SHAMIM AKHTAR v. THE STATE OF BIHAR

submitted before the court that both the parties want to maintain a cordial relationship. Accordingly the court extended the order of provisional bail on 13.2.2009 and

15.4.2009. The parties filed petitions before the court below on 14.4.2009 and 17.4.2009 which were heard on

23.4.2009. The court has recorded that the parties could not come to an understanding and although best efforts were made and several adjournments were given by the court, the informant did not live with her husband due to his ill treatment. Therefore, the court withdrew the 3 provisional bail granted to the petitioner and asked him to surrender by 27.4.2009. The petitioner did not surrender by 27.4.2009 instead filed a petition before the 1st Additional Sessions Judge, Patna that he had gone under deep depression and was admitted in hospital for treatment in Ranchi due to the ill treatment of the prosecution party. The court rejected the petition filed on behalf of the petitioner as the pleadings were not supported by the medical certificate which would lead the court to believe that the petitioner was suffering from some ailment. The petitioner being aggrieved by the orders aforesaid passed by the 1st Additional Sessions Judge has come before this court for quashing the order rejecting his bail on the ground that withdrawal of the provisional bail amounts to cancellation of bail.

It is also contended that section 439(2) of the Code of Criminal Procedure does not envisage grant of provisional bail and, therefore, the court erred in law in granting provisional bail. Section 439 of the Code is the concurrent power granted to the High court and the court of Sessions regarding regular bail. Clause (a) of sub-section (1) of section 439 reads as under :

(a) that any person accused of an offence and in custody be released on 4 bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section.

It has been argued that sub-section (3) does not cover section 498 A of the Indian Penal Code. Sub- section (3) of section 437 of the Code reads as follows : “(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, released on bail under sub-section (1) the Court may impose any condition which the Court considers necessary- “(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter; or “(b) in order to ensure that such 5 person shall not commit any offence similar to the offence of which he is accused or of the commission of which he is suspected, or “(c) otherwise interests of justice.” At the very out set I would like to distinguish between the condition of grant of bail and a bail which is granted provisionally for the reasons which the court considers necessary interests of justice.

Provisional bail is an interim order passed in exercise of power under Section 439 of the Code of Criminal Procedure. It is usually granted for a fixed period of time for a particular purpose, such as on the death of relative, for medical reasons or as in this case to resolve the dispute occurring between husband and wife. Whereas bail per se is granted after going into the merits of the case and considering the allegations or for reasons which appeal to the Court. Counsel for the petitioner has assumed that the grant of provisional bail is a condition imposed by the court while granting bail. There is a clear distinction between the condition laid down at the time of granting bail and a bail granted provisionally to a person accused in a particular case. Therefore, the argument advanced 6 on behalf of the petitioner is unsustainable and has to be rejected. The second leg of the argument is that the order, dated 23.4.2009 amounts to cancellation of bail and, therefore, it could not have been passed in the manner which has been done by the court as the bail could have only been cancelled on the ground of misuse of privilege of bail or on the ground that there is a complaint against the person granted bail or he has been made accused in several cases of similar nature or for whatever reason under the Code of Criminal Procedure.

I do not find any merit in the arguments advanced on behalf of the petitioner on the ground that the petitioner was granted provisional bail in order to meet the ends of justice i.e. in order to resolve the differences between the husband and wife whose marriage was suffering on account of some (mis) deeds of the petitioner. As stated earlier the provisional bail is not a condition of bail but can be granted by either the High court or the Sessions Judge who have concurrent power under section 439 of the Code for reasons stated by them in the facts and circumstances of a case I, thus, hold that the order, dated 23.4.2009 does not amount to cancellation of provisional bail. On the basis of the arguments made 7 aforesaid, learned counsel for the petitioner has relied on the bail bond (Annexure 2) and submitted that the conditions for grant of bail must be mentioned in the bail bond. It has also been submitted that the bail bond does not indicate that the bail was granted provisionally.