Nilamani Satpathy vs Jayashankar Bhoi and Others

S. Acharya, J.—This miscellaneous case arises out of a petition filed by Nilamani Satapathy, the brother of the informant Parsuram Satpathy in G.R. Case No. 401/72 instituted against the opposite parties in respect of an alleged offence u/s 395, Indian Penal Code. The said informant has allegedly been murdered in 1974 and on his murder G.R. Case Woo 437/74 has been instituted. By this miscellaneous petition the Petitioner prays for the cancellation of the bail granted to opposite parties 1 to 5. It is alleged in this petition and submitted by the learned Counsel for the Petitioner that though the facts, alleged against the opposite parties in the F.I.R. filed on 12-12-1972, constitute an offence u/s 395, Indian Penal Code amongst other offences and the police has charge-sheeted them for offences under Sections 147, 148, 149, 426 and 323, Indian Penal Code md they have been committed to the Court of Sessions for an offence u/s 395, Indian Penal Code on 15.5.1974 all the opposite parties are still on bail, and several petitions for cancellation of their bail have all proved futile. It is also alleged that after the institution of the case the informant Parasuram Satpathy was threatened by the accused persons to be murdered soon, and that fact was brought to the notice of the police. The occurrence took place on 12-12-1972 and within a short time of the occurrence on the same day the F.I.R. of the case was lodged at the police station and the accused persons were arrested very soon after the lodging of the F.I.R., but the police released them on bail. So the informant filed a petition before the local Judicial Magistrate for cancellation of bail and that Magistrate on 5.1.1973 cancelled the bail of the accused persons and directed that they be kept in custody.. On the same day an Additional District Magistrate in the case p Section stated account an been was had on that is be to of under for have Judicial Magistrate. stayed operation said order Since time persons remained bail though they have, since 15-5-1974, committed sessions stand their trial 395, Indian Penal Code. when pending committing Court adjourned 14 dates absence persons. 2. In the Sessions Court charges under Sections 395, 426 and 147, Indian Penal Code have been framed against the accused persons and the Sessions Case against them (No. 19-B of 197-1) is now pending before the Assistant Sessions Judge, Bolangir. After the aforesaid charges were framed against the accused persons in the Sessions Court, the informant was murdered in the town of Bolangir on 29-11-1974. Soon thereafter the informant''s brother, Nilamani Satpathy, the Petitioner in this case, filed a petition in the Court of the Assistant Sessions Judge, Bolangir to cancel the bail of the accused persons alleging therein that the accused persons were terrorising the prosecution witnesses and/or their relations with dire consequences and because of the threatening attitude of the accused persons some of the prosecution witnesses were apprehending risk to their lives as actually the informant was murdered as per the threats held out to him by the accused persons. On 15-1-1975 the said Nilamani Satapathy again filed another petition in the trial Court renewing his prayer for cancellation of the bail bonds, and in that petition it was stated that the Assistant Public Prosecutor who was engaged to conduct the prosecution case was not taking interest in the matter and was not supporting the cause of the prosecution. By another petition, dated 3-3-1975, filed on behalf of the said Nilamani Satapathy it was said that the said Assistant Public Prosecutor was not competent under the law to appear in the Court of Sessions and as such he should be disengaged from this case. Petitions on behalf of the accused persons and the Assistant Public Prosecutor counteracting the above-mentioned applications filed on behalf of the informant were filed in the Court and the learned Judge on a consideration of the factual and legal aspects of the matter held on 12-3-1975 that the said Assistant Public Prosecutor was not competent to conduct the case in the Court of Sessions. By the same order the Court refused the Petitioner''s prayer to cancel the bail bonds of any of the accused persons.

This miscellaneous petition in this Court was filed on 2-3-1975 and by that date the above mentioned order dated 12-3-1975 of the Sessions Court in seisin of the matter, had not been passed.

It is submitted by Mr. Palit, the learned Counsel for the accused persons (Opposite parties in this case), that in view of the order dated 12-3-1975 of the trial Court this miscellaneous petition has become infructuous and the Petitioner should come up with a fresh petition asking for a revision of the said order of the trial Court. Mr. Swain, the learned Counsel for the Petitioner counteracts the above submission of Mr. Palit by saying that this petition is one u/s 439(2) of the Criminal Procedure Code, 1973, praying for a direction of this Court to cancel the bail bonds of the accused persons and to commit them to custody, and this prayer in this petition can be considered by this Court on its own merits on the facts and circumstances existing at the time of passing the order and accordingly this miscellaneous case has not become infrucutuous because of the order dated 12-3-1975 of the trial Court. The above submission of Mr. Swain i:; perfectly correct, and Mr. Palit''s submission on this score has no merit.

