PRATIVA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application for exercise of power under Section 482 of the Code of Criminal Procedure, 1973 (in short,. the 'Code') in respect of certain observations and directions given by learned Addl. Sessions Judge, Khurda, while disposing of an application under Section 439 of the Code.

(2.) A brief reference to the factual aspects before dealing with submissions relating to the defensibility of observations/directions would be necessary. On the basis of written report submitted by petitioner, law was set into motion and Braja Mohan Parida (hereinafter referred to as 'accused') was taken to custody. Allegations related to offence punishable under Sections 341/323/264 of Indian Penal Code, 1860 (in short, 'IPC') and the case was registered as G. R. Case No. 86 of 1996. Learned Judicial Magistrate, First Class, Banpur rejected accused's prayer for bail. Learned Addl. Sessions Judge, Khurda was moved for bail after rejection by learned Magistrate. While dealing with prayer for bail, a thread -bare analysis of the factual position was made and it was observed that an offence under Section 354, IPC was not prima facia made out. Learned Addl. Sessions Judge was of the view that learned trial Magistrate has not kept in view that an offence under Section 354, IPC has not been made out while accepting prosecution case. Some of the observations made by learned Addl. Sessions Judge in this context are as follows : (i) 'There was no allegation of molestation outraging her modesty. Such complaints or allegations have been developed only when she was examined under Section 161. Cr PC by the I. O. Though the, FIR need not be an encyclopaedia ofthe evidence, yet it is undoubtedly an important piece of document in a criminal trial, which must be given an inkling or indicate nature of the offence commuted against the victim, if the petitioner pulled out the saree and tore open the blouse of the complainant, in the presence of the Principal as well a few colleagues of her own, the said fact should have been placed in the written complaint, because such allegations would have given rise to a different species of offence, apart from physical assault or hurt.' (ii) 'The trial Magistrate ought to have kept this in view while accepting the prosecution case that an offence under Section 354, IPC has been prima facie established.' (iii) 'Thus, it is evident from the statements recorded by the police from different witnesses that there was undoubtedly a scuffle, and a free for all fight exchanging blows and slaps between the complainant and the petitioner.' In addition, learned Addl. Sessions Judge gave the following directions which related to proceedings taken departmentally against the accused : (a) 'Under such circumstances, I am of the opinion that there is no adequate material to register a case under Section 254, IPC, let alone to fall back upon the same to refuse bail. This is necessary to be reiterated from the larger point of justice and fair play.' (b) ' I also wish to make it clear that if any punitive action has been taken against the petitioner, as because he has been under judicial detention for more than 48 hours, the same may be reversed by his authorities considering the fact that he was not liable to be detained in custody, as has been observed in this order.'

(3.) WHILE dealing with an application for bail, Court has to be prima facie satisfied that there is good ground to accept prayer for bail. At that juncture, observations should not be made which would show that matter has been prejudged or that a definite finding is recorded on the merits of the case. That certainly would be prejudging the issue as merits of dispute are to be gone into' the trial itself. While dealing with the question of bail, the Court is not to conduct a preliminary trial and to see if the evidence is such that the accused is bound to be convicted or acquitted. All that has to be seen is whether there is some material to connect him with the crime. The questions of sufficiency of the evidence and reliability of witnesses cannot be debated in proceedings for bail as that would be a matter which will require consideration of the Court at the time of trial. The Court before granting bail in cases involving non -bailable offences particularly where trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibilitv of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public, or the State and similar other considerations. Detailed examination of the evidence and elaborate documentation should be avoided while passing orders on bail. To be satisfied about a prima facie case is needed, but it is not the same as an exhaustive explanation of the merits. Any observation made by learned Addl. Sessions Judge, Khurda on merits shall not weigh with trial Court when the case comes up for trial.