Orissa High Court
Nanda Sethi And Two Others vs State Of Orissa on 26 August, 2013
Equivalent citations: 2014 CRI. L. J. 536, (2014) 134 ALLINDCAS 349 (ORI), (2015) MH LJ (CRI) 364, (2014) 2 CRIMES 742, 2014 (134) ALLINDCAS 349, (2013) 2 ORISSA LR 754, (2013) 116 CUT LT 727, (2013) 56 OCR 824, (2014) 57 OCR 161
Author: Biswajit Mohanty
Bench: Pradip Mohanty, Biswajit Mohanty
ORISSA HIGH COURT, CUTTACK
Misc. Case No.890 of 2012
(Arising out of CRLA No.147 of 2003)
In the matter of an application for cancellation of bail under Section 482
of the Code of Criminal Procedure.
--------------------
Nanda Sethi and two others ...... Appellants
-Versus-
State of Orissa ...... Respondent
A.Dilesu Dora ...... (Misc. Case petitioner)
For appellants : M/s.Pravash Ch. Jena,
S.J.Das & A.K.Das
For Respondent : Learned Addl. Standing Counsel
For Misc. Case petitioner: M/s. Deba Prasad Das &
Sashikanta Behera
-------------------
Date of Order: 26.08.2013
--------------------
P R E S E N T:
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
Biswajit Mohanty, J. This is an application for cancellation of bail under
Section 482 of Cr.P.C. filed by one A.Dilesu Dora, who happens to be
2
P.W.5 in Sessions Case No.368 of 2001, out of which Criminal Appeal
No.147 of 2003 arises.
2. Shortly stated the facts are as follows:
The appellants three in number have filed Criminal
Appeal No.147 of 2003 against the judgment and order dated
9.5.2003 passed by the learned Sessions Judge, Ganjam-Gajapati,
Berhampur in Sessions Case No.368 of 2001 convicting and
sentencing the appellants to undergo life imprisonment for the
charges under Section 302/34 of I.P.C. During pendency of the
appeal, appellants filed Misc. Case No.217 of 2011 praying for bail.
On 20.06.2011, the above noted Misc. Case was allowed by this
Court directing the trial court to admit the appellants to bail on such
terms and conditions as may be deemed just and proper.
Accordingly, on 1.7.2011, the learned Sessions Judge, Ganjam
directed to release the appellant Nos.2 and 3 on bail with conditions
that they should not leave the territorial jurisdiction of that court
without prior permission and that they should not indulge in any
unlawful activities. Similarly, on 6.7.2011, the learned Sessions
Judge, Ganjam directed to release the appellant No.1 on bail with
conditions that he should not leave the territorial jurisdiction of that
court without prior permission and should not indulge in any
unlawful activities.
3
3. After being so released on bail, the appellants started
threatening the present petitioner as well as the informant, his
brother, namely, A. Ganesh Dora who was examined as P.W.1 in
Sessions Case No.368 of 2001 with an intention to kill them. It may
be noted here that the above noted Sessions Case No.368 of 2001,
out of which Criminal Appeal No.147 of 2003 arises was for
commission of murder of one, A. Fakir Mohan Dora in the year 2001,
who happens to be the brother of the present petitioner (P.W.5) and
informant (P.W.1).
4. While on bail, the appellants committed offence under
Sections 306/326/34 of I.P.C. and Section 3 of the E.S. Act read with
Section 27 of the Arms Act. On account of this, Berhampur Sadar
P.S. Case No.172 of 2011 was registered against them. It is further
submitted that in the said case, preliminary Final Form was filed on
6.6.2012 and final charge sheet was filed on 25.06.2012. The above
noted Berhampur Sadar P.S. Case No.172 of 2011 was registered at
the instance of the informant, Rajendra Sahoo on 5.12.2011.
On 5.12.2011 itself, the appellant No.1 started
threatening A.Ganesh Dora (P.W.1/informant) with dire
consequences. Accordingly, on 7.12.2011, A. Ganesh Dora filed F.I.R.
at Berhampur Sadar P.S. and the said F.I.R. was registered as P.S.
Case No.175 of 2011. In the said F.I.R., A. Ganesh Dora
(informant/P.W.1) made it clear that the appellant No.1 was
4
threatening to kill both, A.Ganesh Dora and A.Dilesu Dora in order to
take revenge. On 8.2.2012, the appellants were arrested in
connection with Berhampur Sadar P.S. Case No.172 of 2011.
Further, learned counsel for the petitioner in the present Misc.
