MOHAMMAD SAFIK Vs. MOHAMMAD ABDUL GAFFAR

JUDGEMENT

(1.) The case is taken up for further hearing. Heard further argument. Both the parties rely upon the ratio in the case of Upendra Kumar Sahoo v. Giridhari Sahu, (1996) 11 OCR 53. Hearing is concluded and the order is as follows :-

(2.) This application u/S.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.) The fact alleged in short is that on 10-8-95 petitioner's minor son aged about three years was found missing having been kidnapped by some unknown culprits who demanded a ransome of Rs. 1.5 lakhs. After registration of Badachana Police Station Case No. 175/95 investigation was taken up and during the course of investigation ultimately the child could be recovered from Calcutta. During the course of investigation it was found that opposite parties 1 to 3 were the culprits behind the crime. It also appears from the arrest-cum-surrender memo available in the Case diary that after his arrest opposite party No. 1 was forwarded to the Court being challenged for the offence u/S.364, I.P.C.However, his application for bail being allowed by learned Addl. Sessions Judge, Jajpur in Crl. Misc. Case No. 432/95 he was released on bail on furnishing bail bond as per the bail order. Thereafter, on 17-1-96 charge sheet was filed for the offence u/S.363, I.P.C.and as it appears from the order dated 17-1-96 learned Magistrate mechanically passed an order by taking cognizance of that offence, but issued N.B.W.A.against opposite parties 2 and 3 as they had been shown as absconders. On 8-3-96 opposite parties 2 and 3 voluntarily surrendered in the Court and applied for bail and their prayer was allowed by the S.D.J.M.on the ground that the offence u/S.363, I.P.C.is bailable in nature.