Orissa High Court
Hadiani Dei vs State Of Orissa And Ors. on 14 September, 1993
Equivalent citations: 1994CRILJ660, 1993(II)OLR443
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The short but important point for determination is as to whether a person who is accused of an offence under the Narcotic Drugs and Psychotropic Substances Act, hereinafter "the Act", and has been released on bail during the state of investigation is required to be remanded to jail custody on cognizance of the offence being taken by the Sessions Judge because of non-fulfilment of the requirements mentioned in Section 37(b)(ii) of the Act, namely, reasonable ground for believing that the person concerned is no, guilty of the offence and he is not likely to commit any offence while on bail.
2. The facts tie within a narrow compass What had happened was that the petitioner against whom a case had been registered under the Act had been released on bail by an order passed by the Sessions Judge, Puri on 17-6-1992. That order had come to be passed during the stage of investigation on the ground that the materials available on record were not sufficient to connect the petitioner with the seized hemp plants. Subsequently, an inquiry Under Section 202 of the Code of Criminal Procedure was made and a prima facie case being made out, cognizance of the offence was taken by the Sessions Judge, Puri. The Sub-Divisional Judicial Magistrate, Nayagarh had directed the petitioner to appear before the Sessions Judge on 6-1-1993. On that day, the accused filed a petition to release her on bail on the ground that she was on bail granted previpusly. The Public Prosecutor opposed the same by stating that in view of the restrictions mentioned in Section 37(b)(ii) of the Act, the accused was not entitled to bail. The learned Sessions Judge accepted the submission and remanded the accused to jail custody.
3. It has been contended by Shri Nayak that the accused could not have been remanded to custody because of the restrictions mentioned above inasmuch as the present being a case of cancellation of bail, the same could have been done only on satisfaction of those conditions which have normally to exist for cancellation of bail, like misuse of liberty, tampering of evidence, attempt to abscond, etc These being not there, bail could not have been cancelled.
4. In support of his submission, Shrt Nayak seeks to place reliance on two decisions in the main ; these being (i) Free Legal Aid Committee v. State of Bihar, AIR 1982 SC 1463 : and (it) v. Chinna Reddy v. N. Vidyasagar Reddy, 1932 Cri. LJ 2133. which is a judgment of a learned Single Judge of Andhra Pradesh High Court.
5. A perusal of the aforesaid decisions shows that none of the two really assists us to decide the , point involved inasmuch as in the first case the matter which was brought to the notice of the Apex Court by the Free Legal Aid Committee was that in a case triable by the Court of Session, the practice being followed by the Magistrates in Bihar while releasing the accused on bail had been that the same is granted only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Session, he is re-arrested and brought before that Court where he has to apply once again for fresh bail, which causes considerable inconvenience to the accused without any corresponding advantage in so far as administration of criminal justice is concerned. The Court observed that this situation could easily be avoided if the Magistrate while releasing the accused on bail requires execution of bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him, but also to appear when called upon in the Court of Session. This was held to be permissible because of what has been stated in Section 441(3), Cr PC read with what has been provided in Section 209(b) of the Code.
6. Chinna Reddy's case was one where anticipatory bail had been granted by the Court of Session, because of which it was stated that the committing Magistrate had no jurisdiction to remand the accused to custody at the the time of committal. There is a passing observation in paragraph 6 that the Sessions Court which had granted anticipatory bail had also no jurisdiction to pass an order of cancellation Under Section 439(2), Cr PC "at its whims and fancy", which could be done only on specific grounds that the accused had committed misconduct or misused the terms of the bail bond or that he was trying to abscond after the charge-sheet was filed or was threatening or influencing or tampering with the evidence or obstructing the judicial process or otherwise misusing or abusing the bail. These observations have to be taken as obiter, because what had happened in that case was that the Magistrate himself while committing the accused remanded him to jail custody. So, what the Court of Session could do in such a matter was really not the question for determination.
7. Shri Nayak has also referred us to three other decisions apart from one of this Court, to which we shall advert later. These decisions are : (i) Ram Sewak v. State of Madhya Pradesh, 1979 Cri LJ 1485 ; (2) Sunderlal v. State, 1983 Cri LJ 736 (FB); and (iii) State of Rajasthan v. Sanjay Singh, 1988 (2) Crimes 521. None of these decisions is on the point under examination inasmuch as (i) in Ram Sewak's case, which had come up before a Division Bench of Madhya Pradesh High Court, question raised related to the power of the High Court or of the Court of Session to issue directions for grant of anticipatory bail to persons who have been released on bail during committal proceedings and have not yet been committed but who apprehend that they may be remanded to custody at the time of committal ; and (ii) in Sunderlal, a Full Bench of Allahabad High Court examined the question as to whether detention of the petitioner in jail after commitment was illegal, as at the time of commitment the warrant issued for the purpose of detention was for an indefinite period; and (iii) Sanjay Singh's case decided by a learned Single Judge of Rajasthan High Court was on the point as to whether bail can be cancelled on the possibility of tampering of evidence.
