Patna High Court
Moinuddin @ Md. MoinuddinversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- CHANDRA SHEKHAR JHA
Holding
The Court held that the allegations did not establish a prima facie case of intent to cause death under Section 109 BNS and therefore granted bail to petitioners 9‑11, while leaving the bail petitions of petitioners 1‑8 undisturbed.
Summary
The petitioners, a group of eleven men from Garaiya village, were charged under Section 109 of the Bihar Negotiable Sale (BNS) Act in connection with a land‑dispute‑related altercation that resulted in grievous injuries to non‑vital parts of the body. Petitioners 1‑8 were already on bail and had filed an anticipatory bail petition, which the Sessions Court disposed, directing them to seek regular bail; the High Court declined to interfere with that order. Petitioners 9‑11, who were not on bail, challenged the magistrate’s cognizance and the trial court’s denial of bail, arguing that the injuries were incidental in a "free fight" and did not show intent to cause death. The State contended that the accused actively participated in the assault. Relying on precedents (Jage Ram v. State of Haryana and State of Himachal Pradesh v. Shamsher Singh), the Court held that the general and omnibus nature of the allegations did not satisfy the prima facie test for Section 109 BNS, and ordered bail for petitioners 9‑11 with a bond of Rs 10,000 and two sureties, while leaving the bail matters of petitioners 1‑8 undisturbed.
Issues considered
- Whether the facts alleged constitute a prima facie case under Section 109 of the BNS Act warranting denial of bail to petitioners 9‑11.
- Whether the High Court should interfere with the Sessions Court’s disposal of the anticipatory bail petition of petitioners 1‑8.
- Whether the nature of injuries and the characterization of the incident as a "free fight" negate the intention to cause death required under Section 109 BNS.
Legislation cited
- Indian Penal Code — s. 307
Subjects
- anticipatory bail
- regular bail
- Section 109 BNS
- Section 307 IPC
- free fight
- land dispute
- prima facie case
- bail jurisprudence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.75134 of 2025
Arising Out of PS. Case No.-123 Year-2025 Thana- BARARI District- Katihar
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1. Moinuddin @ Md. Moinuddin Son of Late Habibur Rahman Resident of
Village - Garaiya, P.S. -Barari, District -Katihar.
2. Moijuddin @ Md. Moijuddin son of Late Habibur Rahman Resident of
Village - Garaiya, P.S. -Barari, District -Katihar.
3. Mufizuddin @ Md. Mufizuddin Son of Late Habibur Rahman Resident of
Village - Garaiya, P.S. -Barari, District -Katihar.
4. Asfaque Alam @ Md. Ashfaque Alam son of Late Habibur Rahman
Resident of Village - Garaiya, P.S. -Barari, District -Katihar.
5. Wahid Alam @ Abdul Wahid son of Moinuddin @ Md. Moinuddin Resident
of Village - Garaiya, P.S. -Barari, District -Katihar.
6. Md. Noman @ Aminul Islam @ Noman Alam son of Moijuddin @ Md.
Moijuddin Resident of Village - Garaiya, P.S. -Barari, District -Katihar.
7. Anwar Alam @ Md Anwar Son of Moijuddin @ Md. Moijuddin Resident of
Village - Garaiya, P.S. -Barari, District -Katihar.
8. Gulfam Alam @ Md. Gulfam Alam son of Moinuddin @ Md. Moinuddin
Resident of Village - Garaiya, P.S. -Barari, District -Katihar.
9. Abrar Alam @ Md. Abrar Alam son of Moinuddin @ Md. Moinuddin
Resident of Village - Garaiya, P.S. -Barari, District -Katihar.
10. Iftekhar Alam @ Md. Iftekhar Alam Son of Moinuddin @ Md. Moinuddin
Resident of Village - Garaiya, P.S. -Barari, District -Katihar.
11. Sakur Alam @ Shakur Alam @ Md. Shakur Alam son of Moijuddin @ Md.
Moijuddin Resident of Village - Garaiya, P.S. -Barari, District -Katihar.
... ... Petitioner/s
Versus
The State of Bihar. ... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Shailendra Kumar Singh, Advocate
Mr. Karu Kumar, Advocate
For the Opposite Party/s : Mr.Ashok Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
4 21-01-2026 Heard learned counsel appearing on behalf of the
petitioners and learned Additional Public Prosecutor appearing on
behalf of the State.
2. During course of argument, it appears that the
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petitioner nos. 1 to 8 was on bail and after concluding investigation
the more grievous offence was added through charge sheet against
them i.e. for the offence punishable under Section 109 of the BNS,
for which also the cognizance was taken by the learned
Jurisdictional Magistrate, it was submitted that now the petitioners
are under apprehension that they might be sent to judicial custody
on surrender but fairly conceded that still petitioner nos. 1 to 8 are
on bail granted by the learned trial court vide order dated
14.05.2025 as passed in G.R. Case No. 2416 of 2025, Barari P.S.
Case No. 123/2025.
3. With aforesaid apprehension, petitioner nos. 1 to 8
preferred their anticipatory bail petition before the court of
Sessions, which was disposed off through A.B.P. No. 995 as
passed by the Court of Additional District & Sessions Judge-II with
observations that:-
“So having consideration the above
facts this anticipatory bail petition is hereby
disposed off with observation that petitioners
may file a petition for regular bail before
concerned Ld. Court, if they are advised, so.
Further, concerned Ld. Court will disposed of
the regular bail keeping in the mind that there
is no specific allegation of assault has been
levelled against any accused-petitioners
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committed alleged assaulting with view to take
their life away and admittedly there is land
dispute between the both parties and there is
counter case in between the both parties.
Further investigation has already been
completed against the petitioners and
petitioners nos. 01-08 have never misused the
privileged of bail while petitioners no. 09-11
have not been sent up by the prosecution
agency.”
4. This Court finds no reason to interfere with impugned
order qua petitioner nos. 1 to 8, considering that petitioners are on
bail. Upon their surrender before the trial court, the learned trial
court is directed to deal their bail petition in view of observation of
the learned Sessions Judge-II as mentioned aforesaid on same
very day, Keeping it in mind that “bail is the rule and jail is
the exception” and further considering the guideline as to deal
offence punishable under Section 307 of IPC/109 of BNS
particularly available through legal report of Jage Ram and
Others Vs. State of Haryana reported through (2015) 11
SCC and State of Himachal Pradesh Vs. Shamsher Singh
reported through 2025 SCC OnLine SC 807. With these
observation bail petition of petitioner nos. 1 to 8 stands disposed
off.
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5. At this stage, Mr. Shailendra Kumar Singh, learned
counsel appearing for the petitioner nos. 9 to 11 submitted that
they were not on bail and the police also submitted closure report
after investigation against them but by taking a different view
without explaining any reasons, the learned Jurisdictional
Magistrate took cognizance against petitioner nos. 9 to 11. It is
submitted that with same impugned order their bail prayer was
rejected by the learned trial court.
6. Drawing attention towards the merit of this case, it is
pointed out that the allegation qua physical assault is general and
omnibus in nature qua all 9 to 11 named co-accused persons and
merely as some of the injuries which was found on non vital part of
the body was grievous in nature as alleged assault caused fracture
wound, accordingly the charge-sheet after investigation was
submitted for the offence under Section 109 of BNS. It is
submitted that only the nature of injury found on non vital part is
not a criteria to attract the prima facie case for the offence
punishable under Section 109 of the BNS as there are several
factors are required to be taken into note like the nature of
weapon, the nature of injury, the part of the body on which the
injury was inflicted and post and pre occurrence conduct of the
petitioners. In support of his submission, learned counsel took
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shelter of legal report as available through J age Ram and Others
Vs. State of Haryana reported through (2015) 11 SCC and
State of Himachal Pradesh Vs. Shamsher Singh reported
through 2025 SCC OnLine SC 807. Concluding argument, it is
submitted that occurrence was free fight in nature, where both
parties received injuries, where the alleged occurrence took place
in the background of land dispute and for the same set of
occurrence, petitioner’s side also lodged a case against informant’s
side, which was registered as Barari P.S. Case No. 125/2025. All
three petitioners i.e. petitioner nos. 9 to 11 claimed their clean
antecedents.
7. The learned APP while opposing the prayer of bail
submitted that these petitioners were actively participated in the
occurrence but could not disputed the aforesaid factual and legal
submission qua occurrence as submitted aforesaid.
8. In view of aforesaid factual submissions and by
taking note of fact as the allegation for physical assault is
appearing very much general and omnibus in nature, where merely
on the basis of such grievous injuries on non-vital part of the body
of injured/informant, prima facie it cannot be said that the
petitioners were under intention to cause death, particularly in
view of the fact that occurrence was free fight in nature, where
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both parties received injuries, accordingly, petitioner nos. 9 to 11
in the event of their arrest or surrender before the learned trial
Court, within a period of four weeks of the order, is directed to be
released on bail furnishing bail bond of Rs. 10,000/- (Rupees Ten
Thousand) with two sureties of the like amount each to the
satisfaction of the learned Additional District & Sessions Judge-II,
Katihar/concerned Court, where the case is pending in connection
with Barari P.S. Case No. 123/2025 subject to the conditions as
laid down under Section 482(2) of the BNSS.
(Chandra Shekhar Jha, J)
veena/-
U T
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