2011 PLP 1284 (MLD)

SYED ZAKIR HUSSAIN, J.

This is a case of kidnapping of minors two in numbers namely Irfan and baby Tasleem said to have been committed by 10 persons together on the given date place and time as reported against. The police registered the F.I.R on such report and investigated the same. The charge sheet was submitted against five absconding persons together with present applicant who is the only person shown in custody and who too as being no more required for the purpose of investigation, and against whom no recovery is said to have been effected during investigation. The five persons out of the said 10 culprits, were let off by the police as a result of its independent investigation and so placed in Column No.II of such charge sheet, which has gone unchallenged on the part of the prosecution, and the Court has also accepted the same. The learned counsel states that the first bail application which was preferred in the Court of the first instance, has been rejected. This is the second bail application. As per the learned counsel, there is no positive incriminating evidence except the words of the complainant party and since no recovery of the abducted children has taken place, there is no statement of such kidnapees as well, and unless a positive incriminating evidence has appeared in the matter, keeping the applicant behind the bars, for an indefinite period is not justified. Resides, the provision of section 364-A, P.P.C. prima facie is not applicable in the matter unless such recovery is effected. The case appears to be based on the allegations, which as a matter of final conclusion of the investigation as referred to above is confined only to that of simple abduction/kidnapping covered by section 363, P.P.C., which is punishable upto seven years and such punishment, does not fall within the prohibitory clause of section 497(1), Cr.P.C. The learned counsel for the applicant submits that the applicant is entitled to the grant of bail at least until such evidence has come forward which could make the case as one of section 364-A, P.P.C., during the course of trial. The learned State counsel seriously opposed the grant of bail as according to him the applicant is the main culprit and at his instance the minor children have been kidnapped and the police has not recovered them as yet, due to his influence. He however, does not dispute the position that the challan has been submitted and the applicant though subjected to interrogation and investigation, but no recovery could have been effected from him and thus his being in jail prima facie leads to infer that he is no more required for the purpose of investigation including the recovery of kidnapees. He further does not materially dispute the contention of the learned counsel unless there appears, recovery of kidnapees, and their statement to such effect against the applicant, section of 364-A, has no nexus and that the present circumstances carry the facts constituting an offence of section 363, P.P.C., which involves the aforesaid punishment, which does not fall within the prohibitory clause and therefore, there is no bar if the court considers the request of grant of bail in favour of the applicant as a matter of law. Keeping in view the above, the application is allowed. The applicant is granted bail in the sum of Rs.100,000 with P.R. bond in the like amount to the satisfaction of trial Court. H.B.T./A-54/K Bail granted.