IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.25071 of 2011 Binod Kumar Versus The State Of Bihar & Anr. ---------------------------------- 4/ 09/12/2011 Heard learned counsel for the petitioner and learned Additional P.P. for the State. Petitioner placing reliance over the decision reported in AIR 2009 SC 2072 more particularly paragraph- 8 has prayed for modification of the condition so imposed during grant of anticipatory bail to the petitioner vide order dated 4th July 2011 passed in Cr. Misc. No. 5529 of 2011. It has been submitted that the Hon’ble Apex Court has laid down a criteria taking into account Sub- section-2 of Section 438 of the Cr.P.C. wherein the condition so imposed by the Court vide order dated 4th July 2011 is not justifiable and on account thereof, it requires modification. Learned APP opposed and submitted that it does not attract interference at this moment because of the fact that petitioner himself happens to be at default. The law cited on behalf of the petitioner also relates to matrimonial offence. After considering the merit of the case, petitioners were granted anticipatory bail by Delhi High Court. 2 Relevant passage of para-8 is necessary to be quoted here which runs as follows:- “ In the instant case, the question before the court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under Section 438 of the Code. When the High Court had found that a case for grant of bail under Section 438 was made out, it was not open to the Court to direct the appellant to pay Rs.3 Lacs for past maintenance and a sum of Rs. 12,500/- per month as future maintenance to his wife and child. In a proceeding under Section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child”. Now coming to the present controversy, on 4th July 2001 while the Cr.Misc. No. 5529 of 2011 come up for hearing learned counsel for both the parties were present and they consented over the matter of reconciliation and the relevant passage of the order runs as follows:- “ Learned counsel for the petitioner in presence of learned counsel for the complainant assured that he is ready to keep his wife over which, there happens to be a consenting note. In the aforesaid facts and circumstances of the case, petitioner, Binod Kumar is directed to be released on bail on furnishing bail bond of Rs.10,000/- with two sureties of the like amount each to the satisfaction of Sub Divisional Judicial Magistrate, Lakhisarai, District Lakhisarai in Complaint Case No.66C/2010 in the event of arrest/surrender within a period of fortnight subject to the condition imposed under Section 432(2) of the Cr.P.C. One of the bailors shall be his wife, the complainant.” The petitioner who happens to be husband was 3 granted anticipatory bail in the background of offer made on his behalf over reconciliation offer over which there was nod at the end of his wife. The merit of the case was not at all considered. To have offer and acceptance a genuine one, condition to the extent of one of the bailors to be his wife was imposed. So far status of bailor is concerned, neither Section 438(2) of the Cr.P.C. nay Section 437 (3) of the Cr.P.C. prescribes. Bailor can be any one having sufficient means being a citizen of India. The Court had made the wife/ complainant as one of the bailors to prevent/put safeguard/see the genuineness, truthfulness, reliability of the offer which has been made by the husband while seeking privilege of anticipatory bail. Because of the fact that wife is not present therefore, it is difficult to ascertain who either of them is at fault. Therefore, the matter is left open and is transmitted to the learned lower court who after examining the complainant will ascertain who is at fault. In case, learned lower court will see that the complainant is at fault then in that event, the learned lower court will substitute the bailor otherwise the condition will remain and in that event, if so advised, petitioner will renew his prayer on merit of the case. 4 With the aforesaid observation, the instant petition is disposed of. Let a copy of this order be communicated to the court concerned by FAX at the cost of the petitioner. perwez (Aditya Kumar Trivedi,J.)