2023 SCMR 1182
Lurking house - trespass or housebreaking by night after preparation for hurt , assault or wrongful restraint --- Bail , refusal of --- Facts alleged in the FIR prima facie constituted the offence of house - breaking by night after preparation for causing hurt , punishable under section 458 of the P.P.C. , instead of section 452 of the P.P.C .--- Accused and his accomplices allegedly committed house - breaking , that is , trespassed into the complainants ' house by scaling over the wall of the house , as defined in clause ( 2 ) of section 445 and that housebreaking was also committed by night , that is , after sunset and before sunrise , as defined in section 446 , P.P.C .--- Offence under section 458 of the P.P.C. being punishable with imprisonment upto fourteen years fell within the prohibitory clause of section 497 ( 1 ) of the Cr.P.C .--- Therefore , even , if the actual role of the accused was considered , his case also fell within the prohibitory clause --- Petition for leave to appeal was dismissed , leave was refused , and accused was refused bail .
Bail --- Offences that do not fall within the prohibitory clause of section 497 ( 1 ) , Cr.P.C .--- Exceptions to grant of bail in such offences --- It is true that in such offences , bail is to be granted as a rule , but not as of right --- Bail can be refused in such offences when the case of the accused falls within any of the three well established exceptions : ( i ) likelihood to abscond to escape trial ; ( ii ) likelihood to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice ; and ( iii ) likelihood to repeat the offence .
Bail , refusal of --- Possibility of accused absconding or causing harm to alleged abductee --- In the present . case , the accused being the father of the alleged abductee appeared to have had the real motive for the commission of the alleged offences while the others abetted him in his cause --- Most of the other accused persons were absconders , and the police had so far only succeeded to bring the accused and a co - accused person to justice --- Thus , there was a likelihood that the accused may also abscond if he was released on bail --- Further , and more importantly , the alleged abductee had not yet been recovered --- No one knew whether she was alive or not --- There was a possibility that the accused may cause her harm or may coerce her to influence her evidence concerning the facts of the present case if he was released on bail --- Two of the exceptions to grant of bail in offences , not falling within prohibitory clause of section 497 ( 1 ) , Cr.P.C. , i.e , likelihood of repeating the offence and influencing the witness were attracted in the present case --- Case of the accused , therefore , attracted not one but almost all the three exceptions which justified the declining of bail even in offences that did not fall within the prohibitory clause of section 497 ( 1 ) , Cr.P.C .--- Petition for leave to appeal was dismissed , leave was refused , and accused was refused bail with the directions that the concerned Inspector General of Police , shall personally look into the matter and depute a police officer not below the rank of Superintendent of Police to supervise the investigation of the case and to ensure recovery of the alleged abductee at the earliest ; that on recovery of the alleged abductee , she may be lodged in Dar - ul - Aman ( or some other . similar institution ) for at least two days before recording her statement as to the facts of the case , so that she may be in a position to make her statement voluntarily without the undue . influence of anyone , and her statement should preferably be recorded by the Magistrate concerned under section 164 , Cr.P.C.
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