Bimla Tiwari vs The State Of Bihar

REPORTABLE IN THE SUPREME COURT OF INDIA EXTRA-ORDINARY JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NOS.834-835 OF 2023 [DIARY NO.41186 OF 2022]

BIMLA TIWARI PETITIONER

VERSUS

STATE OF BIHAR & ORS. RESPONDENTS

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 to

question the order dated 14.11.2022 as passed by the High Court of

Judicature at Patna in Crl. Misc. Case No. 15125 of 2022 and 19515

of 2022, 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 offer and having regard to the facts and

circumstances of the case pertaining to offences under Sections 406

and 420 of the Indian Penal Code, 1860 and Sections 3 and 4 of the

Dowry Prohibition Act, 1961, granted the concession of pre-arrest

bail to the respondents, subject to the offered payment.

3. The allegations had been that marriage of the informant’s Signature Not Verified Digitally signed by daughter was fixed with son of the respondent No. 2 and in the ARJUN BISHT Date: 2023.01.19 14:33:25 IST Reason:

engagement rituals, amongst other things, the informant’s husband

1 gave a sum of Rs. 6,00,000/- (six lakhs) in cash to the

respondents. According to the petitioner-informant, thereafter, the

respondents demanded further money and vehicle and, for such a

demand being found inappropriate, the marriage was called off but

the respondents did not return the money and the articles.

4. It appears from the submissions made that earlier, the

respondents’ prayer for pre-arrest bail was declined by the Court

of Additional Sessions Judge-IV, Patna and then, the petition filed

in the High Court bearing No. 5967 of 2019, seeking pre-arrest

bail, was also dismissed on 02.04.2019. It appears further that

after the report of investigation, the Trial Court found enough

material to take cognizance of the offences against the accused in

its order dated 14.09.2020. The respondents, thereafter, made yet

another prayer for pre-arrest bail which was again declined by the

Court of Additional Sessions Judge–IV, Patna on 21.12.2021. Hence,

the respondents approached the High Court and their petitions were

considered together and decided by the common order dated

14.11.2022, which is sought to be questioned in these petitions by

the informant.

5. One of the submissions before the High Court while seeking

pre-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 10.03.2022 passed in Criminal Misc. No.32384 of 2021 after

considering that the money involved in the matter had been returned

by a Bank Draft in the sum of Rs. 6,00,000/- (six lakhs), drawn in

favour of the informant, which was handed over to her counsel.

6. The pre-arrest bail plea of the respondents herein was,

2 however, opposed by the State as also by the informant, inter alia,

on the ground that the processes under Sections 82 and 83 of the

Code of Criminal Procedure,1973 (‘CrPC’) had already been issued

and that the money spent in engagement ceremony had not been

returned. Thereafter, an offer was made on behalf of the respondent

No. 2 herein that he would make payment of another sum of

Rs.75,000/- (seventy-five thousand) by way of Demand Draft within

six weeks; and accepting such a submission, 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,

including that 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 a case of illegal demand of money as also

cheating of the informant.

8. Having examined the matter in its totality, we are not only

inclined to dismiss these petitions and affirm the order impugned

granting pre-arrest bail to the private respondents but are also

inclined to delete the requirement of payment of a sum of

Rs.75,000/- (seventy-five thousand) to the informant.

9. We have indicated on more than one occasion that the process

of criminal law, particularly in matters of grant of bail, is not

akin to money recovery proceedings but what has been noticed in the

present case carries the peculiarities of its own.

10. We would reiterate that the process of criminal law cannot be

utilised for arm-twisting and money recovery, particularly while

opposing the prayer for bail. The question as to whether pre-arrest

3 bail, or for that matter regular bail, in a given case is to be

granted or not is required to be examined and the discretion is

required to be exercised by the Court with reference to the

material on record and the parameters governing bail

considerations. Putting it in other words, in a given case, the

concession of pre-arrest bail or regular bail could be declined

even if the accused has made payment of the money involved or

offers to make any payment; conversely, in a given case, the

concession of pre-arrest bail or regular bail could be granted

irrespective of any payment or any offer of payment.

11. We would further emphasize that, ordinarily, there is no

justification in adopting such a course that for the purpose of

being given the concession of pre-arrest bail, the person

apprehending arrest ought to make payment. Recovery of money is

essentially within the realm of civil proceedings.

