No. 1857 through his counsel and filed counter affidavit denying all the statements made in Cr. Misc. Petition. But the statements made in the counter affidavit cannot be believed in the face of annexure-1 of this Cr. M/s. Petition, as it was filed immediately next day in the trial court. Even before this court, the opposite party no.2 Md. Rizwan on being asked to take his wife and child with him but he refused bluntly which clearly shows his intention and amounts to get the aforesaid order by playing fraud on the court. According to my considered opinion the opposite party no.2 has intentionally violated the terms and condition of the order dated 5.3.2012 granting him anticipatory bail as such a serious view has to be taken by this court. The act of opposite party no.2 amounts to repeating the crime by neglecting her and mentally torturing her. The action of opposite party no.2 clearly shows the willful violation of terms and condition of granting him anticipatory bail on 5.3.2012. 10. It is significant to mention here that the judgment reported in 2012 (1) Eastern Indian Criminal Cases, Page-600 (Patna) Kumari Juhi Rai- Vrs- State of Bihar & others, the Hon'ble Patna High Court almost in the similar circumstances i.e. in a case of matrimonial dispute, the husband alleged to have repeated the crime by torturing the petitioner (wife) as such anticipatory bail granted to the husband was cancelled. 11. In the facts and circumstances of the present case, I am of the considered opinion that interest of justice would be Sub- served by cancelling the bail of the opposite party no.2 Md. Rizwan in connection with complaint Case No. 71 of 2011 pending in the Court of Sri Y.C. Verma, the Judicial Magistrate, Ist Class, Bermo at Tenughat. It is ordered accordingly the Judicial Magistrate Sri Y.C. Verma Bermo at Tenughat is directed to take all possible coercive measures for securing the custody of opposite party no.2 i.e. Md. Rizwan Ahmad in this case. 12. In the result, the present petition is allowed. The bail of opposite party no.2 is hereby cancelled. It is ordered accordingly the Judicial Magistrate Sri Y.C. Verma Bermo at Tenughat is directed to take all possible coercive measures for securing the custody of opposite party no.2 i.e. Md. Rizwan Ahmad in this case. 12. In the result, the present petition is allowed. The bail of opposite party no.2 is hereby cancelled. However, it is made clear, if the petitioner surrenders and prays for his bail in the trial court, the trial court will consider his case on merit without being prejudiced by this order of this court and pass order according to law. 13. The office is directed to communicate this order to the court below forthwith so that appropriate steps are taken in the light of the observation and directions issued by this court.