SK IMAM Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application under section 439(2) of the Code of Criminal Procedure. 1973 (in short the Code) petitioner who is the informant in G.R. Case No. 1247 of 1996 has prayed to cancel the bail order inter alia alleging that in Criminal Misc. Case No. 192 of 1997 u/s. 439 of the Code learned Sessions Judge in-charge, Balasore allowed the bail application) of the opposite parties by ignoring the relevant facts and materials and by illegal and improper exercise of the jurisdiction vested on him.

(2.) Relevant facts required to be noted here are as follows: On 20-10-1996 a written report was lodged by the petitioner and one Mir Samer Ali alleging kidnapping of the Fatima Ali, minor daughter of the petitioner and Sarifanesa, minor sister of the other informant since 16- 10- 1996. On that report Balasore Town P.S. Case No. 291 of 1996 u/ss. 363/366/34, I.P.C. was registered. When the missing girls were not recovered, Mir Hussain Ali another brother of Sarifanesa filed O.J.C. No. 12770 of 1996 against the State Law Enforcing Agency and the present opposite; party No.2 (as opp. party No. 5) with the prayer to issue a, writ of habeas corpus. That writ application is still subjudice. In April 1997 opposite party No.2 and Fatima All appeared in the court of S.D.J.M. Balasore, Fatima was left in the custody of the petitioner. Prayer for bail of the opposite party No.2 was rejected and he was remanded to custody. On 3-5-1997 opposite party No.2 filed Criminal Misc. Case No. 192 of 1997 u/s. 439 of the Code in the Court of Sessions and though the matter was ready for hearing from 8-5-1997 till 3-6-1997 petitioner went on applying for adjournment for five times on the grounds of non- availability of up-to-date case diary and statement of Fatima u/s. 164 of the Code and praying to call for the same. On 126-1997 in the absence of the Sessions Judge the bail application was moved before the Sessions Judge in-charge who allowed the bail application though the up-to-date case diary or the statement u/s. 164 of the Code of the victim were not available and it was not insisted upon by opposite party No.2.

(3.) At the time of hearing the Public Prosecutor opposed the bail petition and stated about existence of a prima facie case under section 366 and other offences and also offence under section 376. I.P.C. He also argued that the kidnapped girl was aged about 16 years and her consent if any is of no concatenation at the stage of hearing bail petition. He further requested for recording of Fatimas statement u/s. 164 of the Code. Learned Sessions Judge in charge without paying any heed to that contention accepted the contention of the opposite party No.2 that victim being a Muslim girl aged about 15 years and having the capacity to marry, without the consent or approval of her parents allowed the bail petition. Accordingly, he passed the impugned order directing for release of the opposite party No.2 on furnishing bail bond for Rs. 10,000/- with one surety.