Sk. Imam vs State of Orissa and Another

P.K. Tripathy, J.—In this application u/s 439(2) of the Code of Criminal Procedure, 1973 (in short, ''the Code'') petitioner who is the informant in G.R. Case No. 1247 of 1996 has prayed to cancel the bail order inter alia alleging that in Criminal Misc. Case No. 192 of 1997 u/s 439 of the Code, learned Sessions Judge in-charge, Balasore allowed the bail application of the opposite parties by ignoring the relevant facts and materials and by illegal and improper exercise of the jurisdiction vested in him.

Relevant facts required to be noted here are as follows :

On 20.10.1996, a written report was lodged by the petitioner and one Mir Samser Ali alleging kidnapping of the Fatima Ali, minor daughter of the petitioner and Sanifanesa, minor sister of the other informant since 16.10.1996. On that report Balasore Town P.S. Case No. 291 of 1996 under sections 363/366/34, IPC was registered. When the missing girls were not recovered, Mir Hussain Ali, another brother of Sarifanesa filed O.J.C. No. 12770 of 1996 against the State Law Enforcing Agency and the present opposite party No. 2 (as opp. party No. 5) with the prayer to issue a writ of habeas-corpus. That writ application is still subjudice. In April, 1997 opposite party No. 2 and Fatima Ali appeared in the Court of S.D.J.M., Balasore. Fatima was left in the custody of the petitioner. Prayer for bail of the opposite party No. 2 was rejected and he was remanded to custody. On 3.5.1997 u/s 439 of the Code in the Court of Session and though the matter was ready for hearing from 8.5.1997 till 3.6.1997 petitioner went on applying for adjournment for five times on the grounds of non-availability of up-to-date case diary and statement of Fatima u/s 164 of the Code and praying to call for the same. On 12.6.1997, in the absence of the Sessions Judge, the bail application was moved before the Sessions Judge in-charge, who allowed the bail application though the up-to-date case diary or the statement u/s 164 of the Code of the victim were not available and it was not insisted upon by opposite party No. 2.

At the time of hearing, the Public Prosecutor opposed the bail petition and stated about existence of aprima facie case u/s 366 and other offences and also offence u/s 376, IPC. He also argued that the kidnapped girl was aged about 16 years and her consent, if any, is of no consideration at the stage of hearing bail petition. He further requested for recording of Fatima''s statement u/s 164 of the Code. Learned Sessions Judge in-charge without paying any heed to that contention accepted the contention of the opp. party No. 2 that the victim being a Muslim girl aged about 15 years and having the capacity to marry without the consent or approval of her parents allowed the bail petition. Accordingly, he passed the impugned order directing for release of the opposite party No. 2 on furnishing bail bond for Rs. 10,000/- with one surety.

Miss. S. Ratho, learned counsel appearing for the petitioner argued that there has been misuse of the discretion and abuse of the process of law by the learned Sessions Judge in-charge in not taking into consideration the materials in record and relevant factors. Her contention is that keeping in view nature and gravity of the offence and the manner in which it was committed, learned lower Court should have rejected the bail petition. Mr. Dilip Mishra, learned counsel for the opposite parties, on the other hand, argued that several conducts of Fatima including the affidavit and the vakalatnama she filed, go to show that she voluntarily accompanied the opposite party No. 2. He further argued that the factors which were considered by the learned Sessions Judge in-charge were neither irrelevant nor improper and that after being released on bail since June, 1997 he has not misused the liberty granted to him, hence prayer for cancellation of bail be rejected.

Law is well settled that while considering a bail application a Court is required to assess the facts and circumstances to find out if a prima facie case is made out, nature and gravity of the offence, manner in which the crime was allegedly committed, antecedents of the accused i.e. to say if he has a criminal record or whether there is chance of repeating the offence or committing more crime, securing attendance of the accused at the time of trial, chances of abusing the liberty and hampering in proper investigation or fair trial and such other matters of the like nature. A division bench of this Court in the case of Chhaila Pradhan and State of Orissa Vs. Bansidhar Pradhan and two Ors. and Bhagaban Pradhan and Others, has taken a similar view.

In the above case, the division bench has also held that :

"bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court u/s 439(2) of the Code, even if there be no additional circumstances against an accused appearing in the record after the grant of bail

(from paragraph 15).

In a recent case i.e. in the case of State of Orissa Vs. Bipin Behera, , similar view has been taken by this Court.

Keeping in view the above noted settled position of law, if the impugned order will be analysed then, it appears that the bail petitioner was allowed on the grounds that :-

(i) a Muslim girl above 15 years of age can marry without the consent of her parents or guardian;

(ii) statement u/s 164 of the Code was not recorded after she appeared before the S.D.J.M. and

(iii) the girl had gone voluntarily.

It may be noted that the aforesaid conclusion was only on the basis of argument advanced by the Advocate for the opposite party (i.e. the accused) and not on the basis of assessment of materials available in the case diary.

In this case the Sessions Judge in-charge completely ignoring the ingredients of the offence under Sections 363 and 366 and without perusing the L.C.R. and up-to-date case diary to find out if a prima facie case u/s 376, IPC is existing and without taking into consideration the nature and gravity of offence the punishment prescribed and the manner in which it was committed, passed the impugned order of bail on extraneous consideration. Marriage according to the Muslim law is a civil contract whereas abducting or kidnapping a minor girl is an offence which is punishable under the Indian Penal Code. There may or may not be any nexus between the two and everything depends upon the facts and circumstances of each case but so far as the impugned order is concerned, it was considered without due application of mind and without considering the situation existing in the record. After being released on bail, petitioner might not have abused the liberty, but that may not always be a ground to condone his past criminal mis-conduct which may not entail him in getting order for bail. Under such circumstances, in exercise of the power u/s 439(2) this Court cancels the bail order granted in favour of the opposite party No. 2 vide the impugned order.

Accordingly, the opposite party No. 2 is to surrender in the Court of S.D.J.M., Balasore in the aforesaid G.R. case within 15 days hence. Since the bail is cancelled only for the reason of improper assessment of facts and material in record and wrong application of law, therefore, petitioner may not be debarred to move for bail afresh. Hence, if he surrenders in the Court below as per the aforesaid direction and applies for bail in the Court of Sessions Judge, the bail application may be disposed of in accordance with law during the course of the day after giving opportunity of hearing to both the parties. If the petitioner will fail to surrender within the time stipulated, then this direction may be treated as non-est and coercive steps be taken to get the petitioner into custody and sureties be directed to produce the accused.

The Criminal Misc. Case is accordingly allowed.