SAJIDA KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application by petitioner has been filed for cancellation of anticipatory bail granted to opposite party No. 2 Md. Ashraf Sheikh, said to be hus band of petitioner, opposite party No. 4 Md. Abdul Gafoor, said to be father -in -law of petitioner and opposite party No. 6 Jainab Khatoon said to be mother -in -law of petitioner by order dated 2.8.2003 and 13.8.2003 by Sessions Judge, Munger, camp at Jamui.

(2.) BRIEF facts of the case are that petitioner Sajida Khatoon, claiming herself to be wife of opposite party No. 2, filed a Complaint Case No. 239(C) of 2002 against opposite parties No. 2, 4, 6 and others alleging therein that about a period of four months before filing of complaint petition, she was married to opposite party No. 2 and was living with him as his wife and on 4.4.2003, opposite parties Nos. 2, 4, 6. and others, asked her to bring a sum of Rs. 50,000/ - from her father and on her refusal, they started assaulting and torturing her and finally ousted her from their house. Opposite parties No. 4 and 6 prayed for anticipatory bail and their prayer was allowed on 2.8.2003 and, thereafter, opposite party No. 2 was also granted anticipatory bail on 13.8.2003, on both occasions by learned Sessions Judge, Munger, camp at Jamui. From the orders granting anticipatory bail to opposite parties, it appears that plea was taken on their behalf that the petitioner is not the married wife of opposite party No. 2 and in fact she was married to one Md. Nisar, brother of opposite party No. 2 and another son of opposite parties Nos. 4 and 6 who is dead now and after the death of husband of petitioner, her parents made a proposal for her marriage to opposite party No. 2 which was not accepted by opposite parties No. 4 and 6. and according to opposite parties, this refusal is a reason of filing the false case against them. Learned counsel appearing on behalf of the petitioner has argued that in fact petitioner was wife of Md. Nisar who was own elder brother of opposite party No. 2 and when Md. Nisar died due to long illness, his family members decided to keep petitioner with them and they also decided to perform her marriage with opposite party No. 2 although he was married and with mutual consent, marriage between petitioner and opposite party No. 2 was performed and after marriage, petitioner lived as wife with opposite party No. 2 and enjoyed conjugal life happily for about four to five months but thereafter dispute arose on account of dowry of Rs. 50,000/ - in cash and one motorcycle. It is further submitted that opposite party No. 2 sworn an affidavit before Notary Public, Jamui on 22.7.2002 in which he has admitted that petitioner is his legally wedded wife (Annexure -3). It is further argued that petitioner filed a petition bearing Cr. Misc. No. 109 of 2003 before learned Sessions Judge for cancellation of anticipatory bail granted to opposite parties by his order dated 2.8.2003 and 13.8.2003 on the ground that opposite parties have obtained bail by suppressing real facts but her petition was dismissed (Annexure -4). Prayer has been made for cancellation of anticipatory bail granted to opposite parties No. 2, 4 and 6 mainly on the ground that they obtained the orders of anticipatory bail by suppressing the fact.

(3.) AND 6 has filed counter -affidavit in which opposite parties have opposed the prayer of petitioner for cancellation of their anticipatory bail stating that petitioner was never married to opposite party No. 2 and she is in fact widow of Md. Nisar, elder brother of opposite party No. 2 and from Md. Nisar, she has two children aged about 9 and 7 years and she was married to Md. Nisar in the year, 1992 and in between 1992 to 1998, she was happily leading married life with Md. Nisar and she never raised any complaint against her in -laws and she sold the scooter which was given to Md. Nisar at the time of her marriage but which was in her name, she received money of insurance policy which was in the name of Md. Nisar after his death (Annexure -B). She also received accounts with Sahara Indian in the name of Md. Nisar (Annexure -C). Although opposite party No. 2 was nominee made by Md. Nisar but he authorised petitioner to withdraw the money by swearing an affidavit (Annexure - D) and after receiving all the money which were in the name of her husband Md. Nisar, she on 24.2.2002 fled away and observing her lusty attitude, opposite parties filed a miscellaneous petition No. 185 of 2002 before Subdivisional Magistrate, Deoghar (Annexure -E) apprehending danger of their involvement in a false case. Their further case is that the petitioner, neither in the complaint petition nor in her examination on solemn affirmation, disclosed that she was widow of Md. Nisar. They have denied that petitioner is the married wife of opposite party No. 2. From the perusal of complaint petition, I find that nowhere the petitioner has stated that she was earlier married to Md. Nisar, brother of opposite party No. 2, a fact which she has now admitted in para -6 of her petition. The main.ground of cancellation of bail of opposite parties is affidavit (Annexure -3) said to have been sworn by opposite party No. 2 before Notary Public, Jamui on 22.7.2002 admitting therein the petitioner as his legally married wife. The learned Sessions Judge, while rejecting the prayer of petitioner for cancelling the bail earlier granted by him, has rightly observed that genuineness of the affidavit which has now been challenged by opposite parties, can be decided at the time of trial and it cannot be a sole criterion of the cancellation of bail in view of the fact that petitioner has not been able to establish that after release on bail, opposite parties are misusing the privilege of bail either by tempering the prosecution evidence or giving threateling to petitioner and her witnesses or in any other manner. The plea of petitioner that opposite parties obtained bail by suppressing the fact that petitioner is legally married wife of opposite party No. 2 cannot be accepted when opposite parties are still denying this very allegation of petitioner that she is wife of opposite party No. 2. Besides this, petitioner herself did not disclose in her complaint petition that she was earlier married to Md. Nisar, who was elder brother of opposite party No. 2 and who is dead now.