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2013 DIGILAW 337 (ORI)

Nanda Sethi v. State of Orissa

2013-08-26

BISWAJIT MOHANTY, PRADIP MOHANTY

body2013
JUDGMENT Biswajit Mohanty, J. This is an application for cancellation of bail under Section 482 of Cr.P.C. filed by one A.Dilesu Dora, who happens to be P.W.5 in Sessions Case No.368 of 2001, out of which Criminal Appeal No.147 of 2003 arises. 2. Shortly stated the facts are as follows: The appellants three in number have filed Criminal Appeal No.147 of 2003 against the judgment and order dated 9.5.2003 passed by the learned Sessions Judge, Ganjam-Gajapati, Berhampur in Sessions Case No.368 of 2001 convicting and sentencing the appellants to undergo life imprisonment for the charges under Section 302/34 of I.P.C. During pendency of the appeal, appellants filed Misc. Case No.217 of 2011 praying for bail. On 20.06.2011, the above noted Misc. Case was allowed by this Court directing the trial court to admit the appellants to bail on such terms and conditions as may be deemed just and proper. Accordingly, on 1.7.2011, the learned Sessions Judge, Ganjam directed to release the appellant Nos.2 and 3 on bail with conditions that they should not leave the territorial jurisdiction of that court without prior permission and that they should not indulge in any unlawful activities. Similarly, on 6.7.2011, the learned Sessions Judge, Ganjam directed to release the appellant No.1 on bail with conditions that he should not leave the territorial jurisdiction of that court without prior permission and should not indulge in any unlawful activities. 3. After being so released on bail, the appellants started threatening the present petitioner as well as the informant, his brother, namely, A. Ganesh Dora who was examined as P.W.1 in Sessions Case No.368 of 2001 with an intention to kill them. It may be noted here that the above noted Sessions Case No.368 of 2001, out of which Criminal Appeal No.147 of 2003 arises was for commission of murder of one, A. Fakir Mohan Dora in the year 2001, who happens to be the brother of the present petitioner (P.W.5) and informant (P.W.1). 4. While on bail, the appellants committed offence under Sections 306/326/34 of I.P.C. and Section 3 of the E.S. Act read with Section 27 of the Arms Act. On account of this, Berhampur Sadar P.S. Case No.172 of 2011 was registered against them. It is further submitted that in the said case, preliminary Final Form was filed on 6.6.2012 and final charge sheet was filed on 25.06.2012. On account of this, Berhampur Sadar P.S. Case No.172 of 2011 was registered against them. It is further submitted that in the said case, preliminary Final Form was filed on 6.6.2012 and final charge sheet was filed on 25.06.2012. The above noted Berhampur Sadar P.S. Case No.172 of 2011 was registered at the instance of the informant, Rajendra Sahoo on 5.12.2011. On 5.12.2011 itself, the appellant No.1 started threatening A.Ganesh Dora (P.W.1/informant) with dire consequences. Accordingly, on 7.12.2011, A. Ganesh Dora filed F.I.R. at Berhampur Sadar P.S. and the said F.I.R. was registered as P.S. Case No.175 of 2011. In the said F.I.R., A. Ganesh Dora (informant/P.W.1) made it clear that the appellant No.1 was threatening to kill both, A.Ganesh Dora and A.Dilesu Dora in order to take revenge. On 8.2.2012, the appellants were arrested in connection with Berhampur Sadar P.S. Case No.172 of 2011. Further, learned counsel for the petitioner in the present Misc. Case submitted that on 7.4.2012, the appellants in furtherance of their criminal conspiracy committed the murder of A.Ganesh Dora (P.W.1/informant) and accordingly the present petitioner, A.Dilesu Dora filed F.I.R. No.53 of 2012 at Berhampur Sadar P.S. The above noted F.I.R. No.53 of 2012 was registered under Sections 302/120-B/34 of I.P.C. read with Section 27 of the Arms Act and Section 3 of the E.S. Act. In the said case, preliminary Final Form has been submitted on 30.12.2012. On perusal of the preliminary Final Form, it is clear that during investigation, it came to the light that since A.Ganesh Dora (P.W.1/informant) was trying to get the bail of the appellants cancelled, the appellants became revengeful and hatched out a plan from inside the jail by contacting the accused, Siba Sankar Gouda and his associates to immediately commit the murder of A.Ganesh Dora. In this background, accused, Sibasankar Gouda collected his associates, namely, Simanchal Sethy, Bijay Sahoo and Mangal Sabat and hatched out a plan to commit murder of A.Ganesh Dora. Ultimately, they executed their plan successfully by murdering A.Ganesh Dora on 7.4.2012. While in police custody, Siba Sankar Gouda confessed to have committed the murder along with his associates, namely, Simanchal Sethy, Bijay Sahoo and Mangal Sabat as per the direction of the accused persons Maya @ Maheswar Gouda, Nanda Sethy and Kalia Gouda (who are the appellants in the present Criminal Appeal No.147 of 2003) while they were in jail. While in police custody, Siba Sankar Gouda confessed to have committed the murder along with his associates, namely, Simanchal Sethy, Bijay Sahoo and Mangal Sabat as per the direction of the accused persons Maya @ Maheswar