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2009 DIGILAW 577 (PAT)

Salim @ Salimuddin v. State Of Bihar

2009-04-10

ABHIJIT SINHA

body2009
JUDGEMENT 1. On the basis of the fardbeyan of one Nurul Hoda, impleaded herein as O.P. No. 2, recorded at the Refral hospital, Barsoi, at about 11.30 a.m. on 13.5.2007 in respect of an occurrence which took place earlier that day at about 7 a.m., Barsoi P.S. Case No. 58 of 2007 was registered under Sections 307, 379, 324 and other allied sections of the Penal Code against (1) Aminuddin, (2) Jahiruddin, (3) Salim, (4) Mojahid, (5) Ahmad, (6) Mohammad, (7) Mohsin, (8) Nuruddin and (9) Md. Faiyak. Out of these accused Salim, Mojhahid, Mohammad, Mohsin @ Md. Mohsin Alam, Nuruddin and Md Faiyak surrendered before the learned Chief Judicial Magistrate, Katihar on 30.5.2007 and were enlarged on bail on that very day. The remaining three followed suit on 13.6.2007 and were also released on ball on that day. 2. Aggrieved by the said orders the informant approached the Sessions Court at Katihar vide Cr. Misc. No. 32 of 2007 and Cr Misc No. 34 of 2007 impugning the orders dated 30.5.2007 and 13.6.2007 respectively with a prayer for cancellation of the bail granted to the FIR named accused. The learned Sessions Judge, Katihar, by order dated 22.5.2007 after hearing the parties allowed both the cases and setting aside the orders of the learned Chief Judicial Magistrate, cancelled the bail granted to all the accused persons and directed the Court below to take steps for committing the said accused to custody. The rationality, reasonability and propriety of the aforesaid two orders of the learned Sessions Judge is sought to be questioned by means of the instant application. 3. Assailing the impugned orders the specific stand of the petitioners is that once bail is granted to the accused by a competent Court having jurisdiction after hearing the parties and on perusal of the materials available on the record and on the Court being satisfied that according to the injury report no offence under Section 307, IPC had been made out and the offence under Section 379, IPC had been super-imposed to make the case non-bailable, the Superior Court was not justified in cancelling the same unless it was shown that the accused was misusing the liberty or any supervening circumstances had rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail. According to the learned counsel for the petitioners, no such circumventing circumstances were germane or were shown to be existing so as to call for such drastic measure curtailing the liberty legally conferred upon the petitioners. 4. On the other hand the submission on behalf of the informantO.P. No. 2 is that the learned Chief Judicial Magistrate proceeded in a cavalier fashion and misused the discretion conferred upon him to pass his order on irrelevant grounds and ignoring relevant considerations. In this connection it was sought to be submitted that it would be apparent from the face of the order of the learned Chief Judicial Magistrate that he had passed the orders directing for the release of the petitioners on bail on the very day that they had surrendered in Court and that too without calling for the case diary or the injury report. The question, according to the learned counsel for O.P. No. 2, which would arise is how the Court could, in the absence of the case diary and the injury report, give a finding that the offence under Section 307, IPC had not been made out since the injuries were simple and the offence under Section 379, IPC was a super-imposed one. It was further submitted that no hard and fast rule can be laid down for cancellation of bail and it depends upon the existing situation. 5. No doubt, liberty of a citizen must be zealously safeguarded by the Court. In a situation the Court in the matter of grant of bail should keep in mind the interests of the accused, of the near and dear ones of the victim who feel helpless and believe that there is no justice in the world, as also the collective interests of the community so that the parties do not loose faith in the institution and indulge in private retribution. 6. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conductive to a fair trial to allow the accused to retain his freedom during the trial. 7. 6. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conductive to a fair trial to allow the accused to retain his freedom during the trial. 7. In order to judge the propriety of the order of the learned Magistrate granting bail it is clear that he passed such orders without perusing the case diary and the injury report since neither of them were called for and founded his reasons of an offence under Section 307, IPC not being made out and the offence under Section 379, IPC having been super-imposed apparently on extraneous considerations. 8. In the instant case, the allegation as made out in the FIR is that the accused persons variously armed with lathi, danda, sword and farsa in their hands came and objected to the informant fixing tati and they dragged the tati to their darwaza and abused and dragged the informant to their baithka and assaulted him. Thereafter they suddenly appeared near the tea stall of Chirag Alam where they were waiting from before for him and as soon as he came they started abusing him and when the informant raised alarm attracting the attention of his family members and no villagers who came rushing they resorted to assault causing injuries to various people some of which were grievous in nature. It is also worth noting that the learned Magistrate while passing the orders impugned gave a finding that the offence under Section 307, IPC had not been made out. Such findings ought not to be given at the time of granting bail. 9. Be that as it may since the orders granting bail to the petitioners were founded on extraneous matters without calling for or looking into the case diary and the injury reports specially when an offence traibale by the Court of Sessions is made out, the order of the learned Magistrate cannot be sustained in law and the learned Sessions Judge had in the circumstances acted with propriety in cancelling the bail. 10. In the circumstances I find no merit in this application which is accordingly dismissed. Application dismissed.