BIMLA TIWARI versus STATE OF BIHAR & ORS. on 16 January 2023

O R D E R

1. Permission to file petitions for special leave is granted.

2. By way of these petitions, the petitioner/informant seeks toquestion the order dated 14.11.2022 as passed by the High Court of

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AJudicature at Patna in Crl. Misc. Case No. 15125 of 2022 and 19515 of2022, whereby the High Court took note of the offer made by the accused-respondent No. 2, of making payment of a sum of Rs.75,000/- (seventy-five thousand) to the petitioner/informant and, considering such an offerand having regard to the facts and circumstances of the case pertainingto offences under Sections 406 and 420 of the Indian Penal Code, 1860Band Sections 3 and 4 of the Dowry Prohibition Act, 1961, granted theconcession of pre-arrest bail to the respondents, subject to the offeredpayment.

3. The allegations had been that marriage of the informant’sdaughter was fixed with son of the respondent No. 2 and in theCengagement rituals, amongst other things, the informant’s husband gavea sum of Rs. 6,00,000/- (six lakhs) in cash to the respondents. Accordingto the petitioner-informant, thereafter, the respondents demanded furthermoney and vehicle and, for such a demand being found inappropriate,the marriage was called off but the respondents did not return the moneyDand the articles.

4. It appears from the submissions made that earlier, therespondents’ prayer for pre-arrest bail was declined by the Court ofAdditional Sessions Judge-IV, Patna and then, the petition filed in theHigh Court bearing No. 5967 of 2019, seeking pre-arrest bail, was alsoEdismissed on 02.04.2019. It appears further that after the report ofinvestigation, the Trial Court found enough material to take cognizanceof the offences against the accused in its order dated 14.09.2020. Therespondents, thereafter, made yet another prayer for pre-arrest bail whichwas again declined by the Court of Additional Sessions Judge–IV, PatnaFon 21.12.2021. Hence, the respondents approached the High Court andtheir petitions were considered together and decided by the commonorder dated 14.11.2022, which is sought to be questioned in these petitionsby the informant.

5. One of the submissions before the High Court while seekingGpre-arrest bail had been that one of the accused, namely Vijaya Malviya,was granted pre-arrest bail by the High Court in its order dated 10.03.2022passed in Criminal Misc. No.32384 of 2021 after considering that themoney involved in the matter had been returned by a Bank Draft in thesum of Rs. 6,00,000/- (six lakhs), drawn in favour of the informant,which was handed over to her counsel.H

6. The pre-arrest bail plea of the respondents herein was, however,opposed by the State as also by the informant, inter alia, on the groundthat the processes under Sections 82 and 83 of the Code of CriminalProcedure,1973 (‘CrPC’) had already been issued and that the moneyspent in engagement ceremony had not been returned. Thereafter, anoffer was made on behalf of the respondent No. 2 herein that he wouldmake payment of another sum of Rs.75,000/- (seventy-five thousand)by way of Demand Draft within six weeks; and accepting such asubmission, the High Court granted the concession of pre-arrest bail,subject to the offered payment.

7. Seeking to challenge the order so passed by the High Court,several grounds are urged in support of the present petitions, includingthat after issuance of process under Section 82 CrPC, prayer for pre-arrest bail ought not to have been granted; and that it had clearly been acase of illegal demand of money as also cheating of the informant.

8. Having examined the matter in its totality, we are not onlyinclined to dismiss these petitions and affirm the order impugned grantingpre-arrest bail to the private respondents but are also inclined to deletethe requirement of payment of a sum of Rs.75,000/- (seventy-fivethousand) to the informant.

9. We have indicated on more than one occasion that the processof criminal law, particularly in matters of grant of bail, is not akin tomoney recovery proceedings but what has been noticed in the presentcase carries the peculiarities of its own.

10. We would reiterate that the process of criminal law cannot beutilised for arm-twisting and money recovery, particularly while opposingthe prayer for bail. The question as to whether pre-arrest bail, or for thatmatter regular bail, in a given case is to be granted or not is required tobe examined and the discretion is required to be exercised by the Courtwith reference to the material on record and the parameters governingbail considerations. Putting it in other words, in a given case, theconcession of pre-arrest bail or regular bail could be declined even if theaccused has made payment of the money involved or offers to makeany payment; conversely, in a given case, the concession of pre-arrestbail or regular bail could be granted irrespective of any payment or anyoffer of payment.

