NIRBHAY KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has filed this writ application challenging the order dated 2-9-19% passed by 2nd Additional Sessions Judge, Bhagalpur in Criminal Revision No. 539 of 1995 whereby learned Judge rejected the revision application of the petitioner and confirmed the order dated 18-12-1995 passed by the learned Additional Chief Judicial Magistrate, Naugachiya and rejected the application of bail filed by the petitioner.

(2.) The brief facts giving rise to this application is that one Gita Kumari lodged a fardbeyan within the Parbatta Police Station on 7-9-1994, alleging that when she was cleaning the cloth on the Chapakal of her house, petitioner entered into her house and found her alone committed rape on her forcibly and threatened her to kill if she raises alarm. It is said that she made hue and cry and when Mohalla's people assembled she narrated the entire incident to the people and the police was informed and her statement was recorded. Soon after the occurrence the petitioner was examined by Doctor and it is said that the Doctor gave a positive finding that no mark of external violence was present on the body of informant and there was no positive finding of rape. The petitioner made an application for bail before the Additional Chief Judicial Magistrate, Naugachiya who called for the case diary and medical report and after perusal of the medical report a provisional bail was granted to the petitioner on 12-10-1993 till the submission of the final form. Against the grant of provisional bail the informant wrote a letter on 16-12-1993 before the District and Sessions Judge, Bhagalpur for cancellation of provisional bail granted to the petitioner. The informant also filed a petition for cancellation of provisional bail granted to the petitioner and the learned Sessions Judge called for the original record from the Court of learned Magistrate. Learned District and Sessions Judge, Bhagalpur after looking into the entire case diary and considering the medical report and also after hearing the argument of the informant granted bail to the petitioner on 12-5-1994 by confirming the bail granted by the Additional Chief Judicial Magistrate, Naugachiya. The informant, thereafter filed Criminal Miscellaneous Case No. 14006 of 1994 before this Court for cancellation of bail granted to the petitioner by the District and Sessions Judge, Bhagalpur. This Court vide order dated 15-9-1995 remanded the matter back before the learned Additional Chief Judicial Magistrate, Naugachiya for passing a final order with regard to confirmation of bail of the petitioner as in view of this Court no final order was passed by the learned Additional Chief Judicial Magistrate, Naugachiya. After the remand of the case by this Court, the learned Additional Chief Judicial Magistrate, Naugachiya considered the bail application of the petitioner and rejected the same by the impugned order dated 18-12-1995. The said order of the learned Additional Chief Judicial Magistrate, Naugachiya was confirmed by the 2nd Additional Sessions Judge, Bhagalpur who dismissed the revision application in terms of impugned order dated 2-9-19%.

(3.) I have perused both the impugned orders passed by the learned Additional Chief Judicial Magistrate and learned 2nd Additional Sessions Judge, Bhagalpur. It appears that both the Courts below have been prejudiced by the order passed by this Court.