Santosh Sahoo and others vs State of Orissa

S.K. Mishra, J.—Heard learned counsel for the petitioners and learned Additional Government Advocate. I have also heard learned counsel for the informant.

The petitioners are apprehending arrest for the alleged commission of offence under Sections 323 354 341 379 294 and 506 of the IPC read with Section 3 of the SC & ST (PA) Act in I.C.C. Case No.37 of 2015 of the court of learned J.M.F.C. Odagaon.

It is seen from the record that after taking cognizance of the offence learned J.M.F.C. Odagaon has issued summons against the petitioners for which an application under Section 438 of Cr.P.C cannot be maintainable as there is no apprehension of arrest of the petitioners. However the learned counsel for the petitioners submits that since the offence under Section 3(1)(x) of the S.C. & S.T. (P.A.) Act is made out against the petitioners there is every possibility of the petitioners being remanded to judicial custody by the learned J.M.F.C. Odagaon as he has no jurisdiction to enlarge bail under Section 439 of Cr.P.C.

However this Court in Bulu Hazari Pradeep Kumar Hazary and five others v. State of Orissa, ABLAPL No.18965 of 2015, as per order dated 15.02.2016 has held at paragraph 8 that a bare reading of clause (i) of Sub-section (1) of Section 437 of Cr.P.C makes its clear that Magistrate do not have jurisdiction to grant bail to a person subject to certain exception referred in the 1st proviso if there appears reasonable ground for believing that he has been guilty of the offence punishable for death or imprisonment for life. Thus proper interpretation of this provision reveals that the Magistrate before whom an accused is produced and there appears reasonable ground for believing that he has been guilty of an offence not punishable for the death or imprisonment of life can grant him bail. However the fourth proviso to Sub-section (1) of Section 437 of the Code mandates that if a person is brought before a Magistrate with the allegation that he has committed an offence which is punishable with death imprisonment for life or imprisonment for seven years or more the person shall not be released on bail without giving an opportunity of hearing to the Public Prosecutor.

This Court further held that the offence under Sections 3(1)(x) and 3(1)(xi) of the S.C. & S.T. (P.A.) Act are punishable with imprisonment for a terms which shall not be less than six months but which may extend to five years and with fine. So an interpretation of Section 437(1) clause (i) leaves no doubt in the mind of this Court that even when an accused is produced before the Magistrate on the accusation of committing an offence as stated above still the Magistrate has jurisdiction to grant him bail. So this Court is of the opinion that as per ratio decided in the aforesaid case the Magistrate has jurisdiction to grant bail in this case and apprehension of the petitioners that they may be remanded to judicial custody as a Magistrate does not have jurisdiction to grant bail is not warranted. Moreover it is seen that offence under Section 3(1)(x) of the S.C. & S.T.(P.A.)Act and other Section allegedly committed by the petitioners are not punishable with imprisonment for a terms exceeding seven years then the mandate laid down under Section 41(1) clause (ii) shall come into play and the Magistrate is under an obligation to have a limited judicial scrutiny in terms of the observations and directions given by the Hon''ble Supreme Court in the case of Arnesh Kumar v. State of Bihar AIR 2014 SC 2756 and he is authorised to remand a person to judicial custody who is forwarded to the Court for alleged commission of offence which is punishable with term of imprisonment not exceeding seven years and only if any of the conditions enshrined under Clauses (a) to (e) of the aforesaid Section is satisfied.

In that view of the matter the anticipatory bail application is dispose of giving liberty to the petitioners to surrender before the learned J.M.F.C. Odagaon within twenty-one working days and pray for bail if so advised. In such event it shall be the duty of the learned Magistrate to take up the application for bail filed by the petitioners in the same day and in its proper perspective as discussed in the body of this order.

With the aforesaid observation the application for anticipatory bail is disposed of.

Urgent certified copy of this order be granted on proper application.