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2015 DIGILAW 352 (ORI)

Sania @ Sanatan Mohanty v. State of Odisha

2015-06-17

D.P.CHOUDHURY

body2015
JUDGMENT : D.P. Choudhury, J. Lord Bolingbroke observed : “Liberty is to the collective body, what health is to every individual body. Without health, no pleasure can be tasted by man; without liberty, no happiness can be enjoyed by society”. [Quoted from the decision reported in (2012) 5 SCC page-690 (Rashmi Rekha Thatoi and Another Vs. State of Orissa and Others)] 2. Thus, the liberty has also taken proper place in preamble of our Constitution -“Liberty of thought, expression, belief, faith and worship”. It is, therefore, well enshrined in Article 21 of the Constitution that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Such provision has also been engrafted in the mandate of the Code of Criminal Procedure in order to sustain the liberty. But, a Court of law is required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy. So, the Court while considering the anticipatory bail or regular bail must adhere to the parameters to find out whether liberty of a person has been curtailed or is required to be curtailed by following the established principles of law. FACTS OF THE CASE : 3. Adverting to the facts of the present case, it is the prosecution allegation that on 20.03.2012 at about 11.30 P.M., the petitioner and others came near the scrap shop of the informant and abused him in filthy language demanding some amount. In the event of protest, the petitioner and others assaulted the informant by means of kicks and fist blows and snatched away a mobile phone from his possession. As F.I.R. was lodged, investigation went ahead. The police after investigation, submitted charge-sheet against the petitioner and others under sections 294/385/323/307/379/506/34 of the I.P.C. and the learned Magistrate has already taken cognizance of the said offences. Since the police showed the petitioner as absconder in the charge-sheet, Non-bailable Warrant of Arrest (NBWA) was issued against him. After NBWA was issued, the present petitioner moved this petition under section 438 of the Cr. P.C. praying to grant anticipatory bail. SUBMISSIONS : 4. Learned counsel appearing for the petitioner relied upon the decision in the case of Gurubaksh Singh Sibbia Vs. After NBWA was issued, the present petitioner moved this petition under section 438 of the Cr. P.C. praying to grant anticipatory bail. SUBMISSIONS : 4. Learned counsel appearing for the petitioner relied upon the decision in the case of Gurubaksh Singh Sibbia Vs. State of Punjab reported in (1980) 2 SCC 565 , wherein the Constitution Bench of the Hon'ble Apex Court has been pleased to observe that even after submission of charge-sheet and taking cognizance of offence by the learned Magistrate, the petition under section 438 of the Cr. P.C. is maintainable. He also relied upon the decision reported in AIR 2003 SC 4662 (Bharat Chaudhary and another Vs. State of Bihar and another), wherein Their Lordships of the Hon'ble Apex Court have been pleased to observe that the Court of Session, High Court or the Supreme Court have 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. So, according to learned counsel for the petitioner, such petition is maintainable. Reliance was also placed by him in the case of Hatanath Behera Vs. State of Orissa and another reported in 1994 (I) OLR 51, wherein this Court has followed the decision in the case of Gurubaksh Singh Sibbia (supra) about maintainability of the petition under section 438 of the Cr. P.C. He further relied upon the decision in the case of Basudev Samantaray Vs. State of Odisha in BLAPL No.23121 of 2013 decided on 20.11.2013, wherein this Court also followed the aforesaid authoritative pronouncements and allowed the anticipatory bail and since charge-sheet has already been submitted, directed the petitioner to surrender before the learned Magistrate and in the event of his surrender, direction was given to the learned Magistrate to enlarge him on bail on such terms and conditions as deemed just and proper. Thus, he submitted that anticipatory bail can be considered even after cognizance of offence has been taken and NBWA has been issued. He further revealed that in such case, the Court may direct the accused to surrender and to release him on bail with any condition as deemed fit and proper. 5. Learned Addl. Thus, he submitted that anticipatory bail can be considered even after cognizance of offence has been taken and NBWA has been issued. He further revealed that in such case, the Court may direct the accused to surrender and to release him on bail with any condition as deemed fit and proper. 