Orissa High Court
Sri Kalikumar Das vs Sri Bhakta Charan Jena And Anr. on 25 August, 2006
Equivalent citations: I(2007)DMC221, 2006(II)OLR581
Author: M.M. Das
Bench: M.M. Das
JUDGMENT M.M. Das, J.
1. The petitioner in this application under Section 439(2) of the Code of Criminal Procedure has sought for cancellation of the bail granted by this Court to the opp. party No. 1 on 23.7.2004 in BLAPL No. 5319 of 2004.
2. On the information of the petitioner, Bhograi P.S.Case No. 113 of 2003 corresponding to G.R.Case No. 309 of 2003 pending before the learned J.M.F.C, Jaleswar under Sections 498-A/304-B/302 IPC read with Section 4 of the D.P. Act against the opp. party No. 1 who is the husband of the deceased and daughter of the petitioner, namely, Sumita.
3. After investigation was completed, a charge sheet was filed against the opp. party No. 1 under Sections 498-A and 406, IPC. During the course of the investigation, the opp. party No. 1 approached this Court for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure in BLAPL No. 5319 of 2004. Considering the facts of the case, at that stage of the investigation, this Court passed the order dated 23.7.2004 which is quoted hereunder:
Heard Mr. Sarangi, learned Counsel for the petitioner and the learned Addl. Standing Counsel.
This is an application under Section 438, Cr.P.C. for grant of anticipatory bail.
Perused the report including the post-mortem report. On consideration of the nature of the death of the deceased, it is directed that in the event the petitioner surrenders before the learned J.M.F.C, Jaleswar in G.R.Case No. 309 of 2003 arising out of Bhograi P.S.Case No. 11 3 of 2003 by 4.8.2004 and moves an application for bail, he shall be released on bail on such terms and conditions as the learned Magistrate may deem just and proper.
The BLAPL is disposed of.
4. It appears that the opp. party No. 1 was accordingly released on bail pursuant to the aforesaid order dated 23.7.2004 and subsequently, the charge sheet being filed against the opp. party No. 1, cognizance was taken by the learned J.M.F.C, Jaleswar on 17.12.2004 under Sections 498-A and 406, IPC. A protest petition was filed by the opp. party No. 1 and on consideration of the material on record, learned Magistrate has subsequently also taken cognizance of the offence under Section 304-B, IPC.
5. The petitioner in this application alleges that after being released on bail, the opp. party No. 1 on 16.12.2004 alongwith his father who was also one of the accused, assaulted the petitioner's elder daughter and one of his well wishers on the way while they were returning to their houses. On such assault, the elder daughter of the petitioner lodged information on 17.12.2004 which was registered as an FIR at the Bhograi Police Station and after investigation, a charge-sheet has been filed as against the opp. party No. 1 and his father under Sections 341/321/294/506/34, IPC and the case has been registered as G.R.Case No. 88 of 2004. It is further alleged that the opp. party No. 1 offered money to the elder daughter of the petitioner persuading her not to depose in the case against him and when she refused to accept the money, the opp. party No. 1 threatened her with dire consequences. Upon such threatening, the elder daughter of the petitioner did not venture to go personally to the police station to lodge any information in that regard but sent the same to the OIC, Bhograi Police Station with copy to the Superintendent of Police, Balasore by post. It is also stated by the petitioner that as a counter blast the opp. party No. 1 's father has filed a private complaint being I.C.C.No. 55 of 2005 against the petitioner, his daughters, son and one of the witnesses. Another FIR was lodged by one Binay Kumar Das at the instigation of the opp. party No. 1 on 4.8.2005 against the petitioner and his family members under Sections 427/341/323/324/354/506/34, IPC. It also alleged that even the Advocate's Clerk of the opp. Party No. 1's Advocate has filed a false complaint case being I.C.C. No. 106 of 2005 against, the elder daughter of the petitioner before the learned J.M.F.C, Jaleswar. The petitioner has sought for cancellation of the bail granted to the opp. party No. 1 on the above grounds.
6. After service of notice on the opp. party No. 1, he has entered appearance in this case through his counsel and has filed an affidavit denying all the allegations made by the petitioner in this application. An objection was also raised from the side of the opp. party No. 1 accused that this application cannot be maintained at the behest of the petitioner who was the informant in the case as the State has not filed any application for cancellation of the bail.
7. Mrs. Jena, learned Counsel for the petitioner-informant relying upon the decision in the case of R. Rathinam v. The State and Anr. AIR 2000 SC 1851 submitted that law is well settled that power of cancellation of bail under Section 439(2) Cr.P.C. can be exercised by this Court suo motu on being moved by any person who is concerned in the matter. The Supreme Court in the case of R. Rathinam (supra) has categorically held that power under Sub-section (2) of Section 439, Cr.P.C. is a power conferred on the High Court or Sessions Court to cancel bail. Exercising of such power is not banned on the premises that bail was earlier granted by the High Court on judicial consideration and there is nothing to indicate that such power can be exercised only if the State or the investigating agency or the public prosecutor moves for it by a petition. The said power can be invoked either by the State or by any aggrieved party and also can be exercised suo motu by High Court. Thus, the Supreme Court concluded that any member of the public whether belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. On such application being filed if the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, it is open for the High Court to dismiss the petition. But otherwise, it is also open to the High Court to cancel the bail if it feels that the reasons stated in the petition are sufficient enough for doing so.
8. In view of the above position of law, I hold that this petition for cancellation of the bail at the behest of the informant is maintainable. It has been held by the Supreme Court in the case of Talab Hazi Hussain v. Mondkar as follows:
There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be legitimately invoked. In regard to non-bailable offences there is no need to invoke such power because Section 497(5) specifically deals with such cases.
9. On consideration of the allegations made in the petition and the documents filed in support thereof, I am of the considered view that the opp. party No. 1 after being granted bail by this Court pursuant to the order dated 23.7.2004 in BLAPL No. 5319 of 2004, has flagrantly mis-used his liberty and there is ample material to show that the opp. party No. 1 has attempted to intimidate the witnesses to obstruct the smooth progress of a fair trial. In my considered opinion, therefore, it is required for the ends of justice to cancel the bail granted to the opp. party No. 1 by the aforesaid order and direct that the opp. party No. 1 be taken into the custody till the trial is over.
10. I accordingly allow this application and cancel the bail granted in favour of the opp. party No. 1 by order dated 23.7.2004 passed by this Court in BLAPL No. 5319 of 2004 and direct that the opp. party No. 1 be taken into the custody forthwith.