Patna High Court
Kiran KumariversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- SONI SHRIVASTAVA
Holding
The Court held that there was no perversity in the order granting anticipatory bail and therefore dismissed the application to cancel the bail.
Summary
The petitioner, Constable Kiran Kumari, filed an application seeking cancellation of the anticipatory bail granted to Subhash Chandra Gurjar, alleging sexual exploitation and blackmail under the FIR. She contended that the lower court failed to consider Section 90 of the IPC, which invalidates consent obtained by fear or misconception, and that she was not heard before bail was granted. The respondent opposed, asserting that the bail order was based on a thorough consideration of the investigation material and that no perversity existed. The High Court examined the allegations, noting the lack of medical evidence and the prolonged nature of the alleged relationship, concluding that consent could not be presumed to be obtained under fear. Citing the Supreme Court’s pronouncement in State of Karnataka v. Sri Darshan, the Court held that cancellation of anticipatory bail requires clear, overwhelming perversity, which was absent. Consequently, the application to cancel bail was dismissed, leaving the anticipatory bail order intact.
Issues considered
- Whether the anticipatory bail granted to the accused should be cancelled on the ground of perversity.
- Whether Section 90 of the Indian Penal Code, concerning consent obtained under fear or misconception, was relevant to the bail decision.
- Whether the lower court adequately considered the material evidence, including the allegations of sexual exploitation and blackmail.
Legislation cited
- Indian Penal Code — s. 90
Subjects
- anticipatory bail
- sexual exploitation
- blackmail
- Section 90 IPC
- perversity
- bail cancellation
- Criminal Procedure Code
- police constable
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.21415 of 2024
Arising Out of PS. Case No.-72 Year-2023 Thana- MAHILA P.S. District- Patna
======================================================
Kiran Kumari Wife of G.M. Kumar Resident of Village- Israuli, P.S.-
Marhaura, District- Saran, the then Posted in Rail District- Katihar, Rail P.S.-
Jogbani, District- Katihar, Presently Working in DRSS Dial-112 at Shastri
Nagar, P.S.- Shastri Nagar, District- Patna. ... ... Petitioner/s
Versus
1. The State of Bihar
2. Subhash Chandra Gurjar S/o Hazarilal Gurjar R/o Village- Papda, Ward No.-
01, P.O.- Puhara, P.S.- Viratnagar, District- Jaipur, Rajsthan, Presently
Posted at Diesel Shed, Malda Town, N.F. Railway, P.S.- Malda, district-
Malda (West Bengal)
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner : Mr. Kumar Samarjeet Singh, Advocate
For the O.P. No.2 : Mrs. Nivedita Nirvikar, Sr. Advocate
Mrs. Shashi Priya, Advocate
For the State : Mr. Ram Priya Sharan Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
5 13-01-2026 Heard learned counsel for the petitioner, learned
counsel for the opposite party no.2 and learned APP for the
State.
2. The present application has been preferred against
the order dated 19.09.2023 passed by the learned Additional
District and Sessions Judge-I, Patna in A.B.P. No.8483 of 2023,
by which the opposite party no.2 was granted anticipatory bail.
3. The learned counsel for the petitioner has submitted
that despite the fact that specific allegations have been made in
the first information report with regard to the petitioner
(informant) being subjected to sexual exploitation by
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blackmailing her on the pretext of making some objectionable
video of her viral, the privilege of anticipatory bail has wrongly
and erroneously been granted to the opposite party no.2. He has
further submitted that the petitioner was not heard by the
learned Court concerned at the time of granting the privilege of
anticipatory bail to the opposite party no.2 and the Court has
overlooked the relevant factors, which ought to have been taken
into consideration for the purposes of granting the privilege of
anticipatory bail inasmuch as the learned Court has not
considered the provisions of Section 90 of the Indian Penal
Code (hereinafter in short ‘IPC’) which talks about consent
being given under the fear or misconception and any consent
having been given under such misconception would not amount
to a consent in law. Further, the petitioner has been blackmailed
by the opposite party no.2 on account of which she has
transferred an amount of Rs.1,50,000/- in the account of
opposite party no.2.
4. Per contra, learned counsel appearing for the
opposite party no.2 vehemently opposes the present application
for cancellation of anticipatory bail and defends the order
granting bail to be an order based on substantial reasons, not
warranting any interference by this Court. To the submission of
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learned counsel for the petitioner that the petitioner was not
heard at the time of granting anticipatory bail, it is submitted
that a bare perusal of the order itself discloses the falsity of the
submission inasmuch as in the opening paragraph it is clearly
stated that the learned counsel for the informant was heard.
Learned counsel for the opposite party no.2 further submitted
that order granting bail clearly indicates that the materials
collected during the course of the investigation do not support
the allegations made by the petitioner and such materials have
been considered by the concerned Court in the correct
perspective.
5. Having heard the rival contentions of the parties
and cursorily perusing the materials available on record, it is
clear that the petitioner has raised the ground of perversity in the
order granting anticipatory bail to the opposite party no.2 by
way of overlooking and not considering the relevant factors
based on the allegations made by the petitioner in the first
information report itself. Further, the informant of the present
case is, admittedly, a constable in Bihar Police and has accepted
that her earlier marriage was in the process of getting dissolved
when she came into contact with opposite party no.2, who used
to allure her and also give assurance to her that he would marry
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her and on such pretext of marriage, he sexually exploited her.
The F.I.R. also mentions that physical relationship between the
petitioner and the opposite party no.2 was regularly being
established as the petitioner was tensed on account of her family
issues. Upon a bare reading of these allegations, it further
appears that the petitioner is an educated adult lady working as a
constable in the police force where the opposite party no.2 was
also a colleague and at best, the case may have involved in a
consensual relationship which eventually could not fructify into
a marriage. The very fact that the physical intimacy between the
parties, as alleged by the petitioner, has continued over a
considerable period of time, it cannot be concluded that the
same was done under misconception of fact, as contemplated in
Section 90 of the IPC. It also has to be considered that the
parameters of grant of bail stand on a completely different level
than that of cancellation of bail already granted. In a case where
the order granting anticipatory bail, all the facts and
circumstances including the materials collected during the
investigation have been considered, coupled with the fact that
there is no supportive medical evidence with regard to the
allegation of abortion etc., which has fallen for consideration
before the Court concerned, this Court does not find any
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perversity in the order granting anticipatory bail to the opposite
party no.2, who is also a Central Government employee in the
police force, in view of the law laid down by the several
pronouncements of the Hon’ble Apex Court relating to the fact
that an order granting anticipatory bail can be interfered on the
ground of perversity only when very strong and glaring grounds
of perversity in the order granting bail exists making it totally
unjustified, legally untenable or passed without due regard to
material considerations, proceeding on an erroneous premise, as
held in the case of State of Karnataka Vs. Sri Darshan etc.
reported in 2025 SCC OnLine SC 1702. In absence of such
cogent or overwhelming circumstances, the cancellation of bail,
once granted, would neither be proper nor desirable.
6. For the reasons as aforesaid, this Court is not
inclined to interfere with the order dated 19.09.2023 passed by
the learned Additional District and Sessions Judge-I, Patna in
A.B.P. No.8483 of 2023. Accordingly, this application is
dismissed.
(Soni Shrivastava, J)
Trivedi/-
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