Case submitted that on 7.4.2012, the appellants in furtherance of
their criminal conspiracy committed the murder of A.Ganesh Dora
(P.W.1/informant) and accordingly the present petitioner, A.Dilesu
Dora filed F.I.R. No.53 of 2012 at Berhampur Sadar P.S. The above
noted F.I.R. No.53 of 2012 was registered under Sections 302/120-
B/34 of I.P.C. read with Section 27 of the Arms Act and Section 3 of
the E.S. Act. In the said case, preliminary Final Form has been
submitted on 30.12.2012. On perusal of the preliminary Final Form,
it is clear that during investigation, it came to the light that since
A.Ganesh Dora (P.W.1/informant) was trying to get the bail of the
appellants cancelled, the appellants became revengeful and hatched
out a plan from inside the jail by contacting the accused, Siba
Sankar Gouda and his associates to immediately commit the murder
of A.Ganesh Dora. In this background, accused, Sibasankar Gouda
collected his associates, namely, Simanchal Sethy, Bijay Sahoo and
Mangal Sabat and hatched out a plan to commit murder of A.Ganesh
Dora. Ultimately, they executed their plan successfully by murdering
A.Ganesh Dora on 7.4.2012. While in police custody, Siba Sankar
Gouda confessed to have committed the murder along with his
5
associates, namely, Simanchal Sethy, Bijay Sahoo and Mangal Sabat
as per the direction of the accused persons Maya @ Maheswar
Gouda, Nanda Sethy and Kalia Gouda (who are the appellants in the
present Criminal Appeal No.147 of 2003) while they were in jail.
Sibasankar Gouda also led to discovery of weapon of offence, i.e., one
Kati stating that he has used the same for committing the murder of
A. Ganesh Dora. During course of investigation, the police seized
original Interview Register of Circle Jail, Berhampur where the
appellants are presently stationed. On verification of the said
Interview Register, it was found that accused, Sibasankar Gouda had
met appellant Nos.2 and 3 on 5.4.2012, i.e., prior to the date of
occurrence on 7.4.2012. In such background, the petitioner in the
present case, who happens to be P.W.5 in Sessions Case No.368 of
2001 out of which Criminal Appeal No.147 of 2003 arises prays for
cancellation of bail of appellants as they have misused their liberty
and they have committed heinous offences. In the Misc. Case he has
also averred that appellants are now sending other antisocial persons
to kill him.
5. The appellants have filed an objection to the above prayer
for cancellation of bail. In their objection, they have taken a stand
that A.Dilesu Dora (P.W.5) whose two brothers have been murdered
have no locus standi for filing the cancellation of bail in view of
second proviso to Clause (1) of Section 389 of the Code of Criminal
6
Procedure, 1973, which makes it clear that where the convicted
person is released on bail, it shall be open to the public prosecutor to
file an application for cancellation of bail. Accordingly, learned
counsel for the appellants submitted that petition filed by A. Ganesh
Dora under Section 389 (1) of Cr.P.C. is not maintainable and only
Public Prosecutor can file an application for cancellation of bail.
Secondly, he submitted that Berhampur Sadar P.S. Case No.172 of
2011 and Berhampur Sadar P.S. Case No.53 of 2012 have been
registered against the appellants to falsely implicate them in order to
take revenge. So far as Berhampur Sadar P.S. Case No.175 of 2011 is
concerned, where appellant No.1 was the accused, it is submitted
that in the said case appellant No.1 has already been acquitted by
the trial court due to insufficient evidence. In such background, the
appellants pray for dismissal of the petition for cancellation of bail
filed by A.Dilesu Dora.
6. During course of hearing, learned counsel for A.Dilesu
Dora strenuously urged that though one of the conditions for grant of
bail was that the appellant should not indulge in any unlawful
activities; the appellants have violated the said condition with
impunity and as a result brother of the petitioner, A.Ganesh Dora
(P.W.1/informant) has been murdered. Further, learned counsel
submitted that he has not filed the present application for
cancellation of bail under Section 389 (1) Cr.P.C., but under Section
7
482 of Cr.P.C. In support of his contention, learned counsel for the
petitioner (A.Dilesu Dora) relies on a decision of the Hon'ble Supreme
Court reported in AIR 1967 SC 286 (Pampapathy v. State of
Mysore). In that case, the Mysore High Court had allowed the
application for cancellation of bail and directed re-arrest of the
accused, who were on bail pending appeals against conviction under
various provision of Indian Penal Code. There, the applications for
cancellation of bail were filed under Section 498 (2) and 561 (A) of the
Code of Criminal Procedure, 1898. In that case an argument was
advanced on behalf of the accused that once an order of bail is made
pending appeal, subsequent conduct of the accused-appellant
however reprehensible cannot justify the appellate court in revoking
the order of bail and directing re-arrest of all the accused-appellants.
The Hon'ble Supreme Court repelled such contention stating that if
the contention of the appellant was accepted then it would lead to
fantastic result. The appellants may commit further acts of violence
for the very same offences for which they have been convicted.
Accordingly, the Hon'ble Supreme Court found no fault with the
order of cancellation of bail issued by Mysore High Court and held
that the provision of Section 561 (A) are clearly attracted to the facts
of the case and the High Court was entitled to cancel the bail of the
appellants under the said Section. It is needless to mention that
present Section 482 of Cr.P.C. is the new incarnation of Section 561
8
(A) of the old Code.
