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2015 DIGILAW 114 (ORI)

Trideeb Rout v. State of Odisha

2015-02-22

S.K.MISHRA

body2015
JUDGMENT : S.K. Mishra, J. 1. In this case, the petitioner is facing investigation for the alleged commission of offences under Sections 498-A, 323,294, 417 and 506 of the I.P.C. read with Section 25 of the Arms Act in C.T. Case No. 3097 of 2015 pending in the Court of the learned S.D.J.M., Bhubaneswar arising out of Bhubaneswar Mahila P.S. Case No. 193 of 2015. It is apparent from the records that four cases are pending against the petitioner. First case has been initiated by one Baisakhi Mohanty, who happens to be the first wife of the present petitioner. In that case, the present petitioner was facing investigation for the alleged offence under Sections 498-A, 323, 294 and 506/34 of the IPC. and Section 4 of the Dowry Prohibition Act. However, in Crl. Misc. Case No. 1571 of 2012 further proceeding of G.R. Case No. 593 of 2011 of the Court of learned S.D.J.M., Bhubaneswar has been stayed on an application filed by the petitioner to quash the charge-sheet as well as the order taking cognizance by the learned S.D.J.M, Bhubaneswar and issuing processes against the present petitioner. 2. It is also apparent from the records that as per the judgment dated 18.01.2012, the Judge Family Court, Bhubaneswar has already dissolved the marriage by awarding a decree of divorce in favour of Baisakhi Mohanty and the marriage has been dissolved. After dissolution bf the marriage, the present petitioner allegedly married Rajalaxmi Das who is the informant in this case. In her F.I.R. Rajalaxmi Das has given a detailed description how she became acquainted with the petitioner and thereafter intimacy developed between them, which led to solemnization of their marriage. It is alleged that the petitioner has suppressed the material facts of his earlier marriage before the informant, but subsequently she came to know from his laptop, after their marriage and in the meantime, she became pregnant. It is alleged by the informant that the petitioner has manipulated the medical records to show that the uterus of the informant as bicornuate and induced her to cause abortion, but it is stated by her that on re-examination by different radiologists she came to know that no such deformity was found. So there was no abortion of the pregnancy. She has also described that she was thrashed by the petitioner in a drunken state. So there was no abortion of the pregnancy. She has also described that she was thrashed by the petitioner in a drunken state. In the meantime, she has been staying in her matrimonial home, but as harassment continues, she came back to her maternal house and continued to stay there. On the basis of the facts available on record, it is apparent that an offence under Section 498-A of the I.P.C. is made out. The offences under Sections 323, 294 and 417 of the I.P.C. are bailable in nature and offence under Section 506 of the I.P.C. is also made out. There is also allegation about possession of the Fire Arm by the petitioner, but it came to light in course of hearing that he has a licensed fire arm. So the offence under Section 25 of the Arms Act is not made out against the petitioner. 3. It is further noted that the fact that the petitioner has been entangled by his first wife in a case under Section 506 of the I.P.C: read with Sections 25 and 27 of the Arms Act in C.T. Case No. 3203 of 2015 the court of learned S.D.J.M., Bhubaneswar, arising out of Chandrasekharpur P.S. Case No. 251 (32) of 2015 in that case also ABLAPL No. 11505 of 2015 has been filed under Section 438 of the Cr.P.C. before this Court, which is being disposed of as per the separate order being passed today in the meantime, first wife has also registered P.S. Case No. 353 of 2015 at Chandrasekharpur PS. for alleged commission of offences under Sections 465 and 471 of the I.P.C. by the petitioner and an anticipatory bail was moved in that case also. As such offences were bailable in nature, the Bail Application was not pressed and was allowed to be withdrawn. 4. Learned Counsel for the petitioner in course of argument submitted that all the offences alleged are not serious in nature and since the petitioner is a financially well up person, the former wife and the informant in this case have joined together and filed several cases with ulterior motives. It was also submitted by the learned Counsel for the petitioner that in both the cases same Counsel was engaged by the former and present wife of the petitioner. It was also submitted by the learned Counsel for the petitioner that in both the cases same Counsel was engaged by the former and present wife of the petitioner. Learned Counsel further submits that he is a permanent resident of Chandrasekharpur, Bhubaneswar and there is no chance of his absconding from justice. It is also stated that this is hot a case where custodial interrogation of the petitioner is necessary in any way. Therefore, it is prayed that keeping in view the nature of crime, maximum punishment prescribed for commission of the offence alleged and the entire facts surrounding the case, the application for anticipatory bail should be allowed. 5. Learned Counsel for the informant, on the other hand, submits that the petitioner is in habit of torturing his wives and is a person having criminal antecedents. Therefore, it is alleged that the petitioner should not be granted anticipatory bail. View of the learned Counsel for the informant is supported by the learned Addl. Government Advocate. In reply, learned Counsel for the petitioner submitted that out of four cases pending against the present petitioner, three have been initiated against him by her former wife and, therefore, it cannot be said that he is a harden criminal. Rather, the entire episode is borne out from the material disturbance. 