Krishna Chandra Jagti and Others vs Emperor

Mullick, Ag. C.J.

Hari Krishna Mahanty is now under ferial before the Sub-divisional Magistrate, of Kendrapara for an offence u/s 372, I.P.C., for having Fold his daughter Kanak Dai for Rs. 503 to Krishna Chandra Jagti and Rangadhar Rai who are said to have made the purchase far the proprietor of the Aul estate in Orissa. If is said that the girl was below eighteen years of age and that the sale took place about seven months ago, and that the girl died within one month of her arrival at the place of the proprietor, Krishna Chandra Jagti and Rangadhar Rai have bean arrested for an offence u/s 373, I.P.C.

The petitioners applied for bail to the Sub-divisional Magistrate, which was refused. They then applied to the Sessions Judge; but, as they were unsuccessful also in that Court, they have made the present application under Sections 497 and 498, Criminal P.C. The application has bean resisted by the Crown.

The principles on which the Courts should exercise their discretion, in regard to nonbailable offences, have been safe out in Nagendra Nath Chakrabarthi Vs. King-Emperor, and in this respect it has bean said that there is no difference between the English and the Indian practice. Bail is not to be withheld merely as a punishment, and the requirements as to bail are merely to secure the attendance of the accused the trial.

In my opinion the test is to be applied by reference to the following considerations amongst others:

(1) The nature of the accusation.

(2) The nature of the evidence in support of the accusation.

(3) The severity of the punishment which conviction will entail.

(4) The character of the sureties, that is to say, whether they are independent or indemnified by the accused.

(5) The character and the behaviour of the accused.

It was said in In re Robinson [1854] 23 LJQB 286 that the character or behaviour of the accused is irrelevant; but other authorities are of a contrary opinion, and in India, I think, any allegation that the accused is tampering, or attempting to tamper, with witnesses, and thereby obstructing the course of justice, would, in my opinion, be a vary cogent ground for refusing bail.

I will first of all consider what is the evidence before us in support of the charge. Evidence in Court has not yet bean heard in the presence of the accused, but the police diaries have been produced by the Crown. Ordinarily, I do not think we ought to interfere if a prima facie case is established, but I do think that hare there are special circumstances.

At the same time it is hot desirable that I should say more than is necessary with regard to the weight of the available evidence, lest I should in any way prejudge the trial. I will only say that it appaars from the materials before us that the following points will arise for consideration:

(1) Is the father''s defence that he did not sell the girl for illicit intercourse, but gave her in phoolbebahee marriage true? In this connexion Expl. 2, recently added to Section 372, I.P.C., must be considered. It is urged that it is the practice for the proprietors of certain Hill States in Orissa to contract phoolbebahee marriages. In such cases the wife is not a concubine and has a distinct legal status.

It is urged on behalf of the petitioners before us that there is another form of marriage called chaukibebahee marriage, which is preliminary to a phoolbebahee marriage, and that in this case the girl Kanak Dei died before the phoolbebahee marriage was celebrated, but that it wag the intention of the accused Krishna Chandra and Rangadhar to have the phoolbebahee marriage celebrated at the proprietor''s palace.

It has next to be considered whether, even though no legal marital relationship can be established, there was a quasi-marital relationship which protects Hari Krishna Mahanty from prosecution u/s 372. In some parts of the country such relationship is established by exchange of betel-leaf and by payment of money. In the present ease there is evidence that there was a formal gathering of castemen and that the ceremonies in the father''s house were conducted with some publicity.

The next circumstance to be considered is that the father belongs to a caste from which phoolbebahee wives are obtained and that there was no object why a sale should have been resorted to. It is contended by the Grown that there is evidence that a phoolbebahee or a chauki marriage cannot be contracted where the girl is below the age of puberty.

But the decision on this point will depend on evidence of custom and I notice that of the two witnesses already examined u/s 164, Criminal P.C., one has admitted that among poor families the giving of a daughter of immature age is permitted. We are informed by the learned Assistant Government Advocate that there is evidence to show that the father was contemplating the giving of another girl in phoolbebahee marriage to the proprietor and that a protest meeting was held by the members of his caste at which he promised not to give any of his other daughters in marriage to the proprietor.

It is said that he made some admission of guilt at the meeting; but this is not clear from the evidence now before us. It may be that the prosecution will at the trial be able to prove that the ceremonies performed in the father''s house were mere pretence to cloak a sale; but I think on the whole the application of Krishna Chandra and Rangadar Rai should be allowed.

With regard to Hari Krishna, there is evidence that he has been attempting to instigate a witness to alter a palm leaf document on which the date of the birth of Kanak Dei is recorded. This, if true, is clearly a circumstance to be taken into account against him in the matter of bail; but as the principal question in the case will be whether he was entitled to give an immature girl in phoolbebahee marriage his conduct in attempting to tamper with the witness is not really material.

Some inference might, no doubt, be drawn from his act to prove his intention in giving the girl; but having regard to all the circumstances, I think that bail should be granted in his ease also.

The petitioners will, therefore, be released on bail to the satisfaction of the Sub-divisional Magistrate till the conclusion of the cross-examination, if any, of the prosecution witnesses.

Wort, J.

I wish to say only this. The case of In re Robinson [1854] 23 L.J.Q.B. 286 decided by Lord Coleridge cannot be regarded as an authority in England and certainly not in India for the proposition that an alleged tampering with the prosecution, witnesses is not any ground for refusing: bail. First, Lord Coleridge merely said, that he would not regard that argument which is not the same thing as saying, that that argument may never be regarded in any ease. Secondly the English Courts have an untrammelled discretion in refusing or granting bail and owing to the criminal procedure in England it is almost impossible to get an authoritative decision on the question of what grounds there should be in a case where bail is to be granted or refused.

For these reasons, as I have already stated, the case of In re Robinson [1854] 23 L.J.Q.B. 286 cannot be looked upon as an authority for the proposition urged in this case and, in my view, having regard to the state of the law in England, it would be impossible for any party to get a decision from a Divisional Court of the. King''s Bench Division laying down dogmatically and exhaustively the limits or grounds upon which an application for bail should be treated.