@JUDGMENTTAG-ORDER
P.K. Tripathy, J.@mdashHeard.
2. This is an application u/s 439(2) of the Criminal Procedure Code, 1973 filed by the informant in G.R. Case No. 1719 of 1997 of the Court of S.D.J.M., Bhubaneswar. The alleged offences are under Sections 498A, 304B/34, Indian Penal Code read with Section 4 of the Dowry Prohibition Act. It is alleged by the prosecution that though marriage of the deceased Sasmita was performed with opposite party No. 1 in June, 1993, but there was constant ill-treatment and cruelty on her not only by the in-laws (co-accused persons), but also by opposite party No. 1, her husband. On the date of occurrence the deceased was found dead and the post-mortem report reveals that there were external injuries like abrasion on the left ear, right knee, right elbow and there was interputed ligature mark of the size of 1 /5" to 1 /4" broad above the thyroid and on the left side from the left angle of mandible and the length was 1 1/2". Besides that there was bruise appearing irregularly in an area of 3" x 3" on the left side neck. The Doctor who conducted the post-mortem examination gave his opinion that all the aforesaid injuries were ante- mortem and the death was due to pressure from ligature on neck. During the course of investigation opposite party No. 1 and his parents and brothers etc. the co- accused persons were arrested.
3. On 28.6.1997 opposite party No. 1 alongwith his father and brother applied for bail in the Court of Sessions at Bhubaneswar vide Criminal Misc. Case No. 130/ 97 and learned 2nd Addl. Sessions Judge receiving the same on transfer (Criminal Misc. Case No. 17/130 of 1997), on 28.6.1997 perused the record, the document so far collected by the Investigating Agency and considering the nature and gravity of the offence rejected the prayer for bail.
4. Opposite party No. 1 renewed his prayer for bail on 5.8.1997 and filed Criminal Misc. Case No. 282 of 1997 in the Court of Sessions Judge, Bhubaneswar. On 8.8.1997 the same was again transferred to the file of Second Addl. Sessions Judge and it was registered as Criminal Misc. Case No. 65/282 of 1997. After receipt of record in the Court of 2nd Addl. Sessions Judge a xerox copy of a letter, true copy of which was not attested and which is a letter addressed by Dr. A.S. Jena to S.I. of Police Sahidnagar Police Station was filed without serving a copy on the Addl. P.P. who appeared for the prosecution and the same was accepted by learned Addl. Sessions Judge. On 8.8.1997 learned Second Addl. Sessions Judge heard and allowed the bail application of the petitioner on the ground that the plea of the opposite party No. 1 regarding illness of his mother is genuine and acceptable and that the offence u/s 306, I.P.C. which was prima facie made out is not punishable with death or imprisonment for life and the coraccused persons similarly situated had already been granted bail in Criminal Misc. Case Nos. 36/ 206 of 1997 and 53/247 of 1997. At the time of hearing when learned Addl. Public Prosecutor applied for an adjournment to obtain the upto date CD., learned Second Addl. Sessions Judge rejected that prayer for no good reason and decided to proceed with the case on the basis of the available case diary.
5. Learned Counsel for the petitioner argues that when there was absence of any changed circumstance to minimise the nature and gravity of the offence or to give a justifiable cause to opposite party No. 1 to approach the Court for the second time praying for bail learned Second Addl. Sessions Judge should not have taken a contrary view than the one which he had taken while rejecting the bail application on 28.6.1997 and should not have allowed opposite party No. 1 to go on bail keeping in view the nature and gravity of the offence.
6. Learned Counsel for opposite party No. 1, on the other hand, argues that learned Second Addl. Sessions Judge on due consideration of the merit of the case and the chance of suicidal death beside the serious illness of the mother of opposite party No. 1 allowed the said opposite party to go on bail. After being released on bail by virtue of the order dated 8.8.1997 opposite party No. 1 is availing that liberty without misutilising the same in any manner whatsoever inasmuch as he has not made any overt act nor he is disturbing the Court''s proceeding in any manner whatsoever. He further argues that even if it will be considered, that bail should not have been granted to opposite party No. 1, then also keeping in view the aforesaid conduct of opposite party No. 1 liberty granted to him may not be curtailed and that in several other cases the order of grant of bail being found illegal, this Court has not interfered with the liberty granted in the absence of any overt act made by such accused persons (no case law cited) and the same indulgence may be granted to the opposite party No. 1.
