Research › Browse › Judgment

Orissa High Court · body

1999 DIGILAW 220 (ORI)

THABIR SUNA v. STATE OF ORISSA

1999-07-15

P.K.MISRA

body1999
JUDGMENT : P.K. Misra, J. - The petitioner in Criminal Revision No. 193/98 by order dated 2.6.1998 in Misc. Case No. 235/98 was directed to be released on bail of Rs. 25,000/- with two sureties, each for the like amount, to the satisfaction of the Assistant Sessions Judge-am;-Chief Judicial Magistrate, Bhawanipatna, in Sessions Case No. 32/14 of 1997. The said order was duly communicated to the aforesaid Court. It appears that in spite of such order, the petitioner could not furnish the bail bond before the Assistant Sessions Judge for some time, as his father had fallen ill in the meantime. Thereafter, the petitioner wanted to furnish the bail before the Assistant Sessions Judge. However, the Assistant Sessions Judge instead of considering the question of acceptance of the bail bond, passed the following order on 28.8.1998: "The case record is put up today. The prisoner did not furnish bail bond. More than 15 days have passed from the date of receipt of the bail order from the Hon'ble Court. Hence submit the bail order to the Hon'ble Court for further instruction from the Hon'ble Court." In view of such direction of the trial Court, the petitioner filed another application numbered as Misc. Case No. 630/98 for appropriate direction to the Assistant Sessions Judge to accept the bail bond. Since the liberty of a person was involved, while directing the release of the petitioner, 1 called upon the counsel for the petitioner, counsel for the State and other Advocates to address the Court on the point. 2. The learned counsel for the State as well as other counsels have pointed out thai Rule 121 of the General Rules and Circular Orders of the High Court of Judicature, Orissa (Criminal) (hereinafter referred to as the "G.R. & CO. (Criminal)") is relevant for the purpose. The said Rule is quoted hereunder : "121. 2. The learned counsel for the State as well as other counsels have pointed out thai Rule 121 of the General Rules and Circular Orders of the High Court of Judicature, Orissa (Criminal) (hereinafter referred to as the "G.R. & CO. (Criminal)") is relevant for the purpose. The said Rule is quoted hereunder : "121. When an Appellate Court or a Court of Revision directs the release of a prisoner on bail pending the hearing of an appeal or an application for revision, such Court shall send the warrant for his release on bail to the Chief Judicial Magistrate or if the order under appeal or revision was passed by a Court in an outlying sub- division, in the alternative to the Subdivisional Judicial Magistrate of such Subdivision or, if the said order was passed by a Court not at the subdivisional headquarters, to the Judicial Magistrate concerned and send a copy of the order to the trial Court.' The Magistrate concerned shall comply with the bail orders on the very day of its receipt and in case of non-compliance on that day shall note the reasons for the same in the order-sheet. If such person is unable to furnish the bail required of him, the Court receiving the warrant for the release of the prisoner on bail shall forthwith return the same to the Appellate Court or the Court of Revision which issued it, with an endorsement thereon to the effect that the prisoner is unable to furnish the bail." It further appears that subsequently in the decision taken at the Conference of District Judges, it has been indicated that if bail is not furnished by the prisoner within fifteen days of the receipt of the bail order, the same may be returned to the appellate Court or the revisional Court in accordance with Rule 121, which has been quoted above. 3. The first part of the aforesaid Rule enjoins the concerned Magistrate or the Court to comply with the bail order on the very day of its receipt and in case of non-compliance on that day, to note the reasons for the same in the order-sheet. It is obvious that the intention behind such direction is to see that no prisoner is unnecessarily detained after bail order has been passed. The subsequent portion contained in the Rule to the effect : "......... It is obvious that the intention behind such direction is to see that no prisoner is unnecessarily detained after bail order has been passed. The subsequent portion contained in the Rule to the effect : "......... If such person is unable to furnish the bail required of him, the Court receiving the warrant for the release of the prisoner on bail shall forthwith return the same to the Appellate Court or the Court of Revision which issued it, with an endorsement thereon to the effect that the prisoner is unable to furnish the bail." has obviously been framed as a matter of administrative convenience. The intention behind such latter portion of the Rule is not to nullify the bail order after lapse of some time, but to keep the appellate Court or the revisional Court informed about the fact that the prisoner has not been able to furnish the bail. Such information is necessary to be given so that the appellate Court or the revisional Court can take steps for early hearing of the appeal or revision, as the appellate or the petitioner. as the case may be, continues to be in jail in spite of the bail order. The intention behind such Rule is not to frustrate the bail order as such. Therefore, while the Magistrate is required to keep the appellate Court or the revisional Court informed about non-furnishing of bail within, the period of fifteen days, which has been subsequently indicated in a Circular Letter issued by the High Court, it cannot be said that the original bail order communicated by the appellate Court or the revisional Court loses its efficacy. The provisions contained in the Code of Criminal Procedure, 1973, relating to enlargement of an accused person on bail have nowhere stipulated that if bail is not furnished within a particular period, the same shall be treated to be of no effect after expiry of a particular period. The provisions relating to bail have been made obviously with a view to protect the liberty of a person. If a pedantic view of the provisions contained in Rule 121 of the G.R. & CO. The provisions relating to bail have been made obviously with a view to protect the liberty of a person. If a pedantic view of the provisions contained in Rule 121 of the G.R. & CO. (Criminal) is taken and if it is considered that after expiry of the period subsequently indicated by way of administrative decision/executive instruction, the effect of the order of bail is nullified, the prisoner would be unnecessarily harassed, as he would have to approach the appellate Court or the revisional Court for fresh order. A prisoner may not be able to furnish the bail initially due to many reasons, such as want of knowledge, paucity of funds or other unforeseen circumstances. The intention behind Rule 121 cannot be construed in such a manner so as to prolong unnecessarily the detention of a prisoner. 4. For the aforesaid reasons, it is observed that though the Magistrate or the Court is required to keep the appellate Court and the revisional Court informed about the non-furnishing of bail within the period prescribed, the bail order should be treated to be operative even for period beyond fifteen days and the prisoner should be released on bail as soon as he is able to furnish the bail bond and the Magistrate concerned need not wait for any further clarification or order from the appellate Court or the revisional Court. The registry is directed to communicate this order to all the concerned Courts.