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2005 DIGILAW 10 (ORI)

Biswamitra Majhi v. State of Orissa

2005-01-04

PRADIP MOHANTY

body2005
JUDGMENT PRADIP MOHANTY, J. — This is an application under Section 438 of the Code of Criminal Procedure (“Cr.P.C”., for short) with a prayer to release the petitioners on anticipatory bail. Petition¬ers 1 and 2 are Government servants being employed as Assistant Soil Conservation Officer and Soil Conservation Section Officer respectively. They were entrusted with the work of implementing the project named “Wasteland Development “Programmer” in Bargaon Block in the district of Sundargarh. On the allegation that some irregularities had been committed during the execution of the aforesaid project, File No.39 of 2003 has been opened by the Sundargarh Squad of the Vigilance Department and investigation is going on. 2. Mr. Panda appearing for the petitioners submits that though till date neither any FIR has been drawn up nor has any search warrant been issued, since the petitioners were entrusted with execution of the aforesaid work and a vigilance enquiry is going on, there is reasonable apprehension in the mind of the petitioners that they may be falsely implicated in a vigilance case and arrested. Therefore, this is a fit case where the bene¬fits of Section 438, Cr.P.C. should be extended to the petition¬ers. He further submits that some other officers, who had also been entrusted with the same work, had approached this Court and this Court has granted some protection to them. 3. Mr. D. K. Mohapatra, learned Standing Counsel for the Vigilance Department, vehemently opposes the prayer for anticipa¬tory bail and submits that though enquiry is in progress, till date sufficient materials have not been collected to infer commission of any cognizable offence by the petitioners for which no case has yet been registered against them. Therefore, the apprehension of the petitioners is premature. In support of the above contention, Mr. Mohapatra relies on the decisions in Gurba¬kash Singh Sibbia, etc. -v- The State of Punjab, AIR 1980 SC 1632 ; Enforcement Officer, Ted, Bombay -v- Bher Chand Tikaji Bora and another, (2000) 18 OCR (SC) 109; and Bhagaban Panda v. State of Orissa, *(2004) 28 OCR 377. 4. In support of the above contention, Mr. Mohapatra relies on the decisions in Gurba¬kash Singh Sibbia, etc. -v- The State of Punjab, AIR 1980 SC 1632 ; Enforcement Officer, Ted, Bombay -v- Bher Chand Tikaji Bora and another, (2000) 18 OCR (SC) 109; and Bhagaban Panda v. State of Orissa, *(2004) 28 OCR 377. 4. The Supreme Court in the case of Gurbaksh Singh Sibbia (supra), while dealing with an application under Section 438, Cr.P.C. has held that filing of FIR is not a condition precedent to exercise power under Section 438, Cr.P.C. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. The Apex Court has also held that a blanket order of anticipatory bail should not generally be passed. A plea can be said to be founded on reasonable grounds that the applicants may be arrested for a non-bailable offence and specific events and facts must be disclosed by the applicants in order to enable the Court to judge the reasonableness of the plea. 5. Coming to the facts of the present case, admittedly no FIR has yet been drawn up against the petitioners. The petition¬ers, who are the employees of the Soil Conservation Department, along with others were entrusted with the execution of the afore¬said project. It is not in dispute that enquiry is being conduct¬ed by the Inspector of Vigilance, Sundargarh in Vigilance File No.39 of 2003. Some officers, who had also been entrusted with such work, had already approached this Court and have obtained some protective orders. This must have weighed in the mind of the petitioners for reasonable apprehension of arrest. 6. Considering the facts and circumstances of the case, this Court directs that in the event any case is registered in connection with Sundargarh Vigilance File No.39 of 2003, the petitioners shall surrender before the Chief Judicial Magistrate, Sambalpur and move for bail whereupon the learned Magistrate shall admit them to bail on such terms and conditions as he would deem fit and proper. 7. With the aforesaid observation and direction, the BLAPL stands disposed of. BLAPL disposed of.