Juman Khatoon @ Juman Khatun v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.18078 of 2020 Arising Out of PS. Case No.-115 Year-2018 Thana- MADHUBAN District- East Champaran ====================================================== Juman Khatoon @ Juman Khatun D/O Jahir Hussain @ Md. Jahir Resident Of Village- Dihu Tola, P.S.- Madhuban, Distt- East Champaran ... ... Petitioner/s
Versus
1.
The State of Bihar 2.
M.d. Baharul Hussain @ Baharu Hussain S/o Ajahar Miyan @ Md. Ajahar Hussain Resident of Jogoliya Tola Nandi Ram Chhapra, P.S.- Madhuban, Distt- East Champaran ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Vijay Shankar Shrivastava For the Opposite Party/s :
Mr. Lalan Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 22-07-2026 Heard the learned counsel for the petitioner and the learned counsel for the State.
2. The present application has been filed seeking cancellation of the anticipatory bail granted to Opposite Party No. 2 vide order dated 16.11.2019 passed in Cr. Misc. No. 9749 of 2019 by the then Chief Justice of the High Court of Judicature at Patna, in connection with Madhuban P.S. Case No. 115 of 2018, registered for the offences punishable under Section 498A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act.
3. The following order was passed on 16.11.2019 in Cr. Misc. No. 9749 of 2019:-
2/8 "Instant petition under section 438 of Criminal Procedure Code has been moved for grant of anticipatory bail in FIR No.115 of 2018, dated 03.07.2018 registered at Police Station Madhuban, District East Champaran under sections 498A of the Indian Penal Code and Section 3⁄4 of the Dowry Prohibition Act.
I have heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and learned counsel for the informant-opposite party no.2. I have also perused the relevant record of the case, necessary for adjudication of this petition.
The dispute is between the husband and the wife.
It is seen that on 9th of May, 2019, petitioner was granted interim protection by this Court and that he is fully cooperating in the matter.
It is settled law that the grant of bail is the discretion of the court, but the discretion must be exercised not in opposition to, but in accordance with the well established principles of law.
The law laid down in Gudikanti Narasimhulu Versus public prosecutor, (1978) 1 SCC 240 by Justice Krishna Iyer explains the judicial discretion as- the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that discretion when to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor, it must not be arbitrary, vague and fanciful, but legal and regular.
The similar observation was made by the Hon'ble Supreme court in another case of Jai Prakash Singh vs State of Bihar and another, reported in 2012 Cri. L.J.
2101.
The Courts owe more than verbal
3/8 respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty.
In the case of Sidharam Saltingappa Mhetre Vs. State of Maharastra (2011) 1 SCC 694, the Hon'ble Supreme Court observed :
"Personal liberty is very precious fundamental be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case". While relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:- "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail.
In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour."
Going through the provisions of Section
4/8 438 Cr.P.C., the four factors, which are relevant for considering the application for grant of anticipatory bail, are :
(i) the nature and gravity or seriousness of accusation as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and (iv) the possibility of the appellant, if granted anticipatory bail, fleeing from justice.
In State of Maharashtra vs. Mohd.
Sajid Hussain 2008 (1) SCC (Crl.) 176, the Hon'ble Supreme Court, while examining the principles governing grant of anticipatory bail, held that one of the four factors relevant for considering the application for grant of anticipatory bail is the possibility of the applicant, if granted anticipatory bail fleeing from justice.
The Apex Court in Siddharam Satlingappa Mhetre (supra) laid down certain factors and parameters to be considered while considering application for anticipatory bail :
"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone
5/8 imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.
The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over - implication in the cases is a matter of commonknowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only
6/8 the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence.
In Vilas Pandurang Pawar Versus State of Maharastra (2012) 8 SCC 795 also it was held that while considering application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of evidence on record.
In the light of the above facts and circumstances, the present petition is allowed.
The Petitioner, namely, Md. Baharul Hussain @ Baharu Hussain, son of Ajahar Miyan @ Md. Ajahar Hussain, Resident of Village- Jogoliya Tola, Nandi Ram Chhapra, Police Station- Madhuban, District- East Champaran, in the event of his arrest, be enlarged on bail subject to the following terms and conditions:
(a) The petitioner shall furnish a bail bond of Rs. 25,000/-(Rupees Twenty five thousand) with one surety each of the like amount, to the satisfaction of the arresting authority.
(b) The petitioner is directed to join
7/8 the investigation of the case as and when called for by the Investigating Officer in accordance with law.
(c) The petitioner shall not hamper the investigation in any manner whatsoever or shall influence any of the witnesses.
(d) The petitioner shall facilitate in the early completion of the investigation and otherwise fulfill all other statutory terms and conditions, so prescribed, in accordance with law.
(e) The petitioner shall not leave India without prior permission of trial Court.
(f) The petitioner may seek regular bail in accordance with law.
(g) Liberty reserved to the State to approach the Court seeking cancellation of anticipatory bail, if so required, subsequently.
Any observation made herein shall not be construed to be an expression on the merits of the matter.
Petition stands disposed of in the above terms."
4. The learned counsel appearing on behalf of the petitioner submits that in terms of the mediation settlement, Opposite Party No. 2 was required to pay a sum of Rs. 4,00,000/- to the petitioner. It is submitted that Opposite Party No. 2 has paid only Rs. 2,00,000/- and has failed to pay the remaining balance amount of Rs. 2,00,000/-.
5. In view of the aforesaid submission, the present
8/8 application is disposed of with liberty to the petitioner to approach the learned Magistrate by filing an appropriate application regarding non-payment of the balance amount as agreed upon in the mediation settlement.
6. In the event such an application is filed, the learned Magistrate shall consider and decide the same expeditiously. If, upon verification, the learned Magistrate finds that the balance amount has not been paid by Opposite Party No. 2, the learned Magistrate shall proceed to cancel the bail bonds furnished by Opposite Party No. 2 in accordance with law.
7. The application, if filed by the petitioner, shall be disposed of by the learned Magistrate within a period of one month from the date of its filing.
8. Let a copy of this order be communicated to the Principal District & Sessions Judge, East Champaran, Motihari through FAX or e-mail for immediate compliance. (Sandeep Kumar, J) Shishir/- U T