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A11. We would further emphasize that, ordinarily, there is nojustification in adopting such a course that for the purpose of being giventhe concession of pre-arrest bail, the person apprehending arrest oughtto make payment. Recovery of money is essentially within the realm ofcivil proceedings.B12. Moreover, it is noticed that the factum of payment of the sumof Rs. 6,00,000/- (six lakhs) by the co-accused in this very case to thepresent petitioner (informant) was submitted before the High Court andwas taken note of in the impugned order dated 14.11.2022 in the followingterms:

C“…It is submitted that one of the accused namely Vijaya Malviyawas granted bail by a co-ordinate Bench of this Court vide orderdated 10.03.2022 passed in Cr. Misc. No.32384 of 2021,considering that a bank draft of Rs.Six Lakh, in favour of informantBimla Ti- wary, was handed over to the counsel for the infor-mant. As such, the money has already been returned to theDinformant.”

13. Thus, the aforesaid order dated 10.03.2022, recording thefactum of the said payment of a sum of Rs. 6,00,000/- (six lakhs), isobviously carrying a material bearing on the case but, while filing thepresent petitions, copy thereof has not been placed on record; and evenEin the factual narration and list of dates, such relevant facts, about thepetitioner having received the said sum of Rs. 6,00,000/- (six lakhs) fromthe co-accused and about the order dated 10.03.2022, have not beenmentioned.

14. We have taken note of the said order dated 10.03.2022, asFavailable on the website of the High Court and it is quite intriguing to findthat not only the said amount of Rs. 6,00,000/- (six lakhs) was paid bythe co-accused to the present petitioner but, the present petitioner indeedaccepted the offer and received the Bank Draft during the course ofhearing before the High Court. The said order dated 10.03.2022, in itsentirety, reads as under:G

“Heard learned counsel for the petitioner, learned counsel forthe informant and learned APP for the State.

The petitioner is apprehending his arrest in a case registeredfor the offences punishable under Sections 420 and 406 of theHIndian Penal Code and Sections 3/4 of the D.P. Act.

The basic accusation is of torture for non-fulfill- ment of dowrydemand.

It is submitted by learned counsel for the peti- tioner that thepetitioner has falsely been implicated in this case. He furthersubmits that a bank draft of Rs.6,00,000/- (six lac) dated28.02.2022 bearing draft number 283114 is being handed over tothe learned counsel for the informant which is in favour of theinformant (Bimla Tiwary).

The learned counsel appearing on behalf of the in- formanthas accepted the offer of the petitioner and received the aforesaidbank draft during course of hearing of the case.

Considering the aforestated facts, let the petitioner, abovenamed in the event of his arrest or sur- render before the courtbelow within a period of four weeks from today, be released onanticipatory bail on furnishing bail bonds of Rs.10,000/- (tenthousand) with two sureties of the like amount each to the sat-isfaction of learned Sub Divisional Judicial Magis- trate, PatnaSadar, Patna in connection with Jakkanpur Case No. 346 of 2018,subject to the conditions as laid down under Section 438(2) of theCr.P.C.”

15. Thus, it is noticed that these criminal proceedings are beingprosecuted only as money recovery proceedings. We have expressedreservations even as regards the aforesaid order dated 10.03.2022,wherein the High Court has proceeded on the propositions of offer madeby the co-accused of payment of the sum of Rs.6,00,000/- (six lakhs)and acceptance thereof by the informant (present petitioner). However,since the said order is not before us, we would refrain from making anydirections in that regard and else, in our view, even the said order too, onthe proposition of granting bail with reference to payment, has its ownshortcomings.

16. Even when we are not modifying the condition in the saidorder dated 10.03.2022 for the same being not before us, so far as theimpugned order dated 14.11.2022 is concerned, in our view, it shall be inthe interest of justice to annul the requirement of payment of a sum of A

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ARs. 75,000/- (seventy-five thousand) by the accused- respondent No. 2.Hence, the order granting pre-arrest bail to the respondents standsaffirmed but, the condition therein, of payment of Rs.75,000/- (seventy-five thousand) by the respondent No.2, stands annulled.

17. Subject to the observations and requirements foregoing, theseBpetitions stand dismissed.

18. All pending applications stand disposed of.

Bibhuti Bhushan Bose

Petitions disposed of.

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