Full Judgment
L.K. Mishra, J.
1. These four bail applications under Sections 439 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Cr.P.C) arise out of the same case i.e. Nuagaon P.S. Case No. 18 of 2008 corresponding to G.R. Case No. 192 of 2008 pending in the Court of learned S.D.J.M., Jagatsinghpur, wherein charge sheets have already been submitted against the petitioner and Ors. under Sections 147, 148, 452, 323, 324, 325, 307, 379, 427, 364 read with 149 of the I.P.C. and under Section 9(b) of the I.E. Act. Therefore, these cases were heard together and are being disposed of by this common order.
2. The prosecution case in brief is that the informant Saroj Kumar Barik and the victim lady Manasi Dash had married out of love in a temple. The informant Saroj belongs to a lower caste and therefore, father of Manasi namely Alekh Dash did not approve of their marriage. After marriage the couple stayed in the house of Saroj. It is alleged that during the intervening night of 8/9.3.2008 at about 1.30 A.M. when the informant Saroj and Manasi were sleeping in their house, Alekh Dash came with 8 to 10 miscreants in two vehicles being armed with various deadly weapons such a crowbars, bhujalis, swords, bombs and revolvers etc and forcibly entered into the house of the informant and abducted Manasi. They threw bombs to prevent the villagers from interfering and injured the mother of the informant namely Sanjukta Barik by beating her up. She received cut injuries and her left leg was fractured. They also damaged some household articles and took away some valuables. F.I.R. having been lodged by Saroj, investigation was taken up which resulted in submission of charge sheet as aforesaid.
3. Learned advocates for the petitioners have submitted in unison that no overt act is alleged against the petitioner and that in the meantime the investigation of the case is over. It is also submitted that petitioner Prasanta Kumar Mallick (in BLAPL No. 3627 of 2008) and Rabindra Kumar Mohanty (in BLAPL No. 3807 of 2008) are drivers of the hired vehicles and they are in no way connected with the offence. Petitioner Santosh Kumar Dixit (in BLAPL No. 4347 of 2008) who is a priest in a temple has not been named in the F.I.R. No. T.I. parade was also held with respect to the accused persons. Bail is prayed for on the aforesaid grounds. Sri R.K. Nayak, the learned Counsel appearing on behalf of the informant has vehemently resisted the prayer for bail saying that the victim lady has not yet been traced and therefore, bail should not be granted to the petitioners. Learned Counsel for the State has also resisted the prayer for bail.
Perused the records and the case diary of the cases. Also perused the records of W.P. (Crl) No. 111 of 2008, W.P.(Crl) No. 242 of 2008, BLAPL No. 3012 of 2008 and BLAPL No. 3320 of 2008.
4. Apparently the victim lady had filed W.P. (Crl) No. 111 of 2008 seeking police protection and latter she filed W.P. (Crl) No. 242 of 2008 with a prayer to direct the I.O. to record her statement under Section 164 Cr.P.C. In the latter writ petition she filed an affidavit stating that W.P. (Crl) No. 111 of 2008 was never filed by her; that she never married Saroj but was kidnapped by him and that her father Alekh Dash never kidnapped, but in fact rescued her from the clutches of Saroj. Both the writ petitions mentioned above have been disposed of in the meanwhile. BLAPL No. 3012 of 2008 which was under Section 438 Cr.P.C. was dismissed on the finding that since a direction was given in W.P. (Crl) No. 111 of 2008 for arrest of Alekh Dash no petition for anticipatory bail can be entertained. BLAPL No. 3320 of 2008 has been disposed of on 22.07.2008 with a direction that if the petitioner therein, namely, Anil Kumar Padhi will surrender before the S.D.J.M., he will be admitted to bail. BLAPL No. 1212 of 2008 filed by Pramod Kumar Barik and five others under Section 438 Cr.P.C. seeking anticipatory bail is pending.
5. The victim lady could not be located by the police. However, as per the affidavit sworn by her on 01.07.2008 she is staying happily with her father. She has sworn another affidavit on 11.07.2008. Both the above affidavits are part of the record in W.P. (Crl.) 242 of 2008 and the above writ petition has been disposed of relying upon those affidavits. In any event whether she is deliberately keeping out of the way or is kept somewhere is not known and is not relevant for the decision of the bail petitions at hand, which may be decided on their own merit.
6. Bail is a matter of right if the offence is bailable. In case of a non-bailable offence bail is a matter of judicial discretion. If prima facie case is not made out against the accused, he is to be granted bail ipso facto. In such a case no choice is left with the Court, but to grant bail to the accused. Even if prima facie case is made out against the accused, he may be granted bail. Section 439 of the Cr.P.C. under the caption 'Special powers of the High Court or Court of Session regarding bail' has conferred upon both the Courts wide powers to grant bail to an accused in custody. This power is discretionary and unfettered. The power to grant bail has to be exercised judiciously and on well established principles. Inter alia, nature and gravity of the offence, severity of punishment in case of conviction, apprehension of tampering with the evidence, possibility of the accused fleeing from justice, antecedents of the accused, and the possible impact on society if the accused is granted bail are some of the considerations which should weigh in the mind of the Court while considering the question of granting bail.
7. Bail by its very nature is person-specific. In case, therefore, an offence has been committed by more than one accused then the individual role played by each of them, if it can be ascertained, is a valid factor which may be taken into account while considering whether to admit a particular accused to bail or not.
8. Coming to the case at hand it can be seen that besides bare allegation that they were present during the occurrence, no specific overt act is ascribed to any of the petitioners. Two of the petitioners are mere drivers of the vehicles and one is a priest. As it seems no T.I. parade was held to identify the suspected persons. None of the petitioners was also named in the F.I.R. Though bombs were exploded, no allegation is forthcoming that any of the villagers were injured due to such explosions. On the other hand, the statements of the witnesses reveal that the bombs were exploded to scare away the villagers and to prevent them from interfering. It is also apparent that the invaders had ample opportunity of committing murder of the mother of the informant but instead they merely injured her though grievously. Investigation of the case is over and there is a little chance of influencing witnesses in view of the strained relationship between the parties. Having regard to the totality of the circumstances. I feel that the petitioners should be enlarged on bail.
9. Let the petitioners be released on bail of Rs. 20,0007- (twenty thousand) with two solvent sureties for the like amount each to the satisfaction of the learned S.D.J.M., Jagatsinghpur in the aforesaid case. The BLAPLs are disposed of accordingly.