7. Per contra, learned counsel for the appellants argued that
as per the judgment of the Hon'ble Patna High Court pronounced on
9th October, 2012 in Criminal Appeal (D.B.) No.721 of 2008
(Madhusudan Prasad v. The State of Bihar), a petition for
cancellation of bail can only be moved by Public Prosecutor under
second proviso to sub-clause (1) of Section 389 of Cr.P.C. and
contended that neither the informant nor anybody else can file a
petition for cancellation of bail. Second proviso was introduced with
effect from 23.06.2006 by Code of Criminal Procedure (Amendment)
Act, 2005.
8 (i) A bare reading of Section 389 of Cr.P.C. makes it clear
that though liberty has been given to the Public Prosecutor to file an
application for cancellation of bail, it nowhere restricts any other
affected person or relative of a victim from moving for cancellation of
bail granted under Sub-clause (1) of Section 389 of Cr.P.C. The
Hon'ble Supreme Court in its decision in the case of Pampapathy
(supra), made it clear that where the appellants indulge in gross
misuse of liberty granted to them while enlarged on bail, the High
Court would be justified in exercising its power under Section 561 (A)
to cancel the bail. In the said decision, the Hon'ble Supreme Court
also made it clear that the inherent power can be exercised if the
matter in question is not covered by any specific provision of the
9
Cr.P.C. Here, admittedly, there exists no provision of the Cr.P.C. to
cover a situation like the present where despite commission of
ghastly crimes in violation of condition of bail, the Public Prosecutor
does not take any step to file an application for cancellation of bail.
Cr.P.C. does not make it clear as to what is the remedy left to the
victim/relatives of victim under such circumstances. The present
Misc. Case was filed before this Court on 18.05.2012. Despite this,
the State/Public Prosecutor did not file any petition to cancel bail of
the appellants. Thus, it is a clear case when this Court can exercise
its inherent power under Section 482 of Cr.P.C. to cancel bail in
order to prevent abuse of process of its order and also to secure the
ends of justice.
(ii) So far as the decision of the Patna High Court is concerned,
with great respect, we are unable to persuade ourselves to accept the
ratio of the said decision that only a Public Prosecutor can file a
petition for cancellation of bail under second proviso to Section 389
of Cr.P.C. and none else. The said decision does not take into
account as to what would happen if despite gross violation of
conditions of bail, Public Prosecutor does not move application for
cancellation of bail. Even, otherwise, the said decision of Patna High
Court is distinguishable on facts. There, the allegation was that the
bail was granted on account of wrong presentation of facts and after
grant of bail, accused was pressurizing the witnesses. There, the
10
Court came to a finding that there has been no violation of any
conditions of bail. But in the instant case, as indicated earlier, it is clear
that there has been serious violation of condition of bail and Berhampur
Sadar P.S. Case No.53 of 2012 has been registered for murder of
P.W.1. Further, Patna High Court decision nowhere lays down that in
view of second proviso to Clause (1) of Section 389 of Cr.P.C.
recourse to Section 482 of Cr.P.C. cannot be taken by victim/relative
of victim under any circumstances for cancellation of bail. In our
humble opinion, victim/relation of the victim can move for
cancellation of bail under Section 482 of Cr.P.C., when bail
conditions are grossly violated, particularly where Public Prosecutor
remains silent.
(iii) Further, the Hon'ble Supreme Court has made it clear in AIR
2000 SC 1851 and AIR 2001 SC 2023 that power vested in the High
Court to cancel the bail can be invoked by State or any aggrieved
party. High Court can also exercise the said power suo motu and at
the instance of a near relative. Here, petitioner is that unfortunate
person whose two brothers have been murdered.
9. Narration of facts (supra) of present case makes it clear
that the appellants have violated the conditions imposed in the bail
order with impunity and have committed heinous crimes. One of the
conditions was that the appellants should not indulge in any
unlawful activities. Here, perusal of Case Diaries shows that
11
appellants have indulged in unlawful activities for which, charge
sheets have been filed in Berhampur Sadar P.S. Case No.172 of 2011
and Berhampur Sadar P.S. Case No.53 of 2012 against appellants.
Admittedly, the informant has been killed in the meantime leading to
filing of Berhampur Sadar P.S. Case No.53 of 2012. In such
background, if the High Court will not exercise its power under
Section 482 of Cr.P.C., then there would be grave injustice and
citizens will lose their faith in criminal justice system.
10. Therefore, in such background, we humbly record our
dissent with reasoning of the Patna High Court in the case of
Madhusudan Prasad (supra) and allow the present Misc. Case.
Accordingly, we cancel the bail order given in favour of the appellants
in this Criminal Appeal No.147 of 2003 and direct that the appellants
should be taken into custody immediately, if they are not already in
jail custody in connection with any other case.
Accordingly, the Misc. Case is disposed of.
.......... ..........................
Biswajit Mohanty, J.
Pradip Mohanty, J.I agree ......... .......................... Pradip Mohanty, J.
12High Court of Orissa, Cuttack Dated 26th August, 2013/bns