BIRENDRA MISHRA Vs. MANOJ KUMAR SINGH

JUDGEMENT

(1.) THIS is an application under Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), at the instance of the informant, for setting aside the order dated 12 -1 -94, passed by the learned Chief Judicial Magistrate, Samastipur, in Sarairanjan P.S. Case No. 102/93 (GR No. 1384 of 1993) State v. Manoj Kumar Singh, whereby bail was granted to Opposite Party Nos. 1 to 3 herein. In other words, it is a case for cancellation of bail granted to opposite party Nos. 1 to 3, who are accused -persons in the aforesaid police case, wherein allegations have been levelled against them along with others under Sections 498A, 304B and 201/34, I.P.C.

(2.) ACCORDING to the allegations in the FIR lodged by the petitioner herein, who is uncle of the deceased girl, the latter was married to opposite party No. 1 herein (Manoj Kumar Singh) about eight years ago. She was not allowed peace in her 'sasural', and there was persistent demand for dowry. This resulted in a very unhappy relationship between the couple for which she often used to go to her 'naihar' to avoid the atrocities being committed against her in her 'sasural'. According to the further allegations, on 25 -9 -93, the girl was administered poison by the accused -persons and the dead body was taken away in a blue Jeep to unknown destination. Further prosecution case is that Ashok Kumar and Santosh Kumar Mishra, who are full brothers of the deceased, though minor, had gone over to their sister's 'sasural' to find out her welfare and had personally seen the dead body of their sister which was taken away in a blue Jeep to unknown destination. They wanted to accompany in the Jeep but they were prevented from doing so by the accused -persons. On these allegations, Sarairanjan P.S. Case No. 102/93 was registered under Sections 498A, 304B, 201 and 34, I.P.C. A copy of the FIR is marked Annexure -1 to this petition. In the meantime, opposite party Nos. 1 to 3 herein, as well as the mother of opposite party No. 1, had preferred an application for anticipatory bail before the learned Sessions Judge who rejected the same and directed the accused -persons to surrender in the Court of learned C.J.M. to consider their bail application sympathetically. Consequently. Opposite party Nos. 1 to 3 herein as well mother of O.P. No. 1 surrendered in the Court of learned C.J.M., Samastipur, who passed the impugned order whereby bail was granted to them. Hence the present application for cancellation of bail of O.P. Nos. 1 to 3. The informant has chosen not to take steps for cancellation of bail of the mother of O.P. No. 1.

(3.) LEARNED Counsel for O.P. Nos. 1 to 3 submitted that it could be incorrect to say that the learned C.J.M. granted bail solely on sympathetic grounds. In his submission, it is manifest from a plain reading of the impugned order, particularly paragraph 3 therein, that he has taken note of a large of materials including documentary evidence which had been placed before the learned Sessions Judge as well as the C.J.M. This Court, therefore, should not interfere with the impugned order. Counsel next submitted that the impugned order was passed on 12 -1 -94, and a long time since then has elapsed which itself disentitles the petitioner to cancellation of bail. He lastly submitted that provision of Section 437(1)(i) will be attracted only if the C.J.M. comes to the conclusion that the offences which are punishable to death, and that there appears reasonable ground for believing that the accused -persons have been guilty of offences punishable with death or imprisonment of life. In his submission, in the facts and circumstances for the case, such a conclusion is not possible for various reasons, inter alia, that and the case of poisoning as set out in the FIR is not supported by the post -mortem report. Therefore, the learned C.J.M. has had the jurisdiction to deal with the matter. He further submits that learned C.J.M. dealt with the matter after all on the direction of the learned Sessions Judge.