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2002 DIGILAW 319 (ORI)

SUDAM SAHU v. STATE OF ORISSA

2002-05-17

C.R.PAL

body2002
JUDGMENT : C.R. Pal, J. - This is a petition u/s 439(2) Code of Criminal Procedure wherein the petitioner has prayed for cancellation of bail granted in favour of Opp. party No. 2 by the learned Asst. Sessions Judge, Baliguda by his order dated 30.10.1998 passed in Crl. Misc. Case No. 70/98 arising out of G.R. Case No. 81/98 corresponding to Sarang garh P.S. Case No. 15/98. 2. The facts of the case given rise to this petition are as follows: The Opp. party No. 2 Chandra Sekhar Sarangi was the headmaster of U.G.M.E. School, Gunjibadi in the district of Phulbani. While working as such, it is alleged, he committed rape on the minor daughter of the present petitioner who was a student of Class VII of the said school. When the petitioner came to know about the said incident he immediately lodged information at Sarang garh P.S. on 19.3.1998 on the basis of the which a case u/s 376 and 506. I.P.C. was registered. Despite registration of the case, it is alleged, the Opp. party No. 2 being an influential person was not arrested till 30.10.1998 on which date surrendering in the Court of S.D.J.M., Baliguda he moved for bail and being unsuccessful there moved the learned Asst. Sessions Judge who granted bail in his favour on the same day, i.e. 30.10 1998. Being aggrieved by the aforesaid order of bail the present petitioner moved the learned Sessions Judge, Phulbani in Crl. Misc. Case No. 192 of 1998 for cancellation of the bail granted in favour of Opp. party No. 2, but the same was rejected by the learned Sessions Judge Phulbani. Being aggrieved by the aforesaid orders of the learned Asst. Sessions Judge and the learned Sessions Judge, Phulbani the petitioner has filed this petition for cancellation of bail granted in favour of Opp. party No. 2. 3. The learned Counsel appearing for the petitioner contended that the bail granted by the learned Assistant Sessions Judge in favour of the petitioner in presence of the materials to implicate him with the alleged offences is highly illegal and improper. It is further contended that the learned Sessions Judge also failed to appreciate that the bail granted in favour of the Opp. party No. 2 by the learned Asst. It is further contended that the learned Sessions Judge also failed to appreciate that the bail granted in favour of the Opp. party No. 2 by the learned Asst. Sessions Judge amounts to improper exercise of jurisdiction and erroneously refused to cancel the same relying on the decision of the Apex Court reported in Aslam Babalal Desai Vs. State of Maharashtra wherein while enumerating the circumstances under which the bail granted in favour of an accused can be cancelled the apex Court has categorically observed that the circumstances mentioned therein are not exhaustive. The learned Counsel of the opposite party No. 2 however, supported the impugned orders and contended that in view of the inconsistencies in the prosecution version and the medical examination report of the victim girl which does not support the recent sexual intercourse, the order passed by the learned Asst. Sessions Judge granting bail and the order passed by the learned Sessions Judge refusing to cancel the same are just and proper. In connection with the above rival contention, it becomes necessary to refer to the decision cited above. In the aforesaid decision the apex -Court has laid down that the grounds for cancellation of bail u/s 437(5) and 439(2). Code of Criminal Procedure are identical, namely, bail granted u/s 437(1) of (2) or u/s 439(1) can be cancelled where: (i) the accused misuses his liberty by indulging in similar criminal activity. (ii) interferes with the course of investigation. (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to Anr. country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, and (vii) attempts to place himself beyond the reach of his surety etc. While enumerating the grounds under which bail can be cancelled the apex Court has also indicated that the above grounds are illustrative and not exhaustive. Similarly, in the case of Dolat Ram and Others Vs. State of Haryana, the apex Court while holding that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted, laid down certain grounds observing that they are illustrative and not exhaustive on which the bail can be cancelled. The aforesaid principle was later reiterated in Subhendu Mishra Vs. Subrat Kumar Mishra and Another. The aforesaid principle was later reiterated in Subhendu Mishra Vs. Subrat Kumar Mishra and Another. The grounds on which bail granted to an accused can be cancelled having