Judgment R.S.Garg, J. 1. Heard learned Counsel for the petitioner, Counsel for the objector, the objector is also present in person, and the Counsel for the State. 2. In Complaint Case No. 766C/2002 the petitioner has been made accused on the allegations made by the wife that he ill-treated her and committed theft of her ornaments and sum of Rs. 30,000.00 . He is in jail since 19.11.2003. The allegations of the prosecutrix are that as a result of a love affair the applicant and the original complainant married. They stayed at their uncles place for some days and thereafter they went to her fathers place and at her fathers place her husband changed his attitude and started mistreating the complainant. He started making a demand of Rs. 50,000.00 , when the father of the complainant asked the applicant not to conduct improperly, the husband stealthily removed her ornaments and sum of Rs. 30,000.00 . 3. On being asked learned Counsel for the complainant informed the Court that no First Information Report was lodged but a complaint was lodged in the Court of the Chief Judicial Magistrate, Jamui. 4. It appears from the allegations made in the complaint-petition that a love affair developed when the complainant was residing in Kolkata and after the marriage she went to her fathers place at Allahabad. On being asked the complainant informed this Court that her father was running a thela (handcart) and was dealing in sweetmeats. On being asked that from where her father got sum of Rs. 30,000.00 and the ornaments, I am told by the Counsel for the complainant, after seeking ins! ructions from the complainant that the said amount and ornaments could have been, given to the complainant by her uncle. 5. The application has been opposed vehemently on the ground that the applicant has mistreated her and though the complainant wants to live with him, the accused is not ready and willing to keep her. 6. Learned Counsel for the applicant-accused submits that the defence of the present applicant is that he was kidnapped and he was forcibly married even when he was minor, with the complainant. 6. Learned Counsel for the applicant-accused submits that the defence of the present applicant is that he was kidnapped and he was forcibly married even when he was minor, with the complainant. He submits that he has filed an application before the competent Court for declaration of nullity of the marriage which is registered as Case No. 67/2002, H is submitted by him that the petitioner has not committed any offence and in a case like the present one, where he has positive defence available to him, he cannot be detained. It is also submitted that when the husband is kept in jail for 10 months the intention of the wife to live with him would not be honest otherwise she would have submitted that the husband be released on bail because she honestly wants to live with a man who had even committed wrong to her 7. It is most unfortunate that in our judicial system a husband who even has fit defence available to him, is not taken to be an honest man. The law does in no manner say that if the allegations are made by the wife then the same are to be treated as gospel truth and any positive and valid defence available to the husband would be ignored so that dignity of the wife is saved and husband is kept behind bars. 8. In a given case wife may honestly believe that if the threat policy is adopted by her the husband may mend his behaviour and may again keep her and respect her, but in a given case where the husband does continue in jail for 10 months and the wife appears in the Court to oppose the application, then her bona fide would certainly be lacking. It is further unfortunate that the Judges of the Subordinate Courts even on non-availability of material to detain the man, are unable to exercise the powers in favour of such persons. If the endeavour of the Judges of the Subordinate Courts is to see that the marriage tie is not broken and the husband and wife happily go from the Court then the Court must counsel and give proper advice to the parties instead of rejecting the bail application. If a husband remains in jail for 8 to 10 months then any possibility of repair of the relations is lost. If a husband remains in jail for 8 to 10 months then any possibility of repair of the relations is lost. No husband in the opinion of this Court would offer to settle the dispute with his wife because of her stay in jail at the instance of the wife. 9. The Judges of the Subordinate Courts have jurisdiction to grant bail in such cases but unfortunately being mortally afraid of exercising their jurisdiction for one reason or the other are not exercising their power. sec. 437 clothes the Subordinate Magistrates with the powers to grant bail in non-bailable cases. Sec. 498-A is punishable with three years imprisonment and fine. In a case where the accused is on jail for sufficiently long time then the discretion is to be exercised in his favour because he cannot be kept in jail indefinitely and specially in a complaint case when the fate of the complainants case is known to everybody. The regular trials are not being taken up regularly and the Courts grant bail in such cases. The cases u/s. 498-A lodged on the basis of private complaint are taken up very irregularly and if the detention is allowed to continue that would lead to a bad situation. 10. sec. 498-A is not a capital offence. It is not a case where a man can be hanged. It is not even a case where he can be awarded life sentence. If that be so, the husband on the allegations made by the wife is to be treated like an ordinary criminal and if he satisfies the judicial conscience of the Court then he must be released on bail 11. When I put a question to myself that why Judges of the Subordinate Courts are not exercising their powers under Secs. 437 and 439, Cr.P.C. , I am unable to even give answer to it. Either the Presiding Officers are afraid of something or they do not know the extent of their powers. The power to grant bail is conferred upon the Judicial Officers under the Act itself. 437 and 439, Cr.P.C. , I am unable to even give answer to it. Either the Presiding Officers are afraid of something or they do not know the extent of their powers. The power to grant bail is conferred upon the Judicial Officers under the Act itself. In a given case when the accused comes u/s. 439, Cr.P.C. the approach of the Judge should be to put a question to the prosecutor or the complainant that why the accused should be continued to remain in jail and in a case u/s. 438, Cr.P.C., the question should be put to the accused that why bail should be granted. Unfortunately, these days even in cases of petty offences the Judges start asking question to the Counsel for the accused that why bail should be granted. If that is an approach of the Judges, it is contrary to the basic fundamentals of Criminal Jurisprudence, the framers of the Constitution respected the personal liberty, resisted the apprehension and gave liberty to the individuals and citizens of this country. The personal liberty can certainly be cut in a legal manner and the legal manner must be an exercise of the power in a legal way. In a given case non-exercise of the powers may lead to bad result and may even shake the confidence of the public in the entire system. 12. Let me remind the Subordinate Judges that the judicial system assumes importance because the public at large repose their confidence in the system and hopes that every Judge though a human being would protect the innocent, won Id apply their independent mind to the facts of the case, would act honestly and would pass legal and honest orders. If confidence of the public is shaken in the system some way or the other, there would be a legal anarchy and no person would respect the persons holding the office of the Judge. I must also remind the Judges that personal bias and feelings have no role to play in decision making process. A judge who suffers under the hands of a pick-pocket would not be entitled to take revenge from all such persons who are brought before him with the said charge, either by rejecting their application for bail or convicting them, After all Judge has to act above board and impartially. 13. A judge who suffers under the hands of a pick-pocket would not be entitled to take revenge from all such persons who are brought before him with the said charge, either by rejecting their application for bail or convicting them, After all Judge has to act above board and impartially. 13. Taking into consideration the totality of the circumstances and the nature of the allegations so also the defence raised by the accused, I am of the considered opinion that the applicant deserves to be released on bail. 14. Accordingly, the petitioner, Shambhu Kumar Rao @ Shambhu Sah @ Shambhu Kumar is directed to be released on bail on furnishing bond of Rs. 5,000.00 (five thousand) with one surety of the like amount to the satisfaction of the S.DJ.M. Jamui in connection with Complaint Case No. 766C/2002. 15. Let a copy of this order be sent to the Sessions Judge who rejected the application so also to the Magistrate who did not pass an order of bail in favour of the applicant for being cautious in future.