REPORTABLE 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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  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  Magistrate,

Darrang.

3. Background 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

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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

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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

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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

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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)

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…………………………..J. (P. SATHASIVAM)

New Delhi, July 9, 2008  

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