The State Of Bihar vs Brind Paswan
2021 Latest Caselaw 461 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                   CRIMINAL REVISION No.378 of 2020
     Arising Out of PS. Case No.-171 Year-2019 Thana- DANIYAWAN District- Patna
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THE STATE OF BIHAR ... ... Petitioner/s Versus BRIND PASWAN, Son of Late Moti Paswan, Resident of Village - Erai Mustafapur, P.S. - Daniyawan, District - Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Dilip Kumar Sinha, A.P.P. For the Respondent/s : Mr. Arvind Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT Date : 29-01-2021

This suo motu criminal revision has been registered

in pursuance of order of a learned Single Judge Bench dated

29.09.2020 passed in Cr. Misc. No. 1095 of 2020. The learned

Bench was of the opinion that correctness and judicial propriety

of order dated 23.12.2019 passed in A.B.P. No. 9658 of 2019 by

learned Additional Sessions Judge-I, Patna City whereby the

sole opposite party-Brind Paswan, herein, was allowed

anticipatory bail, requires to be examined. Hence, this

application.

2. Cr. Misc. No. 1095 of 2020 was prayer for

anticipatory bail by accused Putur Paswan of Daniyawan P.S.

Case No. 171 of 2019 registered for offences punishable under

Sections 147, 148, 149, 323, 324 and 302 of the Indian Penal

Code. The Hon'ble Bench noticed that allegation against Putur Patna High Court CR. REV. No.378 of 2020 dt.29-01-2021

Paswan, who was refused anticipatory bail, and against Brind

Paswan, who was allowed anticipatory bail, by the same

Presiding Officer of the Court of 1st Additional Sessions Judge,

Patna City, was of same magnitude of commission of assault by

Katta and iron rod causing injury at the head and other parts of

three persons including the informant. The injury caused to the

mother of the informant resulted in her death.

3. Brind Paswan, opposite party herein, was noticed

and has appeared through Mr. Arvind Kumar Singh, learned

counsel.

4. Heard the parties.

5. It appears that the same Presiding Judge of the

Court of Additional Sessions Judge-I, Patna City had considered

prayer for anticipatory bail of opposite party-Brind Paswan and

allowed the prayer for anticipatory bail on 23.12.2019 in A.B.P.

No. 9658 of 2019 whereas prayer of Putur Paswan was already

refused by the same learned Judge on 11.11.2019. The learned

Single Judge had call for a report form the District & Sessions

Judge, Patna regarding the conflicting order passed by the same

Presiding Officer in the same case. Through his letter no. 37,

dated 10th September, 2020, the learned District Judge, Patna

submitted report concluding that the order passed by the learned Patna High Court CR. REV. No.378 of 2020 dt.29-01-2021

Additional Sessions Judge-I, Patna City in the matter of prayer

for anticipatory bail of opposite party-Brind Paswan and Putur

Paswan were inconsistent in nature.

6. The prosecution case as disclosed in the FIR of

Daniyawan P.S. Case No. 171 of 2019 recorded on the

fardbeyan of one of the injured Mili Kumari is that her mother

along with elder sister were returning from the market. When

they reached near the house of Ankit Kumar, altogether ten

named accused persons who were already there in a pre-planned

manner started assault against the mother, the elder sister of the

informant. The accused lashed with the weapons in their hand

i.e. lathi, Katta (a weapon of cutting) and iron rod. When the

informant reached there accused Putur Paswan and opposite

party-Brind Paswan lashed with Katta and iron rod respectively

and committed assault to the informant also causing fracture of

right hand. In the said assault, the elder sister of the informant,

namely, Mahima suffered head injury and fracture of left hand

whereas mother suffered multiple injuries on her body including

fracture of right leg and she became unconscious. Later on,

mother died during treatment.

7. The Doctor, who performed the postmortem

examination, noticed multiple injuries on the person of the Patna High Court CR. REV. No.378 of 2020 dt.29-01-2021

deceased. The injured witness have supported the allegation

before the police as eyewitness of the occurrence. Thus, both

accused Putur Paswan and opposite party-Brind Paswan were

carrying identical allegation.

8. Learned counsel for the petitioner submits that

there is apparent conflict between the two orders whereby one

co-accused was allowed anticipatory bail and another was

refused by the same Presiding Judge, though there was material

on the record of equal magnitude of allegation.

9. Learned counsel for the opposite party contends

that once privilege of bail was granted by the learned court

below, the same cannot be interfered with unless there is misuse

of privilege of bail and flagrant violation of the settled norms

for consideration of prayer for bail.

10. However, learned counsel does not dispute that

seriousness of the allegation and actual role played by the

accused is one of the considerations while granting anticipatory

bail as held in Siddharam Satlingappa Mhetre v. State of

Maharashtra reported in (2011) 1 SCC 694.

11. While granting anticipatory bail to opposite

party-Brind Paswan, the learned court below did not consider

that how the case of Brind Paswan was distinguishable from Patna High Court CR. REV. No.378 of 2020 dt.29-01-2021

Putur Paswan who was already refused anticipatory bail by the

learned court below by order dated 11.12.2019 passed in A.B.P.

No. 9437 of 2019.

12. Moreover, while refusing prayer for

anticipatory bail to Putur Paswan, the learned Judge had noted

in the order dated 11.12.2019 that Putur Paswan who was

carrying Katta and Brind Paswan who was carrying iron rod

committed assault against informant, her sister and mother

causing injury of fracture of right hand, head injury to Mahima

and injury to the mother of the informant who died in the

hospital.

13. While granting anticipatory bail to opposite

party- Brind Paswan, the learned Judge noted that no special

accusation is evident against Brind Paswan. Some other co-

accused were allowed anticipatory bail in the past.

14. The learned court below did not consider that

the learned court below had itself refused prayer for anticipatory

bail to co-accused Putur Paswan allegation against whom was

identical to that of Brind Paswan who was allowed anticipatory

bail after few days of refusal of prayer for anticipatory bail to

Putur Paswan.

15. Thus, in my view, the impugned order suffers Patna High Court CR. REV. No.378 of 2020 dt.29-01-2021

from non-application of judicial mind, lacks reason, is result of

error of record and suffers from non-consideration of material

on the records i.e. serious act committed by Brind Paswan.

Hence, the impugned order is not sustainable in law.

Accordingly, the same is hereby set aside and this revision

application is allowed. Opposite Party-Brind Paswan is directed

to surrender and pray for regular bail within four weeks.

16. Since the same judicial officer has passed

conflicting orders in the same case against the material on the

record, the conduct and fairness in judicial approach of the

judicial officer concern may require probe in the administrative

side. Hence, let this order along with the judicial record of this

criminal revision application as well as of Cr. Misc. No. 1095 of

2020 be placed before Hon'ble the Chief Justice for needful.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR                N.A.
CAV DATE                N.A.
Uploading Date          30.01.2021
Transmission Date       30.01.2021