Subham Jaiswal Alias Shubham Kumar Jaiswal Alias Dr Subham Jaiswal Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.846 of 2024

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Subham Jaiswal @ Shubham Kumar Jaiswal @ Shubham Jaiswal @ Dr. Subham Jaiswal Aged- 32 years, son of Narendra Kumar Jaiswal; R/O Village- Pondi, Bajar Para, P.O.- Khadgwan, P.S.- Bachra & District- Koriya (Chhatisgarh) … Petitioner

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Versus

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The State of Jharkhand

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Supriya Kumari @ Dr. Supriya Jaiswal W/O Subham Jaiswal; D/O Surendra Prasad Gupta; R/O At, P.O., P.S.- Dandai & District- … Garhwa. Opposite Parties

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For the Petitioner : Mr. Gopal K. Sinha, Advocate Ms. Chanchal Chhaya, Advocate For the State : Mr. Pankaj Kr. Mishra, Addl. P.P. For the O.P. No.2 : None

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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Though notice has validly been served upon the opposite party No.2 yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 07.02.2024 passed by learned Sessions Judge, Garhwa in Criminal Misc. Case No.41 of 2023 whereby the petitioner was directed to remain on bail in terms of the order dated 18.10.2023 in A.B.P. No.1018 of 2023 in connection with Dandai P.S. Case No.56 of 2023 and the said case is now pending before the learned Judicial Magistrate-1^st Class, Garhwa.

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The brief facts of the case is that vide order dated 18.10.2023, the learned Sessions Judge, Garhwa allowed anticipatory bail to the petitioner and directed that he be released on bail, in the event of his arrest by the police or surrender before the learned court below within two weeks on furnishing bail bonds of Rs.10,000/- with two sureties. The petitioner, in terms of the said anticipatory bail order, surrendered before the trial court and was enlarged on furnishing bail bonds. Criminal Misc. Case No.41 of 2023 was filed by the opposite party No.2 herein who is the wife of the petitioner contending therein that the petitioner is not acting upon the admission made by him in the Mediation Centre. Hence, the bail granted to the petitioner be cancelled. The learned Sessions Judge considered that the petitioner who is the accused person of Dandai P.S. Case No.56 of 2023, without any satisfactory explanation, did not comply with his admission of taking the petitioner and her daughter from her paternal house and the petitioner had pleaded the fact that the petitioner already filed a case under Section 13 B of the Hindu Marriage Act, 1955 to take divorce from the opposite party No.2 and cancelled the bail granted to the petitioner in A.B.P. No.1018 of 2023..

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Learned counsel for the petitioner submits that there is absolutely no condition in the bail granted to the petitioner except furnishing bail bond for Rs.10,000/- with two sureties and there is no allegation against the petitioner of committing any misconduct except, not taking the opposite party No.2 and her daughter to his own house. Learned counsel for the petitioner relies upon the judgment of this Court in the case of Dharmendra Kumar Sao @ Dharmendar Kumar @ Dharmendra Saw vs. The State of Jharkhand & Another passed in Cr.M.P. No.1429 of 2021 dated 16.02.2024 and submits that therein this Court

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Cr. M.P. No.846 of 2024

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had reiterated the grounds for which the bail granted to an accused person of

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the case can be cancelled illustratively though not exhaustively, are as under:-

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(i) by indulging in similar criminal activity,

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(ii) interfering with the course of investigation,

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(iii) attempted to tamper with evidence or witnesses,

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(iv) threaten witnesses or indulges in similar activities which would hamper smooth investigation,

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(v) there is likelihood of their fleeing to another country,

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(vi) attempted to make themselves scarce by going underground or becoming unavailable to the investigating agency,

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(vii) attempted to place themselves beyond the reach of his surety, etc.

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Learned counsel for the petitioner next submits that this Court in the

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case of Dharmendra Kumar Sao @ Dharmendar Kumar @ Dharmendra Saw

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vs. The State of Jharkhand & Another (supra) also relied upon the judgment

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of the Hon’ble Supreme Court of India in the case of Pritpal Singh vs. State of

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Bihar reported in 2001 SCC OnLine SC 123 paragraphs-4 and 5 of which read as under:-

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“4. The dispute raised in the case relates to eviction of the appellant who is the tenant from the premises of which the respondent is the owner. Previously, there was a compromise between the parties in which it was agreed inter alia that the appellant will pay certain amount to the respondent and vacate the premises by the time stipulated. On the allegation that the appellant has failed to comply with the terms of the compromise by not vacating the premises in question within the time stipulated, the petition for cancellation of bail was filed. It is stated by learned counsel for the appellant that neither was any averment made in the petition about misuse of liberty granted to the appellant nor was any difficulty alleged to have been faced by the prosecution in the case on the ground of the appellant being at large.

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5. The Magistrate cancelled the bail granted to the appellant solely on the ground that the terms of the compromise had not been complied with. To say the least, the ground on which the petition for cancellation of bail was made and was granted is wholly untenable. It is our view that the order if allowed to stand will result in abuse of the process of court. The High Court clearly erred in maintaining the order. Therefore, the order passed by the Magistrate cancelling the bail and the order of the High Court confirming the said order

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are set aside. The bail order is restored. The appeal is allowed.” (Emphasis supplied)

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It is next submitted that it is a settled principle of law that the bail granted to an accused cannot be cancelled on the ground that the terms and conditions of the compromise has not been complied with. Hence, it is submitted that the prayer, as made in this Cr.M.P., be allowed.

