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2015 Supreme(Pat) 247

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Md. Mustafa @ Md. Mustafa Sah – Petitioner
Versus
The State of Bihar - Opposite Parties
Criminal Miscellaneous No.17965 of 2015
Decided on : 21-05-2015

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Vindhya Keshari Kumar, Sr. Adv. Mr. Ravi Shankar Pathak, Adv.
For the State : Mr. Jagdhar Prasad, APP
For Opposite Party No.2 : Mr. Vijay Shankar Shrivastava, Adv. Mr. Devendra Kumar, Adv.

Headnote:Code of Criminal Procedure, 1973-Sections 437, 438, 439(2) and 482-Indian Penal Code, 1860-Section 498-A-Cancellation of anticipatory bail-Matrimonial cruelty-Since allegation of subjecting complainant to cruelty by petitioner after obtaining anticipatory bail from court below had not been substantiated, prima facie, there was no case for cancellation of bail-Cancellation of bail is a serious matter and has to be sparingly resorted to-Court below has failed to appreciate that there was no allegation of interference or attempt to interfere with due course of justice or evasion or attempt to evade due course of justice or abuse of concession granted to petitioner-Even allegation made by complainant was not subjected to any enquiry-Sessions Judge could not have cancelled bail solely on ground that petitioner had failed to keep up promise made to court as it is not open to court to cancel bail on a ground alien to grounds mentioned for cancellation of bail under section 437 of Code-Non-fulfillment of terms of bond executed by petitioner at the time of consideration of anticipatory bail could not have been basis of cancelling his bail-Even, bond could not have been basis of grant of bail-Impugned order set aside. (Paras 14 to 20)

JUDGMENT

The present application under section 482 of the Code of Criminal Procedure (in short the Code) has been filed for quashing the order dated 24.03.2015 passed by the learned District & Sessions Judge, Sheohar in Cr.Misc. No. 21 of 2014, whereby anticipatory bail granted to the petitioner vide order dated 18.04.2013 passed in A.B.P. No. 73 of 2012 in connection with Complaint Case No. C-1/273/12 has been cancelled.

2. The facts of the case, as stated in the complaint petition, is that the complainant was married to the petitioner on 07.05.2002 as per Muslim rites and customs and out of the said wed-lock, three sons and one daughter were born. The complainant was kept well in her marital home upto 2010 but thereafter the accused persons named in the complaint started demanding Rs.1,00,000/- (Rupees one lakh) in cash and a motorcycle. Since the father of the complainant had already died, the demand of dowry being made by the accused persons could not be fulfilled. This caused annoyance to the accused persons and they started subjecting the complaint to cruelty in various ways. They tried to kill her by setting her on fire but due to intervention of the people of the locality, her life could be saved and ultimately on 07.10.2012 she was kicked out of her marital home by the accused persons after retaining all her ornaments.

3. After conducting enquiry under section 202 of the Code, the petitioner was summoned to face trial for the offence punishable under section 498-A of the Indian Penal Code. As the petitioner apprehended his arrest in connection with the aforementioned complaint case, he filed an application under section 438 of the Code before the learned Sessions Judge, Sheohar being A.B.P. No. 73 of 2012.

4. When the application for anticipatory bail of the petitioner was heard by the learned Sessions Judge, Sheohar on 18.04.2013, the complainant appeared before the court and contended that she is living with her husband and if her husband will execute a bond to the effect that he will give Rs.2 lakhs in case he contracts another marriage, then she has no objection and she will lead matrimonial life with the petitioner.

5. The petitioner acceded to the request made by the complainant and filed a bond stating therein that he will not torture the complainant and will pay Rs.2 lakhs by way of damage to his wife in case of contract of another marriage.

6. Considering the amicable settlement between the parties, the learned Sessions Judge, Sheohar allowed the application for anticipatory bail of the petitioner vide order dated 18th April, 2013.

7. While the petitioner was enjoying the privilege of anticipatory bail, the complainant filed Cr. Misc. No. 21 of 2014 before the learned Sessions Judge, Sheohar under section 439(2) of the Code praying therein to cancel the bail granted to the petitioner vide order dated 18.04.2013 passed in A.B.P. No. 73 of 2012 on the ground that the petitioner has violated the terms of the bond executed by him before the court at the time of consideration of his anticipatory bail application.

8. The case of the complainant before the court below was that the petitioner obtained bail by playing fraud upon the court. He did not behave well with her after grant of anticipatory bail. Finally, she was forced to leave her marital home on 30th November, 2013 and since then she is living with her widow mother and there is none to take care of her.

9. The court below has considered the aforementioned application filed by the complainant under section 439(2) of the Code and after hearing the parties, the learned Sessions Judge, Sheohar, vide order dated 24.03.2015 passed in Cr. Misc. No. 21 of 2014, cancelled the bail granted to the petitioner vide order dated 18th April, 2013 passed in A.B.P. No. 73 of 2012. The aforementioned order dated 24.03.2015 is under challenge in the present case.

10. Learned counsel for the petitioner has submitted that in the present case the complainant is using the provisio















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