8. We now come to this Court's decision referred by Shri Nayak the same being Ramesh Chandra v. State, 53(1982) CLT 345. That was a case where the petitioner had been released on bail by the Sessions Judge because of the provisions contained in Section 167(2), Cr PC, as charge-sheet had not been submitted within time. But before actual release, the Sessions Judge was informed about submission of charge-sheet, and so, recall o1 the order was allowed, as prayed for. The learned Single Judge of this Court observed that this was not permissible, because that amounted to review of the order (and not cancellation of the bail order) which is barred in view of what is stated in Section 362 of the Code, which permits only correction of clerical or arithmetical error. So, this case is also not relevant for our purpose.
9. The Learned Government Advocate in his turn refers us to Kewal Krishnan v. Suraj Bhan, AIR 1980 SC 1780, which has dealt with the power of the Magistrate Under Section 209(b) of the Code and has stated that if th3 accused be on bail, the same should not be cancelled arbitrarily, as stated at page 1784, because the words "subject to the provisions of this Code relating to bail" finding place in the aforesaid clause would permit the accused committed to the Court of Session to continue on bail. The decision also does not assist us in answering the question. The learned Government Advocate also brings to our notice a Bench decision of this Court in Matia Chalan v. State of Orissa, 45(1978) CLT 514, which is again on the question as to when a Magistrate, while committing an accused to the Court of Session, should remand him to custody. It states that if the accused be on bail, it has to be cancelled, as observed at page 521, Under Section 437(5). Cr PC, which can be on account of various exigencies. This decision too is not quite relevant.
10. We have, however, noticed a recent decision of the Apex Court, which, though not on the question at hand, throws enough light as to how the controversy with which we are seized should be resolved. That decision was rendered in Aslam Babalal v. State of Maharashtra, AIR 1993 SC 1. There, the question for examination was whether the bail of a person who has been released because of what has been provided in proviso (a) to Section 167 (2) of the Code, which springs into action when charge sheet is not filed within the time visualised by the proviso, can be cancelled merely on the filing of the charge sheet. The majority held that this could not be done and opined that there must exist special reasons for doing so. This view was taken, because release on bail in view of the' aforesaid provision in the Code has also to be taken to be an order Under Section 437 (1) or (2) or Sec. 439(1), because of which power of cancellation could be only Under Section 437(5) or Section 439(2), as the case may be, and in such a situation the considerations which are followed for cancellation of bail granted Under Section 437 (1) or (2). or Section 439(1) have to exist. It was pointed out that the fact that bail was earlier secured by the thrust of the aforesaid proviso would recede to the background.
11. If the aforesaid be the position in law when a person is released even with the aid of proviso (a) to Section 167(2) of the Code, we are of the opinion that the same view is required to be taken when during investigation a person is released on bail, which order of bail has to be treated as one Under Section 437 (1) or (2) or Section 439(1), because of which cancellation could be made under the corresponding provisions of Section 437 or Section 439 and on the grounds germane to such cancellation. May it be stated here that power of release on bail under the Act either by the Magistrate or a Special Court is same as that visualised by Section 167, Cr PC as would appear from Clauses (b) and (c) of Sub-section (1) of Section 36-A of the Act. No doubt, Section 37 of the Act starts with a non obstante clause : ("Notwithstanding anything contained in the Code of Criminal Procedure, 1973"); what has been stated in Clause (b)(ii) of Section 37 of the Act would be applicable, according to us, when the question of release on bail is being considered. But, once an accused has been released even without satisfying the requirements in question, the normal criminal law would spring into action and bait would be open to be cancelled only on the grounds on which bail can be otherwise cancelled, the important . grounds relating to which have been mentioned in paragraph 11 of Aslam Babalal's case, the same being : (i) where the accused misuses his liability by indulging in similar criminal activity ; (ii) interferes with the course of investigation; (iii) attempts to tamper with evidence or witnesses ; (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation ; (v) there is likelihood of his fleeing to another country ; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency ; (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are of course illustrative and not exhaustive. Remand to custody merely because of non-fulfilment of the requirements of Sub-clause (ii) would really amount to review of the earlier order, which is not permissible, in view of what has been stated in Sec. 362 of the Code, which provision applies to proceedings before the Special Court (or till constitution of such Courts before the Court of Session). This is what has been held by the Single Judge of this Court in Ramesh Chandra's case also.
12. In view of the above, the order of the Sessions Judge as at Annexure 2 is quashed. The petitioner would continue on her previous bail unless the same is cancelled on any of the grounds noted above or any ground akin to them.
13. The petition is allowed accordingly.
R.K. Patra, J.
14. I agree.