Patna High Court
Sanjay Kumar @ Sanjay Prasad vs The State Of Bihar on 1 February, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.710 of 2019
Arising Out of PS. Case No.-11 Year-2017 Thana- EKANGARSARAI District- Nalanda
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SANJAY KUMAR @ SANJAY PRASAD Son of Kamal Prasad @ Kamla
Prasad Resident of Village- Sankhpalli, P.S.- Islampur, District- Nalanda, at
present posted as Lab Attendent in All India Institute of Medical Science,
Patna, P.S.- Phulwari Sharif, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Manita Kumari Wife of Sanjay Kumar @ Sanjay Prasad, daughter of Bindu
Prasad Resident of Village- Kundwapar, P.S.- Ekangarsarai, District-
Nalanda, at present posted as Constable, BMP-5 Patna, P.S.- Phulwari
Sharif, District- Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Manoj Kumar, Adv.,
Mr. Dharmendra Kumar Singh, Adv.,
Mr. Shashi Shekhar Singh, Adv.
For the Respondent/s : Mr. Ram Sumiran Rai, Adv.
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 01-02-2024
Heard learned Advocate for the petitioner as well as
learned APP for the State.
2. It will be profitable to state the background of the
instant revision, at the outset before dealing with the impugned
order to come a decision, as to whether the impugned order is
illegal, inoperative and inefficient.
3. On the basis of a Police report a case under Section
498A/341/323/504/34 of the I.P.C. read with Sections 3 and 4 of
Patna High Court CR. REV. No.710 of 2019 dt.01-02-2024
the Dowry Prohibition Act was registered against the petitioner.
The petitioner prayed for anticipatory bail before this Court. A
Coordinate Bench in Cr. Misc. No. 24900 of 2017, disposed of the
said application for anticipatory bail vide order dated 4 th
September, 2017 with the following direction:-
"In view of such, this application is
disposed off with direction to petitioner to surrender
before the Court below i.e. Sub Divisional Judicial
Magistrate/concerned court, Hilsa, DistrictNalanda
within a period of four weeks from today in connection
with Ekangarsarai P.S. Case No. 11 of 2017, along
with Affidavit that he will keep the wife with full
dignity and care. In the event the Court below finds
that petitioner is willing to keep his wife with full
dignity and care, the court below will release the
petitioner on provisional bail to its own satisfaction
for a period of six months and will issue notice to
informant (wife) and will monitor the relationship
between the parties by calling both of them every
month in the court and in the event the court below
finds that good conjugal relationship have been
restored between husband and wife and wife does not
make any complain about the physical and mental
torture committed by the petitioner during the period
of her stay with him or court below finds that good
Patna High Court CR. REV. No.710 of 2019 dt.01-02-2024
conjugal relationship could not be restored on account
of indifferent attitude of wife or the wife does not
appear even after valid service of notice, the court
below shall confirm the provisional bail of the
petitioner after six months."
4. By passing the impugned order on 2nd May, 2019, the
learned learned S.D.J.M., Hilsa, Nalanda rejected the said
provisional bail granted by this Court in favour of petitioner and
he was directed to surrender before the Court of the learned
Magistrate. Moreover, petitioner's application under Section 239
of the Cr.P.C. was rejected by the learned Magistrate in the same
order dated 2nd May, 2019. Though, the order of provisional bail
was granted by a Coordinate Bench on 4 th September, 2017, the
pre condition of granting provisional bail seemed to be an attempt
of reconciliation of the dispute and mediation of a charge under
Section 498A of the I.P.C. and other penal provisions. It is
needless to say that in a criminal case, at an inter locutory, stage
the parties cannot be directed to stay together, where there was
allegation of mental and physical cruelty. The conditions for
provisional bail, in my humble and respect opinion was not
satisfactory. No such condition can be imposed, as a condition for
Patna High Court CR. REV. No.710 of 2019 dt.01-02-2024
anticipatory bail directing the accused to restore peaceful conjugal
life with the defacto complainant.
5. Since, 2017, the law on this subject has undergone a
sea change in Arnesh Kumar Vrs. State of Bihar, reported in
(2014) 8 SCC 273, the Hon'ble Supreme Court clearly held that in
any offence where the punishment is prescribed up to seven years,
the accused cannot be directly arrested by the Police. The accused
will have to be served a notice under Section 41(A) of the I.P.C. by
the Police. The Police will record the statement of the accused
persons, then consider as to whether for the purpose of
investigation, he is required to be arrested. Even then the
Investigating Officer shall have to take permission of the Learned
Magistrate, showing the special reasons for the arrest of the
accused persons. The provision of Section 41(A) and the decision
of Arnesh Kumar (supra) was passed in the light of an offence
under Section 498A of the I.P.C. Thus, generally an accused
cannot be arrested in an offence under Section 498A of the I.P.C.
without compliance Section 41(A) of the Cr.P.C.
6. In Sushila Aggarwal And Others Vrs. State (NCT
of Delhi) And Another, reported in 2020 (5) SCC 1, a
Constitution Bench of the Hon'ble Supreme Court held that
protection of anticipatory bail under Section 438 of the Cr.P.C. is
Patna High Court CR. REV. No.710 of 2019 dt.01-02-2024
not invariably related to a fixed period. Normally, it should inure
in favour of the accused without any restriction of time. However,
in the facts and circumstances of the case, if the Court show
consider it warranted, it may grant anticipatory bail only for a
fixed period. Therefore, when an anticipatory bail is granted by the
higher Court, it is obligatory for the trial court to grant bail to the
accused, on his surrender. Anticipatory bail cannot be granted
directing the parties to lead conjugal life, meaning thereby
settlement of the offence under Section 498A of the I.P.C.
7. Though, I am not unmindful to note that by way of
judicial proceeding an offence under Section 498A of the I.P.C.
can be compounded, but in the statute the offence has been made
non-compoundable. The stage of compounding comes at the time
of trial of the case or even at an earlier stage when both the parties
approached the court that their dispute has been amicably settled.
Therefore, the High Court can not grant an anticipatory bail on the
ground that the husband will take his wife and keep her with him
for six months and after six months, if the wife does not have any
complain against the husband, the order of bail will be confirmed.
Since, the decision passed in Criminal Miscellaneous Case No.
24900 of 2017, on 4th September, 2017 by a Coordinate Bench,
this Court has only persuasive value in respect of the said
Patna High Court CR. REV. No.710 of 2019 dt.01-02-2024
judgment and in view of above discussion, this Court does not
want to accept the conditions imposed by the Coordinate Bench,
while granting anticipatory bail in 2017.
8. For the reasons stated above, the instant revision is
disposed of directing the petitioner to surrender before the trial
court and on his surrender he will be released on bail under
Section 437 of the Cr.P.C.
9. Since, charge-sheet has been filed against the
petitioner, question of discharging him from the case does not
arise. Therefore, second part of the order, passed by the learned
Magistrate, refusing the prayer of the petitioner for discharging
him, is affirmed.
10. Let a copy of this order be sent to the court below
for information and necessary action.
(Bibek Chaudhuri, J)
pravinkumar/-
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