When a person is accused of or charged with a non-bailable offence, the following are some of the considerations which generally weigh with the Courts in deciding as to whether or not the accused should be allowed to remain on bail.

(1) The nature of the offence and its seriousness;

(2) The character of the evidence on which the prosecution case rests;

(3) The circumstances which are peculiar to the accused;

(4) Reasonable possibility of the presence of the accused at the trial not being secured;

(5) Reasonable apprehension of witnesses being tampered with if the accused is released on bail;

(6) The large interest of the public and the State; and

(7) Various other considerations which may arise in the case, such as the propensity, the tendency or the likelihood of the accused to take part in further offences, or his proximate likely attitude, conduct or tendency towards matters persons or things around him or in connection with or in relation to the case in hand.

In this connection Capt. Jagat Singh''s case AIR 1062 S.C. 253, and the case reported in State v. Khitish Chandra Palta Singh and two Ors. 38 (1072) C.L.T. 777, should be seen.

The accused persons have been charged with an offence of dacoity which is punishable with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and with fine and in a case of this nature the Courts ordinarily do not grant bail. Section 437 of the new Code (corresponding to Section 497 of the Old Code) provides that in a case of this nature the Courts other than the High Courts or Courts of Sessions shall not grant bail. In the present case it is seen that after the filing of the charge sheet the police immediately granted bail to the accused persons, and at one stage the Judicial Magistrate, who was then in seisin of the matter, cancelled their bail and directed that they be taken into custody but somehow the Additional District Magistrate (Executive) of that place stayed the operation of the said order of the Judicial Magistrate, and since that time the accused persons have remained on bail all through. On many occasions petitions on behalf of the informant and/or his brother or some prosecution witnesses or their relations were filed before the police or before the Courts in seisin of the matter for cancellation of the bail of the accused persons. Due to the frequent absence of the accused persons the committal proceeding was delayed and after a long lapse of time the accused persons were committed to the Courts of Sessions on a charge u/s 395. Indian Penal Code and the Court of the Assistant Sessions Judge, in seisin of the case, framed charges under Sections 395, 426 and 147, Indian Penal Code against the accused persons. The trial Court, now In seisin of the matter, was also moved for the cancellation of bail, but that Court, on its own appreciation of the facts and circumstances of the case, by its order dated 12-3-1975 rejected that prayer. The case has been committed to the Sessions Court on 15-5-1974, and till 12-3-1975 the trial of the case had not started, as is evident from the certified copy of the order passed by the trial Court on that date.

It is alleged on affidavit in paragraph 11 of the main petition that Hrusikesh Tripathy, while on bill, has been involved in another case (G.R. Case No. 360 of 1974) of dacoity committed in Kalahandi district. It is stated by Mr. Swain, for the Petitioner, that the said Hrusikesh Tripathy was arrested in connection with the said case and detained in jail upto September, 1974. He has further drawn my attention to the certified copy of the order passed in Sessions Case No. 49-K of 1974 in the Court of the Sessions Judge, Bolangir, which was filed in Criminal Misc. Case No. 358 of 1975 of this Court, which shows that in that dacoity case this accused along with many others has been committed to sessions and the learned Sessions Judge in that case directed this accused and some other accused persons in that case to be taken into custody. Against the said order a petition u/s 439, new Code of Criminal Procedure was filed in this Court on behalf of Hrusikesh Tripathy and in Cr. Misc. Case No. 358 of 1975 this Court granted bail to Hrusikesh. On a perusal of the record of that case and the order passed therein by this Court I find that all the facts of the case were not properly represented and the counsel for the State, who appeared on adequate prior notice of the said petition, instead of pointing out all the salient features of the case and the fact that this accused is implicated in two cases of dacoity, rather conceded that this accused should be released on bail, and on such premises bail was granted to this accused.