12. Moreover, it is noticed that the factum of payment of the sum

of Rs. 6,00,000/- (six lakhs) by the co-accused in this very case

to the present petitioner (informant) was submitted before the High

Court and was taken note of in the impugned order dated 14.11.2022

in the following terms:

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

13. Thus, the aforesaid order dated 10.03.2022, recording the

4 factum of the said payment of a sum of Rs. 6,00,000/- (six lakhs),

is obviously carrying a material bearing on the case but, while

filing the present petitions, copy thereof has not been placed on

record; and even in the factual narration and list of dates, such

relevant facts, about the petitioner having received the said sum

of Rs. 6,00,000/- (six lakhs) from the co-accused and about the

order dated 10.03.2022, have not been mentioned.

14. We have taken note of the said order dated 10.03.2022, as

available on the website of the High Court and it is quite

intriguing to find that not only the said amount of Rs. 6,00,000/-

(six lakhs) was paid by the co-accused to the present petitioner

but, the present petitioner indeed accepted the offer and received

the Bank Draft during the course of hearing before the High Court.

The said order dated 10.03.2022, in its entirety, reads as under:

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

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

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

It is submitted by learned counsel for the peti- tioner that the petitioner has falsely been implicated in this case. He further submits that a bank draft of Rs.6,00,000/- (six lac) dated 28.02.2022 bearing draft number 283114 is being handed over to the learned counsel for the informant which is in favour of the informant (Bimla Tiwary).

The learned counsel appearing on behalf of the in- formant has accepted the offer of the petitioner and received the aforesaid bank draft during course of hearing of the case.

5 Considering the aforestated facts, let the peti-

tioner, above named in the event of his arrest or sur- render before the court below within a period of four weeks from today, be released on anticipatory bail on furnishing bail bonds of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the sat- isfaction of learned Sub Divisional Judicial Magis- trate, Patna Sadar, Patna in connection with Jakkanpur Case No. 346 of 2018, subject to the conditions as laid down under Section 438(2) of the Cr.P.C.”

15. Thus, it is noticed that these criminal proceedings are being

prosecuted only as money recovery proceedings. We have expressed

reservations even as regards the aforesaid order dated 10.03.2022,

wherein the High Court has proceeded on the propositions of offer

made by 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 any directions in that regard and else,

in our view, even the said order too, on the proposition of

granting bail with reference to payment, has its own shortcomings.

16. Even when we are not modifying the condition in the said order

dated 10.03.2022 for the same being not before us, so far as the

impugned order dated 14.11.2022 is concerned, in our view, it shall

be in the interest of justice to annul the requirement of payment

of a sum of Rs. 75,000/- (seventy-five thousand) by the accused-

respondent No. 2. Hence, the order granting pre-arrest bail to the

respondents stands affirmed 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, these

6 petitions stand dismissed.

18. All pending applications stand disposed of.

...................J. (DINESH MAHESHWARI)

...................J. (HRISHIKESH ROY)

New Delhi;

January 16, 2023

7 ITEM NO.33 COURT NO.6 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

SPECIAL LEAVE PETITION (CRIMINAL)…………………. Diary No(s).41186/2022

(Arising out of impugned final judgment and order dated 14-11-2022 in CRLMN No.15125/2022 14-11-2022 in CRLMN No.19515/2022 passed by the High Court Of Judicature At Patna)

BIMLA TIWARI Petitioner(s)

VERSUS

STATE OF BIHAR & ORS. Respondent(s)

(FOR ADMISSION and I.R. and IA No.1703/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.1704/2023-EXEMPTION FROM FILING O.T. and IA No.1702/2023-PERMISSION TO FILE PETITION (SLP/TP/WP/..))

Date : 16-01-2023 These petitions were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE HRISHIKESH ROY

For Petitioner(s) Mr. Shaurya Sahay, AOR

For Respondent(s)

UPON hearing the counsel the Court made the following O R D E R

Permission to file petitions for special leave is granted.

The special leave petitions are dismissed in terms of the

signed reportable order.

All pending applications stand disposed of.

(ARJUN BISHT) (RANJANA SHAILEY) COURT MASTER (SH) COURT MASTER (NSH)

(signed reportable order is placed on the file)

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