Sri Pitambar Swain vs Ainthu alias Ashok kumar Sahu and Another

K.P. Mohapatra, J.—This is a petition by the informant, brother of deceased Satyabhama for cancellation of bail of opposite party No. 1 granted by the learned Additional Sessions Judge, Jajpur in the impugned order dated 30.4.1988.

Facts in brief are as follows: Satyabhama was married to opposite party No. 1 in the year 1983. At the time of the marriage she was sent to the matrimonial home with sufficient dowry, but her parents-in-law, as well as her husband (opposite party No. 1), were not satisfied and out of greed demand more and in order to put pressure tortured the deceased by merciless assault. Despite the fact that she gave birth to a son and a daughter, the assault persisted. On 4.4.1988 late at night opposite party No. 1 took the deceased by a rickshaw to Jenapur Subsidiary Health Centre, where the Medical Officer on examination declared that she was already dead. The Medical Officer suspected foul play and insisted for post-mortem examination of the dead body, but opposite party No. 1 forcibly removed the dead body and cremated the same in the Sari on the back side of his house by pouring kerosene arid diesel on the pyre, Neither any information was sent to the police, nor were the parents of the deceased informed of the death. On 5.4.1988 at about 2.00 P.M., the informant learnt of the death and came to the house of opposite party No. 1, but found him absent. The mother of opposite party No. 1 told him that Satyabhama died and was cremated in the Bari. She could not say about whereabouts of opposite party No. 1. The informant suspected foul play and lodged first information report at Dharmasala Police Station. The police at once took up investigation and while the case was still under investigation a fortnight after bail was moved and granted.

The learned Additional Sessions Judge observed in the impugned order that except the first information report and the statement of the informant, there was nothing to show that the deceased was subjected to cruelty on account of dowry. The witness examined did not implicate him in the commission of any offence. He, therefore, held that for lack of incriminating materials bail could not be refused to opposite party No. 1.

Mr. Aziz, learned Counsel appearing for the Petitioner, strenuously urged that the police case diary reveals suspicious circumstances, as well as incriminating materials, against opposite party No. 1. Therefore, soon after his apprehension and remand, bail should not have been granted in a case of dowry death or murder. Thereby, here was interference with investigation of the case and true facts did not come out, because opposite party No. 1 was at large. According to him, bail was granted to him illegally and on that ground, bail is liable to be cancelled. In view of the contentions raised, it is necessary to scrutinise the police case diary produced by the learned Additional Government Advocate in order to find out whether here was suspicious and incriminating materials against opposite party No. 1.

The first information report and the statement of the Petitioner reveal the prosecution case stated earlier. They focus three things, namely, the deceased was being pressurised and tortured for dowry the death was sudden and the dead body was remated in the Bari of opposite party No. 1 without any intimation being sent to the parents of'' the deceased. A letter dated 24.7.1985 written almost two years after marriage by the deceased to her brother shows that she was regularly subjected to abuse and assault. One Pitabas Mallik, a rickshaw puller stated that opposite party No 1 called him at night at about 3.00 a.m. to carry a serious patient to the hospital. So, he went to the house of opposite party No. 1 and brought his wife in his rickshaw to Jenapur Subsidiary Health Centre. Again he brought back her to his house. Dr. Arun Kumar Biswal of Jenapur Subsidiary Health Centre stated that he knew opposite party No. 1 and examined his wife at about 4.30 a.m. of 5.4.1988 and found her dead. Even then he gave her decandrian injection. Smell of kerosene was coming out from the dead body. Opposite party No. 1 told him that the deceased had swallowed poison. The Medical Officer told him that the police had to be informed and post mortem of the dead body had to be performed. But opposite party No. 1 by force took away the dead body. He sent information to Jenapur Out-post at 8.00 a.m. but none received the report. Only on 7.4.1988 the report was accepted. Several neighbouring women stated that early in the morning on 5.4.1988 when they got up, they saw that a pyre was burning in the Bari of opposite party No. 1 and he was himself present near the pyre. Later they came to know that the wife of opposite party No. 1 had died and he had cremated the dead body in his own Bari.

