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2009(4) Crimes 240 (Pat.)
PATNA HIGH COURT
Mihir Kumar Jha, J.
Nasreen Parveen –Petitioner
versus
State of Bihar and Ors. –Opposite Parties
Criminal Misc. No. 47630 of 2007
Decided on 5-5-2008
Held: Considering the aforesaid submissions as also after looking into allegations in the FIR against the petitioners, this Court is of the view that the learned Sessions Judge ought to have not granted anticipatory bail to the Opposite Parties Nos. 2 and 3 who were facing some serious allegation under Sections 498A, 307/34 and 323 of the Indian Penal Code as well as Section 3/4 of the Dowry Prohibition Act. There being in fact no time limit and no compulsion in the order granting anticipatory bail to Opposite Party Nos. 2 and 3, the Court below apparently had also not taken into account the law laid down by the Apex Court in the case of D.K. Ganesh Babu (supra) and Naresh Kumar Yadav (supra) as with regard to the minimum safeguards for granting anticipatory bail in exercise of power under Section 438 of the Cr.P.C.
Thus, falling in line of the said ratio in the judgment in the cases of D.K. Ganesh Babu and Naresh Kumar Yadav (supra), this Court upon finding that the Sessions Judge, Patna had directed the Opposite Party Nos. 2 and 3 to be released on bail either in the event of their surrender or arrest without qualifying any time limit or putting any restriction, is constrained to cancel the order granting anticipatory bail to the Opposite Party Nos. 2 and 3 by the order of the Sessions Judge, Patna dated 11.5.2007 in A.B.P. No.2789 of 2007 and consequently, their bail bonds are also hereby cancelled.
This Court however while cancelling the anticipatory bail of the Opposite Party Nos. 2 and 3 would make it clear that it is not expressing any opinion on the merits of the case. This Court in fact would direct the Opposite Party Nos. 2 and 3 to surrender before the concerned Court within a period of four weeks from the date of receipt/production of a copy of this order for seeking regular bail. When such bail application is moved on behalf of the Opposite Party Nos. 2 and 3 in terms of Section 439 of the Cr .P.C. before the concerned Court, the same shall be considered and disposed of in its proper perspective and accordance with law. If such an application for regular bail is moved, the Court would do well to dispose it of on the day it is filed. (Paras 9 to 11)
ORDER
Mihir Kumar Jha, J.—Heard Counsel for the petitioner and the APP representing the State. Despite service of notice and filing of Vakalatnama on 18.1.2008 for the Opposite Party Nos. 2 and 3, no one has appeared today on their behalf. Earlier also, when the case was taken up on 13.3.2008, Counsel for the opposite party Nos. 2 and 3 had taken time.
2. This is an application for cancellation of anticipatory bail of Opposite Party Nos. 2 and 3 by an order, dated 11.5.2007 in A.B.P. No. 2789 of 2007 whereby and whereunder the Sessions Judge has granted anticipatory bail to them. The present application was filed on 9.10.2007 and this Court by an order, dated 21.11.2007had issued notice to them. As noted above, the Opposite Party Nos. 2 and 3 had also been served notice and had filed Vakalatnama on 18.1.2008 but none has chosen to appear on their behalf and, therefore, this application is being disposed of after hearing Counsel for the petitioner and the State. 3. Mr. Indu Shekhar Prasad Sinha, learned Senior Counsel appearing on behalf of the petitioner-informant submits that the allegations against the Opposite Party Nos. 2 and 3 were serious in nature pertaining to offences under Sections 498A, 323 and 307/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. His emphasis is that the Court below, the Sessions Judge, Patna while granting anticipatory bail to the Opposite Party Nos. 2 and 3 by an order dated 11.5.2007 in A.B.P. No.2789 of 2007 had granted blanket anticipatory bail without putting any restriction on the Opposite Party Nos. 2 and 3. Mr. Sinha in this context had invited the attention of this Court towards the order dated 11.5.2007 passed by the Sessions Judge, Patna in A.B.P. No. 2789/2007 whereby and whereunder the Opposite Party Nos. 2 and 3 were granted anticipatory bail. The said order is being quoted hereinbelow:
“Heard Mr. B.N. Srivastava, learneci Counsel and learned P.P.I/C Mr. J.P. Singh, on anticipatory bail petition of petitioners namely 1. Manzer Alam and 2. Mahjabin, who apprehend their arrest in connection with Alamganj P.S. Case No. 138/2007 registered for the offence under Sections 498A, 323, 307/34 of the IPC and under Sections 3/4 of the Dowry Prohibition Act.”
4. It has been alleged that the informant namely Nasreen Parveen was married with Md. Mahshar Alam @ Tarique, son of the petitioners with gifts besides cash Rs. 4,00,000 but when she went to her matrimonial house, there is allegation that she was subjected to torture and cruelty for the demand of dowry from the first night of her marriage and demand of Rs. six lacs cash was made by the accused persons including the petitioners. There is further allegation that she was assaulted by them on the very first night as a result of which she received bleeding injury and admitted in P.M.C.H. for treatment and ultimately she was driven out from her matrimonial house.
5. Learned Counsel appearing for the petitioners submits that though the petitioners are parents in-law of the informant but they have nothing to do with the family affairs of the informant, nothing specific overt act has been attributed against the petitioners, they are old and sick persons. Petitioner No.1 has been suffering from heart disease and he is under treatment since last several years, the allegations as alleged are totally vague and general in nature, so under the circumstances, arrest of the petitioners cannot be justified.
6. I agree with the submissions advanced by the learned Counsel for the petitioners and as such, they are directed to be released on bail on their furnishing bail bonds of Rs. 10,000 each with two sureties of the like amount each. In the event of their surrender or arrest, within a month, subject to conditions laid down under Sections 438(2), Cr.P.C. (Dictated).
7. Commenting further on the aforementioned order, Mr. Sinha has submitted that such an order in fact amounts to a blanket anticipatory bail as Sessions Judge has not put
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