Orissa High Court
Biswanath Bhagat vs Sanjay Saha @ Nanki Saha And Two Ors. on 29 July, 1991
Equivalent citations: 1992CRILJ3105, 1991(II)OLR424
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner, the informant, in G. R. Case No, 1157 of 1988 pending in the Court of learned Subdivisional judicial Magistrate, Sadar, Cuttack (in-short-'SDJM') questions legality of the order of bail passed in respect of the opp. parties.
2. Background facts as asserted are that on the , basis of an information lodged at Purighat Police Station on 18-8-1988 alleging the opp. parties herein threw acid on the face and other parts of the body of one Jitendra Kumar jaiswal son of the informant), P. S. Case No. 165 of 1988 was registered and a case under Secs. 324/341, Indian Penal Code, 1860 (in short 'IPC') was booked and investigation was taken up. On 20 8-1988 a petition was filed by opp. party No. 2 along with two others, namely Siba Kumar Saha and Sona Devi for being released on bail. But the bail application was not pressed since the learned Assistant Public Prosecutor filed a memorandum stating that on the allegations made, an offence Under Section 307, IPC was made out. Peculiarly the learned SDJM did not send the applicants for bail to custody, but simply stated in his order that the accused persons did not surrender Opp. party No. 1 and the aforesaid Sona Devi again filed a petition for surrendering in the Court on 9-9-1988 and prayed for being released on bail. On that day, the learned SDJM was on leave and Judicial Magistrate, First Class, Cuttack was in charge. He released the applicants on bail, overruling the objection of the A. P. P. to the effect that an offence Under Section 307, IPC was made out. He observed that though accused persons had allegedly thrown acid, no medical report was submitted to show that the injured suffered grievous injury on his person. There- after, opp. party No. 2 and two others, viz. Siba Kumar Saha and Kanhaiya Saha filed an advance petition on 13-9-1988 before the learned Magistrate, who was in charge, and moved for bail. They were released on bail on the ground that co-accused persons had since been released on bail though allegations were similar. Opp. party No 3 Om Prakash Saha filed a petition for bail on 20-9-1988 and was released on bail on similar grounds. It is further case of the petitioner that after release on bail, the witnesses who are likely to depose to further the prosecution case as well as the informant have been threatened by the opp. parties and others who have been released on bail. It it submitted that offence Under Section 307, PC is clearly made out and erroneously the learned SDJM in charge, held that no case of any grievous in jury prima facie appeared. It is alleged that information- was lodged at Lalbag Police Station about the threats but the police officials have sat over the matter. It is prayed that since on erroneous grounds the opp. parties have been released, the same should be cancelled. The learned counsel for the opp. parties, however, submits that once bail has been granted, merely because unsubstantiated allegations have been made, it would not be proper to cancel the bail.
3. The principles relating to cancellation of ball have been laid down in several cases Consideration for grant of bail and cancellation of bail are somewhat different. Granting of bail in the case of a non-bailable offence is a concession allowed to an accused person. In Secs. 417(3) and 439(2) a discretion is given to the Court concerned to direct that any person who had been released on bail be arrested and committed to custody. The power of cancellation to take back in custody an accused who has been enlarged on bail has to be exercised with care, caution and circumspection. It is easy to reject a bail application in a non-bailable case than to cancel a bail granted, as cancellation of bail necessarily involves review of a decision already made and existence of supervening circumstances is a desirable requirement before exercise of, the power. It is not, however, imperative that there must be supervening or additional circumstances to vest jurisdiction on the Court to cancel a bail granted. Where bail has been granted on untenable ground, plea that there was no misuse of privilege of bail loses significance This view was expressed in 1986 (II) OLR 536 : Durei Behera v. Surath Behera and Anr..
4. The question is whether the 6pp. parties have been illegally released on bail and whether' there has been improper consideration of materials relating to gravity of the offence. If there has been improper assessment and two views are possible from the materials, it would not be sufficient to cancel bail granted. It is not a case where there has been absolute non-consideration. Allegation is that sufficient materials were not placed before the Magistrate to show about the nature of injuries. Grant of bail on consideration of material placed for Consideration does not involve any adjudication about the gravity of the offence. It is open to the Investigating Agency to place further materials, and that would be subject- matter of adjudication at trial. This is not a case of illegal grant of bail. I am, therefore, not inclined the cancel bail granted in respect of opposite party Nos. 1 and 3. However, so far as opp. party No. 2 is concerned, I find that he has taken law into his own hands. He filed a petition for bail on 20-8-1988, but the same was not pressed. It was not legal on the part of the learned Magistrate to only record that the accused persons did not surrender. The question of their not surrendering after they filed a bail petition does not stand to reason. A bail petition can only be filed when a person surrenders to custody. It is not a case of prayer for anticipatory bail. Unless a person is in custody, the question of a bail petition being filed does not arise. As observed by the Supreme Court in AIR 1980 SC 785 : Niranjan Singh and Anr. v. Prabhakar Rsjaram Kharote and others, no person accused of an offence can move the Court for bail Under Section 439 of the Code unless he is in custody. In the facts of that case, police officers who were accused persons before the Magistrate applied for bail, who refused the prayer for bail, and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. The Supreme Court held that the order of the Magistrate granting stay was wholly irregular, and enabled the accused persons to circumvent the principle of Section 489 of the Code. Custody in Section 439 is physical control or at least physical presence of the accused in Court, coupled with submission to the jurisdiction and orders of the Court. A Court cannot deal with an application Under Section 439 for bail unless the accused submits to the jurisdiction and orders of the Court. Filing of a bail petition and thereafter saying that the accused persons were not surrendering, is not sanctioned in law. That being the position, the second bail application filed by opp party No. 2 for being released on bail did not cure the earlier irregularity. In the eye of law, the opp. party No. 2 had run away illegally from custody. The learned SDJM in charge did not consider these aspects. He also did not consider the fact that earlier the opp. party No. 2 had not pressed for bail. Considering these infirmities, I feel cancellation of bail granted to opp. part No. 2 is warranted. It is open to him to move for bail afresh. If a fresh prayer for bail is made after opp. party No. 2 surrenders to custody, the same shall be considered on merits.
The application is accordingly disposed of.