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2001 DIGILAW 306 (ORI)

MOHD. AZAD v. STATE OF ORISSA

2001-07-13

M.PAPANNA

body2001
JUDGMENT : M. Papanna, J. - This is an application seeking anticipatory bail by the Petitioner invoking the jurisdiction of this Court u/s 438, Code of Criminal Procedure 2. The sum and substance of the allegation made against the Petitioner is that he kidnapped the victim with a view to compelling her to marry him against her will. 3. A perusal of the F.I.R. and other connected papers available on record shows that there was love affair between the Petitioner and the victim. It is alleged that on the date of occurrence the victim together with her mother and brother were travelling in Hirakud Express from Angul to Delhi but on the way while her mother and brother fell asleep, the Petitioner who was also travelling in the same train kidnapped her. He took her to Cuttack and married her against her will by converting her to Muslim religion. It is also alleged that he had also sexual cohabitation with her during the period of her stay with him at different places. So the offences with which he is charged are under Sections 366/ 376, I.P.C. 4. The learned Advocate Shri B.S. Mishra is representing the Petitioner in this Case, One Miss, Sabitri Ratho is appearing for the informant whereas the learned Addl. Standing Counsel Sri Satyabrata Pradhan is representing for the State. 5. The learned Addl. Standing Counsel appearing for the State and Miss. Sabitri Ratho have vehimently opposed to grant anicipatory bail to, the Petitioner.. Their contentions are that the Petitioner enticed away the victim from the lawful custody of her legal guardian for which he is liable u/s 366, Indian Penal Code. That apart, taking advantage of the situation in which has was put, he had sexual intercourse with her for which he is liable u/s 376, Indian Penal Code. As stich, he is not entitled to be released on bail u/s 438, Code of Criminal Procedure, provisions of which are to be applied sparingly. On the other hand, it is argued on behalf of the Petitioner that the victim being major and a student of graduation class in Banarpal College was never enticed away by the Petitioner. As stich, he is not entitled to be released on bail u/s 438, Code of Criminal Procedure, provisions of which are to be applied sparingly. On the other hand, it is argued on behalf of the Petitioner that the victim being major and a student of graduation class in Banarpal College was never enticed away by the Petitioner. The allegations of kidnapping and rape as alleged by he prosecution in support of which it relies on her subsequent statement is a misnomer, particularly when it contradicts her earlier statement made on 31.5.2001 which indicates that she voluntarily (Scaped from the company of her mother and brother from the compartment of Hirakud Express train at Anupur station and at her instance, brother of the Petitioner came and took her to Cuttack through Sambalpur for the marriage between the Petitioner and herself in support of which a number of documents such as Annexures 2,3, 4, 6 and 7 have been filed on behalf of the Petitioner. 6. Therefore, taking into account all the above aspects and keeping in view the statement of the victim made on 31. 5.2001, I am of the considered opinion that this is a fit case where the Petitioner is entitled to the benefit of Section 438 Code of Criminal Procedure Accordingly, he is directed to be enlarged on bail of Rs. 10,000/- (Rupees ten thousand) with one local solvent surety for the like amount to the satisfaction of the officer effecting arrest in the event of his arrest in connection with Angul P.S. Case No. 107/2001 corresponding to G.R. Case No. 435/2001 pending before the learned S.D.J.M. Angul. It is further ordered that the Petitioner shall co-operate with the investigating authority during the investigation of this case by appearing before the O.I.C., Angul P.S. on every alternative day till submission of F.F. Further, it is ordered that the Petitioner shall not create any communal tension by trying to contact the victim in view of his alleged marriage with her in support of which he is in possession of certain documents. 7. The Criminal Misc. Case is disposed of. 8. Urgent certified copy of this order be granted on proper application.