Surath Behera vs State of Orissa

K.P. Mohapatra, J.—This is a petition for bail u/s 439(1) of the Criminal P.C. by one of the accused in S.T. No. 168 of 1986 under Sections 147, 148, 337, 323, 379 and 302 read with Section 149 l.P.C. in the court of the learned Sessions Judge, Puri.

The prosecution case against the petitioner in brief is that on 11-10-1985 at about 10 a.m. all the accused persons being armed with deadly weapons such as Lathis and Tentas surrounded deceased Nakula when the petitioner, who was armed with a Tenta (Tenta is a spear with more than one sharp blade meant for stabbing) assaulted the deceased by means of it, as a result, one of the blades pierced into the left side of the chest which resulted in his death.

The accused persons (eleven in number) moved for bail before the learned Sub-Divisional Judicial Magistrate, Khurda, who refused to release them on bail. The accused persons moved for bail before the learned Sessions Judge, Puri, who by separate orders released all the accused persons except the petitioner on bail. Later, the petitioner again moved the learned Sessions Judge for bail on the ground that in the absence of valid orders of remand his detention was illegal. The learned Sessions Judge placed reliance on a decision of this Court reported in (1985) 60 CLT 228, D. Bhaskar Rao v. State of Orissa and having found that the detention of the petitioner was illegal because of absence of valid orders of remand, directed his release on bail by order dt. 25-4-1986.

On 22-8-1986 the learned Sub-Divisional Judicial Magistrate committed the accused persons for trial to the court of session. On the same day she passed an order releasing them on bail presumably because all of them had earlier been released on bail by the court of session.

Informant Durai Behera, as well as, the State challenged the order of the learned Sessions Judge dt. 25-4-1986 by which the petitioner had been released on bail by filing two separate Criminal Misc. Cases for cancellation of bail u/s 439(2) of the Criminal P.C. These cases came up for hearing before a single Judge of this Court who doubted the correctness of the principle enunciated in the case of D. Bhaskar Rao (supra) and referred them for decision to a larger Bench. The cases thereafter came up for hearing before a Division Bench of this Court. The Division Bench held in (1986) 2 OLR 536 : 1987 Cri LJ 1462 Durei Behera v. Suratha Behera that illegal detention, by itself and taken alone, is no ground for releasing the accused on bail and has not been recognised as such by the Code. Bail is no remedy and has never been conceived or intended in law to be a remedy for illegal detention. To hold otherwise would introduce a stage of compulsory bail not intended by the Code. If detention is illegal by reason of infringement of Section 309(2), the remedy is not an application for bail, but an application for a writ of habeas corpus. Having held as much, the Division Bench not only differed from the view earlier taken in the case of D. Bhaskar Rao (supra), but also set aside the order of the learned Sessions Judge and directed cancellation of bail of the petitioner. While doing so merits of the case relating to bail were not taken into consideration.

The decision of the Division Bench in (1986) 2 OLR 536 (supra) was challenged in the Supreme Court by filing SLP (Criminal) No. 2805 of 1986 which was allowed to be withdrawn to enable the petitioner to apply afresh in this Court for bail on the basis that the order of bail was made in favour of the petitioner by the committing magistrate.

Mr. A.P. Mohanty, learned Counsel for the petitioner, made reference to the order of commitment dt.''22-8-1986 and contended that in exercise of powers u/s 209(b) of the Code, the learned Magistrate released the petitioner on bail until conclusion of trial of the case and so without making an application for cancellation of bail, re-arrest of the petitioner and taking him to custody was not in accordance with law. In support of his contention he placed reliance on Free Legal Aid Committee, Jamshedpur Vs. State of Bihar, in which it was laid down as under:

...it is also clear from Section 209, cl.(b) of the Cr. P.C. that the Magistrate has discretion to release the accused on bail ''during and until completion of trial" even in cases where the offence is triable by the Court of Session....

The legal proposition though indisputable, the learned Counsel changed his strategy when he became aware of the fact that the order of bail dt. 22-8-1986 was not passed on merits, but followed the order of bail of the petitioner which had earlier been passed by the learned Sessions Judge on 25-4-1986. Because of the earlier bail order, the committing magistrate could not but release the petitioner on bail while committing him to the court of session. In the facts and circumstances of the case therefore the order of bail passed by the committing magistrate having not been independently passed u/s 209(b), the learned Counsel urged that successive bail petitions are not barred and so the petitioner has a right to approach the Court to move for bail on merits of the case. Undoubtedly the contention is not without merit because, according to the well settled principle, successive bail applications by an accused are not barred, as there is nothing like a principle of res judicata operating in the field. For this proposition reference may be made to Babu Singh and Others Vs. State of U.P., . in which Krishna Iyer, J. spoke for the Court in his characteristic style as under:

...But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials,

further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not overturning an earlier negation....

