JUDGMENT : K.B. Panda, J. - This is a proceeding started suo motu by this Court in exercise of its re-visional jurisdiction under section 439 and inherent powers under section 561-A of the Criminal Procedure in the following context: Nandankanan in Puri district is a sanctuary-cum-Zoo maintained by the Orissa Government through its Forest Department. That attracts many visitors either for sightseeing, picnic holidaying. In it there are a few accommodation facilities also. In the past, there were some law and order problems for which an Outpost had to be put up near it. It was flashed in some local dailies towards the last week of April, 1972 that out of a couple, who had been there on 19-4-1972 and were staying in Lodging no. 4, at about 9.30 p.m. the husband was forcibly kept confined by three miscreants under threat to his life and his wife was ravished by them in turn and the miscreants had been enlarged on bail. To ascertain the truth of the publication, this Court directed calling for the records of Nandanakanan Rape Case, if any. The records were made available on 2-5-1972 and it was found that in fact it was the subject-matter of G.R. Case No. 618/1972 (Chandka P.S. Case No. 23 dated 20-4-1972) wherein (1) Khitish Chandra Paltasingh, (2) Suresh Chandra Sahoo and (3) Pratap Misra were accused under section 448/341/342/376, Indian Penal Code. The S.D.O, Bhubaneswar (Sri G. Bhatamisra) had released them on bail on 21-4-1972, when produced before him, overruling the protests of the Court Sub-Inspector, observing thus ; "I have taken into consideration the argument of both the C.S.I. and the advocates for the accused persons. I exercise my discretion under section 497, Criminal Procedure Code and enlarge the accused persons on bail for a sum of Rs. 5000/- each with two solvent and local sureties for a sum of Rs. 2500/- each for each of the accused persons with the condition that, all the three accused persons should appear in Chandka P.S. once in every week. The accused persons would be remanded to jail custody for default of any of the conditions specified above." 2. Be it stated that the Asst. 2500/- each for each of the accused persons with the condition that, all the three accused persons should appear in Chandka P.S. once in every week. The accused persons would be remanded to jail custody for default of any of the conditions specified above." 2. Be it stated that the Asst. Sub-Inspector Nandankanan O.P., who commenced investigation that very night (19-4-1972) took the statement of the victim lady at 11 p.m. at the spot (used as F.I.R.), seized the bloodstained SAYA (underwear) of the victim and some incriminating articles, such as, towel and bad-sheet having stains like semen (the story is that each of the accused changed their dress, used the same towel and raped the lady over a bed-sheet), arrested the accused persons who were concealing themselves in the nearby jungle after ravishing the lady and assaulting some of the forest staff who challenged their action, and reported to the S.D.O. through the C.S.I, (20-4-1972) that Test Identification parade would be held and till then the accused persons might not be released on bail and a date for the same might be fixed. The C.S.I. in his petition opposing bail (20-4-1972) stated inter alia that "....the accused persons after committing the offence escaped and concealed their presence in the adjoining jungle from where they were caught. It is also evident that some of the employees of Nandankanan went for the rescue of the victim lady were assaulted as learnt during investigation. There are eye-witnesses to the occurrence" Yet the S.D.O. granted bail on grounds as quoted above. 3. On 6-5-1972 the Court officer moved for cancellation of bail on the following grounds : "That in the meantime the statements of the victim lady and her husband have since been recorded under section 164, Criminal Procedure Code. The statements prima facie proved the offences alleged against the accused persons. The S.D.O. passed orders thus : "As I am proceeding to deal with law and order problem, put up on 10-5-1972 for consideration." On 10.5.1972 the S.D.O. rejected it observing thus : "In regard to granting of bail as per the provision under section 497, Criminal Procedure Code, I have already expressed my views in my order dated 21-4-1972 and the same need not be repeated here again. The main point for consideration in granting bail is whether on enlargement of the accused persons on bail, they will abscond or tamper with evidence against them in course of investigation. Since heavy bail and condition have been imposed I do not think the accused persons have any scope to abscond or tamper the evidence Bail has been granted to the accused persons on perusal of F.I.R. and other papers placed before this Court on the date of consideration. It may jeopardise the ends of justice if the contentions of the C.S.I. are accepted to revoke the bail on the ground that the statements recorded under section 164, Criminal Procedure Code reveal prima facie case against the accused persons under section 376, Indian Penal Code. Granting of bail cannot be subject to change from time to time on the evidence put forth by the prosecution....." On 8-5-1972 again the S.I. Chandaka P.S. reported to the S.D.O. through the C.S.I. thus : "......After their release these accused persons were to the