Panful Nessa Vs. Md.
Miraj Ali & Ors.  INSC 1068 (9 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1035 of 2008
(Arising out of SLP (Crl.) No. 907 of 2007) Panful Nessa ...Appellant Versus
Md. Miraj Ali and Ors. ...Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the order passed by a learned Single Judge of
Guwahati High Court directing that the respondents 1 to 9 shall be
released on bail on surrendering before the learned Chief Judicial
facts in a nutshell are as follows:
A First Information
Report (in short the `FIR') was lodged 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.
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.
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.
impugned directions as contained in the impugned order read as follows:
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."
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.
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.
appeal is allowed.
(Dr. ARIJIT PASAYAT)