In view of the principle referred to above the present petition is treated as a successive bail petition.

Mr. Mohanty made reference to the first information report, statements of the eye-witnesses to the occurrence recorded by the investigating officer and the post-mortem to one u/s 304, Part I or Part II of I.P.C. and so does not warrant detention of the petitioner in custody. The learned Additional Government Advocate, on the other hand, contended that while considering a bail petition, the Court should not embark upon an elaborate discussion of the materials on record so as to arrive at a conclusion as to whether the case will fall within the ambit of Section 302 or Section 304 I.P.C. It was held in Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, that detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bai applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. This view was followed by a Division Bench of this Court in (1986) 62 CLT 699, Chhaila Pradhan v. Bansidhar Pradhan and with great respect I follow the same and hold that when considering the bail petition elaborate discussion of the merits of the case and the possible defence that the accused may make during trial should be avoided. Therefore, the petition for bail shall be considered on the basis of the well established principles laid down by the Supreme Court, as well as, this High Court. In (1971) 37 CLT 629 State of prissa v. Damodar Pentia, relying upon the principle laid down in The State Vs. Captain Jagjit Singh, , the State v. Captain Jagjit Singh it was held that while considering a bail petition, the Court shall have to take into consideration the nature and seriousness of the offence, character and strength of the evidence, circumstances which are peculiar to the accused, reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or the State, severity in degree of the punishment that might follow, opportunity to the accused to prepare his defence and the long period of detention of the accused and the probability of delay. In (1984) 57 CLT 394 D. Danda v. Desulu Cheneyya a Division Bench of this Court held that the nature and the gravity of the circumstances in which the offence is committed, the likelihood of the accused fleeing from justice and tampering with the prosecution evidence are some of the factors to be kept in mind while considering an application for bail. The principle laid down in the case of the State v. Captain Jagjit Singh 1962(1) CriLJ215 (SC) (supra)) was followed by the Supreme Court in Gurcharan Singh and Others Vs. State (Delhi Administration), . In State Vs. Jaspal Singh Gill, the same principle was reiterated. Keeping the aforesaid principle in the background, it is necessary to consider the materials on record so as to grant or refuse bail to the petitioner.

There are four eye-witnesses to the occurrence, all of whom have stated that while other accused persons were armed with lathis, the petitioner was armed with a Tenta. At the instigation of some other accused persons, the petitioner, described in the charge-sheet to be aged about 19 years, pierced the Tenta on the left side of the chest of the deceased who received injuries and was immediately removed to the hospital. Though his death was not instantaneous he succumbed to the injuries while he was under treatment. Undoubtedly, the nature of the allegation against the petitioner is very serious.

During investigation the learned Sessions Judge. had refused bail to the petitioner on three occasions. His bail petition had earlier been rejected in the High Court. When the learned Sessions Judge released him on bail on a technical ground, petitions were filed for cancellation of bail which were allowed by this Court. During the few months the petitioner remained outside, there were no allegations against him to the effect that he tried to abscond and kept himself away from the court, attempted to tamper with the prosecution evidence, or otherwise abused his liberty by indulging in criminal and antisocial activities. As a matter of fact, all his co-accused persons have all along been on bail and there are no allegations that they have also abused their liberty. No specific purpose for the prosecution shall be served if the petitioner, who is on threshold of his youth, shall remain alone in jail. This Court on the first occasion refused bail to him at the investigation stage and on the second occasion purely on a technical and legal ground. All these facts are additional materials and further developments which weigh in favour of the petitioner. Therefore, rejection of earlier bail petitions even by this Court does not stand as a bar for grant o f bail to the petitioner on the ratio of the decision in Babu Singh''s case (1978 Cri LJ 6511 (supra).

After giving my anxious consideration to the principles involved and the facts of the case, 1 am of the opinion that the petitioner should be given benefit of bail.

Accordingly, the criminal miscellaneous case is allowed and the petitioner is released on bail of Rs. 5000/-(Rupees five thousand) w ith two local sureties for equal amounts each to the satisfaction of the learned Sessions Judge, Puri, with the further conditions to be embodied in the bail bond that he shall not abscond, shall not attempt to tamper with the prosecution evidence and shall not leave the jurisdiction of the learned Sessions Judge without obtaining previous permission.