Gajanand Agarwal vs State Of Orissa And Anr

J U D G M E N T CRIMINAL APPEAL NO. 543 OF 2007 (Arising out of S.L.P. (Crl.) No. 49 of 2007) With CRIMINAL APPEAL NO. 544 OF 2007 (Arising out of S.L.P. (Crl.) No. 50 of 2007) Dr. ARIJIT PASAYAT, J.

Background facts in a nutshell are as follows:

law Kanta Khetan filed application in terms of Section 438 Cr.P.C. before the High Court which was rejected. Process under Section 82 of the Cr.P.C. was issued by the learned ADJM on 19.12.2005. On 16.1.2006 respondent no.2 filed application for bail which was rejected on the ground that investigation was still in progress. Liberty was granted to the accused to move the Sessions Judge for bail after completion of investigation and submission of final form. On 24.1.2006 application in terms of Section 438 was filed by Sunil Kumar (respondent no.2 in the connected appeal) and Sujata Khetan. The same was rejected by order dated 24.1.2006. An application under Section 438 Cr.P.C. was filed by Kailash and Kanta. The same was again rejected by the High Court. On 27.1.2006 the Trial Court issued orders in terms of Section 83 Cr.P.C. to attach the moveable properties of the accused. On 30.1.2006 the investigating officer submitted the charge- sheet/final report before the learned SDJM indicating that a prima facie case has been made against the respondent No.2, Kailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil (brother-in-law) the respondent no.2 in the connected appeal under Sections 498A, 304B, 302, 406 read with Section 34 IPC and Section 4 of the Act. The prosecution made a further prayer to permit investigation in terms of Section 173(8) Cr.P.C. since some of the accused persons were still absconding and were not arrested. After surrendering, Kanta Khetan and Sujata Devi filed application for bail. The same was rejected by learned SDJM. The applications filed by Kailashnath and Sunil were also subsequently rejected. On 13.2.2006, respondent no.2 filed fresh bail application before the Sessions Court, which was rejected. The learned Additional Sessions Judge took note of factual position which according to him was relevant for the purpose of rejecting the bail application. It was noted that strong case under Sections 302/304B IPC is made out. Sujata Devi filed bail petition before the High Court after rejection of bail application by the Sessions Judge. The High Court by order dated 6.3.2006 granted bail to her. Interestingly, it was noted that the order was not to be treated as a precedent so far as other accused persons are concerned. It is to be noted that on 22.3.2006 Kanta Devi moved the High Court for bail. The High Court granted the bail imposing conditions similar to those which were stipulated in case of Sujata Devi. Accused Sunil Kumar moved the High Court for regular bail. By order dated 7.4.2006 the prayer was rejected but liberty was granted to renew his prayer for bail after the case was committed to the Court of Sessions. On 21.4.2006 the High Court granted bail to Kailashnath on the ground that he was aged and sick. Here again, the High Court passed an order to the effect that same was not to be treated as a precedent so far as other accused persons are concerned. On 3.5.2006 accused Sunil Kumar moved the Sessions Court for bail on the ground that his father requires further treatment at Apollo Hospital and there was no male member to accompany him. The learned Sessions Judge rejected the prayer of bail by order dated 3.5.2006 suspecting genuineness of the documents filed. It was noted that report was dated 30.6.2006 i.e. date put on the advisory report, while the application was made earlier. Because of this suspicious document, the application for bail was rejected.

The High Court has virtually written an order of acquittal by commenting on the evidentiary value of evidence on record. This is impermissible. Only broad features of the case are to be noted. Elaborate analysis of the evidence is to be avoided.

Looked from any angle the impugned orders of the High Court are indefensible and are set aside. The appeals are allowed.