Gana @ Ganeswar Naik vs State of Orissa

P.K. Tripathy, J.—Heard

Petitioner prays for anticipatory bail in G.R. Case No. 185 of 2002 of the Court of S.D.J.M., Talcher arising out of Colliery P.S. Case. No. 51 01''2002 involving the offence under Section; 363 and 366-A, I.P.C. Learned Counsel for the Petitioner states that the principal accused in the case i.e., Ashok Naik has already been allowed to go on bail u/s 439, Cr.P.C. and the present Petitioner having simply accompanied that accused and the prosecutrix at the time of marriage and there being no allegation of any overt act against him, therefore, either the Petitioner be released on anticipatory bailor direction may be issued to the S.D.T.M., Talcher to release him on bail on his surrounding in that Court. Learned Counsel for the Petitioner states that as per the decision of this Court in the case of Tutu Malia v. State of Orissa (1998) 14 OCR 434, at the stage of consideration of the application u/s 438, Code of Criminal Procedure this Court can invoke inherent power for release of the Petitioner on ban. He also states that as per the ratio in the case reported in 1986 ECC 627 , (1986) 2 GLR 206, the accused standing at the footing of the Petitioner should be allowed to go on anticipatory bail when the principal accused is allowed to go on bail. of course, in that respect, Learned Counsel for the Petitioners states that he could not get a copy of that judgment to be placed before this Court.

Learned Additional Government Advocate while opposing the prayer for anticipatory bail reads the statement of prosecutrix, a minor girl, and states that it is clear from that statement that the Petitioner actively partcipated in the matter relating to kidnapping of the minor girl and she being threatened and induced for a Court marriage.

At this stage, it be noted that on 17.12.2002 while moving the present bail application Petitioner wanted not to press the bail application if the Court would grant an order directing for surrender of the Petitioner in the Court of S.D.J.M. will a direction for disposal of the bail application in course of the day. Since this Court did not appreciate the conduct of the Petitioner in making such a bargain and therefore declined to pass any order in the manner the Petitioner wanted, hence Petitioner wanted to argue on merit and that is how this application is heard today after several adjournments on the prayer of the Petitioner.

Power and jurisdiction of this Court u/s 482, Cr.P.C. is not controlled by any provision in the Code if that is exercised for the ends of justice. That is the view taken by this Court in the case of Tutu Mallia (supra). Submission of Petitioner is incorrect relating to ratio propounded in that case. Inherent power vested with the Court is to be utilised when the Court is of the considered opinion that exercise of such power is necessary to save the proceeding from the abuse of process of Court, to give effect to any order under the Code of Criminal Procedure, or otherwise to secure the ends of justice. The only limitation in that respect is that provision in Section 482 shall not be invoked to pass an order which shall offend the statutory provision in the Code or any other law. Keeping in view the above requirement of law and the nature of allegation against the Petitioner it is not a fit case to consider his prayer for issuing a direction for his release.on bailor disposal of the bail applications by the Courts below, on the date of his surrender. Pers malliberty is precious to everybody and keeping that in view at least direction can be issued for expeditious hearing and disposal of the bail application. of course, on 17.12.2002 Petitioner did not agree for such a direction.

In this case when there exists a prima facie case against the Petitioners for the offence of kidnapping a minor girl and compelling her to marry, therefore, the heinousness of that offence cannot be overlooked or ignored while considering a bail application under any provision under Chapter XXXIII of the Cr.P.C. Bethat as it may, a person praying for anticipatory bail has to satisfy existence of at least three conditions viz:(i) the offence involved in the case is a non-bailable one, (ii) he has reason to believe that he may be arrested on such accusation and (iii) the exists a circumstance in his favour which requires the Court for exercise of that extra-ordinary power of bail before he is arrested. Such circumstances may be of different nature, such as false accusation, malafide action due to political or other rivalry and so on and so forth. If the above noted third circumstance is not satisfied, then a person is not entitled to anticipatory bail.

Undoubtedly, Courts have absolute jurisdiction, subject to statutory restriction in Sections 436, 437 and 439, Cr.P.C. to consider and grant bail and in that respect the discretion in very wide. When law reposes absolute confidence in Court and has provided wide power, relating to consideration of the player for bail, Courts have to discharge the same with care and caution. In that connection a Court has to strike a balance between individual liberty vis-a-vis discipline in the society and orderly manner of justice delivery system. Heinousness of the Crime, gravity of the offence, effect of the alleged crime on the society if the offender is allowed to go on bail are some of indispensable circumstances which a Court must look into while considering a bail application while bearing in mind that a person shall be presumed to be innocent until his guilt is proved and that bail should not be refused as a measure of punishment.

In this case Petitioner does not substantiate on record any extra-ordinary circumstance so that power u/s 438, Cr.P.C. should be invoked in his favour. Nature of the allegation and offences thereof are undoubtedly heinous when a minor girl was kidnapped or enticed away. Thus, Petitioner''s prayer for anticipatory bail is devoid of merit and accordingly rejected.

The Criminal Misc. case is dismissed.