Panful Nessa vs Md. Miraj Ali & Ors

on 16.9.1996 stating that 10 persons including the

respondents 1 to 9 were responsible for the homicidal death of

the husband of the informant, the appellant herein and her

husband's uncle Mr. Hanif Ali. After completion of

investigation charge sheet No.1/2004 dated 28.2.2004 was

filed by the investigating officer, Tejpur River Police Station,

district Sonitput. Eleven persons were shown as absconders

including respondents 1 to 9. It is the case of the appellant

that in spite of best efforts the police officials could not trace

out the respondents. Learned SDJM issued non bailable

warrants against the respondents. The respondents were

declared as proclaimed offenders. On 22.12.2005 on the

strength of warrant of arrest one of the accused persons

namely Rustom Ali was arrested and he was remanded to

judicial custody by learned SDJM. Subsequently, the

respondents moved the High Court in Criminal Petition

No.18/2006 and prayed that the order directing issuance of

2 non bailable warrants may be set aside. They also prayed that

in the event of their appearance before the learned SDJM they

may be released on bail. The High Court disposed of the said

petition by order dated 24.3.2006 directing that in the event of

the respondents making an application for grant of bail, the

same shall be disposed of in accordance with law. A protection

for the period of seven days was granted so that they could

appear before the concerned Court. Undisputedly, they did

not appear within the stipulated time and moved the High

Court for extension of time. The High Court granted the time

till 18.4.2006 and directed the respondents to appear before

the learned SDJM. On 17.4.2006 the learned SDJM was on

leave and, therefore, it was placed before the learned CJM who

directed the matter to be placed on 18.4.2006 before the

learned SDJM. There is some amount of confusion as to

whether really the respondents appeared on 18.4.2006. Be

that as it may, a petition under Section 482 of the Code of

Criminal Procedure, 1973 (in short the `Code') was filed. The

High Court passed the impugned order where after taking

exception to certain acts of learned SDJM, the directions were

3 given.

4. Learned counsel for the appellant submitted that the

High Court seems to have completely lost sight of the fact that

by several orders the trial Court had noted that the

respondents were absconders. Therefore, the High Court could

not have given a direction for release of the respondents on

bail without even consideration of the merits of the case on

surrender before the learned SDJM.

5. Learned counsel for the respondents on the other hand

submitted that reading in isolation the order of the learned

SDJM, the learned Single Judge may appear to be wrong but

when the entire material was placed on record before it, the

High Court's directions cannot be faulted. It is submitted that

pursuant to the directions of the High Court the accused

surrendered before the learned Chief Judicial Magistrate and

in terms of the High Court's order they have been granted bail.

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6. The impugned directions as contained in the impugned

order read as follows:

"Considering therefore the matter in its entirety and in the interest of justice, GR Case No.444/99 is hereby transferred to the learned Chief Judicial Magistrate, Darrang. The accused-petitioners are hereby directed to appear in the Court of the learned Chief Judicial Magistrate, Darrang, Mangaldai, on or before 23.8.2006 and if, on their appearance in the learned Court below, the petitioners apply for bail they shall be allowed to go on bail of Rs.10,000/- each with two local sureties, each of the like amount, subject to the satisfaction of the learned Court below. This direction for bail is further subject to the condition that the petitioners shall keep appearing in the learned Court below as may hereafter be directed by it."

7. It is clear that the High Court has not considered the

merits of the case. It completely overlooked the fact that

respondents 1 to 9 have filed a petition under Section 482 of

the Code. Even if the High Court found that there was some

lapse on the part of the learned SDJM in dealing with the

matter, as noted by the High Court that could not have been a

ground for directing release of the respondents on bail, that

5 too in a petition under Section 482 of the Code. It was not

even a case under Section 438. Even if it was so, the

impugned directions could not have been given for releasing

the respondents 1 to 9 in the manner done. The jurisdiction

under Section 482 of the Code cannot be extended to grant of

bail in the manner done. There was not even consideration of

the merits of the case. The High Court was clearly in error by

holding that there was no material to show that the

respondents 1 to 9 were absconders. By so observing, the

High Court completely lost sight of the fact that in the charge

sheet filed respondents 1 to 9 were shown as absconders.

Similarly in the orders dated 1.6.2004 and 4.6.2004 the

learned Chief Judicial Magistrate and learned SDJM had

clearly mentioned that 11 accused persons were absconders.

This was obviously with reference to the charge sheet filed.

8. Learned counsel for the accused respondents 1 to 9

submitted that the trial is in progress and there is no

allegation of any misuse of liberty. That question need not be

considered in the present proceedings because the impugned

6 directions of the High Court are unsustainable. We therefore

set aside that part of the order directing release of

respondents 1 to 9 on bail. The High Court had completely

foreclosed consideration of the application for bail. It also did

not examine the question as to the desirability of respondents

1 to 9 being released on bail. Merely because according to the

High Court the learned SDJM had not followed the directions

in its proper perspective that could not have been a ground for

directing release of respondents 1 to 9 on bail. We, therefore,

set aside the direction contained in the impugned order

regarding grant of bail to respondents 1 to 9. Let the

respondents appear before the concerned Court where the

trial is in progress. If any application for bail is made, the

same shall be considered in its proper perspective by the

concerned Court. We express no opinion on the merits of the

case.

9. The appeal is allowed.

..................................J. (Dr. ARIJIT PASAYAT)

7 ................................J. (P. SATHASIVAM)

New Delhi, July 9, 2008

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