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2004 DIGILAW 507 (ORI)

LAXMIKANTA MOHANTY v. STATE OF ORISSA

2004-11-22

R.N.BISWAL

body2004
JUDGMENT : R.N. Biswal, J. - This Misc. case has been filed with a prayer to modify the order dated 4.10.2004 passed in BLAPL No. 7685/2004 to the extent of keeping the said order in force till submission of the final form with all other conditions remaining unaltered. 2. In the above said BLAPL No. 7685 of 2004 the petition u/s 438 Code of Criminal Procedure filed by the Petitioner was allowed wherein it was ordered that in case of arrest of the Petitioner in Vigilance P.S. Case No. 32 of 2004 corresponding to Cuttack Vigilance file No. 49 of 2003 the Petitioner shall be released on bail of Rs. 15,000/- with one surety solvent for the like amount to the satisfaction of the officer effecting arrest on condition that he shall co-operate the investigating agency as and when required. It was further ordered that this order shall remain in force for a period of one month and in the meantime the Petitioner may apply for regular bail in proper forum. 3. As per the modification petition, the Petitioner was arrested by the Vigilance Officials and was released on bail in consonance with the aforesaid direction. The record pertaining to Vigilance P.S. Case No. 321 of 2004 corresponding to Cuttack Vigilance file No. 49 of 2003 has been sent to the learned C.J.M., Cuttack as the said Court receives records in respect of the cases pertaining to,the jurisdiction of the learned Special Judge, Bhubaneswar, as a result of which the Petitioner has not been able to surrender before the said Special Judge since in absence of any record the Special Judge will not be able to hear the bail application of the Petitioner. The record in the aforesaid case shall be sent to the Court of Special Judge, Bhubaneswar only after completion of investigation and submission of final form. In such premises the Petitioner filed this modification petition with prayer as mentioned earlier. 4. The record in the aforesaid case shall be sent to the Court of Special Judge, Bhubaneswar only after completion of investigation and submission of final form. In such premises the Petitioner filed this modification petition with prayer as mentioned earlier. 4. In the notification No. 622/A dated 10th October, 2001, this Court in exercise of the powers conferred under Sub-section (3) of Section 11 of the Code of Criminal Procedure 1973 (Act II of 1974) conferred upon the C.J.M. in the district of Cuttack the power of a Judicial Magistrate of the first class under the said code in respect of cases instituted and investigated by the State Vigilance Branch for the districts of Jagatsinghpur, Jajpur, Kendrapara, Dhenkanal and Angul. The occurrence in the aforesaid Vigilance case having been taken place in Angul District, the C.J.M., Cuttack is the Judicial Magistrate first class in respect of that case. 5. Learned Standing Counsel appearing for the vigilance organisation submits that the Petitioner has to first surrender before the Court of C.J.M., Cuttack and apply for bail, and in the event of his bail petition being rejected; he may apply for bail before the Special Judge (Vig.) at Bhubaneswar. He cannot directly apply for bail before the said Court. In support of his submission he relied on the decisions "Usman Ali Khan v. State of Orissa" (2001) 21 OCR 354, Shri Indrajeet Roy Vs. Republic of India "Satyananda Sahoo ' Kuna v. State of Orissa (2003) 26 OCR 368 : 2003 (Supp) OLR, (NOC)-967 and Arjuna Sahoo v. State of Orissa (2003) 26 OCR 369. In all these decisions it has been held that even though the Sessions Judge and High Court have concurrent power u/s 439 Code of Criminal Procedure to entertain bail, still then as a matter of practice and prudence the Session Judge being lower in hierarchy is to be approached first u/s 439 Code of Criminal Procedure, whereafter the jurisdiction of the High Court under the selfsame Section can be invoked. Per contra Learned Counsel for the Petitioner submits that as per Section 5 of the Prevention of Corruption Act it is only the Special Judge (Vigilance) who can take cognizance of an offence arising out of the said Act. Per contra Learned Counsel for the Petitioner submits that as per Section 5 of the Prevention of Corruption Act it is only the Special Judge (Vigilance) who can take cognizance of an offence arising out of the said Act. Since the C.J.M., Cuttack has no power of taking cognizance as he acts just like a post office by only transmitting the final form submitted before him to the Vigilance Judge he cannot entertain a bail application. He further submits that it is the Special Judge (Vigilance) only who can try the offences specified in Sub-section (1) of Section 3 of the said Act. In support of his contention he relied on the decision "Sunil Sing ' Captain Sunil and Ors. v. State of Bihar and Ors." 2001 Cr. L.J. 3680 where it has been held that "Courts of Special Judges are creation of the statute as referred to above and they are vested with powers to try the offences arising out of the Act 1988." 6. When the C.J.M., Cuttack has been declared as J.M.F.C. in respect of cases instituted by the State Vigilance Organization in respect of the aforesaid districts, the Petitioner has to appear first before him and apply for bail. In case the bail is rejected he may apply for bail u/s 439 Code of Criminal Procedure before the Special Judge (Vigilance), Bhubaneswar. As mentioned earlier the petition u/s 438 Code of Criminal Procedure was granted on 4.10.2004. So, the said order lost its force on 3.11.2004. This Misc. case for modification was filed on 3.11.2004 while the bail order was in force. So in my view it would meet the ends of justice if the period of pre-arrest bail is extended up to 3.12.2004 only. 7. Accordingly, the order dated 4.10.2004 passed in BLAPL No. 7685 of 2004 is modified to the extent that the said order shall remain in force till 3.12.2004 instead of for a period of one month. 8. Accordingly the Misc. case is disposed of. 9. Urgent certified copy of this order be granted on proper application.