IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.44135 of 2017
In
Criminal Miscellaneous No.3154 of 2017
Arising Out of PS. Case No.- Year- Thana- District- Vaishali
Jyoti Raj D/o Sri Umesh Prasad Sah, W/o Bharti, R/o Indu Sadan, Lohsari
Road, Village- Singhray Mahua, P.S.- District- Vaishali.
… … Petitioner/s
Versus
1. State Of Bihar
2. Alok Bharti Son of Anup Lal Sah, R/o Village- Neemchak, P.S.- Tajpur,
District- Samastipur.
… … Opposite Party/s
with
Criminal Miscellaneous No. 56821 of 2017
In
Criminal Miscellaneous No.3154 of 2017
Arising Out of PS. Case No.- Year-1111 Thana- District- Vaishali
Alok Bharti son of Anup Lal Sah resident of village – Neemchak, P.S. Tajpur,
District – Samastipur.
… … Petitioner/s
Versus
1. State Of Bihar
2. Jyoti Raj daughter of Shri Umesh Prasad Sah resident of village – Mahua
Singhrail, P.S. Mahua, District – Samastipur.
… … Opposite Party/s
Appearance :
(In Criminal Miscellaneous No. 44135 of 2017)
For the Petitioner/s : Mr.Nikhil Kumar Agrawal
For the Opposite Party/s : Mr.Sri Ajit Kumar
(In Criminal Miscellaneous No. 56821 of 2017)
For the Petitioner/s : Mr.Pravin Kumar Sinha
For the Opposite Party/s : Mr.Sri Bharat Bhushan
CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
Date : 15-02-2019
Cr. Misc. No. 44135 of 2017
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
2/15
The above mentioned Cr. Misc. application has been
preferred by Jyoti Raj for modification of the order dated
19.08.2017 passed in Cr. Misc. No. 3154 of 2017, whereby the
provisional anticipatory bail granted to O.P. No.2, Alok Bharti,
the husband of the petitioner vide order dated 30.09.2016 passed
in Cr. Misc. No. 43264 of 2016 was further extended till 30 th
September, 2017, in connection with Mahua P.S. Case No. 294
of 2016 registered for the offences punishable under Sections
498A, 323, 341, 379, 504/34 of the Indian Penal Code and
Sections ¾ of Dowry Prohibition Act, with liberty to the learned
Court below to confirm the provisional bail on filing affidavit to
the effect that the monthly amount of Rs.10,000/- for the period
September, 2017 has been paid and that O.P. No.2 will pay the
said amount on regular basis. The sole ground for such
modification was that the period of provisional bail was
extended on the basis of consideration of wrong submissions
made on behalf of O.P. No. 2 that the bail bond was not
cancelled.
Cr. Misc. No. 56821 of 2017
The above mentioned Cr. Misc. application has been
preferred by Alok Bharti for modification of order dated
19.08.2017 passed in Cr. Misc. No. 3154 of 2017 to the extent
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
3/15
of extending the period of provisional bail from 30.09.2017 till
the final disposal of the application.
I.A. No. 267 of 2018
The above mentioned Interlocutory application has
been preferred in the Cr. Misc. No.56821 of 2017 application
for quashing the order dated 11.07.2017 passed by learned CJM,
Vaishali at Hajipur in Mahua P.S. Case No. 294 of 2016,
whereby the learned Court below observed that period of
provisional bail has lapsed, hence, the bail bond has
automatically been cancelled. However, learned counsel for the
petitioner seeks permission to withdraw the Interlocutory
application.
Accordingly, I.A. No. 267 of 2018 is dismissed as
withdrawn.
I.A. No. 2927 of 2018
In the aforesaid Cr. Misc. application second
Interlocutory Application No. 2927 of 2018 has been preferred
for quashing the order dated 31.10.2017 passed by learned CJM,
Vaishali at Hajipur in Mahua P.S. Case No. 294 of 2016,
whereby the learned Court below recalled/cancelled the order
dated 15.09.2017, whereby the petitioner’s provisional bail was
confirmed by the learned Court below in view of the order dated
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
4/15
19.08.2017 passed in Cr. Misc. No. 3154 of 2017, whereby the
learned Court below was directed to confirm the provisional bail
of the petitioner.
