Weightage is given to witnesses statement for bail: High court of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.379320 Arising Out of PS. Case No. 427 Year 2019 Thana SURSAND District Sitamarhi Bimal Sah aged about 33 years Male S o Mangal Sah R o Village Ghaghara P.S. Parihar District Sitamarhi The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Manoj Kumar Advocate Mr. Abhay Kumar No. 1 APP Date : 24 09 2021 The matter has been heard via video conferencing. 2. Heard Mr. Manoj Kumar learned counsel for the petitioner and Mr. Abhay Kumar No. 1 learned Additional Public Prosecutorfor the 3. The petitioner apprehends arrest in connection with Sursand PS Case No. 4219 dated 23.11.2019 instituted under Sections 363 366A 34 of the Indian Penal Code 4. The allegation against the petitioner is that he had kidnapped the wife and minor son of the informant 5. Learned counsel for the petitioner submitted that in the FIR itself it has been stated that the wife of the informant had gone away on her own volition along with the infant child Learned counsel submitted that in the statement under Section 164 of the Code of Criminal Procedure 1973 the lady has stated Patna High Court CR. MISC. No.379320 dt.24 09 2021 that she used to talk to the petitioner and the petitioner had called her but it has also been innocuously stated that the petitioner had locked her up and that she wanted to go back to her husband. Learned counsel submitted that neither there is allegation of the petitioner having abducted or kidnapped her nor is there any whisper of the petitioner doing any wrong act with the lady. Learned counsel submitted that the petitioner has been falsely implicated having no other criminal antecedent. It was further submitted that witnesses have also stated that the lady used to frequently talk with the petitioner 6. Learned APP from the case diary did not controvert the fact that witnesses have stated that the lady used to talk to the petitioner. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the statement in the FIR itself that the lady herself had gone away and she making no allegation with regard to any abduction or wrong act on the part of the petitioner and witnesses also stating in the same terms as also the petitioner not having any other criminal antecedent the Court is inclined to allow the prayer for pre arrest bail 8. Accordingly in the event of arrest or surrender Patna High Court CR. MISC. No.379320 dt.24 09 2021 before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs 25 000 with two sureties of the like amount each to the satisfaction of the concerned Judicial Magistrate Pupri at Sitamarhi in Sursand PS Case No. 4219 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioner andthat the petitioner shall cooperate with the Court and the police prosecution. Failure to cooperate shall lead to cancellation of his bail bonds. 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 10. The petition stands disposed of in the (Ahsanuddin Amanullah J

Summary: The petitioner was arrested under Section 363 of the Indian Penal Code, “Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment and shall also be liable to fine”, Section 366A, “Kidnapping, abducting or inducing woman to compel her mar­riage, etc”, Section 34 IPC, “Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone..” The petition is in connection with Sursand PS Case No. 427 of 2019 dated 23.11.2019. In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 24th of September 2021 in the case of Bimal Sah Versus the State of Bihar, [Criminal Miscellaneous No.37934 of 2020] Mr Manoj Kumar represented as the advocate for the petitioner, Mr Abhay Kumar represented the State of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The case relates to the facts wherein the petitioner, was accused of kidnapping the wife and minor son of the informant. The counsel representing the petitioner held that before the FIR has filed itself the wife of the informant was missing and had gone away with her child. The counsel referred to the statement under Section 164 of the Code of Criminal Procedure, 1973 where the lady has stated, the petitioner had called her and they spoke frequently but it has also been innocuously stated that the petitioner locked her up therefore the counsel emphasized that there is no allegation against the petitioner from the victim herself of doing any wrong act with the lady or even abducting or kidnapping her. Even the witnesses have clearly stated that the lady frequently spoke to the petitioner and since the petitioner has no other criminal antecedent, it is clear he has been falsely implicated in the same. The Additional Public Prosecutor held that it is not controverted that the witnesses have stated that the lady spoke to the petitioner frequently. After considering the facts and circumstances of the case, the facts that before the statement in the FIR itself was made, the lady herself had gone away and she making no allegation with regard to any abduction or wrong act on the part of the petitioner and witnesses also stating in the same terms as also the petitioner not having any other criminal antecedent, the Court is inclined to allow the prayer for pre-arrest bail. The Honourable Court, “The petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) with two sureties of the like amount to the Judicial Magistrate, subject to the conditions laid down in Section 438(2) Cr.P.C. 1973 (i) that one of the bailors shall be a close relative of the petitioner, and (ii) that the petitioner shall cooperate with the Court and the police/prosecution. Failure to cooperate shall lead to the cancellation of his bail bonds. The petition stands disposed of in the aforementioned terms.” Click here to read the judgment