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2000 DIGILAW 457 (ORI)

PEDINI ADIKANDA v. DASARI PALLI AND OTHERS

2000-09-15

P.K.MOHANTY

body2000
P. K. MOHANTY, J. ( 1 ) THIS is an informantts application for cancellation of bail under See. 439 (2), Cr. P. C. granted by the learned Addi. Sessions Judge, Berhampur in favour of opp. Parties 1 to 4 in S. C. Case No. 43 of 1998 under Sees. 147/148/323/352/294/506 read with Sec. 149, IPC. ( 2 ) THE brief fact of the prosecution case was that on 6-10-1996 at about 9. 00 p. m. while the informant was talking with his field servant R. Haribandhu, the deceased, he found opp. parties 1 to 4 along with others being armed with deadly weapons came to his farm house and abused him in filthy language. Accused D. Dillip dealt a blow on his head by means of an iron rod anti seeing the assault deceased Haribandhu came to the rescue of the informant, but opp. parties 1 to 4 and others assaulted the said Haribandhu by means of deadly weapons like iron rod and lathi. On the basis of the report in the Minjili Police Station. P. S. Case No. 94 of 1996 was instituted which ultimately was registered as G. R. Case No. 309 of 1996. ( 3 ) IT is the case of the petitioner that opposite parties 1 and 2 along with three others moved the Addi. Sessions, Judge. Berhampur for bail and the bail application having been rejected by order dated 7-2-1997 in Criminal Misc. Case No. 64 of 1997 (Cr1. Misc. Case No. 11 of 1997 GDC), they moved this Court for bail in Criminal Misc. Case No. 1067 of 1997. The application for bail in respect of opp. parties 1 and 2 and two others was not pressed but one Naidu Banamali who was petitioner No. 3 in that case was released on bail on the finding that the materials as against him were not specific inasmuch as he was an old man of 58 years. Opp. parties 1 and 2 along with two others again filed Criminal Misc. Opp. parties 1 and 2 along with two others again filed Criminal Misc. Case No. 4124 of 1997 on 31-10-1997 and on hearing the learned counsel for the parties and on perusal of the records this Court in order dated 22-12-1997 having prima facie found from the evidence that petitioner No. 1 Dasari Polli was holding a rod and that he at the first instance injured the informant hitting the iron rod on his head causing bleeding injuries and all these petitioners were armed with weapons inasmuch as the FIR and statements of witnesses having disclosed that Dasari Polli and Megha Das instigated the incident whereas Dasari Polli made the first assault on the informant as well as the deceased the accused opposite parties were not entitled to bail and accordingly, the bail application was rejected in respect of Dasari Polli (opp. party No. 1) and Megha Das (opp. party No. 2) while accused Naidu Budhia and Gujari Madhusudan were released on bail. ( 4 ) CRIMINAL Misc. Case No. 2657 of 1998 was again filed on 19-6-1998 by the present opp. parties 1 and 2 for grant of bail but the same was dismissed as not pressed by order dated 29-1-1999. ( 5 ) OPP. parties 3 and 4 were absconding from the date of occurrence i. e. from 6-10-1996, but however, they were arrested on 10-5-1998. Bail application was filed on 29-5-1998 bearing Criminal Misc. Case No. 2348 of 1998 along with two others, but their prayer was rejected on 10-7-1998, in view of the prima facie finding that P. Bhagaban (opp. party No. 3) and Epili Simadri (opp. party No. 4) have been directly implicated by the witnesses. P. Nilama, D. Budhiamma and P. Adikanda, the informant apart from the statement of other witnesses. However, one Kapalu Dili was released on bail. It is the specific allegation of the informant petitioner that opp. parties 1 to 4, after their release on bail, illegally and contrary to the order of the High Court along with others are threatening the informant and other eyewitnesses for which he had lodged information on 22-3-1999 entered as S. D. E. No. 468 and another on 25-4-1999 vide S. D. E. No. 451. ( 6 ) LEARNED counsel for the petitioner contends that in the aforesaid background when repeatedly the application of opp. ( 6 ) LEARNED counsel for the petitioner contends that in the aforesaid background when repeatedly the application of opp. parties 1 to 4 was rejected by the High Court, the said opp. parties in spite of rejection moved for bail before the learned Second Addi. Sessions Judge, Berhampur for bail and by order dated 9-2-1999 the prayer for bail of opp. parties 1 to 4 was allowed by the Second Addi. Sessions Judge, illegally in violating the order of this Court. It is contended that the bail application of the opposite parties having been repeatedly rejected on the specific finding that there are prima facie materials against the opp. parties the learned Addi. Sessions Judge could not have granted bail inasmuch as the learned Addi. Sessions Judge has ignored the materials available on record. ( 7 ) IT appears from the impugned order that the fact of rejection of the bail application by the Sessions Judge as well as the High Court was brought to the notice of the learned Second Addi. Sessions Judge, but on the basis of the bail granted in favour of one Simadri alias Mandi Simadri by this Court, the learned Addi. Sessions Judge found that in the whole the role of the present petitioners was no way different than the role of the accused persons, who have already been released on bail by the High Court, he granted bail in favour of the four accused persons, who are opposite parties 1 to 4 herein. ( 8 ) THE learned Addi. Sessions Judge in the impugned order has referred to the decisions in Pola Singh v. State of Orissa and Chandramani Swain v. State of Orissa in support of his view that the bail petition may be moved by the accused while in custody before the learned Sessions Court even though the prayer for bail was refused by the learned Addi. Sessions Judge as well as by the High Court. The learned Sessions Judge appears not to be mindful when the citations are recorded as the names of the parties and the report has to be mentioned while relying on a decision. It further