Algu Mian @ Hanif Mian @ Hanif vs The State Of Bihar
2021 Latest Caselaw 3883 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.19508 of 2021

           Arising Out of PS. Case No.-169 Year-2020 Thana- DAUDPUR District- Saran
     ======================================================

1. Algu Mian @ Hanif Mian @ Hanif, aged about 64 years, Male, Son of Late Rahman Mian.

2. Khendar Mian, aged about 65 years, Male, Son of Late Rahman Mian.

3. Malkhan Miya @ Malkhan Mian, aged about 34 years, Male, Son of Khendar Mian.

4. Afroj Mian @ Afroj Hussain @ Afroj Miya, aged about 28 years, Male, Son of Islam Mian.

5. Tahir Mian, aged about 42 years, Male, Son of Chand Mian.

6. Asgar Mian @ Asgar Ali, aged about 24 years, Male, Son of Tahir Mian.

All above resident of Village - Saryugpar, Police Station - Daudpur, District

- Saran at Chapra

... ... Petitioner/s Versus The State of Bihar

... ... Opposite Party/s ====================================================== Appearance :

     For the Petitioner/s    :       Mr. Radha Mohan Singh, Advocate
     For the State           :       Ms. Rina Sinha, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

ORAL JUDGMENT Date : 02-08-2021

The matter has been heard via video conferencing.

2. Heard Mr. Radha Mohan Singh, learned counsel for

the petitioners and Ms. Rina Sinha, learned Additional Public

Prosecutor (hereinafter referred to as the 'APP') for the State. Patna High Court CR. MISC. No.19508 of 2021 dt.02-08-2021

3. The petitioners apprehend arrest in connection with

Daudpur PS Case No.169 of 2020 dated 18.07.2020, instituted

under Sections 147, 149, 323, 324, 307, 379, 504 and 506 of the

Indian Penal Code.

4. The allegation against the petitioners is that they,

along with others, were armed variously and had assaulted the

informant side; the specific allegation being of assault on head

and then general and omnibus against all accused.

5. Learned counsel for the petitioners submitted that

for the same incident, there is also a case filed on behalf of the

petitioners, being Daudpur PS Case No. 168 of 2020, which is

earlier in time and they have also sustained injuries. Further, it

was submitted that the injury reports of the informant and others

discloses that they were simple in nature except for injury no. 1

on Babunand Singh, which was found to be grievous and with

regard to assault on Babunand Singh, it is general and omnibus

against all the accused. It was further submitted that the

petitioners have no criminal antecedent. Learned counsel

submitted that in the counter case, the place of occurrence is the

house of the accused whereas in the present case it has been said

that it was the house of co-villager Santlal Mahto. It was

submitted that in the investigation such allegation has been Patna High Court CR. MISC. No.19508 of 2021 dt.02-08-2021

proved to be false as the Investigating Officer has described the

place of occurrence as the house of two of the accused in the

present case, which clearly indicates that the present informant

had come to the house of the accused and they were wanting ten

thousand rupees which was earlier decided by the Panches

against the petitioners' side. Thus, it was submitted that the

informant side was the aggressor. Moreover, it was submitted

that both sides had indulged in a free-fight as has come during

investigation, both in the present case as well as Daudpur PS

Case No. 168 of 2020. Learned counsel submitted that as per the

FIR, though there is specific allegation of assault by sword by

the petitioners no. 1 and 2 on the head of the informant, but the

injury caused is simple whereas on Babunand Singh, two

injuries have been found on the head; one injury is simple and

one injury is grievous but the reason for classifying the injury as

'grievous' is that from the wound blood was still flowing. It was

submitted that no fracture or anything else of the skull has been

found. It was submitted that even the allegation of assault on

Babunand Singh is said to be by all 10 accused, but without

there being any specific allegation against anyone and most

importantly, the injury on the head of the informant has been

found to be caused by hard blunt substance. It was further Patna High Court CR. MISC. No.19508 of 2021 dt.02-08-2021

submitted that four persons have also sustained injury on the

side of the informant as would be clear from Daudpur PS Case

No. 168 of 2020. Learned counsel submitted that the place of

occurrence, as has been found by the Investigating Officer in the

present case, being the house of two of the accused in the

present case, it is clear that the original panchayat was not being

held as it could not have been at the house of one of the accused

and thus, the informant side having come to the house of the

accused, proved that they had come prepared for a fight as they

were armed and, thus, it is clear that already panchayati was

held earlier and a decision was taken but the way the informant

side wanted to enforce the decision, has resulted in such fight

between both the sides.

6. Learned APP, from the case diary of both Daudpur

PS Case No. 168 of 2020 and the present case, i.e., Daudpur PS

Case No. 169 of 2020, submitted that in the present case also,

though the allegation is that the place of occurrence was the

house of co-villager Santlal Mahto, but the Investigating Officer

has found it to be the house of two of the accused in the present

case and in Daudpur PS Case No. 168 of 2020 the place of

occurrence is the house of the accused of the present case. It was

further submitted that in both the cases it is obvious that the Patna High Court CR. MISC. No.19508 of 2021 dt.02-08-2021

dispute arose out of panchayati.

7. Learned counsel for the informant submitted that

there is allegation of assault by sword and knife on the head of

the informant. However, it was not controverted that the injury

report discloses simple injury caused by hard blunt substance

and further that with regard to Babunand Singh, though the

allegation is that 10 persons had assaulted him, but, as per the

injury report itself, one wound has been described as grievous

only on the ground that blood was still flowing from it whereas

the other wound has been found to be simple in nature.

8. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, the

Court finds that the place of occurrence being the house of the

accused in the present case indicates that the informant side had

come to that place and there being a counter case earlier in time

to the present case, for the same incident, is a pointer that the

attack from the side of the petitioners may have been

spontaneous and more as a matter of defence and further the

injury on both the sides being simple in nature, except for that

on Babunand Singh where one injury has been found to be

grievous, that too, only for the reason that when the doctor had

examined him, blood was still flowing from that wound, the Patna High Court CR. MISC. No.19508 of 2021 dt.02-08-2021

Court is inclined to allow the prayer for pre-arrest bail to the

petitioners.

9. Accordingly, in the event of arrest or surrender

before the Court below within six weeks from today, the

petitioners be released on bail upon furnishing bail bonds of Rs.

25,000/- (twenty five thousand) each with two sureties of the

like amount each to the satisfaction of the concerned Judicial

Magistrate 1st Class, Saran at Chapra in Daudpur PS Case No.

169 of 2020, subject to the conditions laid down in Section

438(2) of the Code of Criminal Procedure, 1973 and further (i)

that one of the bailors shall be a close relative of the petitioners,

(ii) that the petitioners and the bailors shall execute bond and

give undertaking with regard to good behaviour of the

petitioners, and (iii) that the petitioners shall cooperate with the

Court and the police/prosecution. Any violation of the terms and

conditions of the bonds or the undertaking or non-cooperation

shall lead to cancellation of their bail bonds.

10. It shall also be open for the prosecution to bring

any violation of the foregoing conditions of bail by the

petitioners, to the notice of the Court concerned, which shall

take immediate action on the same after giving opportunity of

hearing to the petitioners.

Patna High Court CR. MISC. No.19508 of 2021 dt.02-08-2021

11. The petition stands disposed of in the

aforementioned terms.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T