Patna High Court
Nitish Malakar @ Nitish Kumar MalakarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- PRABHAT KUMAR SINGH
Holding
The court granted bail to the petitioners, holding that their clean antecedents and the victim’s adult status warranted release on bond.
Summary
The petitioners, Nitish Malakar and Mina Devi, sought bail in a case where they were accused of kidnapping a minor girl for marriage, alleged under multiple IPC sections and the POCSO Act. The prosecution alleged that the accused, including the petitioners, abducted the informant's daughter, but the petitioners argued that the girl, now over 18, had voluntarily married a co-accused and denied any wrongdoing. The victim’s statement under Section 164 of the Criminal Procedure Code and a medical board report confirming her age were presented in their favor. The petitioners highlighted their clean antecedents and that they were implicated merely due to familial ties with another accused who had already been granted bail. Considering these facts, the court ordered that bail be granted to the petitioners upon surrender within eight weeks, subject to a bond and sureties, and conditioned on compliance with Section 482(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Issues considered
- Whether the petitioners are entitled to bail despite charges under IPC and POCSO provisions.
- Whether the victim’s age and consent negate the applicability of the POCSO Act.
- Whether familial association with another accused justifies detention.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita — s. 482(2)
- Indian Penal Code — s. 120B, 323, 34, 341, 363, 365, 366A, 504, 506
- Protection of Children from Sexual Offences Act — s. 17, 4, 6
Subjects
- bail
- POCSO
- kidnapping
- marriage of minor
- IPC
- age of consent
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.1482 of 2026
Arising Out of PS. Case No.-120 Year-2021 Thana- MAHISHI District- Saharsa
======================================================
1 . Nitish Malakar @ Nitish Kumar Malakar S/o Santosh Malakar Residence of
Village - Bijwar, ward no. 12, P.S.- Mahishi, Distt.- Saharsa
2. Mina Devi W/o Shankar Malakar Residence of Village - Bijwar, ward no.
12, P.S.- Mahishi, Distt.- Saharsa
... ... Petitioner/s
Versus
1. The State of Bihar
2. Jawahar Malakar S/O Late Laxman Malakar Residence of Village - Bijwar,
P.S.- Mahishi, Distt.- Saharsa
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rupesh Kumar , Advocate
For the Opposite Party/s : Mr. Mukesh Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
2 12-02-2026 Heard learned counsel for the petitioners and the
State .
2. Petitioners apprehend their arrest in a case
registered for the offence punishable under sections offence
under Sections 363 , 365 , 366 (A) , 120 ( B ), 341 , 323 , 504,
506 and 34 of IPC and section 4, 6 and 17 of POCSO Act.
3 . As per prosecution case, all the accused persons
including these petitioners kidnapped the minor daughter of
informant for the purpose of marriage .
Patna High Court CR. MISC. No.1482 of 2026(2) dt.12-02-2026
2/3
4. Learned counsel for the petitioners submitted that
there was love affairs between co-accused Manish Kumar and
daughter of informant and out of love , both of them solemnized
marriage on 09.07.2021 and are living together as husband and
wife . The victim in her statement recorded under section 164
Cr. PC has denied the prosecution case . The medical board has
also assessed the age of victim above 18 years. These petitioner
have been made accused in this case only because they happen
to be family members of co-accused Manish Kumar who has
already been granted bail by this Hon’ble Court vide order dated
27.09.2024 in Cr. Misc. No. 58575 of 2024 . Petitioners claim
clean antecedent.
5 . Learned counsel for the State oppose the bail
petition .
6 Considering the aforesaid facts, clean antecedent
of these petitioners and other circumstances of the case , in the
event of arrest or surrender within eight weeks from today, let
the petitioners, as named above, be enlarged on bail on
furnishing bail bond of Rs.10,000/-(ten thousand) each with two
sureties of the like amount each to the satisfaction of the learned
Additional sessions Judge – VI cum Special Judge (POCSO )
Saharsa in connection with Mahishi P.S. Case No. 120 of 2021,
Patna High Court CR. MISC. No.1482 of 2026(2) dt.12-02-2026
3/3
subject to the conditions laid down under section 482 ( 2 ) of the
Bharatiya Nagarik Suraksha Sanhita ( BNSS) , 2023 .
(Prabhat Kumar Singh, J)
Koushik/-
U T
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