IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19031 of 2009 1. HABIBUR RAHMAN, SON OF MOTIUR RAHMAN, RESIDENT OF MOHALLA- CHHOTIKAJIPUR, P.S. LAHERIASARAI, DISTRICT- DARBHANGA. 2. JINNAT ARA, WIFE OF HABIBUR RAHMAN, RESIDENT OF MOHALLA- CHHOTIKAJIPUR, P.S. LAHERIASARAI, DISTRICT- DARBHANGA. 3. MD. RIZWAN @ MD. RIZWAN ALAM, SON OF HABIBUR RAHMAN, RESIDENT OF MOHALLA- CHHOTIKAJIPUR, P.S. LAHERIASARAI, DISTRICT- DARBHANGA. 4. MD. SALAMAN, SON OF HABIBUR RAHMAN, RESIDENT OF MOHALLA- CHHOTIKAJIPUR, P.S. LAHERIASARAI, DISTRICT- DARBHANGA. 5. MD. SARBAR, SON OF HABIBUR RAHMAN, RESIDENT OF MOHALLA- CHHOTIKAJIPUR, P.S. LAHERIASARAI, DISTRICT- DARBHANGA. ----- PETITIONERS Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 2 9.7.2009 Petitioners have moved this Court against the order dated 4.5.2009 by which the petitioner was granted bail by the Session Judge, Darbhanga subject to the following conditions: “Taking into consideration all such aspects let the petitioners be granted the privilege sought and accordingly they are ordered to be released on furnishing bail bond of Rs. 10,000/- with two sureties of the like amount each in the event of their arrest/surrender within a fortnight from the date of receipt of order in the court below subject to the condition as laid down U/S 438(2) Cr.P.C. but only on the event the victim on due identification appears before the court below as a witness and states the actual state of affairs with her free will and consent without any coercion. Simultaneously the court below shall also take care and pass necessary orders if sought regarding full security and protection of the victim.” Learned counsel for the petitioners submits that the condition that the petitioner should produce his son and the victim girl in 2 Court in unreasonable and unwarranted specially in view of the fact that the son of the petitioner and the victim girl have got married and are living away from home without information to the petitioner. Learned counsel also points out that the victim girl had filed a writ application before the Delhi High Court giving her Delhi address. The writ application also contains the address of the boy. It is submitted that the learned counsel tried to contact Arshana Rahman and the boy at the Delhi address. Petitioners also contacted the counsel who appeared on their behalf in Delhi without any result. The order of Delhi High Court is also annexed to this application wherein it appears that the Delhi High Court disposed of the writ application with the direction that the petitioner (i.e. the victim girl) and her husband (i.e. the son of petitioner no. 1) shall not be arrested in pursuance of the First Information Report under Sections 363/366/376 of the Indian Penal Code without giving them one week notice. Considering all aspects of the matter it appears that the petitioners’ plea is 3 genuine when they say that they are not aware of the address besides which the legal position is that Section 438 of the Code of Criminal Procedure permits that the Court shall grant bail and release the accused on certain conditions. The conditions under Section 438 Cr.P.C. are mentioned in Clause 2 of Section 438 one of which is that person shall make himself available for interrogation. Other conditions can also be imposed by the Court but these conditions should be such that can be fulfilled by the person on whom they are imposed. In the present case the condition to produce the victim girl cannot be said to reasonable and as such it really amounts to not granting bail as obviously such a condition cannot reasonably be expected to be fulfilled by the petitioner. In the result the condition imposed on the petitioner vide order dated 4.5.2009 is hereby quashed and the application is allowed. Learned counsel for the petitioners prays that the time for surrender in Court for the purpose of bail may be extended. I 4 accordingly extend the time by four weeks. Let a copy of this order be communicated to the Courts of the Sessions Judge and Chief Judicial Magistrate, Darbhanga through fax at the cost of the petitioner which must be deposited by 10th of July, 2009. Sanjay (Sheema Ali Khan, J.)