7. After going through the case diary and the orders passed by learned Second Addl. Sessions Judge on 28.6.1997 and 8.8.1997 in the aforesaid bail applications it appears to this Court that learned Second Addl. Sessions Judge in improper exercise of the jurisdiction and the discretion vested in him has granted bail to the opposite party No. 1 inasmuch as on 28.6.1998 while rejecting the prayer for bail even if he recorded his opinion regarding existence of a case u/s 306,1.P.C., he refused to grant bail keeping in view the nature and gravity of the offence and pendency of the investigation. While he considered the second bail application of opposite party No. 1 there was no material change in that circumstances. In his order dated 8.8.1997, as has been noted by the learned Second Addl. Sessions Judge, opposite party No. 1 argued for bail on the ground of illness of his mother and grant of bail to the co-accused persons for the self-same reason.
8. As it appears from the impugned order no argument was advanced at the time of hearing regarding non-existence of a prima facie case u/s 304B, I.P.C. or existence of a prima facie case u/s 306. Nonetheless, learned Addl. Sessions Judge considered such aspects only to justify his order for allowing the opposite party No. 1 to go on bail.
9. It further appears that there was no justification for the learned Addl, Sessions Judge to refuse a reasonable time to the prosecution to obtain the upto date case diary. Even the ground which was advanced regarding illness of mother, under the existing facts and circumstances could not have been regarded as a good ground because opposite party No. 1 was not the sole adult member available in the family to attend to his ailing mother. It is the admitted position existing in record that father and the brother of opposite party No. 1 were already on bail and they were available to take care regarding attending to the said ailing mother of opposite party No. 1.
10. Learned Second Addl. Sessions Judge has also stated that as per the allegation in the F.I.R. and the statement of witnesses opposite party No. 1 and the co-accused persons stand at par. It may be true with respect to the demand of dowry, but it is very much prominent in the F.I.R. as well as statement of witnesses that opposite party No. 1 coming in drunken state was mercilessly beating the deceased and giving the maximum amount of torture to her. Apart from that, nothing is indicated in the record as to under what ground the father and brother of opposite party No. 1 (who are the co-accused) were released on bail when their prayer for bail was rejected vide order dated 5.8.1997 in Criminal Misc. Case No. 17/ 130 of 1997.
11. Apart from that, learned Second Addl. Sessions Judge by making an unreasonable and improper assessment of evidence in record, in his order dated 28.6.1997 treated it to be a case of abetment of suicide punishable u/s 306, I.P.C. and relying on the same finding though on 28.6.1997 he refused to allow the opposite party No. 1 and the co-accused to go on bail but as it appears from the impugned order, he has relied upon the said finding to grant bail to the accused persons in phased manner. It may be noted here that materials available in the case record discloses existence of a prima facie case u/s 304B, I.P.C. Be that as it may, at the stage of consideration of bail application detailed documentation of the materials in the case diary is neither required nor desirable to be done.
12. Dowry torture and dowry death are the burning problems of the present day''s society. Persons booked for such type of heinous offences are not to be leniently or casually dealt with. In such type of cases a pragmatic approach should be made by the justice delivering system because it should not be a passive onlooker as to what is happening in the society. Learned Addl. Sessions Judge besides committing that (sic.) mistake as noted in the preceding paragraphs also did not consider properly the nature and gravity of the offence and all other relevant factors and granted bail on an unsatisfactory ground i.e. the illness of the mother.
13. Keeping in view the above facts and circumstances, it is found that the Second Addl. Sessions Judge by improper exercise of the jurisdiction vested in him has unreasonably granted bail to opposite party No. 1. Thus, there is no hesitation to hold that bail was granted illegally.
14. At this stage the contention of learned Counsel for the opposite party No. 1 falls for consideration as to whether the liberty which the opposite party No. 1 has already availed should be curtailed. Indeed, after recording the finding of grant of bail illegally in some of the cases this Court did not pass order to cancel the bail in the absence of any overt act. Every case is to be decided on its own facts and circumstances. In this case keeping in view the nature and gravity of the offence, the manner in which the same was allegedly committed and absence of any justifiable grounds there is no valid reasons to allow the opposite party No. 1 to continue on the bail which was illegally granted in his favour. Hence, the impugned bail order is cancelled and opposite party No. 1 is directed to surrender before the committal Court (S.D.J.M., Bhubaneswar) within a period of fifteen days, failing which the committal Court shall take recourse to the process of law and if required to proceed against his sureties as well. Send back the L.C.R. alongwith acopy of this order to the lower Court immediately. It must be depotched by 3.9.1998.
15. The criminal misc. case is accordingly allowed.