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Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner to quash the order dated 07.02.2024 passed by learned Sessions Judge, Garhwa in Criminal Misc. Case No.41 of 2023 in terms of the order dated 18.10.2023 in A.B.P. No.1018 of 2023 in connection with Dandai P.S. Case No.56 of 2023 which is now pending before the learned Judicial Magistrate-1^st Class, Garhwa and submits that as the petitioner has violated the terms of compromise arrived at Mediation Centre, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer Section 22 of the Mediation Act, 2023 which reads as under:-

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22. Confidentiality. (1) Subject to the other provisions of this Act, the mediator, mediation service provider, the parties and participants in the mediation shall keep confidential all the following matters relating to the mediation proceedings, namely:—

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(i) acknowledgements, opinions, suggestions, promises, proposals, apologies and admissions made during the mediation;

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(ii) acceptance of, or willingness to, accept proposals made or exchanged in the mediation;

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(iii) documents prepared solely for the conduct of mediation or in relation thereto;

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(iv) any other mediation communication.

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(2) No audio or video recording of the mediation proceedings shall be made or maintained by the parties or the participants including the mediator and mediation service provider, whether conducted in person or online to ensure confidentiality of the conduct of

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4 Cr. M.P. No.846 of 2024

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mediation proceedings.

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(3) No party to the mediation shall in any proceeding before a court or tribunal including arbitral tribunal, rely on or introduce as evidence any information or communication set forth in clauses (i) to (iv) of sub-section (1), including any information in electronic form, or verbal communication and the court or tribunal including arbitral tribunal shall not take cognizance of such information or evidence.

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(4) The provisions of this section shall not prevent the mediator from compiling or disclosing general information concerning matters that have been subject of mediation, for research, reporting or training purposes, if the information does not expressly or indirectly identify a party or participants or the specific disputes in the mediation.”

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Explanation - For the removal of doubts, it is hereby clarified that nothing contained in this Section shall apply to the mediated Settlement agreement where its disclosure is necessary for the purpose of registration, enforcement and challenged. (Emphasis supplied)

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A bare perusal of Section 22 of the Mediation Act, 2023 reveals that no party to the mediation shall in any proceeding before a court or tribunal including arbitral tribunal, rely on or introduce as evidence any information or communication set forth in clauses (i) to (iv) of sub-section (1), the matters relating to mediation proceeding and inter alia the court shall not take cognizance of such information.

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Now, coming to the facts of the case indisputably there is no condition in the order by which anticipatory bail has been granted to the petitioner except for furnishing of bail bond of Rs.10,000/- with two sureties. It is a settled principle of law that the object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with evidence. It is also a settled principle of law that the court cannot cancel the bail on a

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ground alien to the grounds mentioned under Section 437 of Code of Criminal Procedure as has been held by the Hon’ble Supreme Court of India in the case

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5 Cr. M.P. No.846 of 2024

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of Biman Chatterjee vs. Sanchita Chatterjee & Another reported in (2004) 3 SCC 388. In view of the prohibition under Section 22 (3) of the Mediation Act, 2023, certainly the learned Sessions Judge has committed a gross illegality by taking cognizance of the proceedings which took place in a mediation. There is absolutely no allegation against the petitioner of having committed any of the acts, deeds or things which could have made him liable for cancellation of the bail as has been mentioned by this Court in the case of Dharmendra Kumar Sao @ Dharmendar Kumar @ Dharmendra Saw vs. The State of Jharkhand &

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Another (supra). There is serious dispute as to whether the opposite party No.2 really wants to resume conjugal life with the petitioner.

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Perusal of the record reveals that the order was passed by the learned Sessions Judge, Garhwa in A.B.P. No.1018 of 2023 dated 18.10.2023 in presence of counsel of the informant. It is needless to mention that an application under Section 13 B of the Hindu Marriage Act, 1955 is to be filed jointly by both the parties to the marriage. So when both the parties were present before the learned Sessions Judge at the time of hearing of anticipatory bail petition, this Court is of the considered view that there is suppression, if at all, the same is true of filing an application under Section 13 B of the Hindu Marriage Act, 1955 by the petitioner and the opposite party No.2 of this Cr.M.P., in granting anticipatory bail. Under such circumstances, this Court is of the considered view that the learned Sessions Judge, Garhwa has committed a perversity in cancelling the bail granted to the petitioner.

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Accordingly, the order dated 07.02.2024 passed by Sessions Judge, Garhwa in Criminal Misc. Case No.41 of 2023 in terms of the order dated 18.10.2023 in A.B.P. No.1018 of 2023 in connection with Dandai P.S. Case No.56

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of 2023 which is now pending before the learned Judicial Magistrate-1^st Class, Garhwa, is quashed and set aside and the anticipatory bail granted to the petitioner in connection with Dandai P.S. Case No.56 of 2023 is restored.

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In the result, this Cr.M.P. stands allowed.

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In view of disposal of the instant Cr.M.P., Interlocutory Application Nos.5690 of 2024 and 5691 of 2024 stands disposed of being infructuous.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 19^th of June, 2024 AFR/ Animesh

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Cr. M.P. No.846 of 2024

Subham Jaiswal Alias Shubham Kumar Jaiswal Alias Dr Subham Jaiswal v. the State of Jharkhand

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Subham Jaiswal Alias Shubham Kumar Jaiswal Alias Dr Subham Jaiswal v. the State of Jharkhand

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