Gouda, Nanda Sethy and Kalia Gouda (who are the appellants in the present Criminal Appeal No.147 of 2003) while they were in jail. Sibasankar Gouda also led to discovery of weapon of offence, i.e., one Kati stating that he has used the same for committing the murder of A. Ganesh Dora. During course of investigation, the police seized original Interview Register of Circle Jail, Berhampur where the appellants are presently stationed. On verification of the said Interview Register, it was found that accused, Sibasankar Gouda had met appellant Nos.2 and 3 on 5.4.2012, i.e., prior to the date of occurrence on 7.4.2012. In such background, the petitioner in the present case, who happens to be P.W.5 in Sessions Case No.368 of 2001 out of which Criminal Appeal No.147 of 2003 arises prays for cancellation of bail of appellants as they have misused their liberty and they have committed heinous offences. In the Misc. Case he has also averred that appellants are now sending other antisocial persons to kill him. 5. The appellants have filed an objection to the above prayer for cancellation of bail. In their objection, they have taken a stand that A.Dilesu Dora (P.W.5) whose two brothers have been murdered have no locus standi for filing the cancellation of bail in view of second proviso to Clause (1) of Section 389 of the Code of Criminal Procedure, 1973, which makes it clear that where the convicted person is released on bail, it shall be open to the public prosecutor to file an application for cancellation of bail. Accordingly, learned counsel for the appellants submitted that petition filed by A. Ganesh Dora under Section 389 (1) of Cr.P.C. is not maintainable and only Public Prosecutor can file an application for cancellation of bail. Secondly, he submitted that Berhampur Sadar P.S. Case No.172 of 2011 and Berhampur Sadar P.S. Case No.53 of 2012 have been registered against the appellants to falsely implicate them in order to take revenge. Secondly, he submitted that Berhampur Sadar P.S. Case No.172 of 2011 and Berhampur Sadar P.S. Case No.53 of 2012 have been registered against the appellants to falsely implicate them in order to take revenge. So far as Berhampur Sadar P.S. Case No.175 of 2011 is concerned, where appellant No.1 was the accused, it is submitted that in the said case appellant No.1 has already been acquitted by the trial court due to insufficient evidence. In such background, the appellants pray for dismissal of the petition for cancellation of bail filed by A.Dilesu Dora. 6. During course of hearing, learned counsel for A.Dilesu Dora strenuously urged that though one of the conditions for grant of bail was that the appellant should not indulge in any unlawful activities; the appellants have violated the said condition with impunity and as a result brother of the petitioner, A.Ganesh Dora (P.W.1/informant) has been murdered. Further, learned counsel submitted that he has not filed the present application for cancellation of bail under Section 389 (1) Cr.P.C., but under Section 482 of Cr.P.C. In support of his contention, learned counsel for the petitioner (A.Dilesu Dora) relies on a decision of the Hon’ble Supreme Court reported in AIR 1967 SC 286 (Pampapathy v. State of Mysore). In that case, the Mysore High Court had allowed the application for cancellation of bail and directed re-arrest of the accused, who were on bail pending appeals against conviction under various provision of Indian Penal Code. There, the applications for cancellation of bail were filed under Section 498 (2) and 561 (A) of the Code of Criminal Procedure, 1898. In that case an argument was advanced on behalf of the accused that once an order of bail is made pending appeal, subsequent conduct of the accused-appellant however reprehensible cannot justify the appellate court in revoking the order of bail and directing re-arrest of all the accused-appellants. The Hon’ble Supreme Court repelled such contention stating that if the contention of the appellant was accepted then it would lead to fantastic result. The appellants may commit further acts of violence for the very same offences for which they have been convicted. The Hon’ble Supreme Court repelled such contention stating that if the contention of the appellant was accepted then it would lead to fantastic result. The appellants may commit further acts of violence for the very same offences for which they have been convicted. Accordingly, the Hon’ble Supreme Court found no fault with the order of cancellation of bail issued by Mysore High Court and held that the provision of Section 561 (A) are clearly attracted to the facts of the case and the High Court was entitled to cancel the bail of the appellants under the said Section. It is needless to mention that present Section 482 of Cr.P.C. is the new incarnation of Section 561 (A) of the old Code. 7. Per contra, learned counsel for the appellants argued that as per the judgment of the Hon’ble Patna High Court pronounced on th October, 2012 in Criminal Appeal (D.B.) No.721 of 2008 (Madhusudan Prasad v. The State of Bihar), a petition for cancellation of bail can only be moved by Public Prosecutor under second proviso to sub-clause (1) of Section 389 of Cr.P.C. and contended that neither the informant nor anybody else can file a petition for cancellation of bail. Second proviso was introduced with effect from 23.06.2006 by Code of Criminal Procedure (Amendment) Act, 2005. 