IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8177 of 2010 RAJU JHA Petitioner Versus THE STATE OF BIHAR O.P. ----------- For the petitioner: Mr. Ajay Kumar Thakur, Advocate. Mr. Amit Kumar, Advocate. For the Informant : Mr. Satyendra Narayan Singh, Advocate. For the State : Mr. Dashrath Mehta, A.P.P. --------------- 2 12-5-2010 Heard the parties. 2. The petitioner apprehends his arrest in connection with Begusarai Town P.S. Case No. 349 of 2009 dated 2.9.2009 registered under sections 385, 387 and 506 of the Indian penal Code. 3. According to the prosecution case, as disclosed in the written report dated 2.9.2009 leading to registration of FIR vide Annexure-1 of the petition, the petitioner, who is an accused in connection with Matihani P.S. Case no. 69 of 2008, is alleged to have threatened the informant on his mobile to withdraw his aforesaid previous case, otherwise he will have to face dire consequence. Petitioner is also alleged to have demanded Rs. 50,000/- as Rangdari (extortion). 4. It is submitted by learned counsel for the petitioner that previous case i.e. Matihani P.S. Case No. 69 of 2008 - 2 - instituted for offences under section 366 A, 452 of the Indian Penal Code, was lodged by the present informant against the petitioner with an allegation that his younger sister was kidnapped by this petitioner with the help of other accused persons for the purpose of marriage. Subsequently the alleged victim girl i.e. sister of the informant was recovered and her statement under section 164 Cr.P.C. was recorded by the learned Magistrate, wherein she did not support the allegation of kidnapping by this petitioner, rather she stated that she had voluntarily accompanied the accused persons for going out of her house. Taking into consideration the statement of the victim girl, the petitioner was granted bail by a Bench of this Court by a reasoned and speaking order dated 16.1. 2009 passed in Cr. Misc. No. 49689 of 2008 vide Annexure-2 to this petition. It is stated that after the release on bail by virtue of aforesaid order dated 16.1.2009, the petitioner has not misused the privilege of bail granted in the previous case. 5. It is further submitted on behalf of the petitioner that the present case vide annexure-1 has been lodged by the informant only with a view to create an evidence against the petitioner with an intention to get the bail order of the petitioner granted in that case cancelled by making an allegation about the - 3 - misuse of privilege of bail by him. It is also highlighted that the informant is a resourceful person , and therefore, by taking help of some police personnel is bent upon to get the petitioner arrested in the present false case. 6 On merit, it was submitted that offences alleged under sections 385 and 506 of the Indian penal Code are bailable and only offence under section 387 I.P.C. is non-bailable. None of the ingredients for constituting an offence of extortion are available on the record. It is submitted that none of the mobile numbers mentioned in the written report through which threatening calls were allegedly made to the informant belonged to the petitioner, rather some of the mobile numbers mentioned there in belonged to the close relation of the informant himself. According to the FIR itself pursuant to alleged threatening calls neither any property nor any valuable security or any document signed by the informant has been delivered to the petitioner. In absence of such allegation the offence regarding commission of an offence of extortion is not made out against the petitioner. It is also submitted that even if prosecution allegation, as disclosed in the FIR vide Annexure-1, is accepted for the time being, for argument sake, though not admitted, then in that case also hardly - 4 - a case of criminal intimidation punishable under section 506 of the penal Code is made out, which is bailable one. It has been asserted on behalf of the petitioner that except the present case and the case mentioned in the FIR lodged by the informant, there is no other criminal case pending against the petitioner and in fact, both the cases have been lodged by the informant with certain ulterior motive and allegations are apparently false and concocted one. 7. Learned counsel appearing on behalf of the State as also the informant have strongly opposed the prayer for anticipatory bail. Learned counsel appearing on behalf of the informant by placing reliance on the judgment in the case of Vishnu Shiv Ram Bhoir & ors. V State of Maharashtra reported in AIR 1979 SC 1943 as also in the case of R.S. Nayak V. A.R. Antulay reported in (1986) 2 SCC 716 has submitted that in view of allegation made in the FIR the offence of extortion punishable under section 387 of the Indian Penal Code is made out against the petitioner. The submission made on behalf of the informant appears to be thoroughly misconceived and even according to the ratio decided by the Apex Court in the case of Bishunu Shiv Ram Bhoir (Supra) and in the case of R.S. Nayak (Supra) , the case - 5 - under sections 385 and 387 of the Indian penal Code is not made out against the petitioner. 8. Learned counsel appearing on behalf of the informant has further placed reliance on an order passed by a Single Judge of this Court in the case of Ramesh Paswan V The State of Bihar reported in 2007 (4) PLJR 555 and has submitted that since case diary was not allowed to be looked into by learned Sessions Judge, , therefore, the present case for anticipatory bail may not be entertained by this Court. 9. In reply to aforesaid submission learned counsel for the petitioner submits that despite the order passed by the learned Sessions Judge case diary was not being sent by the local police at the instance of the informant and attempts were being made for his arrest, therefore, in that background learned Sessions Judge, Begusarai was requested to dispose of his anticipatory bail application on the basis of materials available on record and, thus, facts of the case of Ramesh Paswan (Supra) are quite different from the facts of the present case. 10. Taking into consideration the facts and circumstances of the case referred to above and on coming to a conclusion that the offence under sections 385 and 387 of the - 6 - Indian penal Code is not made out even according to the prosecution case as disclosed in the FIR vide Annexure-1 and further hardly a case under section 506 of the penal Code is made out, in that view of the matter, in the event of his arrest or surrender in the court below within a period of four weeks from today, the above named petitioner shall be enlarged on bail on furnishing bail bond of Rs. 25,000/- (twenty five thousand) with two sureties of like amount each to the satisfaction of C.J.M, Begusarai in connection with the above noted case, subject to the conditions laid down under section 438(2) Cr.P.C. and subject to further conditions:- (a) That one of the bailors must be Govt. Servant or close family member of the petitioner who will file an affidavit in the court below showing his/her relationship with the petitioner. (b) The petitioner shall make regular pairvi in the court below in the present case either by appearing himself in person or through representation by his lawyer on each and every dates, and if on two consecutive dates petitioner fails to make pairvi, then the court below shall be at liberty to cancel the bail bond of the petitioner. 11. However, it is made clear that observations made - 7 - in this order are for the purpose of disposal of this anticipatory bail application only and this would not in any way affect the case of either party during the course of trial. ( Birendra Prasad Verma, J. ) . M.Rahman