village of the complainant and threatened the complainant of dire consequences of assault in case the complainant would come to Bhubaneswar to attend Court. The complainant and her husband did not venture to come to Bhubaneswar on 26-4-1972 as this date was fixed for recording of confessional statement. Lastly the complainant and her husband came on 30-4-1972 when I went personally to their place. The complainant and her husband being the people under Dharmasala P.S. In Cuttack district are apprehending serious trouble to come to Bhubaneswar. Since the case is under investigation and the accused persons are creating all sorts of troubles to spoil the evidence by not allowing the complainant and her husband to come to Chandka P.S. or Bhubaneswar Court, I request the bail bond of these accused persons may be cancelled " The C.S.I. on the basis of this report and attaching the same moved for cancellation of bail on 12-5-1972 as the accused persons were "actually trying to tamper the evidence and to hamper the progress of investigation". On this S.D.O. ordered thus "Seen the petition of C.S.I. dated 12-5-1972. On this S.D.O. ordered thus "Seen the petition of C.S.I. dated 12-5-1972. Put up for consideration on 17-5-1972." In the meantime on 15-5-1972 the letter of the Deputy Registrar, High Court, reached the S.D.O. On 17-5-1972 he rejected the petition of the C.S.I. dated 12-5-1972 mainly on the ground that the I.O. could have reported the matter earlier and so he having not done so it was suspicious ; that in the statements recorded under section 164, Criminal Procedure Code (which was recorded by another Magistrate on 1-5-1972, there was no such allegation of threat to the complainant or to her husband and that "the report of the I.O. is non-specific" 4. I perused the relevant case records including the order-sheet, F.I.R., 164 Criminal Procedure Code statements of the victim lady and her husband recorded on 1-5-1972 and the Case Diary that revealed immediate action by the A.S.I., Nandankanon O.P. The accused persons were almost caught red-handed by the forest staff. The accused persons were so bold and defiant that when challenged, they threatened the Chowkidar (Jagabandu Das), gave a blow to the Forester (Sridhar Khatwa) who bled from the nose and assaulted the sweeper (Kedar Naik). Being satisfied that the matter deserved a deeper a judicial probe, I directed issue of notice to the three accused persons to show cause why the bail granted to them be not cancelled and thus the matter is before this Court. 5. By the time the accused persons were first produced before the S.D.O. on 21-4-1972 the investigation had far advanced. The Sub-Inspector, Chandka P.S. closed the investigation on 20-4-1972 at 12 midnight and by then the victim lady had been examined by Nurse (Sakuntala Pandey) who had reported how the victim was bleeding from her private part, that there were seminal stains on her thighs, that she was carrying four months and that abortion was apprehended. The three accused were known to be students of Agricultural and Vetenary College and N.C.C. Cadets gone with their Commandant for training in horse-riding. Their defence was that they had been falsely implicated by the forest people while going to rescue the lady from molestation. At this stage I do not propose to refer to the further development in the investigation. Their defence was that they had been falsely implicated by the forest people while going to rescue the lady from molestation. At this stage I do not propose to refer to the further development in the investigation. If the S.D.O. would have been a little considerate, in a charge of successive rape by the three accused in most revolting circumstances, he should have called for the Case Diary before passing any order. But instead of doing that, without applying his mind to the gravity of the offence disclosed from the F.I.R. and the protests against granting of bail, he passed the order quoted above, as if he has the last say in the matter. So the sole point for consideration at this stage is if in the facts and circumstances of the case the order of the S.D.O. granting bail to the three accused on 21-4-1972 is just and proper which calls for no interference. 6. Advisedly I would not advert to what developed subsequently. Mr. B.M. Patnaik and others appeared for accused Pratap. Mr. T. Misra for accused Suresh and Mr. S.B. Nanda for accused Khitish who advanced quite elaborate arguments with citations, but all cantering round the point that this not being a case of murder where punishment may be a sentence of death, the tests applied for refusing bail are not to be strictly construed and that the investigation having far advanced and there being no apprehension of hampering the prosecution or tampering with evidence, the bail should not be cancelled at this stage and lapse of time. On behalf of each of the accused it was urged that the supervision note done by some higher police officers like Deputy Superintendent of Police should be called for to show how the alleged victim lady is just a "much married woman" and the alleged couple Batakriahna and Pramila are not really husband and wife. In view of the dear position of law that even a prostitute is entitled to the protection of law and apprehension of tampering the prosecution it not the sole consideration in deciding matters of granting or cancelling bail when there is a "prima facie" case of a crime punishable with death or imprisonment for life, as discussed hereafter, I am not much impressed with all that. 7. 