STATE OF ORISSA Vs. MD ABDUL KARIM

JUDGEMENT

(1.) The question for consideration by us is the cancellation or continuance of bail granted to the opposite party by Mr. N. P. Mohapatra, the learned Additional Sessions Judge, Phulbani, by his order dated July 26,1983. An application has been moved by the learned Additional Government Advocate under section 439(2) of the Code of Criminal Procedure ('the Code', for short) read with section 482 thereof to cancell bail because of improper and arbitrary exercise of discretion and to prevent an abuse of the process of the court in the manner in which bail has been granted in a case of murder. Mr. J. K. Mishra, the learned counsel for the opposite party, contends that there are no -reasonable grounds for believing that the opposite party had committed the offence and there is no justification to cancel the tail granted to the opposite party.

(2.) IT is alleged against, the opposite party, who was functioning at the relevant time as the Officer -in -Charge of the Raikia Police Station and the Circle Inspector of Police, Phulbani, who had been investigating into a case of dacoity against Rabindra Naik (herein. after referred to as the deceased) and the co -accused persons that the deceased, while being interrogated in the course of investigation into a case of dacoity at the Raikia Police Station, was detailed, tortured and assaulted to death by the police officials during the night of December 28/29, 1982 and then his dead body was hung to a tree in order to give a colour of suicidal handing. In the course of investigation, the opposite party was arrested on July 24, 1983. He unsuccessfully moved for bail before the learned Judicial Magistrate at G. Udayagiri and then moved the learned Additional Sessions Judge, Phulbani, on July 26,1983 for his release on bail. A copy of the bail application was served on the learned Public Prosecutor who made an application to call for the up -to -date case diary including the statements of the witnesses recorded under Sections 161 and 164 of the code. The learned Additional Sessions Judge did not accept this submission on the ground that certified copies of the statements of three witnesses recorded linder sections 161 and 164 of the code and of the plain paper first information report and the formal first information report had been produced before him by the learned counsel for the opposite party. The learned Judge allowed the application by writing out a six page order by his own hand delving into the merits of the case and trying to find out as to whether the statements of the witnesses could be felied upon in view of the conflicting versions in the statements made under sections 161 and 164 of the, Code, went to the length of considering the developments in the statements of the witnesses filing stage to stage, came to the finding that the divergent opinions did not support that death had occurred owing to piercing of a needle into the naval of the deceased attributed to the opposite party, found that the materials placed bofore him by the learned defence counsel seemed to be extremely weak and had been made by aggrieved persons who had been arrested by the opposite party in a case of dacoity and taking into consideration the fact that the Circle Inspector of Police had been released on anticipatory bail by the learned Sessions Judge, ordered release of the opposite party on bail.

(3.) THE opposite party is accused both of bailable and nonbailable offences. Certain provisions and principles relating to the grant and cancellation of bail may be kept in mind.