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2014 DIGILAW 525 (ORI)

Maheswar Behera v. State of Orissa

2014-08-25

S.K.SAHOO

body2014
Judgment S.K.SAHOO, J. The crux of the question that arises to be decided in this case is as follows:- “Whether anticipatory bail is to be granted in a complaint case involving serious offence like murder merely because there is impropriety in the order of the Magistrate in issuing N.B.W. hastily against the accused petitioners?” 2. This is an application under section 438 Cr.P.C. for grant of anticipatory bail to the petitioners in connection with 1 C.C. Case No.3410 of 2013 pending in the court of learned S.D.J.M., Bhubaneswar, in which cognizance has been taken for offence punishable under section 302/34 I.P.C. and N.B.W. has been issued against the accused petitioners. 3. The brief factual matrix that emanate from the complaint petition filed by the opp. Party no.2 Smt. Naliniprabha Sahoo is that she is the wife of one Purna Chandra Sahoo (hereafter “the deceased”) who was working as a Postmaster. There was political rivalry between the deceased and the petitioners and deceased was tortured by the petitioners and was ostracized from the village and his family members were not allowed to take drinking water and the electricity connection to the house of the complainant was also disconnected and the deceased was not allowed to discharge his official duties and false cases were instituted against him and the deceased was threatened with dire consequences. It is further stated in the complaint petition that on 22/23.5.2013 at about 2.00 a.m. the complainant received a phone call from the phone of the deceased from an unknown person that somebody is struggling for his life. On receipt such phone call, the complainant sent his nephew Ramesh Chandra Sahoo to Bhubaneswar Railway station to ascertain the real state of affairs. On arrival at the Bhubaneswar Railway station, the deceased was found there in a critical condition and even though Ramesh Chandra Sahoo approached the Railway police for help but that was not provided and accordingly he shifted the deceased and admitted him at Capital Hospital, Bhubaneswar on the very day. The deceased regained sense on the next day and on being asked by the complainant, he disclosed that he was forcibly kidnapped by the petitioners on his way to Puri while he was returning from Cuttack and he was forcibly administered poison by them and thereafter he was left at Bhubaneswar Railway Station. The deceased regained sense on the next day and on being asked by the complainant, he disclosed that he was forcibly kidnapped by the petitioners on his way to Puri while he was returning from Cuttack and he was forcibly administered poison by them and thereafter he was left at Bhubaneswar Railway Station. The health condition of the deceased deteriorated for which he was referred to the S.C.B. Medical College & Hospital, Cuttack on 27.5.2013, where he died on the very day. 4. After the complaint petition was filed, initial statement of the complainant was recorded by the learned S.D.J.M., Bhubaneswar on 22.6.2013. In the initial statement the complainant stated, inter alia, about the harassment of the deceased in the hands of the petitioners so also regarding the dying declaration made by the deceased at Capital Hospital on 23.5.2013 implicating the petitioners to have forcibly administered poison and leaving him in an unconscious condition in the Platform. The learned S.D.J.M., Bhubaneswar conducted inquiry under section 202 Cr.P.C., during course of which three witnesses namely, Manmohan Swain, Ramesh Chandra Sahoo and Sustant Sahoo were examined. Manmohan Swain stated about the political dispute between the parties and also the harassment made to the deceased by the petitioners so also dying declaration of the deceased implicating the petitioners to have forcibly administered poison to him. Ramesh Chandra Sahoo stated to have shifted the deceased from Bhubaneswar Platform to Capital Hospital and he further stated about the dying declaration made by the deceased in the Capital Hospital implicating the petitioners to have administered poison to him. Susanta Sahoo on the other hand stated to have shifted the deceased who was lying in an unconscious state at platform No.4 of Bhubaneswar Railway Station to Capital Hospital. The learned S.D.J.M., Bhubaneswar vide order dated 19.9.2013 took cognizance of offence punishable under section 302/34 I.P.C. and issued summons. Subsequently bailable warrant was issued against the petitioners and vide order dated 19.12.2013 non-bailable warrant of arrest was issued against the petitioners as bailable warrant could not be executed. 5. The learned counsel for the petitioners Mr. The learned S.D.J.M., Bhubaneswar vide order dated 19.9.2013 took cognizance of offence punishable under section 302/34 I.P.C. and issued summons. Subsequently bailable warrant was issued against the petitioners and vide order dated 19.12.2013 non-bailable warrant of arrest was issued against the petitioners as bailable warrant could not be executed. 