5. Learned Addl. Standing Counsel appearing for the State opposed the bail plea stating that the offences being serious in nature, the petition for anticipatory bail cannot be entertained. He further submitted that there are ample materials against the petitioner. POINTS FOR CONSIDERATION : 6. From the aforesaid submissions and the facts of the case, two points emerge : (1) Whether jurisdiction under section 438 of the Cr. P.C. can be exercised even after submission of charge-sheet and taking of cognizance of offence against the accused; and (2) Whether the Court can ask the petitioner to seek for regular bail while allowing or disallowing the anticipatory bail filed by him under section 438 of the Cr. P.C. and to further direct lower Court to grant regular bail on his surrendering. DISCUSSIONS : 7. No doubt, the Constitution Bench of the Hon'ble Apex Court in the case of Gurubaksh Singh Sibbia (supra) observed that even after submission of charge-sheet and taking of cognizance by the Magistrate, petition under section 438 of the Cr. P.C. is maintainable. Same decision has also been followed in the case of Bharat Chaudhary and another (supra), wherein Their Lordships have been pleased to observe in para-7 at page-4663 that : “xxx xxx xxx 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 anticipatory bail in appropriate cases. xxx xxx”. 8. With due respect to the above decision, it is clear that even after submission of charge-sheet and taking of cognizance of offence, the petition under section 438 of the Cr. P.C. is maintainable. This view has also been well followed in the cases of Hatanath Behera and Basudev Samantaray (supra). Thus, considering all such decisions, in the present case, it must be held that the submission of charge-sheet, taking of cognizance of offence by the concerned Magistrate and issuance of NBWA cannot be a bar to exercise the jurisdiction under section 438 of the Cr. Thus, considering all such decisions, in the present case, it must be held that the submission of charge-sheet, taking of cognizance of offence by the concerned Magistrate and issuance of NBWA cannot be a bar to exercise the jurisdiction under section 438 of the Cr. P.C. As such, point No.(i) is answered accordingly. 9. The second point before this Court is whether in case of Court's inclination to grant anticipatory bail or disinclination to grant the said relief, can the petitioner be allowed to seek for direction to surrender before the concerned Magistrate and can he be released on bail with the direction of this Court on such terms to be fixed by the learned Magistrate to avoid arrest under the NBWA issued against him ? In the case of Rashmi Rekha Thatoi and Another Vs. State of Orissa and Others reported in (2012) 5 Supreme Court Cases 690, Their Lordships of the Hon'ble Apex Court have been pleased to observe at para-19 as under :- “The aforesaid provision in its denotative compass and connotative expanse enables one to apply and submit an application for bail where one anticipates his arrest in a non-bailable offence. Though the provision does not use the expression “anticipatory bail”, yet the same has come in vogue by general usage and also has gained acceptance in the legal world”. 10. Thus, exercise of jurisdiction under section 438 of the Cr. P.C. is distinct from the jurisdiction exercised under section 437 of the Cr. P.C. inasmuch as in an application for anticipatory bail, one anticipates his arrest in a non-bailable offence, whereas application for regular bail is not confined to anticipating arrest but it also includes execution of NBWA, submission to the custody and for asking the concerned competent Court to consider the bail application. Their Lordships in the above decision have not only observed the essential concept of relevant provisions, but also have been pleased to rely on the decision in the case of Savitri Agarwal Vs. State of Maharashtra reported in (2009) 8 SCC 325 to the extent that the provisions of section 438 of the Cr. P.C. cannot be invoked after arrest of the accused and after arrest, the accused must seek his remedy either under section 437 or under section 439 of the Cr. State of Maharashtra reported in (2009) 8 SCC 325 to the extent that the provisions of section 438 of the Cr. P.C. cannot be invoked after arrest of the accused and after arrest, the accused must seek his remedy either under section 437 or under section 439 of the Cr. P.C. if he wants to be released on bail in respect of the offence or offences for which he has been arrested. 11. Not only this, but also Their Lordships in the case of Rashmi Rekha Thatoi and Another (supra) have been pleased to observe as under :- “33. xxx xxx xxx On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitri Agarwal there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibba and the principles culled out in Savitri Agarwal. xxx xxx”. 36. In the case at hand the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctity of law. It is contradictory in terms and law does not countenance paradoxes. It gains respectability and acceptability when its solemnity is maintained. Passing such kind of orders the interest of the collective at large and that of the individual victims is jeopardised. That apart, it curtails the power of the regular court dealing with the bail applications. 37. In this regard, it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. That apart, it curtails the power of the regular court dealing with the bail applications. 37. In this regard, it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well-settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. This has been so stated in Bay Berry Apartments (P) Ltd. V. Shobha [(2006) 13 SCC 737] and U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [ (2006) 1 SCC 479 ]”. 