Orissa High Court
Subash Chandra Tripathy vs State Of Odisha ... Opp. Party on 8 April, 2021
Author: S.Pujahari
Bench: S.Pujahari
IN THE HIGH COURT OF ORISSA : CUTTACK
ABLAPL No.16304 of 2020
Subash Chandra Tripathy ... Petitioner
-Versus-
State of Odisha ... Opp. Party
CORAM : HON'BLE SHRI JUSTICE S.PUJAHARI
ORDER
I.A. No.528 of 2021
05. 08.04.2021 This matter is taken up by video conferencing mode.
2. This interim application has been filed by the Petitioner for appropriate order in the peculiar facts and circumstances of the case.
3. As it appears, the Petitioner had approached in the aforesaid ABLAPL for his release on pre-arrest bail. On 23.03.2021, this Court, after hearing the learned counsel for the parties, had passed an order on merit directing that if the Petitioner surrenders before the Court in seisin over the matter and makes a motion for bail, the Court in seisin over the matter shall release him on bail on such terms and conditions as the Court may deem just and proper inasmuch as the investigation in this case stated to have been completed. But in the said order, this Court had also put no fetter on the part of the police to arrest the Petitioner before his surrender. Such an order was passed keeping in mind that in many cases when this Court directs the accused persons on surrendering to be released on bail in a petition under Section 438 of Cr.P.C., the accused persons are not surrendering with promptitude, even if directed 2 to surrender within a stipulated period and approaching this Court for extension of time again and again. So the entire purpose of giving police to arrest notwithstanding the order of release on bail on surrendering is to compel the Petitioner to surrender with promptitude.
4. In this case as it appears, the certified copy of the aforesaid order was made available to the Petitioner on 30.03.2021. The Petitioner, however, could not surrender within 2nd April, 2021, as he was stated to be ill. Therefore, 2nd, 3rd and 4th April, 2021 being holidays, it is stated that the Petitioner was preparing to surrender and comply with the order of surrender on 5th April, 2021, but the police stated to have taking advantage of the aforesaid observation of this Court has taken him to custody. Hence, the Petitioner has come to this Court by filing the aforesaid interim application for appropriate direction.
5. Learned counsel for the Petitioner submits that in the peculiar facts and circumstances, the Court be directed to give benefit of the order of release as passed in the ABLAPL to the Petitioner.
6. Mr. Goutam Kumar Acharya, learned Senior Counsel appearing for the Informant submits that the order has become infructuous, as the Petitioner has already been arrested in view of the observation of this Court. Reliance in this regard has been placed on the decision of the Hon'ble Supreme Court in the case of P. Chidambaram -Vrs.- Directorate of 3 Enforcement, reported in (2019) 9 SCC 24. It is stated that the Petitioner therein had approached the Hon'ble Supreme Court against the order of refusal of his prayer for pre-arrest bail by the High Court, but before any order was passed protecting him from arrest, he having been taken to custody, the Court disposed of the petition rendering it to be infructuous. Hence, this Court should not allow the prayer of the present Petitioner, moreso as particular prayer has not been made, but order as deem fit and proper has been prayed for.
7. Learned counsel for the State has nothing to say in the matter.
8. It goes without saying that a petition under Section 438 of Cr.P.C. is maintainable when there is apprehension of arrest by any person for having committed a non-bailable offence. After arrest, no petition under Section 438 of Cr.P.C. is maintainable, is the settled position of law. After arrest, an accused may approach the Court under Section 437 or 439 of Cr.P.C., as the case may be. As such, when a petition under Section 438 of Cr.P.C. is pending where no interim order protecting the Petitioner is there and the person is taken to custody, such petition under Section 438 of Cr.P.C. is rendered infructuous. The aforesaid is the view of the Hon'ble Supreme Court in the case of P. Chidambaram (supra) wherein the Petitioner had sought for pre-arrest bail apprehending his arrest in a case registered by the C.B.I. to the Hon'ble Supreme Court 4 against the order of refusal of his such prayer by the High Court, but in the meanwhile, the Petitioner having been remanded to custody in the said case, the Hon'ble Supreme Court held the prayer has become infructuous.
9. However, the fact of the present case is different. Here in this case, the Petitioner was granted pre-arrest bail by an order that on surrendering, he be released on bail in exercise of power under Section 438 of Cr.P.C inasmuch as in this case investigation stated to have been completed. But, for the reasons stated earlier, as police was given jurisdiction to arrest the Petitioner prior to surrender, the Petitioner has been taken to custody in connection with the said observation. Therefore, question of maintainability of the prayer for pre-arrest bail is no more there in this case. Hence, submission made by the learned Senior Counsel appearing for the informant that the petition has become infructuous in view of the law laid down in the case of P. Chidambaram (supra) and also the observation of this Court, is without any substance, moreso when this interim application has been filed to seek an appropriate direction to render the benefit of the aforesaid order dated 23.03.2021 to the Petitioner in view of his being taken to custody prior to surrender.
10. Considering the fact that there is no deliberate delay on the part of the Petitioner to avail of the order granted in his favour in the ABLAPL before he was taken to custody, the Interim Application stands disposed of with an observation that 5 if the Petitioner is produced or has already been produced before the court concerned and makes a motion for bail, the court concerned shall extend him the benefit of the order dated 23.03.2021 directing his release on bail on surrendering in the aforesaid case.
As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.
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S.Pujahari, J.
DA