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2005 DIGILAW 672 (JHR)

Shyamal Karmakar v. State Of Jharkhand

2005-09-02

AMARESHWAR SAHAY

body2005
ORDER Amareshwar Sahay, J. 1. This interlocutory application has been filed for modification of the order dated 24.2.2005 in terms of the decision of the Supreme Court in the case of Sunita Devi v. State of Bihar, reported in 2005 (1) East Cr C 1 (SC) : 2005 (1) PLJR 270 . In order to dispose of this interlocutory application some relevant facts are necessary to be stated which are as follows : 2. A first information report being Adityapur P.S. Case No. 163 of 2004 was registered under Sections 409, 420, IPC on the basis of the complaint made by the informant Jeevan Pd. Agarwal (Naredi) against one Shyamal Karmakar. The allegations made in the complaint are not necessary to be stated. Suffice is to say that the accused Shyamal Karmakar moved before the Sessions Judge at Saraikela for grant of anticipatory bail which was rejected in terms of the order dated 29.4.2004 in ABP No. 28/2004. 3. The accused Shyamal Karmakar thereafter, moved this Court for grant of anticipatory bail, which was registered as ABA No. 1351/2004. This Court by order dated 24.2.2005 after hearing the counsel for the petitioner and the counsel for the State directed the petitioner {Shyamal Karmakar) to surrender before the Court below within a period of two weeks from the date of the order and then further direction was given that if he surrenders within the said period then he would be released on bail on furnishing bail bond of Rs. 10.000/- (ten thousand) with two sureties. 4. It appears that the informant being aggrieved by the said order of this Court moved Supreme Court by filing Crl MP No. 5991/2005 for Special Leave to Appeal but the Supreme Court by order dated 11.7.2005 declined such permission. However, liberty was given to approach this Court for appropriate relief and, accordingly, the present interlocutory application has been filed for modification of the aforesaid order of this Court dated 24.2.2005. 5. Mr. However, liberty was given to approach this Court for appropriate relief and, accordingly, the present interlocutory application has been filed for modification of the aforesaid order of this Court dated 24.2.2005. 5. Mr. P.D. Agarwal, learned counsel in support of the interlocutory application has submitted that in view of the decision in the case of Sunita Devi v. State of Bihar, (supra) this Court can give protection to the accused in terms of Section 438 for a limited duration only during which the regular Court has to be moved for bail and, therefore, this Court should not have granted unconditional protection to the accused till the conclusion of the trial and, therefore, the orders of this Court dated 24.02.2005 requires to be modified. 6. In order to appreciate the submissions of Mr. Agarwal it is necessary to notice the order, which was under challenge before the Supreme Court and also the order passed by this Court on 24.2.2005. The order which was under challenge before the Supreme Court in the case of Sunita Devi (supra) was passed by Patna High Court in the following terms :- "Considering all the facts and circumstances of the case the prayer for anticipatory bail is allowed. In the event of arrest/surrender petitioner Anuj Kumar shall be enlarged on bail on furnishing bail bond of Rs. 10.000/- with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Nawadah in connection with Sirdala P.S. case No. 15/2002, subject to the condition laid down under Section 438(2), Cr PC." 7. Whereas, the order passed by this Court on 24.2.2005 on the following terms "Considering the facts and circumstances of the case, the petitioner, namely, Shyamal Karmakar is directed to surrender before the Court below within a period of two weeks from today and on the event of his surrender within the aforesaid period, he is directed to be released on bail on furnishing bail bond of Rs. 10.000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Saraikela in connection with Adityapur P.S. Case No. 163 of 2004 corresponding to G.RNo. 550/2004, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure." 8. 10.000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Saraikela in connection with Adityapur P.S. Case No. 163 of 2004 corresponding to G.RNo. 550/2004, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure." 8. From bare perusal of both the orders it would be evident that Patna High Court in specific terms allowed the anticipatory bail application and specifically directed that in the event of arrest/surrender the petitioner would be released on bail, whereas in the present case this Court did not pass any order directing release of the petitioner in the event of his arrest rather specifically directed the accused/ petitioner to surrender before the Court below within a period of two weeks and in case of the compliace of the said direction or surrender before the Court below within the said period then he was ordered to be released on bail on furnishing bail bond. Therefore, there is a clear difference in the tenure of both the orders. In the present case the petitioner was directed to surrender before the Court below and to go in the custody first and then he was directed to be released on bail. Therefore, it cannot be said that in this case the petitioner was given unconditional protection while exercising the power under Section 438 Cr PC. 9. Whereas, the order passed by the Patna High Court which was under challenge before the Supreme Court in Sunita Devis case was quite different in nature. 10. In my view, the decision of the Supreme Court was rendered in Sunita Devis case in quite different situation and circumstance and, therefore, the same is not applicable in the facts and circumstances of the present case. 11. In view of the above discussions and findings, the prayer for modification of the said order dated 24.2.2005 made In this interlocutory application is rejected, 12. I.A. No. 1244/2005 is thus disposed of.