IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27837 of 2009 BADRI MAHTO, son of Lalan Mahto resident of village Number Diyara P. S. Bachbara District Begusarai…. Petitioner. Versus STATE OF BIHAR . ----------- 5. 03.12.2009. Heard counsel for the petitioner and counsel for the State. The petitioner faces prosecution for offence under Sections 353,307 I.P.C. and Section 25,26,27,35 of the Arms Act with an allegation that he was one of the ten persons who had initially made an attempt to kidnap one Naman Sahani on 17th September 2007 and when the police party had arrived at the scene while the aforementioned victim was being taken away through a boat, there was also exchange of fire between both the sides in which the victim was abandoned by the kidnappers but the petitioner is said to have escaped from the scene to be ultimately apprehended by the police almost after one year on 16.7.2008 with a bomb recovered from his conscious possession. Counsel for the petitioner would however submit that the victim did not name the petitioner in his statement under 164 Cr.P.C. recorded on 20.7.2008 and thus the 2 earlier statement of the victim recoded in the case-diary on 17.9.2007 itself naming also the petitioner to be one of the ten kidnappers can not inspire any confidence. He would further submit that the petitioner has got no criminal antecedent and even the alleged recovery of bomb by the police from conscious possession of the petitioner at the time of his arrest also does not get support from any material available in the case-diary inasmuch there is no seizure-list for the alleged recovery of bomb nor any case has been lodged against him under the Explosive Substance Act. It has also been submitted that the petitioner in fact was made accused in one other case simultaneously lodged against him for offence under Section 364 A in which he has already been granted bail by this court in Cr. Misc. No. 28299 of 2009. Counsel for the State, on the other hand, with the help of the case-diary had submitted that the petitioner seems to be a dare devil inasmuch as it is said that he was a member of a gang which had kidnapped the victim person for ransom with a demand of Rs.1,00,000/- and it was only the good 3 fortune of the victim that he had remained unhurt when the petitioner and the other kidnappers had fired on the rescuing police party which had arrived at the scene in time and had rescued the victim. He would also refer to other paragraphs of the case-diary where the petitioner has also been consistently named as one of the ten persons who was said to be one of the member of such gang also opening fire on the police party. Normally, when the petitioner had been named consistently as a member of unlawful assembly kidnapping the victim and also opening fire on rescuing police party even his absconding for a period of nearly one year was good enough for rejection of his bail despite the fact he had remained in custody for a period of nearly one and a half years, but then this Court taking into account that in the crucial statement of the victim under Section 164 Cr.P.C. named the petitioner though had not he was examined in the court within three days of his recovery, would definitely be a valid circumstance and a good ground for his being released on bail, specially when, the petitioner claims to have 4 no criminal antecedent prior to his being made accused in this case. That being so, the petitioner namely, Badri Mahto is directed to be released on bail on his furnishing bail bond of Rs.10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of ACJM, Barh district Patna in connection with Pandarak P. S. Case No. 135 of 2007, subject to a condition that one of the bailors must be a close family member of the petitioner preferably either of his parents. It is, however, made clear that the petitioner shall remain present in course of trial and his absence for two consecutive dates during such trial will make him liable for cancellation of his bail. kanchan (Mihir Kumar Jha, J.)