RAHUL MUZAFFARPURI Vs. STATE OF BIHAR AND ORS

JUDGEMENT

(1.) PETITIONER /complainant by way of instant petition has asked for cancellation of anticipatory bail so granted by the learned Sessions Judge, Patna vide order dated 14.06.2011 passed in connection with ABP No. 2674/2011 as well as order dated 24.06.2011 (modification) allowing the privilege in favour of O.P. No.2. so prayed for.

(2.) THERE is an allegation with regard to mistrustment, misappropriation of huge amount in deceitful manner by the O.P. No.2, a builder who had succeeded in procurement of aforesaid amount against providing a flat to the complainant, which he never fulfilled. A complaint case bearing Complaint Petition No. 2912/2008 was filed by the complainant to this effect and then thereafter, having enquiry conducted and completed, cognizance for an offence punishable under Sections 420, 406, 120B of the IPC was taken thereupon. It is also evident that on earlier occasion O.P. No.2 had filed anticipatory bail petition no. 2437/2011 which was disposed of with an observation directing the O.P. No.2 to surrender before the learned lower court with a prayer for bail and without having been complied with at the end of O.P. No.2, the O.P. No.2 again filed anticipatory bail petition vide ABP NO.2674/2011 which was allowed and further the aforesaid order was modified to some extent subsequently, against which the petitioner/complainant has a grievance consequent thereupon the instant petition has been filed.

(3.) LEARNED counsel for the petitioner has submitted that the anticipatory bail petition was filed in connection with complaint case as such, complainant was a necessary party to be heard. The O.P. No.2, cunningly with an ulterior motive refrained himself from impleading the petitioner during filing of anticipatory bail petition at both occasion and in similar way, the court had also committed gross error by not noticing the complainant and on account thereof, the order was passed in absence of petitioner/complainant. It has further been submitted that once prayer for anticipatory bail was refused after considering the merit of the case then under such situation, no further opportunity was available before the Court to entertain the second petition for anticipatory bail without having any new material visualized during intervening period. So, relying upon full bench decision of Rajasthan High Court reported in 2005 Cr.L.J page 2086, it has been submitted that on account of lacking of new ground than that of already available at an earlier occasion, the second petition would not be held maintainable. It has further been submitted that at the first occasion, the O.P. No.2/accused had an opportunity to offer his undertaking to pay back the amount whatever retained by him through deceitful means. Concealing the same at an earlier occasion and disclosing the same at subsequent occasion to pay back is not a new cause because of the fact that the aforesaid situation was already persisting since before as well as was known to the accused/O.P. No.2 since before filing of earlier petition for anticipatory bail. Therefore, filing of subsequent bail petition after having the first one disposed of did not justify the order impugned and on account thereof, the same is fit to be set aside.