PRAFULLA KUMAR Vs. PABANESWAR SUBUDHI

JUDGEMENT

(1.) The petitioner as the informant in C.R. Case No. 306 of 1988 in the court of the Sub-divisional Judicial Magistrate, Puri has moved this application for cancellation of bail of the opposite parties urging the same to have been improperly allowed.

(2.) The short facts constituting the prosecution case are that on 9-3-1988 at about 9.30 p.m. the informant was performing 'Trinath Mala' in the village along with some villagers when opposite party 2 came there along with one Dusasan Swain and abused them. The opposite party 1 instigated them to commit murder of the informant and others and on his instruction opposite party 2 threw a bomb at them. Immediately thereafter one Dwija Swain went over to the roof of a thatched house and threw a bomb as a result of which a girl named Chanchala Pradhan died on the spot. Some others were also injured due to pelting of stones. While the opposite parties and some others were arrested, Dwija Swain, due to whose throwing of the bomb Chanchala died, has not been arrested. Application for bail moved for the two opposite parties was rejected by the Sessions Judge on 12-4-1988 in Criminal Misc.Case No. 107 of 1988 taking the view that though the opposite parties did not intend to kill an innocent girl witnessing the Mala, yet their presence had created disturbance and terror and they had taken the law into their own hands throwing two bombs and hence they should not be released on bail. A subsequent application for bail by them was also rejected by the Sessions Judge on 13-5-1988 in Criminal Misc.Case No. 208/88 with the observation that the opposite party No. 1 had directed the opposite party 2 to throw the bomb which fortunately did not hit anyone but the bomb thrown by the absconding accused Dwija had proved to be fatal causing the death of Chanchala. Learned Sessions Judge was of the view that there was no new ground to enlarge the opposite parties on bail. In a subsequent application for bail in Criminal Misc.Case No. 318/88, the learned Sessions Judge, however, observed in orders passed on 22-6-1988 that there was a counter case against the informant's group under S.307, Cr. P.C., that chargesheet had already been submitted in the case, and that the main accused was Dwija Swain who threw the bomb causing the death. Because of such circumstances, he directed release of the opposite parties on bail. The order is impugned in this petition.

(3.) Admittedly the State has not moved for cancellation of bail. Though there is no absolute bar against an informant to move for cancellation of bail, under S.439(2), Cr. P.C., yet the considerations which weigh with the Court to exercise powers at the instance of a private person are, besides the factors necessary to be considered when the application is made by the State, the additional factors of whether the order granting bail has resulted in gross miscarriage of justice, is wholly an abuse of the process of law and whether there is any real threat or risk to the informant or his party due to the accused being at large.