12. With due respect to the said decision, it is clear that any direction in the application for bail under section 438 of the Cr. P.C. about surrendering of the accused before the concerned Magistrate and releasing him on bail on such and such terms and conditions as the learned Magistrate may deem fit and proper or direction by the superior Court imposing conditions for grant of bail on such surrendering of the accused should not be passed under such provisions, as they are against the principles underlined in section 438 of the Cr. P.C. The decision in the case of Rashmi Rekha Thatoi and Another (supra) has been well followed in the case of Sudam Charan Dash Vs. State of Orissa & Anr. reported in (2014) 57 OCR (SC) 306. In this regard, learned counsel for the petitioner submitted that this Court in the case of Basudev Samantaray (supra) has been pleased to allow the application for anticipatory bail and then directed the petitioner to surrender before the learned J.M.F.C.(P), Kujang within fifteen days and prayed for bail and on such event, direction was given to the learned Magistrate to enlarge him on bail on such terms and conditions as deemed just and proper and in case the petitioner is arrested by the police in the meantime, he shall be produced before the learned Magistrate forthwith on the same day, who shall grant him bail on such terms and conditions as deemed just and proper by him. As such, it was his forceful submission to follow the decision in the case of Basudev Samantaray (supra). 13. As such, it was his forceful submission to follow the decision in the case of Basudev Samantaray (supra). 13. On an anxious reading of the said decision, it is found that His Lordship has been pleased to observe that the application for grant of anticipatory bail is maintainable after filing of the charge-sheet and, for the reasons stated, allowed the anticipatory bail with the aforesaid directions. 14. It was the submission of learned Addl. Standing Counsel that observation of this Court in the last para of the order is result of the case, but not what is decided by the Court. In the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Papu Jadav reported in 2005(1) Crimes 202 S.C., Their Lordships have been pleased to observe as under :- “While deciding the cases on facts, more so in criminal cases, the Court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of facts in another case (C. Panduranga & Anr. Vs. State of Hyderabad, 1958(1) SCR 1083). It is also well settled principle that while considering the ratio laid down in one case, the Court has to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be exposition of the whole of the law, but are governed and clarified by the particular facts of the case in which such expression are to be found. A case is well authoritative what it actually decides and not logically follows from it.” 15. Now, applying the aforesaid decision, the view of this Court in the concluding paragraph in the case of Basudev Samantaray (supra) is the observation of the Court while disposing of the case on facts of that case, but the ratio of the case is that the application under section 438 of the Cr. P.C. is maintainable as in that case the decisions of Hatanath Behera, Bharat Chaudhary and another, and Gurubaksh Singh Sibbia and others (supra) have been well dealt with. It is also settled by the Hon'ble Apex Court in the case of State of Orissa and others Vs. P.C. is maintainable as in that case the decisions of Hatanath Behera, Bharat Chaudhary and another, and Gurubaksh Singh Sibbia and others (supra) have been well dealt with. It is also settled by the Hon'ble Apex Court in the case of State of Orissa and others Vs. Balaram Sahu and others reported in 95 (2003) C.L.T. Page-287 (S.C.), where Their Lordships have been pleased to observe that the direction issued on facts while disposing of cases is not binding precedent. Thus, the contention of learned counsel for the petitioner appears to be not acceptable to direct the petitioner to surrender before the concerned Magistrate, who will grant the bail with such and such terms and conditions, as the NBWA has been issued inasmuch as the said principle has been well jettisoned in the cases of Rashmi Rekha Thatoi and Another (supra) and Sudam Charan Dash (supra). 16. Considering the facts of the case that the charge-sheet has already been submitted under the aforesaid sections of law, which are major offences against the petitioner, who has become absconder, and having regard to the nature of accusation against the petitioner, I am loath to grant anticipatory bail under section 438 of the Cr. P.C. to the petitioner and the same stands rejected. When the petition under section 438 of the Cr. P.C. is rejected, no direction can be given to the concerned Magistrate to release the petitioner on bail with such terms and conditions on his surrendering or on his production being arrested. It is needless to point out that in the event the petitioner is produced being arrested by virtue of NBWA issued against him or on his surrendering before the concerned Magistrate, if so advised, he may move regular bail before the concerned Court, who will dispose of the same according to law. The petition under section 438 of the Cr. P.C. is disposed of accordingly and the interim order dated 15.05.2015 stands vacated.