6. Admittedly, the offences alleged to be involved in this case do not invite punishment for terms of imprisonments exceeding seven years. So, in order to arrest the petitioner, the investigating Officer has to give reasons for arresting the petitioner as enshrined in Clause (b), Sub-section (1) of Section 41 of the Code of Criminal Procedure, 1973, hereinafter referred to as the 'Code' for brevity. It is appropriate to quote relevant provision of law, so that the same can be referred to: "41. (1) xxxx (b) against whom a reasonable compliant has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely - (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence. (ii) the police officer is satisfied that such arrest is necessary. (ii) the police officer is satisfied that such arrest is necessary. (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer, or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing." 7. The purport and consequence of this provision came up for consideration before the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar and Another, 2014 (II) OLR (SC) 562 : (2014) 58 (SC) 999, which has given the definite guidelines to the Police regarding arrest of accused in such cases taking clue from the aforesaid amendment made by the Parliament in the Code of Criminal Procedure. Taking into consideration the fact of the case and the aforesaid provision of law, the Supreme Court held in the reported case that a person who is accused of an offence under Section 498-A of the I.PC. in the facts of that case is entitled to be released on bail. 8. As per the Amendment Act 25 of 2005, w.e.f. 23.6.2006, Section 438 of the Code has been amended. Sub-section (1) is relevant for the purpose of the case, which is quoted below: "438 xxxx (1) - Where any person has reason to believe that he may be arrested on. 8. As per the Amendment Act 25 of 2005, w.e.f. 23.6.2006, Section 438 of the Code has been amended. Sub-section (1) is relevant for the purpose of the case, which is quoted below: "438 xxxx (1) - Where any person has reason to believe that he may be arrested on. accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest he shall be released on bail; inter-alia, the following factors, namely: (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) whether the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail. Taking into consideration the amended provision of Section 438 of the Code and discussing the historical perspective, the Supreme Court in the case of Siddharam Satilingappa Mhetre v. State of Maharashtra and Others, 2011 (I) OLR (SC) 405 : (2011) 48 OCR (SC) 1 has held that it is apparent from the Statement of Objects and Reasons for introduction Section 438 of the code that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and discharge at the instance of influential people who try to implicate their rivals in false cases. Way back in the year 1980 the Constitution Bench of Hon'ble Supreme Court in Gurbaksh Singh Sibbia and Others v. State of Punjab, (1980) 2 SCC 565 had an occasion to comprehensively deal with the scope and ambit of the concept of anticipatory bail. It was held that Section 438 of the Code is an extraordinary provision where the accused who apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted bail. The constitution Bench has Observed as follows: "A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. The constitution Bench has Observed as follows: "A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail." 9. In that aforesaid case of paragraph-15 the Constitution Bench held as follows: "15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudice out of their decisions. And will be strange if, by employing judicial artifices and techniques, We cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be over looked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant, of anticipatory bail', which really is the business of the legislature, it can at best furnish, broad guide-lines and cannot compel blind adherence in which case to grant bail and in which to refuse it is in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Court by law." 10. The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Court by law." 10. At paragraph 93, the Hon'ble Supreme Court in the case of Siddharam Satilingappa Mhetre (supra) has stated that it is a matter of common knowledge that a large number of under trials are languishing in jail for a long time even for allegedly committing very minor offences. The Supreme Court held that this is because section 438 Cr.P.C. has not been allowed its full play. The Supreme Court placed reliance upon the Constitution Bench judgment in the case of Gurbaksh Singh (supra) wherein it has been clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and439 Cr.P.C. The Supreme Court held further that it is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that Section 438 Cr.P.C. should be invoked only in exceptional or rare cases. The Supreme Court further held that those orders are contrary to the law laid down by the judgment of the Constitution Bench in the case of Gurbaksh Singh (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21of the Constitution, then the Courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The Courts considering the bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent Court. 11. In applying these principles to the present case, this Court examined the various averments made in the case. First of all, taking into consideration the points to be considered under Section 438 of the Code, it is seen that the first criterion is the nature and gravity of the offences. 11. In applying these principles to the present case, this Court examined the various averments made in the case. First of all, taking into consideration the points to be considered under Section 438 of the Code, it is seen that the first criterion is the nature and gravity of the offences. Torture of a woman, though is a grave crime, is not a crime which is punishable for imprisonment for life or death. The maximum punishment under Section 498-A of the I.P.C. is imprisonment for three years and fine and it is triable by the Magistrate First Class. 12. The second consideration is the antecedents of the applicant including the facts as to whether he has previously undergone imprisonment by the Court in respect of any cognizable offence. It is apparent from the records and also admitted by the parties that the petitioner has never undergone any imprisonment on conviction. It is true that three other cases are pending against the present petitioner. All the three cases are initiated against him by the same informant. One case been stayed by this Court in an application under Section 482 of the Cr.P.C. filed by the present petitioner. The Bail Application arising out of the second case is pending before this Court and is being disposed of by a separate order today; and the third case i.e. the latest case filed against the petitioner involves bailable offences. Thus, from the record though criminal cases are pending against present petitioner, it cannot be said that he is a habitual offender of a harden criminal. 