IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7575 of 2010 1.ABDUL BARIK 2.Manjoor @ Md.Manjoor Alam 3.Md.Nasim All sons of late Abdul Rahman, residents of village Shivnagar Haripur, P.S.Korha, Dist.Katihar-petitioners Versus THE STATE OF BIHAR-------------------------opp.party ----------- For the petitioners:M/S Virendra Kumar Md.Ataur Rahman,Advocates For the State :Mr.Ram Priyo Sharan Singh,APP ---- 2. 19.3.2010 Heard learned counsel for the petitioners and the State. These three petitioners, who are elder brothers of co-accused Md.Sohrab, apprehend their arrest in a case instituted under Sections 376/34 of the Indian Penal Code and for some other minor offences. Learned counsel for the petitioners submits that according to the prosecution case, the informant Noor Bano was earlier having love affairs with co-accused Md.Sohrab and subsequently she was married with him. The marital relationship continues for some time, but subsequently due to certain dispute the informant started living separately and filed a case under Section 498A IPC against these accused persons as also co-accused Md.Sohrab (Annexure-2). It is submitted that despite the case filed by the informant under Section 498A IPC the relationship 2 of wife and husband between the informant and the co-accused Md.Sohrab still subsists and in that view of the matter no case under Section 376 IPC is made out even against co-accused Md.Sohrab. In the F.I.R. the allegation is that co-accused Md.Sohrab had forcibly sexual intercourse with the informant and the petitioners are said to have abetted the same. Learned counsel for the State has drawn my attention towards the provisions of Section 376A of the Indian Penal Code which provides that if any person is having sexual intercourse with his own wife who is living separately from him under a decree of separation or under any custom or usage without her consent then in that case he shall be punished with imprisonment for a term which may extend up to two years. Apparently there is no allegation of rape against these petitioners and admitted position is that informant was married with co-accused Md.Sohrab, the younger brother of the petitioners. In that view of the matter, in the event of arrest or surrender within a period of four weeks from today, let the petitioners be released on bail on furnishing bail bond of Rs.10,000/- 3 (Rupees ten thousand) each with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Katihar, in connection with Korha P.S.case No. 238 of 2009 subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure. (Birendra Prasad Verma,J.) Spal/