MD.SAFIK Vs. MD.ABDUL GAFFAR,& ORS.

JUDGEMENT

(1.) P .K. Tripathi, J The case is taken up for further hearing. Heard further argu­ment. Both the parties rely upon the ratio in the case of upendra Kumar Sahool Giridhari Sahu, (1996) 11 OCR 53. Hear­ing is concluded and the order is as follows:

(2.) THIS application under Section 439(2) of the Code of Criminal Procedure, 1973 (in short, 'the Code') has been filed by the informant of G.R. Case No. 948 of 1995 of the Court of S.D.J.M., Jajpur with the prayer for cancellation of the bail granted to opposite parties 1 to 3 who are the accused persons in that case,

(3.) LEARNED Counsel for the petitioner argues that facts and evidence available in the F.I.R. and the C.D. prima facie reveal a case under Section 364-A, I.P.C. where the punishment prescribed is death or im­prisonment for life and the offence is tri­able by the Court of Session and that the learned Magistrate at the time of consider­ing the bail application should have perused the statements on record to find out what offence is made out against the petitioner and should have considered the bail application looking to the nature and gravity of the offence and the punishment prescribed there for. He further argues that since the punishment of death or im­prisonment for life is provided for the of­fence under Section 364-A, I.P.C. learned S.D.J.M. had no power to release the petitioner on bail, therefore, granting bail in favour of opposite parties 2 and 3 is illegal and without jurisdiction. On that ground he argues that the bail order be cancelled.