IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.17654 OF 2009 SHAMIM AKHTAR @ MD.SHAMIM @ MD.SHAMIM AKHTAR, SON OF MD. SALAHUDDIN AHMAD, RESIDENT OF MOHALLA BHITTA BASTI (FRIENDS COLONY), NEAR CHANDNI CHOWK, POLICESTATION GONDA TOWN, DISTRICT RANCHI (JHARKHAND) VERSUS 1. THE STATE OF BIHAR 2. SHAISTA, WIFE OF SHAMIM AKHTAR, DAUGHTER OF MD. MAROOF KHAN, RESIDENT OF MOHALLA NEW MILLAT COLONY, SECTOR 1, SABZPURA MORE, POLICE STATION PHULWARISHARIFF, POST OFFICE PHULWARISHARIF, DISTRICT PATNA ………………………………………………………………OPPOSITE PARTIES ----------- 3 25-7-2009 Heard learned counsel for the parties. In this application the petitioner has challenged the orders, dated 23.4.2009 and the consequential order, dated 27.4.2009 passed by the 1st Additional Sessions Judge, Patna in B.P. No. 463 of 2009. The facts giving rise to the filing of the present case is that the petitioner was made an accused in Phulwari Police Station Case No.519 of 2008, dated 12.12.2008 by his wife, opposite party no.2. The petitioner was taken into custody and he, thus, moved for bail before the Additional Sessions Judge I, Patna. During the pendency of the bail petition the petitioner was released on provisional bail vide order, dated 30.1.2009 on the basis of a submission made on his behalf that he is ready to live with his wife and maintain her with full dignity and honour. The court, therefore, ordered as 2 follows : “Having regard to the facts and circumstances of the case and the fact that both are ready to live together willingly, as such the court directs the petitioner to be released on bail provisionally till 12.2.2009 on furnishing bail bond of Rs.10,000/- with two sureties of the like amount to the satisfaction of the learned court below. The petitioner is directed to appear before this court along with his wife on 12.2.2009.” Thereafter, the petitioner appeared in the court on 12.2.2009. However, his wife, the informant did not. On the next date both appeared and it was submitted before the court that both the parties want to maintain a cordial relationship. Accordingly the court extended the order of provisional bail on 13.2.2009 and 15.4.2009. The parties filed petitions before the court below on 14.4.2009 and 17.4.2009 which were heard on 23.4.2009. The court has recorded that the parties could not come to an understanding and although best efforts were made and several adjournments were given by the court, the informant did not live with her husband due to his ill treatment. Therefore, the court withdrew the 3 provisional bail granted to the petitioner and asked him to surrender by 27.4.2009. The petitioner did not surrender by 27.4.2009 instead filed a petition before the 1st Additional Sessions Judge, Patna that he had gone under deep depression and was admitted in hospital for treatment in Ranchi due to the ill treatment of the prosecution party. The court rejected the petition filed on behalf of the petitioner as the pleadings were not supported by the medical certificate which would lead the court to believe that the petitioner was suffering from some ailment. The petitioner being aggrieved by the orders aforesaid passed by the 1st Additional Sessions Judge has come before this court for quashing the order rejecting his bail on the ground that withdrawal of the provisional bail amounts to cancellation of bail. It is also contended that section 439(2) of the Code of Criminal Procedure does not envisage grant of provisional bail and, therefore, the court erred in law in granting provisional bail. Section 439 of the Code is the concurrent power granted to the High court and the court of Sessions regarding regular bail. Clause (a) of sub-section (1) of section 439 reads as under : “(a) that any person accused of an offence and in custody be released on 4 bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section.” It has been argued that sub-section (3) does not cover section 498 A of the Indian Penal Code. Sub- section (3) of section 437 of the Code reads as follows : “(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court may impose any condition which the Court considers necessary- “(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter; or “(b) in order to ensure that such 5 person shall not commit any offence similar to the offence of which he is accused or of the commission of which he is suspected, or “(c) otherwise in the interests of justice.” At the very out set I would like to distinguish between the condition of grant of bail and a bail which is granted provisionally for the reasons which the court considers necessary in the interests of justice. Provisional bail is an interim order passed in exercise of power under Section 439 of the Code of Criminal Procedure. It is usually granted for a fixed period of time for a particular purpose, such as on the death of relative, for medical reasons or as in this case to resolve the dispute occurring between husband and wife. Whereas bail per se is granted after going into the merits of the case and considering the allegations or for reasons which appeal to the Court. Counsel for the petitioner has assumed that the grant of provisional bail is a condition imposed by the court while granting bail. There is a clear distinction between the condition laid down at the time of granting bail and a bail granted provisionally to a person accused in a particular case. Therefore, the argument advanced 6 on behalf of the petitioner is unsustainable and has to be rejected. The second leg of the argument is that the order, dated 23.4.2009 amounts to cancellation of bail and, therefore, it could not have been passed in the manner which has been done by the court as the bail could have only been cancelled on the ground of misuse of privilege of bail or on the ground that there is a complaint against the person granted bail or he has been made accused in several cases of similar nature or for whatever reason under the Code of Criminal Procedure. I do not find any merit in the arguments advanced on behalf of the petitioner on the ground that the petitioner was granted provisional bail in order to meet the ends of justice i.e. in order to resolve the differences between the husband and wife whose marriage was suffering on account of some (mis) deeds of the petitioner. As stated earlier the provisional bail is not a condition of bail but can be granted by either the High court or the Sessions Judge who have concurrent power under section 439 of the Code for reasons stated by them in the facts and circumstances of a case I, thus, hold that the order, dated 23.4.2009 does not amount to cancellation of provisional bail. On the basis of the arguments made 7 aforesaid, learned counsel for the petitioner has relied on the bail bond (Annexure 2) and submitted that the conditions for grant of bail must be mentioned in the bail bond. It has also been submitted that the bail bond does not indicate that the bail was granted provisionally. As stated earlier, provisional bail is not a condition of granting bail rather it amounts to granting bail for a short period i.e. to say not permanently. The argument is not sustainable for the reason that even if it is supposed that certain conditions attached to the grant of bail, merely because they were not mentioned in the bail bond, it does not mean that the petitioner or the person being granted bail would not abide by those conditions or for that matter if it is not stated in the bail bond that the bail was granted provisionally, it would not change the nature of the order granting bail. For the reasons discussed above, this application is dismissed. haque (Sheema Ali Khan, J.)