ARUNDHATI MOHANTY Vs. BIJU ALIAS SITHILA KUMAR PANDA

JUDGEMENT

(1.) IN the present application under Section 439, Sub -section (2) of the Code of Criminal Procedure, in short, 'Cr.P.C. the petitioner has prayed for cancellation of bail granted to opposite party No. 1 in CRLMC No. 1304 of 2003. The petitioner is the informant and opposite party No. 1 is the accused in Lingaraj P.S.Case No. 52 of 2003 corresponding to G.R.Case No. 1111 of 2003 pending before the learned S.D.J.M., Bhubaneswar. Opposite party No. 1 filed CRLMC No. 1304 of 2003 praying for quashing of the above noted criminal proceeding or in the alternative to direct the learned S.D.J.M., Bhubaneswar to release him on bail on his surrender in that Court. This Court hearing the parties, while refusing to quash the criminal proceeding in G.R.Case No. 1111 of 2003, allowed the prayer for bail with a direction to the learned S.D.J.M., Bhubaneswar that on surrender the accused -opposite party No. 1 would be released on bail on furnishing cash security of Rs. 10,000/ - alongwith one local surety of Rs. 10,000/ - to the satisfaction of the learned S.D.J.M., Bhubaneswar with the further conditions that he shall not cause any threat, intimidation or coercion to the prosecution witnesses and shall co -operate with the investigation till the conclusion of the case and shall not indulge in similar type of offence in future. In the present petition, the petitioner alleges that the accused -opp. party No. 1 obtained the said order of bail by practising fraud on this Court and so, the bail granted is liable to be recalled. The petitioner has also alleged that opposite party No. 1 has been abusing and threatening her and her family members and insisting that the case filed against him should be withdrawn, although there is a condition in the bail order passed by this Court that he shall not cause any threat, intimidation or coercion to the prosecution witnesses. She claims that on this ground also the order of bail needs to be recalled.

(2.) IN the counter affidavit, opposite party No. 1 has denied that the bail order in CRLMC No. 1304 of 2003 was obtained by practising any fraud or by suppressing any fact or materials. He also specifically denied the allegations that he abused or threatened the petitioner and her family members. His specific plea is that he never violated the conditions of bail entailing cancellation of his bail under Section 439(2), Cr.P.C.

(3.) MR . D. Nayak, learned counsel for the petitioner submits that the element of fraud is apparent from the certificate given by opposite party No. 1 in the petition, i.e. CRLMC No. 1304 of 2003, where he has indicated that the matter was never before this Court earlier.