been illustratively and not exhaustively laid down a question arises as to whether bail illegally and improperly granted in favour of an accused despite sufficient materials available on record which would have justified refusal of the prayer is liable to be cancelled. In the above context, reference can be made to a decision rendered by a Division Bench of this Court in Chhaila Pradhan and State of Orissa Vs. Bansidhar Pradhan and two Ors. and Bhagaban Pradhan and Others. In the said case after considering the principle laid down by the apex Court in Bhagirathsinh Judeja Vs. State of Gujarat, and the State (Delhi Administration) Vs. Sanjay Gandhi, and some other cases it is 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) Code of Criminal Procedure even if there is no additional or supervening circumstances against the accused. In State of Orissa v. Hara alias Harihar Behera and Anr. reported in (2000) 18 OCR 77, this Court also held that in a case where the Court failed to take note of the gravity of the offences as well as the materials implicating the accused in the incident and granted bail it cannot be said that the high Court in denuded of power to cancel the bail. If a view is taken that once bail is granted, the same cannot be cancelled unless the conditions as laid down in various judicial pronouncement are satisfied, then an illegal order passed by the Magistrate in a heinous offence cannot be cancelled either by the Sessions Court or High Court. Such a view has not sanction under Law. Superior Courts cannot helplessly approve the order of the Magistrate illegally admitting a person accused of a gruesome crime to bail. In the above circumstances, the order passed by the learned Sessions Judge refusing to cancel the bail cannot also be supported. 4. Such a view has not sanction under Law. Superior Courts cannot helplessly approve the order of the Magistrate illegally admitting a person accused of a gruesome crime to bail. In the above circumstances, the order passed by the learned Sessions Judge refusing to cancel the bail cannot also be supported. 4. It is the case of the petitioner that the opposite party No. 2 is an influential person which is apparent from the fact that though the F.I.R. was lodged on 19.3.98 he was not arrested by the local police and he surrendered before the learned S.D.J.M. Baliguda on 30.10.1998 according to the direction given by this Court while refusing his prayer for anticipatory bail. It appears from the statement of the daughter of the petitioner, the victim girl, recorded u/s 161, Code of Criminal Procedure on 19.3.1998 that she has implicated Opp. party No. 2 with the alleged offence of rape. It also appears that the statement of the victim girl was recorded u/s 164, Code of Criminal Procedure and the victim girl also implicated the opposite party No. 2 in her said statement. It appears that the learned Asst. Sessions Judge instead of looking into the material for a prima facie case has given undue importance to certain discrepancies and the medical report though the girl was medically examined long after the alleged incident. The daughter of the petitioner was a student-of the school where the opposite party No. 2 was the Headmaster. It appears that, taking advantage of his position, the opposite party No. 2 sexually exploited the girl under threat to award lesser marks in the examination and to see that she fails to come out successful therein. Considering the relationship between the opp. party No. 2 and the victim girl and the circumstances in which the alleged incident took place the learned Asst. Sessions Judge should not have granted bail to the opp. party No. 2 since in such cases the statement of the victim girl plays a major role m finding an accused guilty and the statements of the victim girl disclose a prima facie case against the opposite party No. 2. In view of the sworn statement of the victim girl, prima facie case u/s 376, I.P.C. can be said to have been made out against the opp. party No. 2. The offence alleged is also serious in nature. In view of the sworn statement of the victim girl, prima facie case u/s 376, I.P.C. can be said to have been made out against the opp. party No. 2. The offence alleged is also serious in nature. Therefore, the finding of the learned Asst. Sessions Judge to the contrary appears to be against the materials on record. 5. Under the above circumstances and keeping in view the gravity of the offence, it is deemed expedient to cancel the bail granted in favour of the opposite party No. 2. Accordingly, the impugned orders are set aside. The opposite party No. 2 be arrested and taken to custody immediately. The Criminal Misc. Case is allowed.