It has been stated on affidavit that the accused persons are involved in several criminal cases and they are required by the police to be bound down u/s 107, Criminal Procedure Code. In Annexure VII(A) to the petition which has been filed in support of the above assertion and which has not been controverted it is stated that besides the above mentioned two cases of dacoity, there are two proceedings u/s 107, Code of Criminal Procedure pending against this accused.

The Court below, while considering the matter regarding the cancellation of the bail of the accused persons, has not taken into account the fact that this accused is involved in the cases mentioned above.

Considering the nature of the case and the facts and circumstances of this case I deem it just and proper to can cell the order of bail granted in favour of accused Hrusikesh Tripathy. I accordingly direct that he should immediately be arrested and remanded to custody till the disposal of this case.

With regard to accused Prasanna Kumar Pal it is seen that he remained absent from the trial Court on 5-12-1974 and though his lawyer reported the accused to be ill no medical certificate was produced on that date in support of his illness. Non-bailable warrant of arrest was issued against him and he surrendered in Court. Mr. Swain states from the Bar and gives it in -writing that this accused remained absent in the committing Court on 7 dates. In the F.I.R. and in the complaint filed in connection with the murder of the informant of this case this accused is named as an accused in that case. In Annexure VII (A) to the petition it is shown that this accused is involved in another case (G.R. Case No. 425 of 1974 in the Court of the S.D.J.M., Balangir) u/s 324/341, Indian Penal Code. It is stated on affidavit, which has not been controverted, that on account of the dangerous activities of this accused and his associates the Superintendent of Police, Balangir by his report dated the 4th June, 1973 to the District Magistrate, Balangir recommended that this accused and some others should be bound down tinder Section 3(1)(ii) of the Maintenance of Internal Security Act. The said assertion is supported by a true copy of the report of the Superintendent of Police annexed as Annexure VIII to the main petition in this case.

The Court below has not taken the above facts into consideration while rejecting the prayer for the cancellation of bail. Considering the above facts in the perspective of the charge u/s 395, Indian Penal Code framed against the accused I deem it proper to annul the order of bail granted in favour of this accused, and hence I direct that he be arrested and remanded to custody till the disposal of this case.

Accused Sirish Chandra Saraf has not only been charged with an offence u/s 395, Indian Penal Code in the Court below but is also involved in G.R. Case No. 402/72 in the Court of the Sub-Divisional Judicial Magistrate, Bolangir in which he has been charge-sheeted under Sections 147, 148 and 426, Indian Penal Code. Annexure VII-A shows that a proceeding u/s 107, Code of Criminal Procedure had been instituted by the police against this accused. It has been stated on affidavit and is seen from Annexure VIII that the Superintendent of Police, Bolangir by his above mentioned report dated 4-6-1973 recommended the detention of this accused along with others u/s 3(i)(ii) of the Maintenance of Internal Security Act. In recommending so, the Superintendent of Police states in the last paragraph of his said report that the persons named in his report created large scale lawlessness and disorder in public life where by the normal life in the Bolangir town was disrupted. It is further stated therein that threat from the persons named in his report to the peace and tranquility of the area persisted because of their free movement.

Mr. Swain states orally and in writing that this accused remained absent from the committing Court on six dates. Considering the above facts and the charge on which this accused has to stand trial in the Court below, I deem it just and proper to cancel the order of bail granted in his favour, and I direct that he be arrested and remanded to custody till the disposal of this case.

With regard to the other two accused persons, i.e. Jayashankar Bhoi and Prafulla Kumar Mohanty, I do not have at present before me sufficient materials to set aside the order passed by the Court below in their favour. The Petitioner may, if advised, move the trial Court again for the cancellation of their bail, and the Court below, on a perusal of the case diary and all other facts and circumstances in connection with this matter, reconsider the matter afresh in the correct perspective.

In the result, therefore, the orders of bail in favour of accused Hrusikesh Tripathy, Prasanna Kumar Pal and Sirish Chandra Saraf are hereby annulled. They be arrested forthwith and committed to custody till the disposal of this case. The miscellaneous petition, so far as it relates to the above mentioned three accused persons, is allowed.

The prayer for cancellation of bail in respect of accused Jayasankar Bhoi and Prafulla Kumar Mohanty is refused with the observations made and direction given above.

The case is pending since a long time, and so the trial Court must expediate the hearing and disposal of the case.