The factual matrix of the case is that Jyoti Raj’s
marriage was performed with Alok Bharti on 29.11.2012 and
subsequently, they were blessed with a male child. But with
accusation of inflicting torture for non-fulfillment of dowry
demand, Mahua P.S. Case No. 294 of 2016 was registered with
accusation under Sections 498A, 341, 323, 379, 504/34 of the
Indian Penal Code and Sections ¾ of Dowry Prohibition Act at
behest of Jyoti Raj.
In the aforesaid Mahua P.S. Case No. 294 of 2016,
Alok Bharti, husband of Jyoti Raj, preferred anticipatory bail
application before this Court, being Cr. Misc. No. 43264 of
2016 with a prayer for anticipatory bail, wherein it was the
specific stand of the petitioner that he is ready to keep the
informant as wife with full dignity and honour and statement to
that effect was made in para 21 of the main, which reads as
follows:-
“That without any just cause and excuse the
informant left the consortium of her husband.
Despite of this attitude of informant the petitioner is
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
5/15
still ready to keep informant and his son with him
will all honour and dignity……………”
Considering the above mentioned stand of the
husband, Alok Bharti, this Court granted provisional
anticipatory bail for six months vide order dated 30.09.2016
with a liberty to learned Court below to issue notice to the
informant for her appearance. On her appearance, the petitioner
was to take the informant to keep her as wife with full dignity
and honour. The provisional bail of the petitioner was to be
confirmed by the learned Court below in three eventualities (I)
if the matrimonial harmony is substantially restored (ii) if the
informant fails to appear before the learned Court below or (iii)
if the informant gets reluctant to reconcile the issue. Subsequent
thereto, the husband Alok Bharti preferred Cr. Misc. No. 3154
of 2017 with a prayer for modification of the order dated
30.09.2016 passed in Cr. Misc. No. 43264 of 2016 to the extent
of confirming the provisional bail taking the plea that the
husband is ready for resumption of the conjugal life but the
wife-informant is reluctant and is not ready for resumption of
the conjugal life. However, that contention was refuted by the
counsel appearing for the informant with specific submission
that she is still ready to resume the conjugal life.
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
6/15
Considering the fact that both sides on one pretext or
other is not ready to resume the conjugal life and on the
submission made on behalf of the husband that he is ready to
make payment of Rs.10,000/- per month from September, 2017
to the informant-wife by depositing the same in her bank
account and the same being accepted, though, reluctantly by the
informant, the provisional bail of the petitioner was directed to
be confirmed by the learned Court below on deposit of the
monthly amount for September, 2017 coupled with an affidavit
to be filed by the husband that he is ready to make the payment
on regular basis. The aforementioned payment was subject to
any order being passed in matrimonial, maintenance or any
other connected proceedings. In case of default in making
payment for three consecutive occasions, liberty was given to
the informant to file application for cancellatioon of bail of the
petitioner. However, it was also observed that the present order,
in no way, will preclude the parties to resolve the issue
otherwise. The relevant portion of the order dated 19.08.2017
passed in Cr. Misc. No. 3154 of 2017 reads as follows:-
“Considering the rival submissions of the parties
and the contentions raised from both the sides, it
appears that both the petitioner and the informant,
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
7/15are actually not inclined for reconciling the issue at
present. However, in the alternative, learned Senior
Counsel for the petitioner submits that the
petitioner is ready to make payment of Rs.10,000/-
per month from September, 2017 to the informant-
opposite party no. 2 by depositing the same in her
bank account by second week of every succeeding
month.
Counsel for the informant-opposite party no. 2
submits that the informant is reluctantly ready to
accept the offer and undertakes to submit her bank
account number on affidavit before the learned
Court below within a period of three weeks.
It is submitted by learned Senior Counsel for the
petitioner that the bail bond of the petitioner has
not been cancelled as yet.
Considering the present stand of the parties, which
will, at least, for the present, save the informant
and minor child from destitution and vagrancy,
with a lurking hope that the issue may reconcile in
future, the period of provisional anticipatory bail
granted to the petitioner vide order dated
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
8/15
30.09.2016 passed in Cr. Misc. No. 43264 of 2016
is extended till 30th September, 2017.
The provisional bail will be confirmed by the
learned Court below on deposit of monthly amount
for September, 2017 and filing of an affidavit that
the petitioner will deposit the amount regularly.
The aforementioned payment will be subject to any
order passed in matrimonial, maintenance or any
other connected proceedings.