These materials indicate the following:

(i) The deceased was tortured in the matrimonial home and assaulted by opposite party No. 1;

(ii) Her death was sudden;

(iii) The Medical Officer found that smell of kerosene was coming out from the dead body;

(iv) Despite the medical officer telling opposite party No. 1 that the police had to be informed and post mortem examination of the dead body had to be performed, opposite party No. 1 by force removed the dead body;

(v) The parents and brothers of the deceased and other villagers were not intimated about the death;

(vi) Instead of cremating the dead body in the village cremation ground, unusually the dead body was cremated by opposite party No. 1 in his own Sari; and

(vii) After the death of his wife, opposite party No. 1 was not found in his house.

The above factors were very much available to the learned Additional Sessions Judge when he considered the bail petition. Normally all of them were so suspicious that involvement of opposite party No. 1 in the unusual death of his wife could not be ruled out. Yet after his arrest on 14.4.1988 the learned Additional Sessions Judge, In his view, committed serious impropriety and illegality in granting bail by the impugned order dated 30.4.1988. It would not, therefore, be wrong to infer that investigation was hampered midway.

It is settled law that bail granted to the accused can be cancelled in two ways, such as if it was granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion, and if the accused abuses his freedom by violating the conditions imposed in the bail order or tampers with the prosecution evidence or commits such illegal or criminal acts which would make his freedom undesirable. See Chhaila Pradhan and State of Orissa Vs. Bansidhar Pradhan and two Ors. and Bhagaban Pradhan and Others, and (1988) 1 O.C.R. 90, Moti Sahu v. Pradipta Kumar Mohanty and Ors. In the present case, as already indicated, bail was granted to opposite party No. 1 illegally by wrong exercise of judicial discretion. Therefore, this is a fit case in which bail is liable to be cancelled.

At the hearing; a question arose as to whether in view of the provision of Section 167(2)(a)(i), Code of Criminal Procedure, any useful purpose will be served for cancellation of bail, because soon after re-arrest, opposite party No. 1 shall have to be released on bail as charge-sheet has not so far been submitted although ninety days have expired since his first remand to custody. It is a fact that he was arrested on 14.4.1988 and was produced before the learned Sub-Divisional Judicial Magistrate, Jajpur, on 15.4.1988 when he was remanded to custody investigation is incomplete as disclosed by the police case diary which was sent to the office of the Advocate General for use in this case. As a result, charge-sheet or final report has not bean submitted in the Court Mr. Aziz urged that if this Court will arrive at the conclusion that bail was illegally granted by wrong and arbitrary exercise of judicial discretion and would be inclined to cancel bail, then availability of remedy u/s 167(2)(a)(i), Code of Criminal Procedure to opposite party No. 1 shall have no consequence In support of his contention, he cited (1988) 1 OCR 311 : 66 (1988) C.L.T. 198, State of Orissa v. Ramahari Padhi in which the accused in a case u/s 376 I.P.C. was released on bail on 30.1.1988 and although charge-sheet had not yet been submitted, this Court cancelled bail on 4.5.1988. Mr. Panda, learned Counsel not only urged that opposite party No 1 would immediately be entitled to be released on bail by operation of the provision of Section 167(2)(a)(i), Code of Criminal Procedure, in case bail is cancelled, but also distinguished the decision of the State of Orissa v. Ramahari Padhi (supra) by saying that this point did not arise for consideration in that case. It is correct to say that by operation of law, opposite party No. 1 will be entitled to be released on bail, because of non-submission of charge-sheet within ninety days of the date of remand. Nevertheless, once it is found that bail was granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion, the order cannot be allowed to operate because of availability of some other legal remedy. An illegal order is bound to be vacated and if by operation of the provision of Section 167(2)(a)(i), Code of Criminal Procedure, opposite party No. 1 will be entitled to bail, he may avail of the opportunity. After careful consideration of all the aspects of the case, I form the opinion that irrespective of the consequences that may follow by operation of law, bail granted illegally to opposite party No. 1 should be cancelled.

Before parting with the case, I would like to observe that special attention should be paid to the further investigation of the case so as to unravel the reasons and circumstances under which the death of a young mother occurred. The Director General of Police should, therefore, hand over the case for further investigation to the Officer of the Crime Branch. Proper investigation will pick up the culprits, if any, or will clear opposite party No. 1 of suspicion.

For the reasons stated above, the Criminal Miscellaneous Case is allowed and bail granted to opposite party No. 1 is hereby cancelled.