Orissa High Court
State Of Orissa vs Jagannath Patel And Anr. on 19 August, 1991
Equivalent citations: 1992CRILJ1818
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. The State has sought for cancellation of bail granted to the opposite parties by the learned Additional Sessions Judge, Bargarh in a case involving allegations of offences under Section 306/498-A of the Indian Penal Code, 1860 (in short 'IPC') and Section 4 of the Dowry Prohibition Act, 1961 (in short 'the Act').
2. The background facts are as follows :
One Harihar Naik lodged first information report alleging that his daughter Satia was married to opposite party No. 1 and because of consistent demand of dowry, both he and his daughter were perplexed and the matter came to an impasse when on 8-12-1990 he was humiliated by the opposite parties for nonpayment of the part of gold he had agreed to pay at the time of marriage. On 9-12-1990 in the night Satia took poison and though some attempts were made by opposite parties to get her treated by a doctor, and though hospitalisation was made in Burla Medical College Hospital, she died at about 9 a.m. on 10-12-1990.
3. Several witnesses were examined by the Investigating Officer during investigation. The accused persons were arrested and forwarded to custody. After due production before the learned Sub-Divisional Judicial Magistrate (in short 'SDJM'), bail applications were moved by the opposite parties before him which were rejected on the ground that the alleged offences were exclusively triable by Court of Session. Thereafter the opposite parties moved for bail before the learned Additional Sessions Judge, who on consideration of materials placed before him granted bail. He referred to statements recorded by the Police during investigation and held that all possible efforts were taken by the opposite parties to save the life of Satia, and prima facie the allegations of physical and mental torture occasioning death had not been brought out, and therefore accused persons were entitled to bail.
4. Main plank of the learned counsel for the State in support of the application for cancellation of bail is that the learned Additional Sessions Judge has misread the evidence and has come to a conclusion that there was no allegation of physical and mental torture. In this context, the statements of Khirasagar Patel, Dambarudhar Patel and Purna Patel were referred to. It was submitted that in the first information report such torture was clearly indicated. It is also submitted that there having been injudicious exercise of discretion, the bail granted was liable to be cancelled.
5. The learned counsel appearing for opposite parties, however, submits that grant of bail and cancellation of bail stand on two different footings. While bail can be refused after consideration of materials, once it is granted, special reasons must be indicated to warrant cancellation. It is also submitted that the opposite parties have enjoyed liberty of bail for a substantial period without any allegation of any misuse of liberty by them and, therefore, the bail granted should not be cancelled. The conduct of the accused persons (opposite parties herein) in making all possible efforts to save the life of Satia clearly falsifies the allegations levelled.
6. The power to take into custody an accused who has been enlarged on bail has to be exercised with care and circumspection. The power is of extraordinary nature and is meant to be exercised in appropriate cases when with preponderance of probabilities it is clear that the accused has misused the liberty, or compelling reasons exist, or grant of bail was illegal and/or was by improper, arbitrary exercise of discretion. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made. When it would be no longer conducive to a fair trial to allow the accused to retain his freedom of enjoying bail, cancellation is called for. (in short 'the Code') deal with powers of the Court to cancel bail. Division Bench of this Court in (1986) 62 Cut LT 699 : Chhaila Pradhan v. Bansidhar Pradhan, after considering several decisions on the point, observed that unrestricted power is conferred on the High Court and the Court of Session in the matter of cancellation of bail which, no doubt, is to be exercised with due care and circumspection. Bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under Section 439(2) of the Code, even if there is no additional circumstance against an accused appearing in record after grant of bail.
7. If a Court erroneously looks at materials and comes to a conclusion which on the face of it is contrary to the materials, it amounts to non-application of mind. Grant of bail by such non-application of mind would amount to improper and arbitrary exercise of judicial discretion. As rightly submitted by the learned counsel for the State, evidence of some of the witnesses contained allegations of torture. Acceptability thereof and/or the credibility of the witnesses is a matter of adjudication at trial. Detailed examination of evidence and elaborate documentation of merit is not desirable and should be avoided while passing orders on bail applications. What is necessary is the satisfaction about prima facie case and not an exhaustive exploration of merits in the order itself. See AIR 1980 SC 786 : 1980 Cri LJ 426, Niranjan Singh v. Prabhakar Raja-ram Kharote. Therefore, I have no hesitation in holding that the learned Additional Sessions Judge was not justified in granting bail.
8. The question that further remains to be answered is whether at this stage the bail granted should be cancelled. The impugned order granting bail was passed on 19-12-1990. The application for cancellation was filed on 20-3-1991, and notice was issued on 29-4-1991. There is no material placed before me that the opposite parties have been misusing their liberty while on bail. On the contrary, the officer-in-charge of Ambabana Police Station in his affidavit dated 23-4-1991 has stated that "there being chance of tampering of evidence" the bail granted is to be cancelled (underlining by me for emphasis). In reality there is no allegation of tampering with evidence. Mere likelihood cannot be a substitute for actual commission of an act. Long period of liberty is not per se a ground for not accepting prayer for cancellation of bail. Considering the fact that application for cancellation was made after about three months of the order granting bail and the opposite parties have enjoyed liberty for about eight months by now, I do not feel inclined to cancel the bail granted. However, ends of justice would be best served if the trial, where innocence or otherwise of the accused persons shall be established, is expedited.
9. The criminal miscellaneous case is accordingly disposed of.