Three consecutive defaults in making payment will
give liberty to the informant-opposite party no. 2 to
file application for cancellation of bail of the
petitioner.
The present order, in no way, will preclude the
parties to resolve the issue otherwise.”
Thereafter, Jyoti Raj preferred Cr. Misc. No. 44135 of
2017 for modification of order dated 19.08.2017 passed in Cr.
Misc. No. 3154 of 2017 to the extent of cancelling the
provisional bail on the ground that on behalf of husband-
petitioner a wrong submission has been made that his bail bond
was never cancelled. This Court vide order dated 13.09.2017
issued notice to the husband, Alok Bharti and directed that
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
9/15
operation of order dated 19.08.2017 passed in Cr. Misc. No.
3154 of 2017 to the extent of confirmation of the provisional
anticipatory bail of the petitioner, if it has already not be
confirmed, shall remain stayed. A petition to that effect was
submitted before the learned Court below on 14.09.2017
intimating about the order dated 13.09.2017 that the order dated
19.08.2017 passed in Cr. Misc. No. 3154 of 2017 has been
stayed, but instead of that the learned CJM vide order dated
15.09.2017 confirmed the provisional bail. However,
subsequently vide order dated 31.10.2017 the learned Court
below recalled/cancelled the order of bail confirmation dated
15.09.2017, whereby provisional bail was confirmed and the
said order is under challenge through I.A. No. 2927 of 2018.
In the meantime, wife Jyoti Raj preferred Domestic
Violence Case No. 95 of 2016 on 01.12.2016 which is pending
before learned ACJM, Patna, wherein, husband, Alok Bharti has
already entered appearance. In maintenance case preferred by
Jyoti Raj being Maintenance Case No. 153 of 2016 under
Section 125 of the Cr.P.C., learned Principal Judge, Family
Court, Vaishali at Hajipur vide order dated 11.04.2018 while
considering the monthly amount being paid by the husband to
the tune of Rs.10,000/-, allowed the maintenance case on
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
10/15
contest and directed the husband-petitioner to make payment of
Rs.5,000/- per month to the wife and Rs.5,000/- per month for
maintenance and education of the minor son from the date of
filing of maintenance case, i.e., 20.09.2016, subject to the
condition that deductions will be made from the amount already
paid in pursuance to the order passed by this Court. This is not
in dispute that the husband is making payment of the aforesaid
amount by virtue of the order of this
Court or by virtue of the order passed by learned Principal
Judge, Family Court, Vaishali at Hajipur in Maintenance Case
No. 153 of 2016.
It is submitted by learned counsel for the petitioner
Jyoti Raj in Cr. Misc. No. 44135 of 2017 that the petitioner’s
husband Alok Bharti has got the provisional bail confirmed
subject to certain conditions, on the basis of wrong submission
that the bail bond has not been cancelled. Moreover, she is still
ready for resumption of conjugal life and due to the apathetic
attitude of the husband, the issue could not be resolved in spite
of the fact that the matter was referred to mediation center on
the joint prayer of the parties. However, for facilitating the
mediation vide order dated 20.04.2018 passed in Cr. Misc. No.
44135 of 2017 and Cr. Misc. No. 56821 of 2017, the interim
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
11/15
protection was granted to the husband Alok Bharti.
Learned counsel for the petitioner has no objection, if
interim order is passed for appearance of opposite party no. 2.
The relevant portion of order dated 20.04.2018 reads
as follows:-
“Let no coercive steps be taken against opposite
party no. 2 Alok Bhartui to enable him to appear
before this Court in connection with Mahua P.S.
Case No. 294 of 2016 pending in the Court of
learned Chief Judicial Magistrate, Vaishali at
Hajipur.”
Hence, in view of the factual position as discussed
above, it appears that the issue cannot be resolved at this stage
by way of resumption of conjugal life. However, in view of the
fact that the husband Alok Bharti was granted provisional bail
vide order dated 30.9.2016 passed in Cr. Misc. No. 43264 of
2016 for six months which was further extended till 30 th
September, 2017 vide order dated 19.8.2017 passed in Cr.
