Allowed

Gauri Shankar v. State Of Bihar and Anr.

Patna HC26 Nov 2014CR. MISC./31268/2014

Case brief

AI extract

What is this about?

The High Court exercised inherent powers under Section 482 CrPC to modify a bail condition requiring the complainant-wife to be a surety. The court directed the petitioner to furnish monetary surety instead to prevent abuse of process in matrimonial disputes.

What did the court decide?

Modified the earlier bail order; petitioner shall not be arrested if he furnishes a monetary surety of Rs. 10,000.

Gauri Shankar Vs State Of Bihar and Anr. — Anticipatory Bail | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No.31268 of 2014

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====================================================== 1. Gauri Shankar son of Hari Kant Thakur, Resident of village- Gorai, P.S.Chakmehsi, P.S.- Motipur, District- Samastipur .... .... Petitioner Versus 1. The State of Bihar 2. Archna, wife of Gauri Shankar, Daughter of Jitendra Kumar, Quarter No. E/98, Imli Road, Railway Colony, P.S. Kazi Mohammadpur, DistrictMuzaffarpur .... .... Opposite Patties ====================================================== Appearance : For the Petitioner : Mr. N. K. Agrawal, Sr. Advocate Mr. Mr. Nachiketa Jha, Advocate For the Opposite Party : Mr. Ravi S. Pankaj, Advocate For the State : Mr. Bharat Bhushan (APP) ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 4 26-11-2014 The petitioner seeks modification of the order dated 11.12.2013 passed in Cr. Misc. No. 45311 of 2013 to the extent, while granting anticipatory bail to the petitioner, this court had imposed a condition that one of the bailors should be opposite party No.2 (complainant herself). The complainant (opposite party No.2) is wife of the petitioner.

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The petitioner is an accused in a case for the offence punishable under section 498A of the IPC. So as to resolve the dispute between the petitioner and opposite party No.2 amicably, this court has made efforts for out of court settlement between the parties as it was noticed that basically a matrimonial dispute

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Patna High Court Cr.Misc. No.31268 of 2014 (4) dt.26-11-2014

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between the parties, had resulted into institution of case under section 498A of the IPC. While granting privilege of anticipatory bail vide order dated 11.12.2013 passed in Cr. Misc. No. 45311 of 2013, a condition was laid that opposite party No.2 shall be one of the bailors. It appears that further dispute between the parties cropped up. The opposite party No.2 has instituted another criminal case against the petitioner alleging offences under sections 323, 498A of the IPC. It is the plea of the opposite party No.2 that police have submitted charge sheet in the subsequent case, i.e., Chakmehsi PS case No. 23/2014. It appears that she filed an application before the learned Sub divisional Magistrate (East) Muzaffarpur to withdraw the surety against the release of petitioner on bail. Learned Sub divisional Magistrate (East) Muzaffarpur vide an order dated 23.05.2014 has directed for issuance of non bailable warrant of arrest against the petitioner while allowing the prayer of opposite party No.2 to withdraw the surety on the basis of which he was released on bail in terms of order of this court. It is in this background, a prayer has been made on behalf of the petitioner to modify the earlier order dated 11.12.2013 to the extent a condition was imposed that one of the surety should be opposite party No.2 herself.

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Learned counsel for the opposite party No. 2 opposes

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Patna High Court Cr.Misc. No.31268 of 2014 (4) dt.26-11-2014

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the present application for modification and has contended that this court does not have jurisdiction at this stage to modify the order. He submits that the petitioner is already in custody in connection with the subsequent criminal case instituted by opposite party No. 2 in which the police have submitted charge sheet. He further submits that order of the Sub divisional Magistrate (East) Muzaffarpur dated 23.05.2014 has been passed in the light of the order of this court dated 11.12.2013 which required opposite party No. 2 to be one of the bailors. He submits that the said order dated 23.05.2014 passed by the court of Sub divisional Magistrate (East) Muzaffarpur cannot be interfered with in the present proceeding seeking modification of the order dated 11.12.2013.

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The present application, i.e., Cr. Misc. No. 31268 of 2014 has been filed under section 482 of the Code of Criminal Procedure which confers upon the High Courts inherent powers to make such order as may be necessary to give effect to any order under the Code so as to prevent abuse of the process of the court or to otherwise secure ends of justice.

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The plea on behalf of opposite party No. 2 that in the facts and circumstance of the case, this court does not have jurisdiction to modify the earlier order dated 11.12.2013 is wholly

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Patna High Court Cr.Misc. No.31268 of 2014 (4) dt.26-11-2014

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misconceived. Reference may be made in this regard to the Supreme Court judgement in case of Hamida vs. Rashid reported in (2008) 1 SCC 474 , paragraph 6 of which reads thus:-

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“6. Section 482 CrPC saves the inherent powers of the High Court and its language is quite explicit when it says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. A procedural code, however exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is well established principle that every court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. As held by the Privy Council in Emperor v. Khwaja Nazir Ahmad with regard to Section 561-A of the Code of Criminal Procedure, 1898 (Section 482 CrPC is a verbatim copy of the said provision) gives no new powers. It only provides that those powers which

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Patna High Court Cr.Misc. No.31268 of 2014 (4) dt.26-11-2014

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the court already inherently possesses shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent power had survived the passing of the Act.”

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On the basis of material on record, I am satisfied that the dispute between the petitioner and opposite party No. 2 is basically matrimonial in nature. I am of the view that opposite party No. 2 has attempted to abuse the process of the court and has attempted to take undue advantage of the privilege given to her by virtue of the order dated 11.12.2013.

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In such view of the matter, in exercise of power under section 482 of the Code of Criminal Procedure, I feel inclined to modify the order dated 11.12.2013 passed in Cr. Misc. No. 45311 of 2013 in connection with complaint case No. 3134 of 2011 arising out Tr. No. 2339 of 2012 pending before learned Sub divisional Magistrate (East) Muzaffarpur and direct that the petitioner shall not be arrested or taken into custody on the ground of withdrawal of surety by opposite party No. 2 and subsequent order passed by learned Sub divisional Magistrate (East) Muzaffarpur on 23.05.2014 and shall remain on bail if he furnishes one surety of Rupees 10,000/- to the satisfaction of

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Patna High Court Cr.Misc. No.31268 of 2014 (4) dt.26-11-2014

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learned Sub- Divisional Judicial Magistrate, Muzaffarpur in connection with in complaint case No. 3134 of 2011 within four weeks from the date of communication of this order to the court below.

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below.

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This application is, accordingly, allowed.

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(Chakradhari Sharan Singh, J)

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BKS/U T

Gauri Shankar v. State Of Bihar and Anr.

Case brief

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Gauri Shankar v. State Of Bihar and Anr.

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