5. The learned counsel for the petitioners Mr. Basudev Pujari strenuously urged that the petitioners have been falsely entangled in the case due to political disputes and rivalry in the village and the so called dying declaration is a concocted version and the learned S.D.J.M., Bhubaneswar has committed illegality in issuing non-bailable-warrant of arrest against the petitioners hastily particularly when the bailable warrants have not been executed. Learned counsel for the State Mr. Zafrulla on the other hand submits that there is serious allegation against the petitioners to have forcibly administered poison to the deceased on account of previous political rivalry and when dying declaration has been made by the deceased consistently before number of persons, the anticipatory bail application should not be entertained. He further submits that the learned S.D.J.M., Bhubaneswar has not committed any illegality in issuing N.B.W. against the petitioners after the attempt to procure their attendance in Court by issuing summons and then by issuing bailable warrant failed. Learned counsel for the informant Mr. Bibhu Prasad Mohanty also vehemently opposed the application for anticipatory bail and submitted that the manner in which the petitioners continuously harassed and humiliated the deceased and ultimately administered poison to him and left him to die at Bhubaneswar Railway platform, no laxity can be shown to the petitioners in the matter of grant of anticipatory bail. He further submits that the application for anticipatory bail is not maintainable as it is a complaint case. 6. The first question that is to be decided as to whether anticipatory bail application is maintainable in a complaint case? In case of Bharat Choudhury –v-State of Bihar reported in (2003) 26 Orissa Criminal Reports (SC) 641, it is held as follows:- “6. From the perusal of this part of section 438 of Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. From the perusal of this part of section 438 of Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. 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, in our opinion, prevent the concerned Courts from granting such 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. In our opinion, the Courts i.e., the Courts of Sessions, High Court or this 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.” In case of Padmalochan Das –v-State of Orissa reported in (2009) 42 Orissa Criminal Reports 21, it is held as follows:- “15. Summons and warrant of arrest are alternative modes of processes to compel appearance. Appearance may be secured consequence upon service of summons or execution of warrant of arrest. Appearance of a person in Court may be effected by issuance of summons or effecting arrest. Therefore, summons and arrest are distinct and different mode to ensure appearance. Section 438 Cr.P.C. has no reference to the expression “summons” or “custody”. Specific circumstance or condition precedent under which power under section 438 Cr.P.C. can be exercised is the existence of reason to believe, or apprehension, of being arrested”. Therefore, summons and arrest are distinct and different mode to ensure appearance. Section 438 Cr.P.C. has no reference to the expression “summons” or “custody”. Specific circumstance or condition precedent under which power under section 438 Cr.P.C. can be exercised is the existence of reason to believe, or apprehension, of being arrested”. It was further held in the case of Padmalochan Das (supra) that there being no scope for the petitioners to entertain any reason based on law to believe that they may be arrested at any point of time consequent upon the issuance of summons, the petition under section 438 of the Cr.P.C is misconceived and not maintainable. Thus in view of the ratio laid down in the case of Bharat Choudhury (supra) and Padmalochan Das (supra), it can be said that when warrant of arrest is issued in a complaint case by the Court after taking cognizance of non-bailable offence, anticipatory bail application would be maintainable. In the present case, not only cognizance of offence has been taken in the complaint case under non-bailable offence i.e., 302/34 I.P.C. but also N.B.W. has been issued by the learned S.D.J.M., Bhubaneswar, Accordingly, I am of the view that anticipatory bail application is maintainable. 7. According to the learned counsel for the petitioners, the learned Magistrate has committed illegality in issuing N.B.W. against the petitioners vide order dated 19.12.2013 hastily even though bailable warrant was not executed. The learned counsel submits that the action of the learned Magistrate is contrary to the ratio laid down in the case of Inder Mohan Goswami –v-State of Uttaranchal, reported in (2008) 39 Orissa Criminal Reports (SC) 188. In the case of Inder Mohan Goswami(supra), Hon’ble Supreme Court has held as follows:- “55. In complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court’s proceeding intentionally, process of issuance of non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution Courts at the first and second instance to refrain from issuing non-bailable warrants”. 56. The power being discretionary must be exercised judicially with extreme care and caution. Personal liberty is paramount, therefore, we caution Courts at the first and second instance to refrain from issuing non-bailable warrants”. 56. The power being discretionary must be exercised judicially with extreme care and caution. The Court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. 57. The Court should try to maintain proper balance between individual liberty and the interest of the public and the Stat e while issuing non-bailable warrant.” Keeping in view the ratio laid down by the Hon’ble Supreme Court in the case of Inder Mohan Goswami (supra), it is seen from the order dated 19.12.2013 that non-bailable warrant of arrest have been issued against the petitioners hastily even though bailable warrants have not been executed. There was no material before the learned S.D.J.M., Bhubaneswar that the petitioners were avoiding the Court’s proceeding intentionally, for which the process of issuance of non-bailable warrant should be resorted to. There was also no material before the learned S.D.J.M., Bhubaneswar that the petitioners are likely to tamper or destroy the evidence or is likely to evade the process of law. In that view of the matter merely because the bailable warrants were not executed within the short span of time, it was not proper on the part of the learned S.D.J.M., Bhubaneswar to issue non-bailable warrant of arrest hastily against the petitioners in the complaint case. In case of Raghuvansh Dewanchand Bhasin –v-State of Maharashtra reported (2011) 50 Orissa Criminal Reports 528, it is held as follows:- “9. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s right, liberties and privileges on the one hand, and the State on the other, Indeed, it is a complex exercise. As Justice Cardozo puts it “on the one side is the social need that crime shall be repressed. On the other, the social need is that law shall not be flouted by the insolence of office. There are dangers in any choice.” Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding.” 8. Now the pivotal question is that whether merely because the learned S.D.J.M., Bhubaneswar hastily issued N.B.W. without awaiting the execution of bailable warrant against the petitioners, whether that is itself sufficient to grant anticipatory bail to the petitioners in a case under section 302 I.P.C. In case of Sumit Mehta –v-State of N.C.T. of Delhi Reported (2013) 56 Orissa Criminal Reports 748, it is held as follows:- ”12. While exercising power under section 438 of the Code, the Court is duty bound to strike a balance between the individual’s right to personal freedom and the right of investigation of the police. 13. The law presumes an accused to be innocent till his guilt is proved. While exercising power under section 438 of the Code, the Court is duty bound to strike a balance between the individual’s right to personal freedom and the right of investigation of the police. 13. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution. 14. While granting anticipatory bail, the Courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested.” In case of Pokar Ram –v-State of Rajasthan reported in AIR 1985 SC 969 , it is held as follows:- “5. Relevant considerations governing the court’s decision in granting anticipatory bail under section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other”. In case of Gurbaksh Singh Sibbia –v-State of Punjab reported in AIR 1980 SC 1632 , it is held that anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. Learned Counsel for the State as well as the informant opposed the application for bail and submitted that the dying declaration clearly implicates all the petitioners. The previous conduct of the petitioners in humiliating and harassing the deceased is also an additional factor against the petitioners. Learned Counsel for the State as well as the informant opposed the application for bail and submitted that the dying declaration clearly implicates all the petitioners. The previous conduct of the petitioners in humiliating and harassing the deceased is also an additional factor against the petitioners. Learned counsel for the State places the order dated 19.9.2013 of the learned S.D.J.M., Bhubaneswar to indicate that the deceased has died due to poisoning and the post-mortem report reveals that the changes of stomach of the deceased were ante mortem in nature and consistent with the ingestion of toxic irritant substance. Learned counsel for the State further submits that the opinion of cause of death is reserved pending chemical analysis of viscera. Considering the averments in the complaint petition, initial statement and the statements recorded under section 202 Cr.P.C. regarding existence of the previous political and village rivalry between the deceased and the petitioners coupled with the factum of dying declaration made by the deceased before the complainant and other witnesses, it cannot be said that no prima facie case under section 302/34 I.P.C. is made out against the petitioners. In that view of the matter, considering the gravity of the offence and necessity of custodial interrogation in the case, I am not inclined to grant anticipatory bail to the petitioners and accordingly the same is rejected. The petitioners are at liberty to make an application before the learned S.D.J.M., Bhubaneswar for recall of the N.B.W. issued against them vide order dated 19.12.2013 relying upon the ratio laid down in case of Inder Mohan Goswami (supra) within two weeks from today and in the event such an application is made, the learned S.D.J.M., Bhubaneswar shall dispose of the said application in accordance with law after giving due opportunity of hearing to the respective parties but without insisting upon personal appearance of the petitioners for consideration of such application. The said application is to be disposed of within four weeks from the filing of the recall application. Till the entire exercise is completed by the learned S.D.J.M., Bhubaneswar, the N.B.W. shall not be executed against the petitioners. The learned S.D.J.M., is free to dispose of the recall of the N.B.W. application on its own merit without being influenced by any observations made in this order. Till the entire exercise is completed by the learned S.D.J.M., Bhubaneswar, the N.B.W. shall not be executed against the petitioners. The learned S.D.J.M., is free to dispose of the recall of the N.B.W. application on its own merit without being influenced by any observations made in this order. Similarly, if the petitioners surrender and move an application for regular bail, that is also to be considered in accordance with law without being influenced by any observations made in this order. With the aforesaid observation, the BLAPL stands disposed of.