8 (i) A bare reading of Section 389 of Cr.P.C. makes it clear that though liberty has been given to the Public Prosecutor to file an application for cancellation of bail, it nowhere restricts any other affected person or relative of a victim from moving for cancellation of bail granted under Sub-clause (1) of Section 389 of Cr.P.C. The Hon’ble Supreme Court in its decision in the case of Pampapathy (supra), made it clear that where the appellants indulge in gross misuse of liberty granted to them while enlarged on bail, the High Court would be justified in exercising its power under Section 561 (A) to cancel the bail. In the said decision, the Hon’ble Supreme Court also made it clear that the inherent power can be exercised if the matter in question is not covered by any specific provision of the Cr.P.C. Here, admittedly, there exists no provision of the Cr.P.C. to cover a situation like the present where despite commission of ghastly crimes in violation of condition of bail, the Public Prosecutor does not take any step to file an application for cancellation of bail. Cr.P.C. does not make it clear as to what is the remedy left to the victim/relatives of victim under such circumstances. The present Misc. Case was filed before this Court on 18.05.2012. Despite this, the State/Public Prosecutor did not file any petition to cancel bail of the appellants. Thus, it is a clear case when this Court can exercise its inherent power under Section 482 of Cr.P.C. to cancel bail in order to prevent abuse of process of its order and also to secure the ends of justice. (ii) So far as the decision of the Patna High Court is concerned, with great respect, we are unable to persuade ourselves to accept the ratio of the said decision that only a Public Prosecutor can file a petition for cancellation of bail under second proviso to Section 389 of Cr.P.C. and none else. The said decision does not take into account as to what would happen if despite gross violation of conditions of bail, Public Prosecutor does not move application for cancellation of bail. Even, otherwise, the said decision of Patna High Court is distinguishable on facts. There, the allegation was that the bail was granted on account of wrong presentation of facts and after grant of bail, accused was pressurizing the witnesses. There, the Court came to a finding that there has been no violation of any conditions of bail. But in the instant case, as indicated earlier, it is clear that there has been serious violation of condition of bail and Berhampur Sadar P.S. Case No.53 of 2012 has been registered for murder of P.W.1. Further, Patna High Court decision nowhere lays down that in view of second proviso to Clause (1) of Section 389 of Cr.P.C. recourse to Section 482 of Cr.P.C. cannot be taken by victim/relative of victim under any circumstances for cancellation of bail. Further, Patna High Court decision nowhere lays down that in view of second proviso to Clause (1) of Section 389 of Cr.P.C. recourse to Section 482 of Cr.P.C. cannot be taken by victim/relative of victim under any circumstances for cancellation of bail. In our humble opinion, victim/relation of the victim can move for cancellation of bail under Section 482 of Cr.P.C., when bail conditions are grossly violated, particularly where Public Prosecutor remains silent. (iii) Further, the Hon’ble Supreme Court has made it clear in AIR 2000 SC 1851 and AIR 2001 SC 2023 that power vested in the High Court to cancel the bail can be invoked by State or any aggrieved party. High Court can also exercise the said power suo motu and at the instance of a near relative. Here, petitioner is that unfortunate person whose two brothers have been murdered. 9. Narration of facts (supra) of present case makes it clear that the appellants have violated the conditions imposed in the bail order with impunity and have committed heinous crimes. One of the conditions was that the appellants should not indulge in any unlawful activities. Here, perusal of Case Diaries shows that appellants have indulged in unlawful activities for which, charge sheets have been filed in Berhampur Sadar P.S. Case No.172 of 2011 and Berhampur Sadar P.S. Case No.53 of 2012 against appellants. Admittedly, the informant has been killed in the meantime leading to filing of Berhampur Sadar P.S. Case No.53 of 2012. In such background, if the High Court will not exercise its power under Section 482 of Cr.P.C., then there would be grave injustice and citizens will lose their faith in criminal justice system. 10. Therefore, in such background, we humbly record our dissent with reasoning of the Patna High Court in the case of Madhusudan Prasad (supra) and allow the present Misc. Case. Accordingly, we cancel the bail order given in favour of the appellants in this Criminal Appeal No.147 of 2003 and direct that the appellants should be taken into custody immediately, if they are not already in jail custody in connection with any other case. Accordingly, the Misc. Case is disposed of.