PANFUL NESSA versus MD. MIRAJ ALI AND ORS.

Citation: [2008] 10 S.C.R. 548 · Decided: 09-07-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed
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Judgment (excerpt)

[2008] 10 S.C.R. 548 
k 
A 
PANFUL NESSA 
v. 
. MD. MIRAJ ALI AND ORS. 
(Criminal Appeal No. 1035 of 2008) 
B 
JULY 9, 2008 
[DR. ARIJIT PASAYAT AND P.SATHASIVAM, JJ.] 
Code of Criminal Procedure, 1973 : s. 482 - Absconding 
accused :-- Issuance of non-bailable warrants against - Peti-
c tion for quashing of proceedings - High Court directing re-
/ease on bail - Correctness of - Held: Not correct since mer-
its of the case were not considered - Moreover it was not a 
case under s.438 - Jurisdiction of s.482 cannot be extended 
to grant of bail in the manner done. 
D 
Pursuant to an FIR lodged against 1 O· persons includ-
ing respondent No. 1 to 9 for committing murder of hus-
t· 
band of appellant and her husband's uncle, charges were 
framed. Respondents No. 1 to 9 were shown as absconders. 
SDJM issued non-bailable warrants against respondents. 
E They filed petition under s.482 Cr.P.C. before High Court 
praying for setting aside the order directing issuance of 
non-bailable warrants. High Court passed direction for re-
lease of respondents on bail. Hence the present appeal. 
F 
Allowing the appeal, the Court 
HELD :1. The High Court has not considered the 
-,.l 
merits of the case. It completely overlooked the fact that 
respondents 1 to 9 have filed a petition under s.482 Cr.P.C. 
Even if the High Court found that there was some lapse 
G on the part of the SDJM in dealing with the matter, that 
could not haye been a ground for directing release of the 
respondents on bail, that too in a petition under s.482 
"'(' 
Cr.P.C. It was not even a case under s.438. Even if it was 
so, the impugned directions could not have been given 
j 
t 
H 
548 
PANFUL NESSA v. MD. MIRAJ ALI, AND ORS. 
549 
·>.. 
[DR. ARIJIT PASAYAT, J.] 
for releasing the respondents 1 to 9 in the manner done. A 
' 
The jurisdiction under s.482 Cr.P.C. cannot be extended 
to grant of bail in the manner done. 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 8 
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 Chief Judicial Magistrate and 
SDJM had clearly mentioned that 11 accused persons 
were absconders. This was obviously with reference to c 
the charge sheet filed. [Para 7] (551 G-H, 552-A-C] 
2. The High Court had completely foreclosed con-
sideration of the application for bail. It also did not exam-
ine the question as to the desirability of respondents 1 to 
" 
9 being released on bail. M~rely because according to the 
~' 
High Court the SDJM had not followed the directions in D 
its proper perspective that could not have been a ground 
for directing release of respondents 1 to 9 on bail. The 
direction contained in the impugned order regarding grant 
of bail to respondents 1 to 9 is set aside. [Para 8] (552 E-F] 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal E 
No. 1035 of 2008 
• 
From the Order dated 16/8/2006 of the Gauhati High Court 
in Criminal Petition No. 116/2006 
J.: 
lrshad Ahmad for the Appellant. 
F 
M.C. Dhingra, Arna Das, Shakeel Ahmad, J.R. Luwang, 
Momota Oimam and Mis. Corporate Law Group for the Respon-
dents. 
Dr. ARIJIT PASAYAT, J. 1. Leave granted. 
G 
,lo, 
~-.... 
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. 
H 
550 
SUPREME COURT REPORTS 
[2008] 10 S.C.R. 
A 
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 
B 
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. If is 
the case of the appellant that in spite of best efforts the police 
c officials could not trace out the respondents. Learned SDJM 
issued non bailable warrants against the respondents. The re-
spondents were declared as proclaimed offenders. On 
22.12.2005 on the strength of warrant of
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