13. The petitioner is stated to be a businessman having his establishment at Bhubaneswar. He is a permanent resident of Chandrasekharpur, Bhubaneswar and hence, there is no chance of or possibility of the petitioner fleeing from justice. 14. The 4th consideration under Sub-section (1) of Section 438 of the Code is whether on accusation has been made with the object of injuring or humiliating the applicant of having been so arrested. He is a permanent resident of Chandrasekharpur, Bhubaneswar and hence, there is no chance of or possibility of the petitioner fleeing from justice. 14. The 4th consideration under Sub-section (1) of Section 438 of the Code is whether on accusation has been made with the object of injuring or humiliating the applicant of having been so arrested. The fact that the petitioner's application has been opposed with unusual vehemence by the informant's Counsel in both the cases and the submission noted earlier made by the learned Counsel for the petitioner, it appears to the Court that there is an element of truth in the submission made by the learned Counsel for the petitioner that the informants joined hands to injure and humiliate the petitioner by having him arrested. 15. Let us consider the various grounds those are available in Sections 41(1)(b) of the Code, which empowers a Police Officer to arrest a person accused of a non-bailable cognizable offence, which is punishable with imprisonment that may be less than seven years or which may extend to seven years whether with or without fine. The first contention is that the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence: the second contention is if the police officer is satisfied that such arrest is necessary (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tamper with such evidence in any manner or (d) to prevent such person making any inducement, threat or promise, to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer, or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured. There is no material to the effect that the petitioner is likely to commit any further offences. Offences involved in this case are triable by the Magistrate First Class and there is no need of custodial interrogation for recovery of weapons under Section 27 of the Indian Evidence Act, 1872. This Court is of the opinion that it is not necessary for the purpose of investigation the accused should be arrested. Offences involved in this case are triable by the Magistrate First Class and there is no need of custodial interrogation for recovery of weapons under Section 27 of the Indian Evidence Act, 1872. This Court is of the opinion that it is not necessary for the purpose of investigation the accused should be arrested. Thirdly, there is no allegation that the present petitioner has caused disappearance of evidence or tamper with the evidence in any manner. The 4th ground has some bearing in this case as it is connected to the facts of ABLAPL No. 1105 of 2015, who happens to be the first wife of the petitioner, now divorced, has filed an affidavit to the effect that on 5th October, 2015, the petitioner followed the car of the informant at Cuttack and started to blow horn behind the vehicle of the informant. It is further stated under oath of the informant in the said case that out of fear the informant sped away her Car and took a turn from Satichaura Chhak towards CD.A., Cuttack and found that the Black Scorpio Vehicle in which the petitioner was seated could no more be seen which was following her throughout till it lost track of the informant's vehicle. The informant has stated that she has received calls from an unknown numbers, but she has not stated that the petitioner has given those calls to her and tried to induce her in any way. So, the fact that the petitioner was following the car of the informant (first wife) does not appear to be tainted with any malice. It may be a coincident that the petitioner was travelling at the same time while the informant was proceeding from the Court to CD.A. 16. The 5th criterion is that the accused shall be arrested in a case in which the offence is not punishable with imprisonment for a term exceeding seven years, if his presence in the Court cannot be ensured whenever required, this Court has stated earlier that the petitioner is a permanent resident of Chandrasekharpur, Bhubaneswar having his own house and, therefore, this aspect is not necessary to be considered in this case. The Supreme Court has time and again held that personal liberty is the most precious of all fundamental rights of an individual. The Supreme Court has time and again held that personal liberty is the most precious of all fundamental rights of an individual. A person should not be sent behind bar without following due procedure established by law and unless such an accused has to be put behind bars, because the facts of the case justify the same. 17. Keeping in view the aforesaid consideration, this Court comes to the conclusion that though the nature of accusation is serious because of the number of cases filed against the petitioners, it cannot be said that the offences are of exceptionally grave in nature. Moreover, this court has also discussed in the preceding paragraphs that the petitioners met the relevant consideration required for granting anticipatory bail or for not arresting him for the offences allegedly committed by him as the maximum punishment does not exceed imprisonment for terms exceeding seven years. So, keeping in view the aforesaid consideration and discussion, this Court is of the opinion that the petitioner should be granted anticipatory bail. Accordingly, anticipatory bail of the petitioner is allowed. It is directed that on the event of arrest, the petitioner shall be released on bail on such terms and conditions as deemed just and proper by the Arresting Officer. However, it is further stipulated that the petitioner shall not harass any of the two informants in any way arid if he does so in future, it is open for the informants to file application for cancellation of bail granted to him. Accordingly, the Anticipatory Bail Application is allowed.