State of Orissa vs Ramahari Padhi

H.L. Agrawal, C.J.—A proceeding has been started, against the opposite party Ramahari Padhi for cancellation of his bail allowed by the Sub-Divisional Judicial Magistrate, Bhubaneswar, by his order dated 30-1-1988 passed in G. R. Case No: 227 of 1988. The relevant facts may be briefly stated:

According to the first information report, registered in the Badagada Police-station, Bhubaneswar on 28.1-1988 under the directions of the Superintendent of Police, Bhubaneswar, the accused-opposite party Ramahari Padhi wrongfully confined the victim girl Saraswati Dei,and committed rape on her on the verandah of Badagada police-station in the night of 3-12-1987.

Undisputedly, the accused was the Inspector-in-charge of Badagada Police-station in the month of December, 1987. According to the allegation of the prosecutrix, she had come to Bhubaneswar with one Gobinda Sahu for appearing at the Matriculation examination from her village and was staying in the house of one Krushna Behera at Dadhiakhal under Badagada police-station. It has been alleged that the accused brought Gobinda to the police-station on 2-12-1987 and lodged him in the police lock-up till 4-12-1987 without making any entry anywhere. While Gobinda was thus confined in the hazat, in the night of 3-12-1987 the accused-Inspector of Police went to the house of Krushna Behera on his scooter and brought the victim girl to the police-station with him. She has made the following allegations in the first information report:

Krushna Behera had asked her to obey the Inspector (Bada Babu). On reaching the police-station, he called her and took her near the boundary wall.

There he undressed himself and kept all his wearing apparels near the motor-cycle. He then forcibly made her sleep on the verandah and untied her legs on his thighs and squeezed her breasts. Then he forcibly pressed her down and committed "ATYACHAR" on her. At that time she was crying, but was threatened not to shout. After about 30 minutes she was let free and handed over to Krushna Behera to take her away and again bring her to his (accused) house the next day at 11 ''0'' clock.

On these allegations in the first information report which was submitted by the victim girl to the Deputy Superintendent of Police. Bhubaneswar, the Deputy Superintendent had directed for recording a case u/s 376/342 I.P.C. against the accused-Inspector Ramahari Padhi and accordingly a case was registered. In the forwarding letter to the Sub-Divisional Judicial Magistrate, the Deputy Superintendent of Police has also stated that the case u/s 376 I.P.C. was made out against the accused.

On 3-1-1988, the accused was produced in the Court of the Sub-Divisional Judicial Magistrate on being arrested by the Sub-Inspector of Police. Bhubaneswar Police Station. The Magistrate ordered for remand of the accused to jail custody till 12-2-1988 directing the Investigating Officer to submit the final form by that date. However on the same day, an application for bail was filed on behalf of the accused which was heard for forthwith and the accused was granted bait The Magister fit his order has given the following reasons for granting the bail:

(1) The matter was not reported for a long time no explanation has been given for the delay.

(2) " Nowhere within the four corners of the F.I.R. she has specifically alleged that the accused committed rape on her. The police has also not examined the victim girl in this case to find out whether she has been actually raped or not. Therefore, at this stage there is rib material before me that the accused had sexual intercourse with the victim girl. xx xx xx The acts as narrated in the F. I. R. clearly indicate a case of outraging modesty, but not rape. xx xx xx an offence u/s 354, Indian Penal Code which is bailable: in nature.

The case diary was produced before me on behalf of the State for showing the statements of the first information (prosecutrix) recorded u/s 161, Criminal Procedure Code. But Shri Ranjit Mohanty, learned Advocate for the accused, on reference to the case of State (Delhi Administration) Vs. Sanjay Gandhi, , submitted that since the new material, i.e., the statement of the first informant (prosecutrix), was not in existence at the time of the order of bail and the Court below could, not utilise the same against his client, this material may not be utilised by this Court, I, however, do not find it necessary to consider the merit of this submission of Shri Mohanty as in my considered opinion, the Sub-Divisional Judicial Magistrate has wholly misdirected himself in taking the view that the allegations made in the F. I. R. did not make out a case of rape and that it only made out a case of outraging the modesty of the victim girl. The sequence of events and the overt acts alleged against the accused and the context in which the expression "Atyachar" has been used are only a positive pointer to the act of rape alleged to have been committed by the accused. The offence of rape, apart from being reprehensible in itself is made all the more condemnable in view of the circumstances in which it is alleged to have been committed and by an Inspector of Police.

Being conscious of the limitations of the Court while considering the question of cancellation of bail and examining the peculiar facts and circumstances of this case where the Sub-Divisional Judicial Magistrate has committed a .serious lapse of his judicial discretion by landing himself in an apparent error of fact and law, I think this is a fit case where this Court should interfere to cancel the bail which has been illegally and improperly granted giving rise to miscarriage of justice.

I therefore in exercise of, the suo motu power of this Court allow the revision and set aside the order dated 30-1-1988 granting bail to the accused in G. R. Case No. 227 of 1988. As a result, the bail bond furnished by the accused is cancelled who must now surrender forthwith. If he does not surrender the Sub-Divisional Judicial Magistrate will take appropriate steps for apprehending him in accordance with the provisions of law.