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2004 DIGILAW 337 (ORI)

Sudarsan Parida v. State

2004-07-29

B.P.DAS

body2004
ORDER 29.7.2004 — Heard Mr. S. N. Mohapatra, learned counsel for the petitioner and learned counsel for the State. The petitioner in this Criminal Misc. Case challenges the order dated 19.7.2004 passed by the learned Additional Sessions Judge, Bhadrak in S.T. Case No. 4/1/2001. According to Mr. Mohapatra, there are altogether four ac¬cused persons in S.T. Case No. 4/1/2001, namely, Babu alias Prasanta Parida, Baina @ Baidhar Mahalik, Shanti Parida, wife of Suresh Parida and the present petitioner Sudarsan Parida. All of them engaged their respective counsel. It is submitted by the learned counsel for the petitioner that Babu and Baina are in jail custody but ac¬cused Shanti Parida and the present petitioner, Sudarsan Parida were enlarged on bail and according to him the present petition¬er was personally appearing before the Court and on some dates, applications under Section 317 of the Cr.P.C. were filed. On 19.7.2004, according to the learned counsel for the petitioner, Sudarsan Parida was present but accused Shanti Parida was absent. The Investigating Officer was also present. Learned counsel for the defence submitted that he had no instruction from Shantilata Parida regarding her non-appearance. This prompted the learned Additional Sessions Judge to pass the order dated 19.7.2004 in which the N.B.W. was issued against Shantilata Parida and also for initiation of proceeding against the sureties. But at the same time, learned Additional Sessions Judge cancelled the bail bond of Sudarsan Parida who was present in Court on that date and remanded him to jail custody. Adding to that the learned Addi¬tional Sessions Judge has also disengaged the defence counsel and appointed one Mr. P. Panda as the State defence. Mr. S. N. Moha¬patra, learned counsel for the petitioner submits that Mr. R. R. Mohapatra was the defence counsel and was appearing for all the accused persons and he has only submitted that he has no instruc¬tion as regards non-appearance of Shantilata Parida. But as other accused persons were present, there was no occasion to disengage him and engage a State Defence Counsel. According to Mr.Mohapatra, the Additional Sessions Judge may be correct. In splitting up the case of Shanti Parida and taking coercive action against her but there was no occasion, when Sudarsan Parida was present before the Court, to cancel his bail bond and remand him to jail custody. According to Mr.Mohapatra, the Additional Sessions Judge may be correct. In splitting up the case of Shanti Parida and taking coercive action against her but there was no occasion, when Sudarsan Parida was present before the Court, to cancel his bail bond and remand him to jail custody. According to him this is an arbitrary order and in violation of the principles of natural justice and settled position of law. In order to fortify his argument, learned counsel for the petitioner draws my attention to the order sheet dated 10.5.2004 which indicate that the accused persons, namely, Sudarsan Parida and Shanti Parida were present along with the U.T. Ps. and the I.O. was not present. On 4.6.2004, the same was also the order. On 22.6.2004, the I.O. was not present although the accused persons and U.T. Ps. were present. On 29.6.2004, the same was also the order. As it ap¬pears, the learned Additional Sessions Judge was granting liberal adjournments on the prayer of the prosecution. But once on 19.7.2004, the I.O. appeared, prima facie from the order dated 19.7.2004 it transpires that the learned Additional Sessions Judge was very much keen to conclude the trial but at the same time order dated 21.7.2004 shows that even though the U.T.Ps. were present, adjournment was granted on the prayer of the I.O. and on that date another State defence counsel was appointed, namely, D. S. Nayak to assist the S.D.C. The order passed so far as Sudarsan Parida is concerned, amounts to cancellation of his bail, I may say that when a bail has been granted, cancellation of bail can be on special reason germane to the cancellation under Sections 437 (2), 437 (5), and 439 (2), Cr.P.C. Section 437 (5) speaks of the following : “Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if is considers it necessary so to do, direct that such person be arrested and commit him to custody.” Section 439(2) speaks of the following : “A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody”. As it appears, the learned Additional Sessions Judge has taken a ground that continuance of Sudarsan Parida under such suretyship bond of the same person who has given the surety to Shantilata Parida is bound to cause delay in further trial of the case if he leaves Orissa and goes to Calcutta where he pursues his avocation. It is stated that the present petitioner as a Central Government servant. Be that as it may, there was no material before the trial Court to show that the sureties have no control over Sudarsan Parida as Sudarsan Parida appeared on the date on which the order was passed. I may remind the Addl. Sessions Judge that bail once granted should not be cancelled in a mechan¬ical manner without considering whether any supervening circum¬stances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the conces¬sion of bail during the trial. (See 1995 (1) SCC 349 , Dolatram and others v. State of Haryana). That apart, the learned Additional Sessions Judge has nei¬ther given any opportunity to the petitioner to show cause before cancelling his bail bond nor has he given a chance to him to fur¬nish fresh surety. So far as the order of the learned Additional Sessions Judge regarding disengaging the Defence Counsel and engaging the State Defence Counsel is concerned, there is nothing to indicate that the this order has been passed after taking the consent of the accused persons except Shantilata Parida, who were present in the Court. It is the bounden duty of the Court before disengaging Mr. R. R. Mohapatra, who was representing all the accused persons, and who has expressed before the Court that he has no instruction for Shantilata, to ask the accused persons whether they were willing to continue their own counsel or they want that State Defence Counsel should be appointed. That apart, the order dated 21.7.2004 indicates that the State Defence Coun¬sel even filed a memo. to supply him the copies of the police papers and depositions and for better and full preparation of the case and asked for 10 to 15 days’ time to prepare the case. That apart, the order dated 21.7.2004 indicates that the State Defence Coun¬sel even filed a memo. to supply him the copies of the police papers and depositions and for better and full preparation of the case and asked for 10 to 15 days’ time to prepare the case. Instead of giving him time, the learned Additional Sessions Judge appointed another State Defence Counsel to assist him and direct¬ed the accused persons to hand over the police papers to the State Defence Counsel apart from directing the Copying Department to furnish the F.I.R. and charge-sheet as early as possible to the S.D.C. and adjourned the matter to 22.7.2004. This shows that the learned Additional Sessions Judge has hastily proceeded with the matter for the reasons best known to him and has not given a chance to the State Defence Counsel to prepare his case. It, therefore, shows that the Court below is prejudiced the interest of the accused persons. As it appears, the learned Additional Sessions Judge was prepared to proceed with the matter with an unprepared defence counsel, which is improper and amounts to not giving the accused a chance to defend his case. The order dated 19.7.2004 relating to cancellation of bail of petitioner and appointment of S.D.C. being perverse and passed without applica¬tion of judicial mind and in a whimsical manner is set aside. As it is informed that the trial Court has posted the matter to 30.7.2004 for pronouncement of the judgment, the trial Court is directed not to pronounce the judgment in the aforesaid case. If an application is made on behalf of Sudarsan Parida and other OTPs. to recall the I.O. for cross-examination by their own counsel, the said application shall be allowed. The petitioner-Sudarsan Parida shall be allowed to remain on previous bail. The petitioner is directed to remain present in the trial Court on each and every date of trial till the trial is concluded. The CRLMC is disposed of accordingly. As Mr. Mohapatra submits that the matter is posted to tomorrow and it is not possible to get the certified copy today, I direct that a free copy of this order be furnished to Mr. Mohapatra as well as the learned counsel for the State in course of the day. CRLMC disposed of.