Misc. No. 3154 of 2017 and liberty was given to the learned
Court below to confirm the provisional bail on deposit of the
monthly amount of Rs.10,000/- for September, 2017 and filing
of an affidavit that the petitioner will deposit the amount
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
12/15
regularly, as both sides agreed for settlement of issue on
monthly payment of Rs.10,000/-, hence this Court feels not
necessary to resolve the issue whether the learned court below
ought to have confirmed the provisional bail when the
confirmation was stayed by this Court vide order dated
13.9.2017 passed in Cr. Misc. No. 44135 of 2017. However,
when the learned CJM came to know about the order of this
Court dated 13.9.2017 passed in Cr. Misc. No. 44135 of 2017,
whereby it was directed not to confirm the provisional bail if it
has already not been confirmed on 14.9.2017, the learned court
ought not to have confirmed the provisional bail vide order
dated 15.9.2017 on the ground that the issue has attained
finality and secondly if the provisional bail was confirmed
then the learned Court below had no jurisdiction to recall or
cancel that order.
Accordingly, this Court is not inclined to either
consider the prayer made in Cr. Misc. No. 44135 of 2017 filed
by the wife Jyoti Raj for modification of the order dated
19.8.2017 passed in Cr. Misc. No. 3154 of 2017 whereby the
provisional bail of husband Alok Bharti granted vide order
dated 30.9.2016 passed in Cr. Misc. No. 43264 of 2016 for a
period of six months was extended till 30th September, 2017 as
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
13/15
the same has become infructuous and secondly this Court is
also not inclined to consider I.A. No. 2927 of 2018 filed by the
husband Alok Bharti, whereby prayer has been made to quash
the order dated 31.10.2017 passed by the learned CJM, Vaishali
recalling/cancelling the order dated 15.9.2017 whereby the
provisional bail of Alok Bharti was confirmed, in pursuance to
the order dated 19.8.2017 passed in Cr. Misc. No. 3154 of
2017.
Accordingly, I.A. No. 2927 of 2018 stands
disposed of.
However, keeping in view the fact that both the
parties earlier agreed to resolve the issue in terms of monthly
payment of Rs.10000/- which gets reflected from the order
dated 19.8.2017 passed in Cr. Misc. No. 3154 of 2017 as
quoted above and the background of the controversy which
arose after passing of the order dated 19.8.2017 passed in Cr.
Misc. No. 3154 of 2017 whereby husband Alok Bharti’s
provisional bail granted vide order dated 30.9.2016 passed in
Cr. Misc. No. 43264 of 2016 for six months was extended till
30th September, 2017, in the interest of justice and to resolve
the issue, this Court modifies the order dated 30.9.2016 passed
in Cr. Misc. No. 43264 of 2016 to the extent that let the
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
14/15
husband Alok Bharti be released on bail provisionally till 5 th
March, 2019. In the meantime, Alok Bharti will furnish bail
bond of Rs.10,000/- (Ten thousand) with two sureties of the
like amount each to the satisfaction of learned Chief Judicial
Magistrate, Vaishali at Hajipur in connection with Mahua P.S.
Case No. 294 of 2016, with an affidavit to the effect that he
will regularly appear before the learned Courts below in Mahua
P.S. Case No. 294 of 2016, as well as in Domestic Violence
Case No. 95 of 2016, pending in the Court of learned ACJM,
Patna.
It is expected from learned CJM, Vaishali at Hajipur
and learned ACJM, Patna to conclude both the proceedings
preferably within a period of six months of the
receipt/production of a copy of this order.
Let a copy of this order be transmitted to both the
learned courts below.
The learned CJM, Vaishali at Hajipur will confirm the
provisional bail of Alok Bharti on filing of the aforesaid
affidavit by the husband Alok Bharti to the extent that he will
regularly appear in Mahua P.S. Case No. 294 of 2016, as well
as in Domestic Violence Case No. 95 of 2016. However, the
Patna High Court Cr.Misc. No.44135 of 2017 dt.15-02-2019
15/15
learned CJM, Vaishali at Hajipur will cancel the bail bond of
the petitioner, Alok Bharti if he defaults for three consecutive
occasions either in Mahua P.S. Case No. 294 of 2016 or
defaults for two consecutive occasions in making payment of
the maintenance amount.
Accordingly, both the Cr. Misc. Applications are
disposed of.
Keeping in view the fact that utmost generosity has been
shown to the husband-petitioner by this Court, it is made clear
that if the husband-petitioner commits breach any of the
conditions, then this Court will not entertain any further
application on his behalf.
(Dinesh Kumar Singh, J)
anil/-
AFR/NAFR
CAV DATE
Uploading Date
Transmission Date
