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2009 DIGILAW 826 (ORI)

Rupa Santa v. State of Orissa

2009-10-27

L.K.MISHRA

body2009
ORDER 27.10.2009 — The petitioners are accused persons in G.R. Case No.296 of 2009 pending in the Court of learned S.D.J.M., Jeypore involving offence under Sections 379 of the I.P.C. 2. Heard learned counsel from both sides on the question of bail. Perused the certified copy of the F.I.R. and the order of the learned Court below by which he rejected the bail applica¬tion of the petitioners. 3. Bail is prayed for on the ground that the stolen arti¬cles have been recovered, the case is triable by a Magistrate and petitioners are in jail for more than 5 months. 4. Order of the learned Court below dated 15.07.2009 passed in B.A. No.332 of 2009 is quoted in extenso : “15.07.2009 This is a petition under Section 439 of the Cr.P.C. filed by the accused persons for bail in G.R. Case No.296/09 on the file of the S.D.J.M., Jeypore. 2. Petitioners allegedly committed offence under Section 379 I.P.C. 3. Heard, Solar Light-set set up in the temple of Sri Sri Sri Gupteswar has been taken away and recovered from the house of petitioner No.1. Statement of the other petitioner and statements of witnesses clearly show involvement of these petitioners. Devotees in large number everyday gather at the temple to have darshan. Many stay in night and for that purpose light arrange¬ment has been made. Removal of the light set from Deity’s place shows that the petitioners are non-believers of Deity and are atheists. They should have repentance and penitence for the act done and should not have rushed for filing this application. Prolonged custody is required to instill a sense of devotion for the Deity and hence the petition is rejected. (Dictated) Sd/- Sessions Judge; Koraput, Jeypore,15.07.09" 5. When the offence is bailable, under Section 436 of the Cr.P.C., the accused is entitled to bail as a matter of right. But if the offence is not bailable further considerations arise and the Court has to decide to grant bail or not to grant bail in the light of those. Further considerations are nature and seri¬ousness of the offence, the strength of evidence, the circum¬stances which are peculiar to the accused, the chance of the accused absconding, the chance of the accused tampering with the prosecution evidence and the interest of the public at large and such similar other factors. Further considerations are nature and seri¬ousness of the offence, the strength of evidence, the circum¬stances which are peculiar to the accused, the chance of the accused absconding, the chance of the accused tampering with the prosecution evidence and the interest of the public at large and such similar other factors. There is no hard and fast rule re¬garding grant or refusal of bail which has to be decided on its own merit. The matter for bail is largely a matter of discretion but such discretion has to be exercised not arbitrarily but judi¬ciously on the basis of norms which by now have become fairly established. Grant or refusal of bail is not dependant on the whim and caprice of the Court and extra judicial consideration do not play a role in such a decision. 6. The above order passed by the learned Sessions Judge reveals that the petitioners were refused bail because they are not believers of Deity and are atheists. It was prescribed for them that they should have “repentance and penitence for the act done” instead of rushing to seek bail and further that “prolonged custody was required to instill a sense of devotion. 7. To say the least, the order is perverse. The Court does not have any right to refuse bail to the accused persons in order to make them believers if they are atheist by temperament. This is a case of simple theft and to interpret it as an act against the particular religion and prescribing correctional course by way of refusal of bail is a dangerous trend. The order thus has been passed not on judicial consideration and is thus illegal. 8. Bail is prayed for on the ground that the stolen arti¬cles have been recovered. The offence is triable by Magistrate and the petitioners are in jail for more than five months by now. Considering the nature of the case, I feel inclined to grant bail to the petitioners. 9. Let the petitioners be released on bail of Rs.10,000/- (rupees ten thousand) each with one solvent surety each for the like amount to the satisfaction of the learned S.D.J.M., Jeypore in the aforesaid case. The BLAPL is disposed of accordingly. BLAPL disposed of.