7. The principles governing grant of bail under sections 496, 497 and 498 of the Criminal Procedure Code (here in after referred to as the Code) are well settled. Their Lordships of the Supreme Court in the case The State v. Capt. Jugjit Singh A I.R. 1962 S.C. 253, have observed that whenever an application for bail is made to the Court, the first question that has to be decided is whether the offence for which the accused is being prosecuted is bailable or non-bailable. If the offence is bailable, bail must be granted under section 496 of the Code without more ado, without going into any other question. But if the offence charged is non-bailable, section 497 applies and further considerations arise and the Court has to decide the question of grant of bail in the light of those further considerations. The various considerations which have to be taken into account when under section 497 the Court considers whether the person accused of a non-bailable offence should be granted or refused bail are- (a) the nature of the offence and its seriousness ; (b) the character of the evidence on which the prosecution case rests ; (c) the circumstances which are peculiar to the accused; (d) reasonable possibility of the presence of the accused at the trial not being scoured ; (e) reasonable apprehension of witnesses being tampered with if the accused is released on bail; (f) the larger Interests of the public and the State & (g) similar other considerations which arise in the case. Under section 498 of the Code even though the powers of the High Court in the matter of granting bail are very wide, if the offence is non-bailable, various considerations, as indicated above, have to be taken into account before bail is granted. The Supreme Court case was under sections 3 and 5 of the Indian Official Secrets Act against Capt. Jagjit Singh wherein the maximum sentence (section 5 non-bailable while section 3 bailable) is 14 years imprisonment and their Lordships interfered and cancelled the bail granted by the High Court on the ground that "there was no likelihood of the respondent absconding, he being well connected, and that the trial was likely to take considerable time". This completely effaces the various points raised in the lengthy arguments advanced on behalf of all the accused persons. This completely effaces the various points raised in the lengthy arguments advanced on behalf of all the accused persons. A Division Bench of this Court in the case of State of Orissa v. Damodar Pentia and another 1971 C.L.T. 629, has reiterated the same. In the instant case, the learned S.D.O. Bhubaneswar, having acted under section 497 of the Code, the view of this Court in the above case is quoted below : "Section 497, Criminal Procedure Code, prohibits a Court, inferior to High Court or a Court of Sessions, from releasing an accused, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life except in certain circumstances enumerated in the Proviso to Sub-section (1) of the section. This prohibition has a nexus with the seriousness of the offence, and though it does not fetter the exercise of discretion in this regard by the High Court to the Sessions Court, is, nevertheless, an element of outstanding importance for consideration along with the other considerations enumerated above, before a decision is taken in this matter. We are in agreement with the view expressed by the Special Bench of the Allahabad High Court in the case of K.N. Jogelkar v. Emperor AIR 1931 Allahabad 504, that there is no foundation for the doctrine that the normal rule is to enlarge accused persons on bail while refusal to grant bail is an exception, if this dictum implies the idea that there is a right to bail until it is defeated by showing of exceptional circumstances by the prosecution. The Legislature has classified offences for purpose of bail into bailable and non-bailable offence, some are punishable with either death or imprisonment for life. Right of bail has been accorded to the accused only in bailable offences. In cases of non-bailable offences, Courts subordinate to High Court and Sessions Courts have been prohibited to grant bail in cases where there are reasonable grounds for believing that offences punishable with death or imprisonment for life have been committed. X X X X This usual practise of refusing bail, however, may be departed from on grounds enumerated in section 497(1) Proviso, which again is discretionary. X X X X This usual practise of refusing bail, however, may be departed from on grounds enumerated in section 497(1) Proviso, which again is discretionary. In exercising that discretion, the Court should not automatically act by granting bail on finding that any of the grounds mentioned in the Proviso exist, but must further take into account other relevant consideration aforementioned alongside it. The departure from the usual practise, which must be few and far between, can be made only when impelled by very strong and cogent reasons reached after all relevant considerations. In judging whether there were reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life, the Court is entitled to consider the evidence in course of police investigation. Whether there is