appears that Volume-73, as mentioned by the learned Addi. Sessions Judge, is not of the year 1993 and perhaps, he was referring to Volume-73 (1993) C. L. T. 680 (supra ). It further appears that Volume-73, as mentioned by the learned Addi. Sessions Judge, is not of the year 1993 and perhaps, he was referring to Volume-73 (1993) C. L. T. 680 (supra ). This depicts a very casual manner in which the learned Addi. Sessions Judge has applied his mind to the facts in issue and the points of law involved. It further appears that the learned Addi. District Judge has referred to Yearly All India Criminal 1994, wherein, according to the learned Addi. Sessions Judge, it has been held that in identical cases the bail application should be allowed. It appears that there is no such journal as Yearly All India Criminal, 1994 nor there is any mention of the year wherefrom the learned Sessions Judge found the dictum. ( 9 ) THIS Court, while rejecting the bail application of the aforesaid four accused persons categorically found that there are materials to show the complicity of the said accused persons in the crime and as such the bail was refused. Interestingly, what the learned Addi. Sessions Judge meant from Yearly All India Criminal, 1994 is yet to be known without further particulars since there appears no such journal in that name and it reflects as to how the learned Addi. Sessions Judge has applied his mind to the facts of the case and the question of law involved therein. When the High Court, on consideration of the materials came to the definite conclusion that there was materials as against the accused persons as indicated in the aforesaid Criminal Misc. Case referred to (supra), without anything more and without any material which has come to light as would throw light on the innocence of the accused persons, the learned Addi. Sessions Judge was not authorised to unsettle the finding for grant of bail to such accused persons. In my considered opinion, the learned Addi. Sessions Judge has exceeded his jurisdiction and gone beyond the propriety in dealing with the bail application and without discussing any material from the available records with regard to the involvement of the present opp. parties simply saying that they stand in the same footing as that of Simadri alias Mandi Simadri, who has been granted bail by the High Court, would not justify release of the present opp. parties on bail. ( 10 ) IT may be noted that the learned Addi. parties simply saying that they stand in the same footing as that of Simadri alias Mandi Simadri, who has been granted bail by the High Court, would not justify release of the present opp. parties on bail. ( 10 ) IT may be noted that the learned Addi. Sessions Judge has himself observed in the impugned order that the bail application of Mandi Simadri was granted in view of the old, age keeping in view the nature of allegations available on records. In that view of the matter, the main consideration for grant of bail in respect of Mandi Simadri being age the learned Addi. Sessions Judge could not have come to a conclusion that the present opp. parties are similarly situated. ( 11 ) THE learned Addi. Sessions Judge, ought to have gone through the orders of this Court as aforesaid refusing to grant bail and the reasons thereof, before he ventured to find that the petitioners before him (present opp. parties 1 to 4) are similarly situated with M. Simadri, whose bail application was allowed mainly on the ground of old age. On a reading of the impugned order of the learned Addi. Sessions Judge, it appears that he was anxious to release the accused persons on bail somehow or the other. He has also forgotten to note that the bail applicants P. Bhagaban (opp. party No. 3) and E, Simidri were absconders and on that ground alone they were refused bail, by his order dated 26-5-1998. ( 12 ) IN view of the specific findings of this Court that there were materials on record as against the present opposite parties and the fact that opp. parties 3 and 4 were absconders and for which their bail application was rejected by him by order dated 26-5-1998, after which High Court also rejected the same the learned Addi. Sessions Judge could not have recorded a finding that, their cases being similar to M. Simadri, they are entitled to be released on bail on the same footing. The learned Addi. Sessions Judge has thus grossly exceeded his jurisdiction in trying to sit over the findings of this Court, without any materials coming to record after rejection of their bail petition by this Court, specially when this Court in face of the bail granted in favour of M. Simadri, rejected the bail application of the opposite parties. The learned Addi. Sessions Judge has thus grossly exceeded his jurisdiction in trying to sit over the findings of this Court, without any materials coming to record after rejection of their bail petition by this Court, specially when this Court in face of the bail granted in favour of M. Simadri, rejected the bail application of the opposite parties. ( 13 ) IN that view of the matter, I am constrained to observe that the learned Addi. Sessions Judge has not only committed illegality but also has committed judicial impropriety in overreaching the order of this Court somehow or the other to grant bail in favour of the opposite parties. The informant-petitioner has alleged abuse of liberty by opp. parties 1 to 4, as they have threatened the informant as well as the other witnesses to desist from deposing against them and for a compromise. Several opportunities have been granted to the opposite parties but they have not controverted such allegations. ( 14 ) IN the facts and circumstances of the case and in the ends of justice, the order of the learned Addi. Sessions Judge is set-aside and the order of bail granted by the learned Addi. Sessions Judge is cancelled and consequently the bail bond furnished. The opp. parties 1 to 4 be taken to custody to face their trial which is said to be continuing in the Sessions Court. The Criminal Misc. Case is accordingly allowed. Cr1. Misc. Case allowed.