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2008 DIGILAW 1176 (ORI)

Nata @ Maheswar Mahakud v. State of Orissa

2008-12-23

L.K.MISHRA

body2008
JUDGMENT L. K. MISHRA, J. — The petitioner is an accused in G.R. Case No.287 of 2005 pending in the Court of learned J.M.F.C., Basudevpur involving offence under Section 498-A/506/34 of the I.P.C. read with Section 4 of the Dowry Prohibition Act, 1961. 2. Heard learned counsel for both sides. 3. The other accused persons were granted bail by the learned J.M.F.C., Basudevpur, however, the petition for bail with regard to the present petitioner was rejected. The petitioner approached the learned Addl. Sessions Judge, Bhadrak praying for bail. The petitioner’s bail application was allowed vide order dated 18.11.2005 and it was directed that the petitioner be re¬leased on bail of Rs.10,000/- (ten thousand) with one solvent surety for the like amount to the satisfaction of the learned J.M.F.C., Basudevpur on the condition that the petitioner shall remit a sum of Rs.500/- (five hundred) every month by postal money order in the address of the informant given in the F.I.R. and produce the postal receipt of first remittance at the time of filing of bail bond. It was stipulated that any default will entail automatic cancellation of bail. Accordingly the petitioner remitted Rs.500/- (five hundred) and on production of postal receipt was released on bail by the learned Magistrate on 19.11.2005. The above order of the of the learned Addl.Sessions Judge is sought to be challenged in this application. 4. Learned counsel for the petitioner has submitted that the direction of Id. Addl. Sessions Judge, Bhadrak requiring the petitioner to remit Rs.500/- (five hundred) every month as condi¬tion of bail is illegal and therefore is not sustainable. Learned Addl.Government Advocate appearing on behalf of the State has submitted that the petition has been filed after inordinate delay and therefore is not maintainable. He has further submitted that the petitioner should have first approached the Court granting bail to set aside the condition before approaching this Court and since this is a case involving cruelty on the part of the hus¬band, the condition imposed is just and proper. 5. The relevant portion of Section 439 of the Code of Criminal Procedure, 1973 (here-in-after called ‘the Code’) is quoted hereunder: “Section 439- Special powers of the High Court or Court of Session regarding bail. 5. The relevant portion of Section 439 of the Code of Criminal Procedure, 1973 (here-in-after called ‘the Code’) is quoted hereunder: “Section 439- Special powers of the High Court or Court of Session regarding bail. (1) A High Court or Court of Sessions may direct - (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. (2) xxx xxx xxx xxx” It would thus seen that the power has been given to the High Court or the Court of Sessions to modify or set aside any condi¬tion imposed by a Magistrate when releasing any person on bail. No where in the Code, it has been prescribed as to who can set aside or modify a condition imposed by a Court of Session while releasing an accused on bail. In absence of any definite provi¬sion, it would be appropriate for the High Court being the next higher authority of a Court of Session to modify or set aside such condition. The petitioner therefore is right in approaching the High Court. As far as question of limitation is concerned, no time limit is fixed by law to set aside or modify a condition of bail. In my considered view, therefore, as long as the order of bail is in subsistence an appropriate petition can be filed for setting aside or modifying a condition since the accused contin¬ues to be in the rigor of such a condition till the subsistence of the order of bail. The limitation therefore is co-extensive with the duration of bail. 6. The impugned order shows that the learned Addl.Sessions Judge, Bhadrak directed the petitioner to remit Rs.500/- (five hundred) to the informant every month. Though it is not clear why this condition was imposed, it seems that since the informant is the wife of the accused the amount is to be paid presumably towards her maintenance. 7. Imposition of such a condition is without jurisdic¬tion. The learned Court below has virtually allowed the informant to get her maintenance without deciding her entitlement thereto and without any application for that. 7. Imposition of such a condition is without jurisdic¬tion. The learned Court below has virtually allowed the informant to get her maintenance without deciding her entitlement thereto and without any application for that. In effect he has convinced himself that the informant is the wife of the petitioner, that she has been deserted by the petitioner, that such desertion was without valid reason, that she is entitled to claim maintenance from the petitioner and finally that she is entitled to Rs.500/- (five hundred) from him per month. 8. The learned Addl.Sessions Judge, Bhadrak has decided a civil dispute without any litigation as has been said earlier. Such an order is totally without jurisdiction and is void ab initio. In similar circumstances, the Supreme Court decried a condition imposed by the High Court on the accused to pay the victim Rs.2,000/- every month as maintenance while granting anticipatory bail in the case of Mahesh Chandra v. State of U.P. (2006) 6 SCC 196 . 9. In the result the CRLMA is allowed and the impugned condition is set aside. The CRLMA is disposed of accordingly. CRLMA disposed of.