Surath Chandra Giri vs State of Orissa

S.C. Mohapatra, J.—This is an application for anticipatory'' bail. When the matter .was listed for hearing, the learned Counsel for the Petitioner submitted that he would not press the application since the learned Additional Sessions Judge has already, directed release of the Petitioner on anticipatory bail. When a certificate was given that the Petitioner has not moved the Sessions Court, I felt that the circumstances under which the learned Additional Sessions Judge allowed the prayer during'' pendency .of an application in this Court should be probed into. Accordingly. I directed issue of notice to the Petitioner to show-cause why the bail granted by the learned Additional Sessions Judge shall not be cancelled. I directed on another date to issue notice to (i) Madhusudan Tripathy (ii) Mahendra Chandra Pratihari, and (iii) Jitendra Kumar Choudhury, who were released on bail by this Court to show-cause why the bail granted shall not be cancelled. I also directed issue'' of notice to (i) Gopal Chandra Barik, (ii) Siba Charan Naik, (iii) Akuli Charan Patra, and (iv) Maheswar Sahu to show-cause why the anticipatory bail granted by the learned Additional Sessions Judge shall not be cancelled. Although notices were served since October. 1987, the matter was not listed till 16-4-1988.

There are three categories of accused persons whose release on bail is subject-matter of consideration.

(i) Accused Madhusudan, Mahendra and Jitendra who were released, on bail by this Court after their arrest in course of investigation;

(ii) Accused, Gopal, Siba, Akuli and Maheswar who have been granted anticipatory bail by the learned Additional Sessions Judge; and (iii) Petitioner, who applied for anticipatory bail both in the Sessions . Court and in this Court, having been granted anticipatory bail does not want to press this petition.

Inspector of Police, C. I. D. (Crimes), lodged a written report in Mangalabag Police-Station which was registered as Mangalabag Police-Station case No. 187 of 1987. On receipt of the First Information Report. G. R. Case No. 891 of 1887 has been registered in the Court Sub-Divisional Judicial Magistrate, . Cuttack. Madhusudan Tripathy, Mahendra Chandra Pratihari and Jitendra Kumar Choudhury were arrested and produced. Bail having been refused, they moved this Court for bail which has been granted on 27-5-1987 in the applications registered as Criminal Misc. Case Nos. 431. 436 and 448 of 1987. Since the orders in all the three applications are similar the order passed in Criminal Misc. Case No. 431 of 1987 relating to Madhusudan Tripathy is quoted below:

Heard learned Counsel for the Petitioner and Mr. Patra for the State. Some documents have been seized from the Petitioner which prima facie show his involvement in the crime. Mt. Patra submits that the investigation is in progress and many more materials are likely to come out against the Petitioner. However, in the facts and circumstances of the case so far placed. I think it appropriate to release the Petitioner on bail for Rs. 3000/- (Rupees three thousand) with one surety for the like amount to the satisfaction of the S. D. J M. Cuttack subject to the further condition that the Petitioner shall make himself available for investigation as and when required by the I. O. and shall not do any act which would obstruct or in any way retard the investigation to be made. The bail so granted is liable to be cancelled if it is found that the Petitioner has interfered with the investigation in any manner whatsoever and or if any other materials are available against justifying cancelation of bail.

Certified copy of this order be granted today if applied for.

No material has been brought to my notice with regard to the violation of the conditions. Accordingly the rules issued against them are discharged.

It is now settled by this Court in the decision of the Division Bench reported in Chhaila Pradhan and State of Orissa Vs. Bansidhar Pradhan and two Ors. and Bhagaban Pradhan and Others, , that improper grant of bail is one of the circumstances for cancellation of the same. It is to be examined if the bail granted by the learned Additional Sessions Judge is improper.

Learned Additional Sessions Judge granted anticipatory bail to the Petitioner and other four applicants before him in a common order. The relevant portion of the order is extracted below:

Heard the learned Counsels for the State and for the Petitioners. It is not disputed that on receipt of allegations, the houses of the Petitioners were searched and nothing incriminating was recovered from the possession of the Petitioners. The very search of the houses -of the Petitioners must give rise to a reasonable apprehension in the minds of the Petitioners that they are likely to be arrested in the immediate future and since the aforesaid apprehension does not appear to be unfounded, the petitions filed u/s 438 of the Criminal Procedure Code are, therefore, allowed having regard to the fact that the persons who had been originally arrested in G. R. Case No. 891 of 1987 have already been released by the Hon''ble Court in Criminal Misc. Case Nos. 431J87, 436/87 and 448/87....

On the face of it the order is improper. Considerations for release of an arrested accused on bail and grant of anticipatory bail to a person who has, reasonable apprehension in mind that he is likely to be arrested in the immediate future are different.

Power to grant anticipatory bail being wide, the same is to be exercised sparingly only in just and deserving cases. As has been observed by me in the decision reported in The State Vs. Pabitra Mohan Sahoo, , allegations of a non-bailable offence against a person and his apprehension that he would be arrested are not sufficient to grant anticipatory bail. If these would be the only two preconditions, no person can be refused such bail. Considering the object of anticipatory bail it was observed by the Supreme Court in the decision reported in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, , that the same is a device to secure liberty and is neither a passport to the commission of crime nor a shield against any and all kinds of accusations likely or unlikely. It has observed that a crime a Criminal or a complainant possessing extraordinary features may be a circumstance where police is called upon to inquire into charges arising out of political antagonism and the powerful process of criminal law is perverted in achieving extraneous ends. Attendant upon such investigations, when the police .is not free agent within its sphere of duty is a great amount of inconvenience, harassment and humiliation. That can be caused to a person taking the form of parading in handcuffs of such person respectable in the society on way to Court. To avoid these types of foul deeds the power of grant of anticipatory bail has been provided. While so observing it was also noted that it is the normal duty of police to investigate into charges brought before it and broadly and generally it has nothing to,gain, not favoured at any rate by subjecting ordinary criminals to needless harassment.

I have perused the petitions for anticipatory bail of the five accused persons before the Additional Sessions Judge. But a whisper has been made to draw an inference that the object with which power to grant anticipatory bail has been provided in Section 438, Criminal Procedure Code is satisfied. The learned Additional Sessions Judge has not applied Judicial mind in granting anticipatory bail which tends towards abuse of process of the Court. It is thus, improper and is liable to be vacated. If these applicants have not yet been arrested, I exercise my inherent power to make the order of the learned Additional Sessions Judge ineffective. If they have been arrested and released on bail as directed by the learned Additional Sessions Judge they shall surrender to custody.

I alp,not dealing with the merit of grant of bail since the accused persons after taken to custody have right to move for ?ail and any observation on merit might prejudice them. However. I have no doubt that the Court considering the application for bail shall consider the gravity of the offence alleged and other circumstances for release of the applicant. Case of such accused is to be considered separately in that regard if application is made.

In the result, while dismissing the application for anticipatory bail of Surath Chandra Giri filed in this Court, I cancel the anticipatory bail granted by the learned Additional Sessions Judge, Cuttack to;(i) Surath Chandra Giri (Criminal Misc. Case No. 538 of 1987). Gopal Chandra Barik (Criminal Misc. Case No. 561 of 1987), Siba Charan Naik (Criminal Misc. Case No. 562 of 1987) Akuli Charan Patra (Criminal Misc. Case No. 571 of 1987) and Maheswar Sahu (Criminal Misc. Case No. 572 of 1987). Cancellation of anticipatory bail of the aforesaid notices by me and direction to surrender to custody shall not be a circumstance to refuse the application for bail on that ground alone. Rule made absolute.