The Patna High Court has stated that anticipatory bail cannot be granted as a means to settle cases related to Section 498A of the Indian Penal Code, 1860 (IPC) by instructing the involved parties to reconcile and resume their marital relationship.

Justice Bibek Chaudhuri, presiding over the case observed, “Though, I am not unmindful to note that by way of judicial proceeding an offence under Section 498A of the I.P.C. can be compounded, but in the statute the offence has been made non-compoundable. The stage of compounding comes at the time of trial of the case or even at an earlier stage when both the parties approached the court that their dispute has been amicably settled.”

“Therefore, the High Court can not grant an anticipatory bail on the ground that the husband will take his wife and keep her with him for six months and after six months, if the wife does not have any complain against the husband, the order of bail will be confirmed,” Justice Chaudhuri added.

On the basis of a Police report a case under Section 498A/341/323/504/34 of the I.P.C. read with Sections 3 and 4 of the Dowry Prohibition Act was registered against the petitioner. The petitioner-husband had prayed for anticipatory bail before the Court. A Coordinate Bench disposed of the said application for anticipatory bail in 2017.

By passing the impugned order in 2019, the S.D.J.M., Hilsa, Nalanda rejected the said provisional bail granted by the Court in favour of the petitioner-husband and he was directed to surrender before the Court of the Magistrate. Moreover, petitioner's application under Section 239 of the Cr.P.C. was rejected by the Magistrate in the same order.

Though the order of provisional bail was granted by a Coordinate Bench in 2017, the pre condition of granting provisional bail seemed to be an attempt of reconciliation of the dispute and mediation of a charge under Section 498A of the I.P.C. and other penal provisions.

The Court here pointed out, “It is needless to say that in a criminal case, at an inter locutory, stage the parties cannot be directed to stay together, where there was allegation of mental and physical cruelty.”

“The conditions for provisional bail, in my humble and respect opinion was not satisfactory. No such condition can be imposed, as a condition for anticipatory bail directing the accused to restore peaceful conjugal life with the defacto complainant,” the Court added.

The Court referred to the case of Arnesh Kumar Vrs. State of Bihar [(2014) 8 SCC 273], whereby the Supreme Court had held that in any offence where the punishment is prescribed up to seven years, the accused cannot be directly arrested by the Police.

The Apex Court had further held that an accused will have to be served a notice under Section 41(A) of the I.P.C. by the Police, and the Police will record the statement of the accused persons, then consider whether for the purpose of investigation, he is required to be arrested.

Thus the Court observed, “The provision of Section 41(A) and the decision of Arnesh Kumar (supra) was passed in the light of an offence under Section 498A of the I.P.C. Thus, generally an accused cannot be arrested in an offence under Section 498A of the I.P.C. without compliance Section 41(A) of the Cr.P.C.”

The Court also placed reliance on the case of Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. 2020 (5) SCC 1 whereby it was held by a Constitution Bench of the Apex Court that protection of anticipatory bail under Section 438 of the Cr.P.C. is not invariably related to a fixed period. Normally, it should insure in favour of the accused without any restriction of time. However, in the facts and circumstances of the case, if the Court show consider it warranted, it may grant anticipatory bail only for a fixed period.

For the reasons stated above, the Court disposed of the instant revision directing the petitioner to surrender before the trial court and on his surrender the petitioner is to be released on bail under Section 437 of the Cr.P.C.

“Since, charge-sheet has been filed against the petitioner, question of discharging him from the case does not arise. Therefore, second part of the order, passed by the learned Magistrate, refusing the prayer of the petitioner for discharging him, is affirmed,” the Court concluded.

Appearance:

For the Petitioner/s : Mr. Manoj Kumar, Adv.,Mr. Dharmendra Kumar Singh, Adv.,

Mr. Shashi Shekhar Singh, Adv. For the Respondent/s : Mr. Ram Sumiran Rai, Adv.

Case No.: Criminal Revision No.710 of 2019

Case Title: Sanjay Kumar @ Sanjay Prasad v. The State of Bihar & Anr.

LL Citation: 2024 LiveLaw (Pat) 22

Click Here To Read/ Download the Judgement