SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Jyoti Raj vs State Of Bihar And Anr on 15 February, 2019

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
7/15

are 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

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation