Patna High Court
Amna KhatoonversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SOURENDRA PANDEY
Holding
A bail condition that makes the grant of provisional bail contingent upon a third party’s acceptance is illegal and must be set aside.
Summary
The petitioners sought to quash an order dated 19‑08‑2023 in which the Additional District and Sessions Judge, Bettiah, granted them anticipatory bail under Section 438 of the Cr.P.C. with a condition that the husband of the informant must agree to keep her as his wife. The FIR alleged dowry demands, threats, assault, and an attempt to kill the informant, who was the wife of a man related to the petitioners. The petitioners argued that the condition was illegal, as bail cannot be made dependent on a third party’s conduct, citing Supreme Court precedent. The trial court’s condition was held to be contrary to law and amounted to a de facto rejection of the bail application. The High Court set aside the condition, remitted the matter for fresh orders, and allowed the petition to quash the original order.
Issues considered
- The legality of imposing a bail condition that depends on the conduct or willingness of a third party (the victim’s husband).
- Whether Section 438 Cr.P.C. permits such a condition in granting anticipatory bail.
- Whether the trial court’s direction violates Supreme Court precedent on bail for co‑accused.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 438
Subjects
- dowry harassment
- anticipatory bail
- provisional bail
- Section 438 Cr.P.C.
- bail conditions
- third‑party dependency
- Supreme Court precedent
- family dispute
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.841 of 2024
Arising Out of PS. Case No.-18 Year-2023 Thana- MAHILA P.S District- West Champaran
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1. Amna Khatoon Wife of Late Sk. Bhikhari @ Late Shekh Bhikhari R/O
Village- Barwa Kala, P.S.- Sathi, District- West Champaran
2. Sk Shikari @ Shikari Sheikh Son of Late Mohammad Hussain R/O Village-
Barwa Kala, P.S.- Sathi, District- West Champaran
3. Musarrat Jahan Wife of Zakir Hussain R/O Village Baswariya, P.S.
Cahutarwa, District West Champaran
4. Zakir Hussain Son of Late Nezamuddin R/O Village Baswariya, P.S.
Cahutarwa, District West Champaran
... ... Petitioner/s
Versus
1. The State of Bihar
2. Haya Sadaf Wife of Mahtab Alam, Daughter of Raiful Azam R/O Village-
Barwa Kala, P.S.- Sathi, District- West Champaran
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Bimlesh Kumar Pandey, Advocate
For the Opposite Party/s : Mr. Bharat Bhushan, APP
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CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL ORDER
3 20-01-2026 Heard the learned counsel for the petitioners and
learned APP for the State.
2. In the present application, the petitioners have
prayed for the following relief(s):-
“That, this is an application for
quashing of the order dated 19.08.2023 passed in
ABP No. 1301/2023, by Learned Additional
District and Sessions Judge Ist, Bettiah, West
Champaran in connection with Bettiah (Mahila)
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P.S. Case No. 18/2023, whereby and where under
the Learned Additional District and Sessions Judge
1st, Bettiah, West Champaran has heard and
disposed off the bail application of the petitioners
with certain observations and directions exceeding
the jurisdiction U/S 438 Cr.P.C.”
3. The facts and circumstances giving rise to the
present application is to the effect that an F.I.R. was registered
by the informant alleging therein that the members of her
matrimonial home started demanding Rs. 5,00,000/- and one
Bolero car as dowry. It is further alleged that the petitioners and
others threatened the informant to get her son remarried, if the
informant does not fulfill the demand of dowry.
4. It is further alleged that the named accused persons,
including the husband of the informant, tried to kill the
informant and finally on 18.11.2022, all the above-named
persons assaulted her, tore her clothes and snatched away her
streedhan and ousted her from her matrimonial home. It is
further alleged that the accused persons have got secretly
married the husband of the informant with one Ishrat Khatun.
5. Learned counsel for the petitioners submits that the
petitioners preferred anticipatory bail application being A.B.A.
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No. 1301 of 2023 before the Court of Learned Additional
District & Sessions Judge-1, Bettiah, West Champaran under
section 438 Cr.P.C. which was allowed with certain directions,
which is as under:
“In view of the nature of allegation, both
have two daughter from this marriage and there is
still possibility of reconciliation, this Court would
direct that if the petitioners surrenders in the court
below within a period of Six weeks from today, and
submits an undertaking to this effect that husband
is ready to keep the informant with full dignity and
decorum as his spouse at the time of his surrender,
the court below, after issuing notice to Opposite
party i.e. the informant wife will grant provisional
bail to the petitioners for a period of three months
on sufficient amount of bond on own
satisfaction.”
6. Learned counsel for the petitioners submits that
imposing such condition of grant of bail only when the husband
of the informant is willing to keep her as her legally married
wife, amounts to literally rejecting the bail application as it was
a categorical case of the petitioner that the husband was not
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ready to keep the informant. It has been submitted that putting
such unreasonable condition wherein there is no control of the
petitioners is against the provisions of Section 438 of the CrPC.
7. Learned counsel for the petitioners further submits
that the learned trial court also did not appreciate the fact that it
was the informant who was not willing to live with the husband
due to mismatch and also against the wishes of the victim.
8. It has further been submitted that the petitioners
have falsely been implicated in this case only because they
happen to be the relatives of the husband of the informant and
only with a view to harass the entire family this case was
lodged. It has thus been prayed that the condition imposed by
the Court of learned Additional District & Sessions Judge-Ist,
Bettiah, West Champaran may be set aside.
9. Learned counsel for the petitioners further refers to
the order passed by the Hon’ble Supreme Court in Criminal
Appeal Nos. 3198-3199 of 2023 passed in the case of Munshi
Sah v. the State of Bihar & Anr. wherein the Hon’ble Supreme
Court has held that “…..In our opinion, the question of grant of
bail to a co-accused person cannot made dependent upon
surrender of another accused who is described as the main
accused person in this case.”
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10. The learned APP for the State as well as the
learned counsel appearing on behalf of the O.P. No. 2 submits
that the conditions which were imposed by the learned trial
court were deliberately made as petitioners were close relatives
of the husband of the informant and therefore, the Court
warranted that the petitioners also take efforts in order to settle
the dispute and enable the husband of the informant and the
informant to live together and lead a conjugal life.
11. Learned counsel for the O.P. No. 2 further submits
that the petitioners were equally liable for the acts committed by
the husband and there is a specific allegation against the
petitioners to have tortured the informant and therefore such
imposition of condition is not bad and therefore the present
application is misconceived and fit to be set aside.
12. This Court finds that the petitioners were granted
bail by the Court of learned Additional District and Sessions
Judge-Ist, Bettiah, West Champaran, however, one condition
was imposed which is as under:
“In view of the nature of allegation, both
have two daughter from this marriage and there is
still possibility of reconciliation, this Court would
direct that if the petitioners surrenders in the court
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below within a period of Six weeks from today, and
submits an undertaking to this effect that husband
is ready to keep the informant with full dignity and
decorum as his spouse at the time of his surrender,
the court below, after issuing notice to Opposite
party i.e. the informant wife will grant provisional
bail to the petitioners for a period of three months
on sufficient amount of bond on own
satisfaction.”
13. To the understanding of this Court, such
imposition of condition of directing the petitioners to be
released on provisional bail for a certain period only if the
victim is accepted by her husband and they live together,
amounts to literally rejecting the application, as no condition is
to be imposed upon the petitioners which is dependent upon a
third person.
14. This Court finds it paradoxical that on one hand
the Court of learned Additional District and Sessions Judge- Ist,
Bettiah, West Champaran, records the fact and submissions
made on behalf of the petitioners noting the mediation having
failed between the parties, as the husband of the informant was
ready to register 3 Kattha land in the name of the informant and
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also to give new house, but she was not ready and she wanted
whole land of her husband.
15. Despite acknowledging such submissions made on
behalf of the petitioners, imposing such a condition that the
petitioners shall give an undertaking to the effect that the
husband is ready to keep the informant with full dignity and
decorum as spouse at the time of his surrender then the bail, that
too provisional, would be granted to the petitioner for three
months literally amounts to rejection of the bail application.
16. I find that the impugned conditions imposed by
the learned Trial Court is bad in law and contrary to the settled
law and therefore the same is set aside.
17. The matter is remitted back to the Court of learned
Additional District and Sessions Judge- Ist, Bettiah, West
Champaran who shall pass fresh orders imposing reasonable
conditions taking into account various judicial pronouncements
of the Hon’ble Supreme Court.
18. At this juncture, learned counsel for the petitioners
submit that they have also filed anticipatory bail application
being Cr. Misc. No. 68455 of 2023 before this Hon’ble Court
and the same is kept pending till the disposal of the present
application.
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19. In view of the above, learned counsel for the
petitioners undertakes to withdraw the aforesaid anticipatory
bail application pending before this Hon’ble Court, in order to
enable the learned trial court to pass a fresh order as directed by
this Court in the present application.
20. The present application is allowed with the
aforesaid observation.
(Sourendra Pandey, J)
aditya/-
U
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