Patna High Court
Ghutuk Miyan @ Ismail MiyanversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The High Court ordered that pre‑arrest bail be granted conditionally, subject to a child‑friendly recording of the 11‑year‑old’s statement and verification of the petitioner’s antecedents.
Summary
The petitioner, Ghutuk Miyan, was accused in an FIR of raping the informant in the presence of her 11‑year‑old son. The petitioner applied for pre‑arrest bail, arguing that the allegation was doubtful, the medical examination showed no recent sexual assault, and the FIR was motivated by a monetary dispute. The informant and the child had given statements under Sections 183 and 180 of the BNSS supporting the prosecution. The High Court found the allegations shaky but noted the recorded statements and directed the District Court to obtain a child‑friendly recording of the son’s testimony before deciding on bail. The Court conditioned bail on the child’s statement not supporting the rape allegation and on verification of the petitioner’s criminal antecedents, otherwise ordering immediate custody. The application was disposed with the conditional bail order.
Issues considered
- Whether the petitioner is entitled to pre‑arrest bail in a rape case where the victim and a child witness have given statements supporting the prosecution.
- Whether the medical report negating recent sexual assault affects the bail decision.
- Whether the credibility of the child’s statement recorded under Section 180/183 of the BNSS should be ascertained before granting bail.
Legislation cited
- BNS — s. 115(2), 126(2), 180, 183, 3(5), 351(2), 352, 482(2), 64
Subjects
- pre‑arrest bail
- rape
- child witness
- Section 180 BNSS
- Section 183 BNSS
- Section 482(2) BNSS
- medical evidence
- credibility of testimony
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.12492 of 2026
Arising Out of PS. Case No.-192 Year-2025 Thana- GOPALPUR District- West Champaran
======================================================
Ghutuk Miyan @ Ismail Miyan, S/o Hanif Miyan, R/o Village - Mahesda, P.O
- Sundergawn, P.S - Gopalpur, District - West Champaran
... ... Petitioner/s
Versus
1. The State of Bihar
2. XXX W/o YYY R/o Village - Mahesda, P.S - Gopalpur, District - West
Champaran
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mrs. Kumari Akanksha Rai, Advocate
Mr. Sarvesh Kashyap, Advocate
Mr. Deepak Kumar, Advocate
For the Informant : Mr. Bimlesh Kumar Pandey, Advocate
Mr. Satyam Kumar Ojha, Advocate
For the State : Mr. Abhay Kumar Roy, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
3 28-04-2026 Heard Mrs. Kumari Akanksha Rai, learned counsel
appearing on behalf of the petitioner; Mr. Bimlesh Kumar
Pandey along with Mr. Satyam Kumar Ojha, learned counsel for
the informant and Mr. Abhay Kumar Roy, learned APP for the
State.
2. The petitioner seeks pre-arrest bail in connection
with Gopalpur P.S. Case No. 192 of 2025 registered for the
offence punishable under Sections 126(2), 115(2), 64, 351(2),
352 and 3(5) of the BNS.
3. As per the allegation made in the FIR, the petitioner
had allegedly committed rape upon the informant while her
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husband was not present in the house. The rape was allegedly
committed in presence of her 11 years old son.
4. Learned counsel appearing on behalf of the
petitioner submitted that the manner in which the allegation has
been narrated itself makes the allegation of commission of rape
doubtful as it is the case of the informant that she was taken into
lap and, thereafter, without having resisted to the same act of the
petitioner, she was taken to another room where the rape was
committed in presence of her 11 years old son, who has
supported the prosecution case along with the victim, who is the
informant of this case. Learned counsel further submitted that
the victim was examined by the doctor and the doctor has
opined that there is no trace of any recent sexual assault having
been committed. Learned counsel further submitted that
seventy five thousand rupees of the petitioner was due with the
informant and not to make payment of the same, on a false
allegation, the informant has lodged the present FIR. She further
submitted that on these grounds, co-ordinate Bench of this Court
had granted interim relief to the petitioner and, as such, in
absence of any evidence, the petitioner deserve to be released on
pre-arrest bail.
5. Learned counsel appearing on behalf of the
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informant, referring to the impugned order of the learned
District Court, submitted that enough evidences have been
collected in course of investigation and the petitioner having
taken advantage of the absence of the husband of the informant,
had committed rape, which was in presence of her 11 years old
son and the statement of her son was also recorded under
Section 180 of the BNSS before the Investigating Officer, in
which, he has supported the prosecution story. He further
submitted that it is not a case of tutoring of the 11 years old
child, who is innocent and his version is required to be given
emphasis, particularly, in case where rape is committed. Learned
counsel further submitted that the petitioner has not taken any
plea that the child was tutored and has narrated a false story
under Section 180 of the BNSS before the Investigating Officer.
Learned counsel on these grounds, submitted that evidences are
there, which suggest that the petitioner has committed rape upon
the victim, who is the informant.
6. Learned APP for the State has also vehemently
opposed the prayer for grant of pre-arrest bail.
7. Having heard the rival submissions made on behalf
of the parties, as well as, having perused the allegation made in
the FIR, from the manner in which the entire story has been
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narrated, it appears to be shaky to the extent that learned counsel
appearing on behalf of the petitioner has rightly submitted that
no one can carry a female in his lap without her desire. No force
was applied by the informant, however, the informant has
supported the allegation made in the FIR, in her statement
recorded under Section 183 of the BNSS and the same is also
supported by the 11 years old child in his statement recorded
under Section 180 of the BNSS before the Investigating Officer.
8. In such circumstances, I direct the learned District
Court to first get the statement of the 11 years old child of the
informant recorded under Section 183 of the BNSS by a child
friendly Court and if the learned District Court finds that the 11
years old child of the informant has not supported the allegation
as alleged in the FIR, then in that case, the petitioner, above
named, is directed to be released on pre-arrest bail, in the event
of his/her arrest or surrender before the learned District Court
within a period of four weeks from today, on furnishing bail
bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties
of the like amount each to the satisfaction of the learned District
Court where the case is pending, in connection with Gopalpur
P.S. Case No. 192 of 2025, subject to the condition as laid down
under Section 482(2) of the BNSS.
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9. If the child supports the allegations made in the
FIR, in his statement recorded under Section 183 of the BNSS,
then in that case, the petitioner is directed to be taken into
custody forthwith.
10. The learned District Court is directed to verify
the criminal antecedent of the petitioner as stated in
paragraph no. 3 of the bail application. If any other case is
pending against the petitioner as what has been stated in
paragraph no. 3, this order will lose its force automatically.
11. Accordingly, the present application stands
disposed of.
(Purnendu Singh, J)
Niraj/-
U T
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