IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41762 of 2007 ASHA DEVI Versus STATE OF BIHAR ----------- For the petitioner: Mr. Ashok Kumar Dubey For the State: Mr. Z Hoda, APP For O.P. No.2: Mr. Kamal Kumar Sinha ------- 05. 06-05-2008 This is a criminal miscellaneous case filed under section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to opposite party No.2 Bhagwan Das in a case under section 376/34 of the Indian Penal Code under order dated 7th May, 2007 in Cr. Misc. No. 19659 of 2007. This is a complaint case filed by the petitioner Asha Devi levelling allegation that during the night time Satya Narayan Das and Bhagwan Das entered into her house. It is alleged that Bhagwan Das caught her hand and mouth and thereafter Satya Narayan Das committed rape on her. It is further alleged that Bhagwan Das attempted to commit rape upon her but on her cry neighbouring people started coming and thereafter they fled away. Learned lawyer for the petitioner submits that petitioner was granted bail in consideration of period of detention from 1st April, 2004 whereas he was actually in custody from 1st April, 2006. He referred to the bail application filed in Cr. Misc. No. 19659 of 2007 by Opposite party No.2 Bhagwan Das and stated that in para-1 the period of custody has been mentioned from 1st April, 2004. He further referred to para 19 of the bail petition and submitted that in this Para also the period of detention has been mentioned from 1st April, 2004. - 2 - He further referred to para 20 of the bail petition and submitted that in this para the period of custody has been mentioned for three years. He referred to the order sheet dated 1st April, 2006 of the court of Additional District & Sessions Judge, Lakhisarai passed in Sessions Trial No. 190 of 2006 showing surrender of accused Bhagwan Das. As such he submits that accused Bhagwan Das was in custody from 1st April, 2006 and not from 1st April, 2004 as mentioned in different paras of the bail petition. As such he submits that by suppressing the material fact of period of detention the accused Bhagwan Das obtained bail and fraud was committed on this Court and thereby bail was obtained. He, therefore, pays that bail granted to accused – opposite party Bhagwan Das be cancelled. Learned lawyer appearing on behalf of accused – opposite party Bhagwan Das submits that he sought for instruction from the conducting lawyer of the court below and submitted that due to typing mistake the period of detention has been shown from 1st April, 2004 instead of 1st April, 2006. He submits that it is a bonafide mistake on the part of the lawyer. He further submits that as per the allegation it is the petitioner who is said to have made attempt to commit rape but he did not commit rape. He submits that the trial is at the concluding stage. He, therefore, prays that the miscellaneous case be dismissed. Considered the submissions advanced on behalf of both sides. I find that bail of accused – opposite party Bhagwan Das was obtained on suppression of fact of the period of detention. So, I am of the view that this is a fit case to be allowed. - 3 - In the result, this application is allowed and the bail granted to accused – opposite party Bhagwan Das is hereby cancelled. He is directed to surrender in the court concerned within a week from the date of receipt/communication of the order failing which the court below is directed to take effective steps for his arrest. Learned lawyer for the petitioner submits that this order be communicated to the court below through fax at the cost of the petitioner. As submitted, let this order be communicated to the court of Additional Sessions Judge, FTC No. III, Lakhisarai through fax, at the cost of the petitioner. rkp (Anwar Ahmad, J)