prima facie evidence of commission of an offence punishable with death or Imprisonment for life, even though the accused may have a possible defence, it has to be left to be decided by the appropriate forum at the appropriate stage, and should not enter into determination of the question of bail." 8. In the instant case, the charge being one of rape punishable with imprisonment for life or 10 years imprisonment, the statutory bar under section 497 operates if reasonable ground for believing the charge exists. Further under Sub-section (3) of section 497, Criminal Procedure Code an officer or a Court releasing any person on bail under Sub-section (2) shall record in writing his or its reasons for so doing. The question, therefore, now is whether the order "I exercise my discretion under section 497, Criminal Procedure Code and enlarge the accused persons on bail" is in conformity with the above statutory direction under section 497 (3). Mere mention of the word "discretion" is no compliance of the provisions of the statute. Even when the Sessions Courts or the High Courts grant bail in heinous charged entailing punishment of death or imprisonment for life, they are to utilise their discretion judicially and pass reasoned orders. Mere mention of the word "discretion" is no compliance of the provisions of the statute. Even when the Sessions Courts or the High Courts grant bail in heinous charged entailing punishment of death or imprisonment for life, they are to utilise their discretion judicially and pass reasoned orders. Further mere imposing excessive bail-bond is not a primary consideration ; but the application of the mind, of course on materials then available, whether reasonable grounds are there for believing that the accused persons are guilty of offences punishable, it was the incumbent duty of the learned S.D.O. to have given reasons as to why he did not believe that there were reasonable grounds for the accused persons to have committed the alleged offence. The subsequent order refusing cancellation of bail is equally vulnerable. 9. To say the least, the learned S.D.O. has completely gone out of his way in granting bail. Neither he weighed the facts before him nor had in his view the principles of law to govern such cases. Since the matter is sub-judice, I ought not to express my view which might ultimately be prejudicial to any party. But for the purpose of passing a reasoned order I am compelled to say that the prosecution case as revealed in the F.I.R. looks extremely convincing. A married lady brought a charge of being ravished by three unknown persons successively while the husband was kept confined a little distance away under threat. Barring the materials in the Case Diary, the statements recorded under section 164, Criminal Procedure Code are eloquent. She stated, to have aborted on 24-4-1972. That was apprehension of the nurse who examined her soon after the alleged rape. The nurse also found that her (victim's) underwear had been drenched with blood. The victim soon after the occurrence narrated her story of shame to the forest people and the police. No family woman would, for nothing, bring upon her the stigma of a criminal assault which would ruin her married life and future career. Law is dear that even on the uncorroborated testimony of a prosecutrix, if believed, a conviction can lie. Prosecution story even as revealed from the F.I.R. has a ring of truth about it to which one cannot shut his eyes at this stage as the learned S.D.O has done. Law is dear that even on the uncorroborated testimony of a prosecutrix, if believed, a conviction can lie. Prosecution story even as revealed from the F.I.R. has a ring of truth about it to which one cannot shut his eyes at this stage as the learned S.D.O has done. On the materials indicated by me a reasonable chance of conviction of the accused persons under section 376, Indian Penal Code cannot be ruled out. On such a conviction the sentence may even go to the extent of imprisonment for life in view of the atrocious manner in which the accused persons, one after the other, in a shameless and cruel manner, committed rape and flouted law and order by assaulting the people of the Forest Department who come to the rescue of the victim. Accordingly, I quash the order of the S.D.O. dated 21-4-1972 granting bail to the three accused and under section 497(5) of the Code direct that they be re-arrested and remanded to jail custody unless the bailors produce them within 12 hours of the passing of this order which is made known to the lawyers of the accused persons. 10. The order of the learned S.D.O. exhibits his utter disregard for law and extra-judicial enthusiasm to see that the offenders are not brought to book. It redounds no credit to him who is initially responsible for removing impediments for a proper prosecution till the case comes to the appropriate Court of trial, to ignore the principles laid down on State v. Capt. Jugjit Singh AIR 1962 S.C. 253 , and a Division Bench decision of this Court reported in State of Orissa v. Damodar Pentia and another 1971 C.L.T. 269, already inferred to by me. He has no legal insight and experience to exercise the powers of a Magistrate 1st class. Government will be well advised to with draw 1st class magisterial powers from this officer. 11. A copy of this order be sent to the Secretary, Home Department of Orissa.