LALITA BHARATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) BOTH the bail applications arise out of the same case i.e. G.R. Case No. 381 of 2008 pending in the Court of learned J.M.F.C., Chandikhole involving offence under Sections 366 -A/376/506/34 of the Indian Penal Code (herein -in -after called the I.P.C) and under Section 4, 5, 6 & 7 of the Immoral Traffic Prevention Act and therefore, both the bail applications are being disposed of by this common order. Heard learned Counsel for both sides on the question of bail.

(2.) THE prosecution case is that the victim (name withheld), who is a minor girl aged about 15 years was approached by Petitioner Tirthabasi Panda on the plea that he had arranged a job for her in a company at a good salary. Later the Petitioner Lalita Bharati and her husband Dina Bharati took the Petitioner to Cuttack, where she was forced to do prostitution and was also raped by Tirthabasi. She has alleged that Tirthabasi used to rape her time and again and other accused persons sent her out side Cuttack for prostitution. One day getting an opportunity, she escaped and went to her relatives' house. Thereafter one of the accused Srikanta called her to Panikoli where the Petitioners tried to kidnapped her again, which effort did not succeed due to intervention of general pubic. She was taken to Panikoili Out -Post. Later she lodged an F.I.R.

(3.) BAIL is discretionary relief. However, the discretion is to be exercised judiciously and basing on well established principles. Detention of the accused during investigation or pending trial robs an individual of liberty. Liberty of an individual being sacrosanct should not be infringed lightly. The categorization of offence into bailable and non -bailable categories in the Code of Criminal Procedure, (herein -after called "Code of Criminal Procedure") indicates in which cases bail may be claimed as a matter of right. Such types of cases are described as bailable. On the other hand granting of bail in non -bailable cases is a matter of discretion in the Court. Power under Section 437 Code of Criminal Procedure which is exercisable by a Magistrate, entitles the Court to release the accused on bail, if he finds it expedient to do so. The Code of Criminal Procedure vests power of bail in higher Courts like Sessions Judge or the High Court under Section 439 Code of Criminal Procedure, which power is absolutely unfettered. In serious offences bail should not be granted as a matter of course but should be granted only after due care and consideration. The factors which should in the mind of the Court while granting bail are innumerable and cannot be definitely cataloged. However, the nature and gravity of offence, the chance or possibility of the accused tampering with the witnesses, if granted bail, the possibility of his absconding or repeating the offence and the interest of the society at large are some such considerations.