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2013 DIGILAW 472 (ORI)

Basudev Samantaray v. State of Orissa

2013-11-20

S.K.MISHRA

body2013
ORDER : 20.11.2013 - Heard learned counsel for the petitioner and learned Addl. Standing Counsel. This is an application under Section 438 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code' for brevity. The petitioner is involved in a case under Sections 147, 148, 294, 341, 354, 323, 325, 506 and 149 of the IPC in connection with Kujang P.S. Case No. 97 of 2006, corresponding to G.R. Case No. 291 of 2006 of the Court of J.M.F.C. (P), Kujang. It is apparent from the records that charge-sheet has already been laid in this case and non-bailable warrant has been issued against the petitioner. The question; therefore, arises whether an application for anticipatory bail is maintainable after filing of the charge-sheet. In the reported case of Bharat Chaudhary and another v. State of Bihar and another, AIR 2003 SC 4662 , 2003 (II) OLR (SC) 575 the Hon'ble Supreme Court has held that: "The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge-sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. The Courts i.e. the Court of Sessions, High Court or the Supreme Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Cr.P.C. even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so." Similar view has been taken by the Hon'ble Supreme Court in the case of Rabindra Saxena v. State of Rajasthan, AIR 2010 SC 1225 , wherein the Supreme Court having taken into consideration the reported case of Gurbaksh Singh Sibbia and others v. State of Punjab, AIR 1980 SC 1632 has held that even after submission of charge-sheet and or taking cognizance of offence, an application for anticipatory bail is maintainable and the same cannot be rejected only on the ground that the investigation of the case has been completed and charge-sheet has already laid and cognizance of offence has been taken. Thus, it is clear that an application for anticipatory bail is maintainable even after chargesheet is submitted. Way back 1994 in the case of Hatanath Behera v. State of Orissa and another, (1994) 7 OCR 41, 1994(I) OLR 51, this Court has held that an application for anticipatory bail is maintainable even after filing of the charge-sheet. Hon'ble Justice D.P.Mohapatra, as His Lordships was then, has also given directions regarding the exact nature of orders to be passed in such a case. It is apt to quote the exact words of the Court. "After giving my anxious consideration to the entire matter, I am of the view that it will be rational and reasonable to hold that though there is no lack of power in the High Court or the Court of Session to consider an application for anticipatory bail filed after cognizance of the offence has been taken and/or warrant of arrest has been issued against the applicant, the Court should not readily entertain such an application and if the Court is satisfied that a case for grant of bail is made out. it will be apt and proper to direct the accused to surrender in the Court of the Magistrate on a specified date granting a short time and giving him interim protection against arrest by execution of the warrant till then or to direct the police officer arresting the accused to produce him before the Magistrate who will consider his application for bail." In that view of the matter, this Court is of the view that the application for anticipatory bail is maintainable. Since the offences alleged are non-bailable by the Magistrate and not serious, this Court is of the opinion that the application for bail should be allowed. Accordingly, it is ordered that the petitioner shall surrender before the learned J.M.F.C. (P), Kujang within fifteen days and pray for bail. On such event, the learned Magistrate shall enlarge him on bail on such terms and conditions as deemed just and proper by him. In case he is arrested by the police in the meantime, the accused shall be produced before the J.M.F.C. (P), Kujang forthwith on the same day and the learned Magistrate shall grant him on bail on such terms and conditions as deemed just and proper by him. With such observations, the BLAPL is disposed of. Urgent certified copy of this order be granted as per rules. BLAPL disposed of.