TMI Blog2009 (8) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... s unnecessary details, are noted hereunder. The petitioner, Smti. Minakshi Das lodged an Ejahar on 06. 01. 2008 to the Officer-in-charge, Goalpara P. S. that in the morning at about 5 am of 06. 12. 2008 when they were sleeping, her minor daughter, Smti. Daisy Baishya (victim girl), aged about 17 years, was kidnapped by the respondent No. 1-accused, Md. Nur Azam Ali @ Md. Nur Alam, S/o. Md. Rahen Ali, by using deceitful means without their knowledge and the victim girl took away cash amounting to ₹ 60,000/- and also gold ornaments weighing about 3/4 tollas with her. (4) On receipt of the said Ejahar, the O/c, Goalpara P. S. registered a case being G. R. Case No. 1335/2008, which correspondence to Goalpara P. S. Case No. 353/2008 under Section 366 (A) of the IPC. The statement of the petitioner-informant (mother of the victim girl) was also recorded under Section 164 of the Crpc in connection with Goalpara P. S. Case No. 353/2008 under Section 366 (A) of the IPC on 19. 12. 2008 and in her statement under Section 164 of the Crpc she stated in details as to the fact of kidnapping of her minor daughter, i. e. victim girl, Smti. Daisy Baishya and also taking away the cash amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of the case. (7) The bail is to be granted if at that stage of investigation from the materials available there is no reasonable ground for believing that the accused has been guilty of the offence punishable with imprisonment for life or etc. At such stage of consideration of bail, the Court is concerned with the existence of materials against the accused and not as to whether those materials are credible or not on the merit. At the time of consideration of bail, the Court is not deciding the merit of the case on appreciation of the evidence, the Court normally grants the bail on being consideration of the materials available on record, if prima facie satisfies that there are no reason for reasonably believing that the accused has committed the offence. (8) The Apex Court in Gurcharan Singh and Ors. Vs. State (Delhi Administration), (1978) 1 SCC 118 held that Section 439 of the new Code confers special powers on High Court or Court of Sessions regarding bail. This was also the position under Section 498, Crpc of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit persons to bail under Section 498 Crpc (old) was always held to be wide without any express limitations in law. In considering the question of bail justice to both sides governs the judicious exercise of the Courts judicial discretion. The Apex Court cancelled bail granted by the High Court in The State Vs. Captain Jagjit Singh, (1962) 3 SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri. LJ. 215. The Captain was prosecuted along with others for conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act, 1923 for passing on official secrets to a foreign agency. This Court found a basic error in the order of the High Court in treating the case as falling under Section 5 of the Official Secret Act which is a bailable offence when the High Court ought to have proceeded on the assumption that it was under Section 3 of that Act which is a non-bailable offence. It is because of this basic error into which the High Court felt that Apex Court interfered with the order of bail granted by the High Court. (10) Without even considering as to whether the learned Sessions Judge granted the pre-arrest bail under the impugned order dated 02. 01. 2009 in connection with Goalpara P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, it is essential that duration of that order should be limited. Ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that court which is then to consider whether, having regard to the material placed before it, the accused person is entitled to bail. Therefore, the Apex Court in Salauddin Abdulsamad Shaikhs case (supra) clearly held that order for anticipatory bail should be of a limited duration only and it should be left to the regular Court to deal with the matter on appreciation of the evidence placed before it after investigation has been made progress or charge sheet is submitted. (12) On bare perusal of the impugned order dated 02. 01. 2009 passed by the learned Sessions Judge, Goalpara for granting pre-arrest bail for an unlimited period by not even allowing the regular Court to deal with the application for bail on appreciation of evidence placed before it after investigation has been made progress is in absolute infraction of the ratio laid down by the Apex Court in Salauddin Abdul Samad Shaikhs case (supra). (13) The ratio laid down by the Apex Court in Sala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : AIR 2005 SC 498 . Para 21, 22, 23 and 24 of the AIR in Sunita Devis Case (supra) read as follows : 21. For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddins case (supra) the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Section 438 and 439 shall be rendered meaningless and redundant. 22. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddins case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to a higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. 23. These aspects were recently highlighted in Mirmal Jeet Kaur Vs. The State of Madhya Pradesh and Anr. (JT 2004 (7) SC 161 ). Therefore the order of the High Court granting unconditional protectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madhav Rao Schindia Vs. Union of India : (1971) 1 SCC 85 this Court cautioned : it is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as contained a full exposition of the law on a question when the question did not even fall to be answered in that judgment. (17) The Apex Court in Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and Ors. : (2003) 2 SCC 111 observed that a little difference in fact or additional fact may make a lot of difference in the precedential value of a decision under Article 141 of the Constitution of India. Para 59 of the SCC in Bhavnagar Universitys case (supra) read as follows : 59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is well settled that a little difference in facts or additional facts may make a lot of differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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