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2019 Supreme(Ori) 37
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Sahoo, J.
Ashok Kumar Gupta - Appellant
Vs.
State of Odisha - Respondent
Appeal No. 4804 of 2018
Decided On : 19-04-2019
For the Appellant :Mr. Satyabrata Sutar, A.K. Mohanty, A. Kailash, S.N. Sahoo, A. Sailaza and S.Mohan Rao, A.K. Parida, Advocates
For the Respondent: Mr. Priyabrata Tripathy Addl. Standing Counsel
For the Informant :Mr. Srinivas Mohanty, K. Patra, S.R. Mohapatra and S. Nayak, Advocates
The judgment emphasizes the importance of evaluating prima facie evidence and suspicious conduct in determining pre-arrest bail applications in criminal cases.
Headnote:
Pre-arrest Bail - Criminal Procedure - Code of Criminal Procedure, 1973, Section 438 - Indian Penal Code, Sections 294, 323, 354, 420, 427, 468, 471 - Family Courts Act, 1984, Section 7 - Special Marriage Act, 1954, Section 28(1)
Fact of the Case:
The petitioner sought pre-arrest bail in connection with a case involving multiple sections of the Indian Penal Code related to illegal marriage, dowry demands, and fraudulent divorce proceedings. The victim alleged that the petitioner and his advocate conspired to cheat her by preparing forged documents and procuring an illegal divorce deed.
Finding of the Court:
The court found prima facie evidence that the petitioner, in connivance with the co-accused advocate, created forged documents to cheat the victim. The court noted discrepancies in the agreements and divorce proceedings, indicating suspicious conduct by the petitioner and the advocate.
Issues: The issues revolved around the alleged fraudulent divorce proceedings, illegal marriage, dowry demands, and the petitioner's failure to comply with investigation conditions.
Ratio Decidendi: The court's decision was influenced by the suspicious conduct of the petitioner and the advocate, discrepancies in the legal documents, and the prima facie evidence of conspiracy to cheat the victim.
Final Decision: The court dismissed the pre-arrest bail application, citing the nature and gravity of the accusation, the prima facie material against the petitioner, and the possibility of tampering with evidence.
JUDGMENT :
S.K. Sahoo, J.
The petitioner Ashok Kumar Gupta has filed this application under section 438 of Code of Criminal Procedure, 1973 seeking for pre-arrest bail in connection with Kharavela Nagar P.S. Case No.188 of 2016 registered under sections 294, 323, 354, 420, 427, 468, 471 of the Indian Penal Code which corresponds to C.T. Case No.2702 of 2016 pending in the Court learned S.D.J.M., Bhubaneswar.
2. One Pravati Swain, wife of the petitioner filed a complaint petition in the Court of learned S.D.J.M., Bhubaneswar on 13.5.2016 against the petitioner and one Sanjay Narayan Sahoo, who is an advocate of Bhubaneswar Bar. The said complaint petition was referred to the Inspector in charge, Kharavela Nagar police station under section 156(3) of Cr.P.C., 1973 to for registration of the case and investigation and accordingly on 12.06.2016, the aforesaid Kharavela Nagar P.S. Case No.188 of 2016 was registered.
It is the case of the complainant-victim that the petitioner, who is her husband, illegally married to another lady and severely tortured her demanding more dowries for which one F.I.R. was lodged by her against the petitioner who was an employee of Oriental Bank of Commerce. Since the service of the petitioner would have been affected due to institution of the first information report, in order to save his service, he made an attempt for amicable settlement. The victim, the petitioner and their respective family members decided to dissolve the marriage between the victim and her husband and it was agreed upon that the victim would be paid a sum of Rs. 35,00,000/- (rupees thirty five lakh) as permanent alimony by the petitioner. The victim engaged co-accused Sanjay Narayan Sahoo as her advocate who was known to her to safeguard her interest. The co-accused was engaged as an advocate in Civil Proceeding No.32 of 2016 which was filed by the victim and the petitioner jointly under section 7 of the Family Courts Act, 1984 read with section 28 (1) of this Special Marriage Act, 1954 in the Court of Judge, Family Court, Bhubaneswar. It is the case of the victim that on the advice of the co-accused advocate, she signed the divorce petition and agreement for permanent alimony and received only Rs. 9.5 lakh on 11.01.2016 but the petitioner in criminal conspiracy with the co-accused advocate cheated her sum of Rs. 18.5 lakh. Both the accused persons denied their liability to pay money to the victim after taking fraudulent illegal deed of divorce. On the deed of divorce, the co-accused advocate took her signatures illegally giving her an impression regarding receipt of payment of Rs. 7 lakh in the month of March 2016. The victim engaged a new advocate doubting the conduct and character of the accused persons and through her new advocate, she came to know that fraud/cheating has been practised on her. On 12.05.2016 when the victim asked the petitioner about such fraud/cheating, he abused her in filthy language, pushed and dragged her before public with intent to disrobe her and threatened to kill her.
During course of investigation, Investigating Officer examined the victim and other witnesses, seized a marriage certificate of the victim with the petitioner, a xerox copy of nonjudicial paper of agreement for permanent alimony in between the victim and the petitioner and their joint photographs. It was found that an illegal mutual divorce deed in between the victim and the petitioner was procured without explaining the contents of the deed to the victim and both the petitioner and the coaccused advocate fraudulently by making forged documents, put signatures of the victim thereon and filed a divorce case in the learned Family Court, Bhubaneswar. It was further found that the petitioner had already married to another lady, namely, Preeti Gupta and he wanted the victim to be out of his way forever. A judgment copy of the Family Court holding the divorce deed as illegal, void and inoperative was also seized. It appears that on 18.05.2017 fin
