Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 687 (ORI)

KUNJALATA SAHOO v. STATE OF ORISSA

2002-10-28

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - Heard. 2. In this application u/s 439(2), Cr.P.C. petitioner has prayed for cancellation of bail granted in favour of opposite party No. 2 by learned Sessions Judge, Balasore in Criminal Misc. Case No. 424 of 1997. She has prayed for cancellation of bail precisely on the three following grounds ; (i) Petitioner mislead the Court below that he was a student of Law by the date of consideration of the bail application though in fact he was not a student by then; (ii) His prayer for bail u/s 439, Cr.P.C. being rejected on merit on 27.8.1997 by the Sessions Judge in Criminal Misc. Case No. 406 of 1997 in the absence of any changed circumstances he could not have been allowed to go on bail by the self-same Sessions Judge as per the impugned order dt. 26.9.1997 in Criminal Misc. Case No. 424 of 1997; and (iii) Opposite party No. 2 is giving threatening to the petitioner. 3. Opposite party No. 2 is the accused in G. R. Case No. 516 of 1997 of the Court of S.D.J.M., Balasore arising out of Balasore Town P.S. Case No. 113 of 1997. It is alleged in the FIR that with assurance of marriage accused allured the deceased and cohabited with her and made her pregnant. Because of that when the petitioner made an attempt for marriage between the two, the family members in the family of the accused turned down that request by demanding a dowry of rupees two lakhs. The deceased also made similar attempt but failed, it is alleged that the accused and his family members commented that deceased should commit suicide to get rid of the pre-marital pregnancy and because of that the deceased immolated herself after pouring kerosene. 4. Learned counsel for accused / opposite party No. 2 states that along with counter affidavit opposite party No. 2 has filed documents to show that he took admission in the Pre-law in the year 1996 and because of the incident he was not a regular student in the month of September, 1997 or for the academic session of the year 1997-98 but nonetheless he persued the law course and in the meantime he has obtained the Law Degree. That contention of the accused is not disputed by the petitioner. That contention of the accused is not disputed by the petitioner. Thus, this Court does not find it proper to cancel the bail on the above noted first ground. 5. So far as the second ground (as noted above) is concerned, this Court finds substance in the criticism which the petitioner makes against the order dated 26.9.1997 in Criminal Misc. Case No. 424 of 1997. It appears from that impugned order that learned Sessions Judge took into consideration merit of the allegations against the accused and the fact that he is a student of Law to allow the opposite party No. 2 to go on bail. Though ail such facts and circumstances were available by 27.8.1997 when the earlier bail application was rejected by learned Sessions Judge, this Court does not find any reasonable excuse for the learned Sessions Judge to adopt two different standards for appreciating the facts and contention while dealing with the bail applications on 27.8.1997 (Criminal Misc. Case No. 406 of 1997) and on 26.9.1997 (Criminal Misc. Case No. 424 of 1997). Judicial discretion vested in a Court is not to be used in such dictatorial fashion that people will cast aspertion on such orders, as it is being done by the petitioner in the present case. 6. Notwithstanding the aforesaid finding this Court finds that petitioner has not contributed anything on record to mislead learned Sessions Judge for such inconsistent approach. There is no legal bar for an accused to make successive application for bail, but such successive applications should be considered without applying double standard. In the event of changed circumstance such Court can consider the prayer for bail appropriately. For the failure of learned Sessions Judge to consider the bail application properly it cannot be regarded as a trick applied by opposite party No. 2 to secure an order of bail. Under such circumstance, the blame more goes to the learned Sessions Judge, than to the opposite party No. 2 for grant of bail in his favour. For the failure of learned Sessions Judge to consider the bail application properly it cannot be regarded as a trick applied by opposite party No. 2 to secure an order of bail. Under such circumstance, the blame more goes to the learned Sessions Judge, than to the opposite party No. 2 for grant of bail in his favour. The offence alleged against the opposite party No. 2 is u/s 306, IPC and order has been passed granting bail, thus the above noted second ground alone is not sufficient in this case to cancel the bail inasmuch as so far as ground No. (iii) is concerned, on record there is no document or evidence worth the name to substantiate the contention of the petitioner relating to presence of any misconduct of the opposite party No. 2 or any supervening circumstance. Save and except the aforesaid questionable conduct of learned Sessions Judge the order of bail cannot be termed as illegal. Apart from that, liberty which the petitioner has got having not proved to have been misutilised by him, therefore, that is another circumstance which this Court takes note of to not to accede to the prayer for cancellation of bail. Apart from that, to remove the apprehension which is with the petitioner appropriate terms and conditions can be fixed to which learned counsel for the opposite party has no objection. 7. Thus, while rejecting the application u/s 439(2), Cr.P.C. the opposite party No. 2 is directed to execute fresh bail bond in the Court below within three weeks stipulating all the conditions which have been imposed on him in the bail order dated 26.9.1997 besides the condition that he shall appear before the Officer-in-charge, Balasore Sadar P.S. once in every month, i.e. on the last date of the English Calendar month and that condition shall continue till conclusion of the trial. In the event of failure of the opposite party No. 2 to execute such fresh bail bond, the order of bail shall be treated as cancelled because of non-fulfilling the aforesaid direction and he be taken to custody immediately. In the event of failure of the opposite party No. 2 to execute such fresh bail bond, the order of bail shall be treated as cancelled because of non-fulfilling the aforesaid direction and he be taken to custody immediately. In the event he shall execute fresh bail bond in the manner indicated above, then the Officer-in-Charge of Sadar Police Station, Balasore shall keep a close watch on the activities on the opposite party No. 2 and in the event of finding him violating any terms and conditions of the bail bond, he shall immediately arrest and produce the opposite party No. 2 in the Court below and thereafter the Court below shall deal with the matter in accordance with law. The Criminal Misc. Case stands disposed of accordingly. Send back the LCR to the Court below immediately.